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Wolfson v. Bayview Loan Servicing LLC

United States District Court, D. Arizona

September 9, 2019

Ronald Wolfson, Wolfson,
Bayview Loan Servicing LLC, et al., Defendants.


          Dominic W. Lanza, United States District Judge.

         Pending before the Court are (1) a motion to withdraw and amend Rule 36 responses filed by Plaintiff Ronald Wolfson (Doc. 57) and (2) a motion for summary judgment filed by Defendants Bayview Loan Servicing, LLC (“Bayview”) and Bank of New York Mellon (“BONY”) (collectively “Defendants”) (Doc. 55). Both motions are fully briefed and nobody has requested oral argument. For the following reasons, both motions will be granted.


         I. Factual History

         Defendants filed various exhibits in support of their motion for summary judgment (Doc. 55 at 21-104) and Wolfson filed various exhibits in support of his opposition (Doc. 56 at 19-125). Additionally, Wolfson attached various documents as exhibits to his amended complaint (Doc. 33-1). The summary below is derived from those materials. Any disputed facts are resolved in Wolfson's favor, because he is the party opposing summary judgment.

         In May 2007, Wolfson executed a $272, 000 promissory note that was secured by a deed of trust on his home in Prescott, Arizona. (Doc. 55 at 28-30.) The deed lists Quicken Loans as the lender and Mortgage Electronic Registration Systems, Inc. (“MERS”), a nominee for the lender and its successors, as the beneficiary. (Doc. 55 at 33-34.)

         On September 27, 2007, Wolfson filed for Chapter 7 bankruptcy. (Doc. 33 ¶ 14.)

         On June 20, 2008, the bankruptcy court entered a discharge order. (Doc. 33-1 at 6.)

         Between May 2007 and May 2010, Wolfson made the scheduled monthly payments on his mortgage. (Doc. 55 at 25 ¶ 9; Doc. 56 at 51.) However, on June 1, 2010, Wolfson defaulted by failing to make the required monthly payment. (Id.)

         Wolfson testified during his deposition that he was instructed by a Bank of America representative to miss the June 2010 payment because this was the only way he could qualify for a loan modification. (Doc. 56 at 66.) Wolfson then applied to Bank of America for a loan modification, but this request was denied because “it didn't meet investor guidelines.” (Id.)

         On July 19, 2010, Wolfson received a letter from Bank of America entitled “Notice of Intent to Accelerate.” (Doc. 56 at 69.) Among other things, this letter stated that Wolfson's loan was currently “in default, ” that Wolfson had “the right to cure the default, ” that Wolfson could do so by paying $2, 856.29 by August 18, 2010, and that “[i]f the default is not cured on of before August 18, 2010, the mortgage payments will be accelerated with the full amount remaining accelerated and becoming due and payable in full, and foreclosure proceedings will be initiated at that time.” (Id.)

         On November 18, 2010, the Yavapai County Recorder recorded a “Corporation Assignment of Deed of Trust Arizona” under which MERS assigned all beneficial interest in the note and deed of trust to BONY. (Doc. 55 at 25 ¶ 10, 53.)

         In March 2011, Wolfson filed a lawsuit in state court in which he sought to challenge, inter alia, the validity of the 2010 assignment. (Doc. 33 ¶ 24.) In March 2012, the trial court dismissed Wolfson's complaint, and on March 11, 2014, the Arizona Court of Appeals affirmed. (Doc. 33 ¶ 27; Doc. 55 at 88-94.)

         On February 9, 2012, MERS made a second assignment to BONY of Wolfson's note and deed of trust. (Doc. 33-1 at 13.)[1]

         On October 16, 2012, Bayview obtained the servicing rights for the note. (Doc. 33-1 at 15-17; Doc. 55 at 25 ¶ 11.)

         On November 28, 2012, Wolfson received a letter from Bayview. (Doc. 56 at 95.) Among other things, it apologized to Wolfson for erroneously sending him a “Debt Validation Letter” and stated that “we are aware that your loan has been discharged through Bankruptcy Chapter 7.” (Id.)

         On September 4, 2014, Bayview sent a letter concerning Wolfson to the Arizona Attorney General's Public Advocacy and Civil Rights Division. (Doc. 56 at 97.) This letter acknowledged that because Wolfson had gone through bankruptcy in 2008, he “may no longer have personal liability on the Note, ” but also noted that “the property is still subject to the lien of the security instrument and is subject to foreclos[ure] if unpaid.” (Id.)

         On April 27, 2016, Bayview sent Wolfson a “Notice of Default and Intent to Accelerate, ” which informed Wolfson that if he failed to cure the default by June 1, 2016, Bayview intended to initiate foreclosure. (Doc. 33-1 at 27-29.)

         In response, Wolfson sent various letters to Bayview disputing the debt. (Doc. 33-1 at 31 [response letter from Bayview, acknowledging that it was in response to “recent correspondence” from Wolfson]; Doc. 56 at 99-101 [Wolfson's May 2016 letter].)

         On June 22, 2017, Joseph Tirello Jr. (“Tirello”) was appointed to serve as the new trustee of Wolfson's deed of trust via a document entitled “Substitution of Trustee, ” which was recorded on July 3, 2017. (Doc. 33-1 at 41; Doc. 55 at 55.)

         On July 3, 2017, a “Notice of Trustee's Sale” with recorded with the Yavapai County Recorder. (Doc. 33-1 at 37-38; Doc. 55 at 57-58.) This document identifies BONY as the beneficiary. (Id.)

         II. Procedural Background

         On November 7, 2017, Wolfson initiated this action by filing a complaint in state court. (Doc. 1 at 7-21.)

         On November 30, 2017, Defendants removed the case to this Court. (Doc. 1.)

         On January 8, 2018, Wolfson filed an amended complaint. (Doc. 33.) It asserts six causes of action. The first four claims are asserted against both BONY and Bayview: (1) false recordings; (2) breach of the implied covenant of good faith and fair dealing; (3) fraudulent misrepresentation; and (4) breach of contract. (Id. ¶¶ 50-115.) The final two claims are asserted only against Bayview: (5) violation of the Fair Debt Collections Practices Act (“FDCPA”); and (6) violation of the Real Estate Settlement Procedures Act (“RESPA”). (Id. ¶¶ 116-72.)

         On January 19, 2018, Defendants served Wolfson with the First Set of Request for Admissions, First Set of Production of Documents and Non-Uniform Interrogatories. (Doc. 38 [notice of filing]; Doc. 58 at 5-12 [actual request].)

         On March 27, 2018, Wolfson's counsel wrote an email to Defendants' counsel stating that “[t]oday I discovered to my horror that we are late in responding to Bayview's written discovery propounded January 19th, it appears. I had a significant medical issue and missed the date. I will have full responses to you by Friday. Please advise if you will agree to this belated request for an extension.” (Doc. 58 at 17.)

         Later that day, Defendants' counsel sent an email to Wolfson's counsel denying the ...

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