Opinion
CIVIL NO. 3:14-1044
06-29-2016
DOUGLAS HAWK and CATHY HAWK, Plaintiffs, v. CARRINGTON MORTGAGE SERVICES, LLC., and CHRISTIANA TRUST, et al., Defendants
(Judge Mariani)
( )
REPORT AND RECOMMENDATION
I. Statement of Facts and of the Case
This case, which now comes before the Court on a motion for summary judgment filed by the defendant, Carrington Mortgage Services, LLC., (Doc. 38.), is an action brought by two mortgage borrowers, Douglas and Cathy Hawk, against their mortgage loan servicer, Carrington Mortgage Services, LLC, and the holder of this mortgage, the Christiana Trust. (Doc. 1.) In their complaint, Mr. and Mrs. Hawk allege that Carrington became the mortgage servicer for their mortgage in November of 2012. (Id., ¶13.) Shortly thereafter, Mr. Hawk became disabled and the plaintiffs fell behind on their mortgage payments. (Id., ¶¶22-23.)
Another defendant in this case, Christiana Trust, the mortgage holder, has also filed a motion for summary judgment which we have addressed in a separate Report and Recommendation.
According to the plaintiffs when they were first notified by Carrington of its intention to foreclose, Mr. Hawk withdrew funds from his pension to bring his mortgage current. (Id., ¶¶24-5.) Unfortunately, due to Mr. Hawk's continuing disability the mortgage fell into arrears once again. (Id., ¶ 26.)
Presented with another mortgage default, the plaintiffs allege that they contacted Carrington on numerous occasions to try to ascertain what they owed, what charges were accruing on their account, and how to rectify these delinquencies. (Id., ¶¶27-31.) Despite these requests, the plaintiffs insist that Carrington never provided them with all of the information they sought, and needed, to withdraw pension funds and bring their mortgage into a current, paid status. (Id., ¶¶ 32-39.) Frustrated in these efforts, by January of 2014, the Hawks allege that they submitted, through counsel, a qualified written request under the Real Estate Settlement Procedures Act, (RESPA), 12 U.S.C. §2601, et seq., to Carrington, disputing the arrearages and seeking specific information and explanations relating to these charges. (Id., ¶¶40-43.) The plaintiffs contend that Carrington, their loan servicer, never responded to this qualified written request, as they are required to do under federal law. (Id., ¶44.) These allegations form the first count of the plaintiffs' complaint which names the loan servicer, Carrington, as well as the loan holder, Christiana Trust, as defendants and alleges a violation of the Real Estate Settlement Procedures Act, (RESPA), 12 U.S.C. §2601, et seq. (Id., ¶¶45-58.)
The plaintiffs then bring a second, pendant state law claim against Carrington under Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 Pa.C.S. §201-1 (UTPCPL), alleging that Carrington engaged in fraudulent and deceptive practices, and imposed deceptive and misleading requirements upon the Hawks in the course of its dealings with the plaintiffs concerning these mortgage delinquencies. (Id., ¶¶ 59-89.) The precise nature of this fraudulent and deceptive conduct is not entirely clear from the plaintiffs' complaint. It appears, however, that the Hawks are alleging that Carrington engaged in "fraudulent and misleading conduct" when it: (1)failed to fully respond to their inquiries; (2) provided the plaintiffs with information regarding how they could refinance their delinquent loan; (3) provided a breakdown of fees and expenses that were accruing in their case, a loan breakdown that included legal and collateral preservation fees; and (4) required the Hawks to maintain flood insurance on the property that was subject to this mortgage. (Id.)
Carrington has now moved for summary judgment on these claims. (Doc. 38.) In this motion for summary judgment, Carrington attacks Count I of the complaint, the federal RESPA count, on two scores, arguing: (1) that the plaintiffs failed to show that they ever submitted a qualified written request for information pursuant to RESPA to Carrington in January of 2014; and (2) contending that the plaintiffs have failed to allege or show a direct causal connection between any alleged failure to respond to this written request and financial injuries suffered by the plaintiffs. As for the plaintiffs' pendant state law claim under Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 Pa.C.S. §201-1 (UTPCPL), Carrington argues that the actions it took, providing the plaintiffs with re-financing information, requiring flood insurance and outlining a breakdown of fees and expenses, were either mandated by federal law, or required by the terms of the mortgage. Therefore, Carrington argues that none of these actions can be viewed as fraudulent or deceptive. Carrington further argues that the Hawks have not proven or pleaded either reliance upon Carrington's representations or an ascertainable loss, two other elements of a UTPCPL claim.
This motion is fully briefed by the parties and is, therefore, ripe for resolution. For the reasons set forth below, it is recommended that this motion for summary judgment be granted.
II. Discussion
A. Rule 56-The Legal Standard
Carrington has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that a party is entitled to judgment in its favor when there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. Through summary adjudication a court is empowered to dispose of those claims that do not present a "genuine issue as to any material fact," Fed. R. Civ. P. 56, and for which a trial would be "an empty and unnecessary formality." Univac Dental Co. v. Dentsply Int'l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 2010).
The substantive law identifies which facts are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party's claims, "the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument." Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial," summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, "only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment." Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J.1995). Similarly, it is well-settled that: "[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials." Thimons v. PNC Bank, NA, 254 F. App'x 896, 899 (3d Cir. 2007)(citation omitted). Thus, "[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial." Fireman's Ins. Co. of Newark NJ v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982), see Sunshine Books, Ltd. v. Temple Univ., 697 F.2d 90, 96 (3d Cir. 1982). "[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient." Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, "a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985)(citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Yet, while "only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment," Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J.1995), and "a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions," Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), the Court must "consider all evidence in the light most favorable to the party opposing the motion." A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
B. Carrington is Entitled to Summary Judgment on the Plaintiffs' RESPA Claim , as Pleaded
At the outset, in their complaint the Hawks seek to bring a claim against defendant Carrington, charging alleged violations of the Real Estate Settlement Procedures Act, ("RESPA"), 12 U.S.C. §2605, et seq. Carrington seeks summary judgment on this federal RESPA claim, advancing a twofold argument, and contending: (1) that the plaintiffs failed to show that they ever submitted a qualified written request for information pursuant to RESPA to Carrington in January of 2014; and (2) that the plaintiffs have failed to show a direct causal connection between any alleged failure to respond to this written request and financial injuries suffered by the plaintiffs.
To the extent that Carrington seeks summary judgment by arguing a factual matter; namely, whether it ever received a qualified written request from the plaintiffs, this argument warrants only brief discussion. On this factual issue, the parties have starkly contrasting views: The Hawks insist that they sent the letter to Carrington. Carrington, in turn, denies ever receiving the correspondence. Each party can point to some evidence to support their respective claims. With the parties' positions defined by this stark factual dispute, summary judgment is not possible in this case. Indeed, courts have often noted that factual disputes regarding the receipt of items in the mail present questions of fact which preclude summary judgment. See e.g., Slough v. Redner's Markets, Inc., No. 1:12-CV-1820, 2013 WL 5176740, at *1 (M.D. Pa. Sept. 12, 2013); Antoine v. J.P. Morgan Chase Bank, 757 F. Supp. 2d 19, 24 (D.D.C. 2010)(FDCPA case, held, neither party is entitled to summary judgment on plaintiff's claim of failure to verify disputed debt because there are issues of material fact as to whether plaintiff mailed or faxed the letters disputing the alleged debt.) .
Focusing on the factual record as it relates to the mailing and receipt of this correspondence, we find that summary judgment is not appropriate here, since, at best, the factual record reveals disputes regarding whether this letter was mailed and received. On this score, the parties' factual positions are irreconcilable, and each party can point to some evidence supporting its perspective on this essentially factual dispute. Thus, the parties have plainly defined a disputed issue of material fact on a question which is an essential predicate to the plaintiff's claims. Accordingly, we find that neither party is entitled to summary judgment on this issue. Antoine v. J.P. Morgan Chase Bank, 757 F. Supp. 2d 19, 24 (D.D.C. 2010).
However, Carrington's second argument with respect to its motion for summary judgment on this RESPA claim is well taken. RESPA is a federal consumer protection statute applicable to mortgage lending. In part, RESPA requires lenders to refrain from collecting unearned closing fees and kickbacks; compels lenders to disclose to borrowers the fact that servicing on their loans may be transferred; and requires loan servicers to respond in a timely fashion to "Qualified Written Requests" from borrowers seeking information regarding the status of home loans. 12 U.S.C. §§2605, 2607. In particular:
RESPA imposes a duty on loan servicers to respond to borrower inquiries. . . [and] qualified written requests under 12 U.S.C. § 2605(e)(2) (B). This section requires a loan servicer to:Vassalotti v. Wells Fargo Bank, N.A., 732 F. Supp. 2d 503, 507 (E.D. Pa. 2010).
(A) make appropriate corrections in the account of the borrower, including the crediting of any late charges or penalties, and transmit to the borrower a written notification of such correction (which shall include the name and telephone number of a representative of the servicer who can provide assistance to the borrower);
[or]
(B) after conducting an investigation, provide the borrower with a written explanation or clarification that includes-
(i) to the extent applicable, a statement of the reasons for which the servicer believes the account of the borrower is correct as determined by the servicer; and
(ii) the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower.
RESPA then permits individual borrowers like the Hawks to sue loan servicers for damages in certain specifically defined circumstances, stating that:
(f) Damages and costs
Whoever fails to comply with any provision of this section shall be liable to the borrower for each such failure in the following amounts:
(1) Individuals
In the case of any action by an individual, an amount equal to the sum of-
(A) any actual damages to the borrower as a result of the failure; and12 U.S.C. § 2605(f).
(B) any additional damages, as the court may allow, in the case of a pattern or practice of noncompliance with the requirements of this section, in an amount not to exceed $1,000.
Thus, the essential elements of a RESPA claim under §2605 are: (1) the submission of a qualified written request by a borrower to a loan servicer; (2) a failure by the loan servicer to timely respond; and (3) damages. In this regard, it is clear that proof of damages caused by the failure to respond to the qualified written request is a crucial component of a RESPA claim. Thus, merely " 'alleging a breach of RESPA duties alone does not state a claim under RESPA. Plaintiffs must, at a minimum, also allege that the breach resulted in actual damages.' Hutchinson v. Delaware Sav. Bank FSB, 410 F.Supp.2d 374, 383 (D.N.J.2006)." Saldate v. Wilshire Credit Corp., 711 F. Supp. 2d 1126, 1134 (E.D. Cal. 2010). Moreover, "to recover damages, the borrower has the responsibility to present 'specific evidence to establish a causal link between the financing institution's violation and their injuries.' McLean v. GMAC Mortg. Corp., 398 Fed.Appx. 467, 471 (11th Cir.2010)." Jenkins v. BAC Home Loan Servicing, LP, 822 F. Supp. 2d 1369 (M.D. Ga. 2011).
This requirement of a showing of damages directly tied to the failure to respond under RESPA to a request for information is strictly construed by the courts. Therefore, when a plaintiff fails to plead or prove a direct causal connection between the RESPA violation and some specific and identifiable damages, the loan servicer is entitled to judgment as a matter of law in its favor. In sum, "when basing a claim on actual damages, 'the borrower has the responsibility to present specific evidence to establish a causal link between the financing institution's violation and their injuries.' Straker v. Deutsche Bank Nat'l Trust, No. 2012 WL 7829989, at *11 (M.D.Pa. Apr. 26, 2012) (internal quotations omitted); see also Gorbaty, 2012 WL 1372260, at *5 ('A plaintiff seeking actual damages under § 2605 must allege that the damages were proximately caused by the defendant's violation of RESPA.'); Hutchinson v. Delaware Sav. Bank FSB, 410 F.Supp.2d 374, 383 (D.N.J.2006) ('[A]lleging a breach of RESPA duties alone does not state a claim under RESPA. Plaintiffs must, at a minimum, also allege that the breach resulted in actual damages.')(citing 12 U.S.C. § 2605(f)(1)(A))." Giordano v. MGC Mortgage, Inc, No. CV 15-4399 (JLL), 2016 WL 627344, at *2 (D.N.J. Feb. 16, 2016). See e.g., Oliver v. Bank of Am., N.A., No. 13 CV 4888 RMB/KMW, 2014 WL 562943, at *3 (D.N.J. Feb. 11, 2014); Jones v. Select Portfolio Servicing, Inc., No. CIV. A. 08 972, 2008 WL 1820935, at *10 (E.D. Pa. Apr. 22, 2008).
In this case, the plaintiffs' complaint contains no well-pleaded allegations of financial losses which can be directly and causally linked to this alleged RESPA violation. (Doc. 1, ¶¶ 54-58.) Quite the contrary, the plaintiffs' complaint describes a scenario in which their damages cannot be causally linked to any RESPA violation. Specifically, the plaintiffs allege that they did not submit this qualified written request until January 30, 2014, (Id., ¶40), but claim as actual damages interest charged on the mortgage beginning on or about November 1, 2013, some months prior to the alleged RESPA violation. (Id., ¶58.)
This they may not do. We cannot discern any damages which would have begun in November of 2013, and could have flowed from this alleged failure under RESPA which occurred some months later to respond to a January 2014 qualified written request. It is clear from the plaintiffs' complaint that they cannot credibly allege that the loan default or accrual of interest, fees and costs under the mortgage are caused by this alleged RESPA violation since the plaintiffs' complaint flatly states that the default and imposition of interest and fees pre-dated their submission of a qualified written request. Since no causal equation can provide that the effect precedes the cause, the chronology of events outlined in the plaintiffs' complaint precludes any claim that this alleged RESPA violation caused the loan default and accrual of these fees, events which took place before the submission of the qualified written request under RESPA . See Houston v. U.S. Bank Home Mortgage Wisconsin Servicing, 505 F. App'x 543, 546 (6th Cir. 2012)(loan servicer entitled to summary judgment on claim that RESPA violation contributed to loan default where default preceded alleged RESPA violation.)
In an effort to belatedly meet this element of a RESPA claim, the Hawks now argue that the failure to respond to this qualified written request may have impeded them in the litigation of their on-going state mortgage foreclosure lawsuit, presenting this potential prejudice in a pending state case as the direct harm caused by Carrington's alleged failure to respond to this qualified written request. There are several difficulties with this argument. First, it advances a claim of damages that has never been made by the plaintiff in their complaint and thus ignores the familiar proposition that "it is axiomatic that the complaint may not be amended by the briefs in opposition to a motion to dismiss." Giordano v. MGC Mortgage, Inc, No. CV 15-4399 (JLL), 2016 WL 627344, at *3 (D.N.J. Feb. 16, 2016), quoting Pennsylvania ex rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 181 (3d Cir. 1988). Further, Carrington asserts, without dispute by the plaintiffs, that this RESPA litigation preceded the state mortgage foreclosure, and that any speculative harm to the plaintiffs in the mortgage foreclosure action was wholly cured by the complete discovery which they received in this lawsuit, discovery which provided the plaintiffs with all of the information they could have obtained under RESPA.
Given the current state of the record, we do not believe that the plaintiffs have pleaded or proven actual damages caused by any RESPA violation on the theory of liability expressed in their complaint. There also appears to be substantial doubt that the Hawks could sustain a RESPA claim on any of the newly articulated claims first advanced in their brief in opposition to Carrington's summary judgment motion. Nonetheless, acting out of an abundance of caution the court may wish to grant this motion, but without prejudice to the Hawks' endeavoring to amend their complaint to articulate some viable damages claim under RESPA.
If the Court adopted this course, it is recommended that this action also be taken without prejudice to Carrington interposing any objections it might have to amendment of these pleadings at this stage of the case. --------
C. The Plaintiffs' Pendant State Law Claims Also Fail
The plaintiffs have also pursued a pendant state law claim of deceptive conduct under Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 Pa.C.S. §201-1 (UTPCPL) against both Carrington and Christiana Trust. With respect to Carrington this pendant state law claim also seems flawed in at least two respects.
First, we note that this proposed disposition of the plaintiff's sole federal legal claim against this defendant, the RESPA claim, suggests the appropriate course for the court to follow in addressing any ancillary state law claims that the plaintiff may wish to pursue against this particular defendant. In a case such as this, where the jurisdiction of the federal court was premised on an alleged federal claim which fails as a matter of law, the proper course generally is for "the court [to] decline to exercise supplemental jurisdiction over the plaintiff's state law claims. 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if-... the district court has dismissed all claims over which it has original jurisdiction."); United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966) (holding that when federal causes of action are dismissed, federal courts should not separately entertain pendent state claims)." Bronson v. White No. 05-2150, 2007 WL 3033865, *13 (M.D.Pa. Oct. 15, 2007)(Caputo, J.)(adopting report and recommendation dismissing ancillary malpractice claim against dentist); see Ham v. Greer, 269 F. App'x 149, 151 (3d Cir. 2008) ("Because the District Court appropriately dismissed [the inmate's] Bivens claims, no independent basis for federal jurisdiction remains. In addition, the District Court did not abuse its discretion in declining to address the state law negligence claims. 28 U.S.C. § 1367(c)(3); see United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Tully v. Mott Supermkts., Inc., 540 F.2d 187, 196 (3d Cir.1976).")
Here, we have found that the plaintiffs may not maintain a RESPA claim against Carrington, as currently pleaded. Given this finding, it is submitted that we should decline to assert supplemental jurisdiction over any potential ancillary state law claims brought against Carrington in this case.
In any event it also appears that the plaintiffs' state law UTPCPL claim against Carrington fails on its merits since this state statute typically requires direct involvement by the defendant in deceptive or fraudulent conduct, something that not alleged or shown here by the plaintiffs. In this case the plaintiffs' claims against Carrington are premised upon §2011-2(4 )(xxi) of the UTPCPL, which prohibits "[e]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding." This statutory prohibition against "deceptive conduct does not require proof of the elements of common law fraud, but . . . knowledge of the falsity of one's statements or the misleading quality of one's conduct is still required." Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 498 (3d Cir. 2013). "Therefore, in order '[t]o establish liability under the catch-all provision of the UTPCPL, "a plaintiff must present evidence showing: (1) a deceptive act that is likely to deceive a consumer acting reasonably under similar circumstances; (2) justifiable reliance; and (3) that the plaintiff's justifiable reliance caused ascertainable loss." Slapikas v. First Am. Title Ins. Co., CIV.A. 06-0084, — F.R.D. —, —, 2014 WL 899355, at *6 (W.D.Pa. Mar.7, 2014) (citing Seldon v. Home Loan Servs., 647 F.Supp.2d 451, 470 (E.D.Pa.2009); Hunt v. U.S. Tobacco Co., 538 F.3d 217, 223 (3d Cir.2008)).' Prukala v. Elle, 3:14-CV-92, 2014 WL 1311125, *3 (M.D.Pa. Mar.28, 2014)." Stephens v. State Farm Fire & Cas. Co., No. 1:14-CV-160, 2014 WL 5312682, at *9 (M.D. Pa. Oct. 16, 2014).
In this case, as it is currently pleaded, the plaintiffs' UTPCPL claim simply does not allege any actionable deceptive conduct, fraud or misrepresentation by Carrington. On this score, the Hawks have alleged generally that Carrington defrauded them by: (1)failing to fully respond to their inquiries; (2) providing the plaintiffs with information regarding how they could refinance their delinquent loan; (3) providing a breakdown of fees and expenses that were accruing in their case, a loan breakdown that included legal and collateral preservation fees; and (4) requiring the Hawks to maintain flood insurance on the property that was subject to this mortgage. However, Carrington has persuasively shown that many of the acts complained of by the plaintiff were either required under federal law or expressly authorized by the mortgage agreement between the parties. For example, it is undisputed that the flood insurance costs incurred by the plaintiffs were required under this mortgage. Similarly, many of the re-financing notices sent by Carrington to the Hawks were mandated by federal law and banking regulations, 12 C.F.R. §1024.39, and, therefore, simply do not constitute unfair or deceptive acts or practices.
Furthermore, the plaintiffs have not alleged or proven any reliance upon any representation made by Carrington. Quite the contrary, the entire thrust of this complaint is that the plaintiffs found that they could not rely upon the representations made by Carrington, which they concluded were inaccurate in some fashion. Therefore, the essential element of detrimental reliance simply is not pleaded or proven in this case.
Finally, the plaintiffs' UTPCPL claim against Carrington fails for one other reason. The plaintiff have failed to allege that they suffered an ascertainable loss of money or property as required by the UTPCPL. On this score, the plaintiffs' complaint alleges that the Hawks defaulted on their mortgage in 2012, prior to any of the allegedly misleading conduct of Carrington, and further asserts that they have not been induced to make any payments on this mortgage after Carrington allegedly engaged in this misleading conduct. On these facts, where it is undisputed that no payments were made on a delinquent loan after the loan servicer is alleged to have engaged in fraudulent and deceptive activities, a UTPCPL claim fails as a matter of law since there is no ascertainable loss that can be causally tied to the alleged deception. See Salvati v. Deutsche Bank Nat. Trust Co., 575 F. App'x 49, 56 (3d Cir. 2014).
The plaintiffs cannot defeat this motion by simply reciting in a talismanic fashion that they believe that disputed factual issues exist. (Doc. 42.) More is required of plaintiffs to defeat a summary judgment motion. "When a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial." Fireman's Ins. Co. of Newark NJ v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982), see Sunshine Books, Ltd. v. Temple Univ., 697 F.2d 90, 96 (3d Cir. 1982). "[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient." Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, "a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985)(citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)). Since the Hawks' response does not go beyond denials and speculative assertions of factual disputes, it does not defeat this motion for summary judgment.
In sum, while we empathize with the plaintiffs, who have doubtless faced financial hardship, we are constrained to note that their complaint, as pleaded, simply does not satisfy the legal elements of a claim under RESPA or UTPCPL. Therefore, the complaint, as pleaded, fails as a matter of law and should be dismissed.
III. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED that the defendant Carrington Mortgage Services, LLC's motion for summary judgment (Doc. 38.), be GRANTED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 29th day of June 2016.
S/Martin C . Carlson
Martin C. Carlson
United States Magistrate Judge