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noting that 18 U.S.C. § 1509 was not "intended to be used in civil litigation or as a basis for a private right of action"
Summary of this case from Alexander v. HendrixOpinion
Civil No. CCB-03-2566 (ECF-EXEMPT).
May 31, 2005
MEMORANDUM
Now pending before the court is: (1) the remaining individual Litton defendants' and the Friedman MacFadyen defendants' motions for summary judgment; (2) the Friedman MacFadyen defendants' motion to compel the plaintiff, Kess Tani, to provide complete responses to their written discovery requests; (3) the Friedman MacFadyen's motion to dismiss the case based on the plaintiff's failure to appear at his deposition and other discovery violations; and (4) Tani's motion demanding sanctions and dismissal of defendants' frivolous motions, pleadings, and false affidavits. For the reasons stated below, the court will grant both motions for summary judgment. The other motions will be denied as moot.
BACKGROUND
Kesiena Tani ("Tani") and his then-wife Peggy J. Tani signed a Purchase Money Deed of Trust and Note on September 27, 1991, securing the property at 19339 St. George's Church Road, Valley Lee, Maryland 20692. The principal amount of the deed of trust was $71, 851 and the interest rate was 8.5 percent. Tani asserts that the deed of trust escrowed the principal, interest, taxes, mortgage insurance and hazard insurance (PITI) into Tani's monthly mortgage payments. (Pl.'s Compl. at Exs. 3, 4.) Nevertheless, additional hazard insurance was imposed upon Tani in January 2001. (See id. at Ex. 5.) Subsequently, Friedman MacFadyen, P.A. ("Friedman MacFadyen") sent Tani a debt validation notice which effectively stated that no mortgage payment had been made since November 1, 1994. (See id. at Ex. 6.) Tani argues that the defendants fraudulently did not apply the mortgage payments he made to his loan. In light of Tani's alleged default on the loan, a foreclosure action was instituted against him in the Circuit Court for St. Mary's County on May 17, 2002 by Alvin E. Friedman, Kenneth J. MacFadyen, James J. Loftus, and Daniel Menchel who were appointed substitute trustees by the present owner of the loan, Salomon Brothers Realty Corporation/Citigroup ("Salomon Brothers") through its loan servicer, Litton Loan Servicing, LP ("Litton"). Tani applied to the court to enjoin the pending sale, but his request was denied after he did not appear in court for the hearing. Tani contends that the defendants removed his name and address from the list of defendants to be notified of the court hearing date and, therefore, he did not know of the hearing date. (See id. at Ex. 19.)
Friedman, MacFadyen, Menchel, and Loftus, along with Michael T. Cantrell and Friedman MacFadyen, P.A. are the "Friedman MacFadyen defendants." Friedman, MacFadyen, Menchel, and Loftus are attorneys who were appointed trustees for the foreclosure action. Cantrell is not a trustee but is a partner in their law firm, Friedman MacFadyen, and is the attorney who represented the note holder in Tani's two bankruptcies.
Tani halted the foreclosure of his home by filing a petition for bankruptcy on June 5, 2002 in the United States Bankruptcy Court in Greenbelt. After Tani filed a motion for a determination of his arrearages, the court, in an order dated April 29, 2003, ordered the loan to be modified to a principal balance of $90,000 at an interest rate of six percent, amortized over a period of thirty years. The court order stipulated that in the event the modified deed of trust was not executed, the terms would revert to those in the original deed of trust.
Subsequently, defendant Steven Droddy at Litton sent Tani a modified agreement, which Tani refused to execute because he objected to the inclusion of certain items in the balance due and to the provision requiring his ex-wife's signature. Litton filed foreclosure proceedings again on July 7, 2003. Tani alleges that the defendants faxed the Circuit Court judge for Saint Mary's County an avoided, forged, or altered copy of the original bankruptcy court order in violation of 18 U.S.C. § 1006, 18 U.S.C. § 1506, and 18 U.S.C. § 1509. (Id. at Exs. 12, 20.) He claims that the document was misleading and prompted the Circuit Court judge to proceed with the foreclosure. Tani filed a second bankruptcy petition. In that bankrupcty proceeding, the loan was modified again to reflect a principal balance of $96,000 at an interest rate of six percent, amortized over thirty years. Again, failure to execute would result in a reversion to the original deed of trust. The court also ordered that Peggy Tani be removed from the modification agreement because she was dismissed in a Chapter 7 proceeding and she had deeded the property to Tani.
Thereafter, Droddy sent Tani a modified agreement, which Tani signed but again deleted lines pertaining to the amount included in the new balance. MacFadyen, one of the substitute trustees, advised Litton that there might be a problem recording the modification agreement in St. Mary's County because of the deletions. Litton redrafted it and sent it to Tani. MacFadyen alleges that he called Tani and was promised that a signed modification agreement would be returned to Friedman MacFadyen. On September 3, 2003, Tani filed this case against numerous defendants alleging fraud, falsification, misrepresentation, avoidance, forgery/alteration of a U.S. District Court Order, obstruction of justice, and specifically violations of 12 U.S.C. § 27; 15 U.S.C. § 41; 12 C.F.R. § 227.14; 12 U.S.C. § 38A; Maryland Rule 1-341, 18 U.S.C. § 47; 18 U.S.C. § 73; 18 U.S.C. § 1341; 18 U.S.C. § 1343; and Maryland Code 11-205.
Initially, MacFadyen and Friedman MacFadyen filed an answer to Tani's complaint for all the defendants. Thereafter, the individual Litton defendants sought separate counsel to avoid a conflict of interest. On November 29, 2004, this court granted the Litton defendants' motion for leave to file an amended answer and dismissed Debra Lyman, Larry Litton, Sr., Larry Litton, Jr., Lela Dereouen, and Steven Droddy from the case for lack of personal jurisdiction over them. The Friedman and MacFadyen defendants' request for extension of the scheduling order to allow additional time for discovery was also granted.
The "individual Litton defendants" are the President/CEO Salomon Brothers, Debra Lyman, Bruce Williams, Larry Litton, Sr., Lela Derouen, Steven Droddy, and Larry Litton, Jr. Tani's complaint included "Larry Litton" in its list of defendants. Both Larry Litton, Sr. and Larry Litton, Jr. filed affidavits with the motion to file an amended answer because it was unclear to which person Tani's claims were addressed.
On March 15, 2005, the Friedman MacFadyen defendants filed a motion to compel Tani to fully answer their written discovery requests. These defendants had propounded two separate requests for production of documents, and two sets of interrogatories upon Tani on or about December 21, 2004. (Defs.' Mot. to Compel, at 1-2.) Tani returned the answers and response to the Friedman MacFadyen document requests on or about February 14, 2005. (Id. at 2.) Tani objected to every request in the defendants' request for production, although he did provide some checks that he believes evidence mortgage payments on his part and pictures of foot injuries he claims were caused by the defendants' actions.Id. Likewise, Tani answered "N/A," objected, or referred to his complaint for each interrogatory question other than the standard interrogatory questions about name, address, and birth date.
On the same day they filed their motion to compel, the Friedman MacFadyen defendants submitted a motion for sanction of dismissal for Tani's failure to appear at his deposition and other discovery violations. Tani's deposition was set for Monday, February 28, 2005 at 10:00 a.m. at the offices of the Fisher Law Group, L.L.C. in Upper Marlboro, Maryland. (Defs.' Mot. for Sanction of Dismissal, Not. of Dep., Ex. 2.) Gregg E. Viola ("Viola"), counsel for the Friedman MacFadyen defendants faxed the directions to Tani on February 25, 2005. (Id., Viola Aff., Ex. 5 at ¶ 3.) Due to inclement weather predictions for February 28, 2005, the deposition was changed to March 3, 2005 based on the consent of all parties and this court's approval. (Id., Letters, Ex. 6.)
On March 3rd, Viola received a call from his office, informing him that Tani had called to say he was lost and had left his cell phone number. (Id., Viola Aff., Ex. 5 at ¶ 4.) Tracy Gray, an associate at the Fisher Law Group and more familiar with the area, called Tani to assist him. (Id., Gray Aff., Ex. 7 at ¶ 3.) Gray states that although she told Tani he was close to the office and she could easily direct him over the phone, Tani insisted that Viola meet him and lead the way to the office. Tani became irritated and hung up the phone. (Id.) Gray and Viola called Tani together using a speakerphone. (Id. at ¶ 4; id., Viola Aff., Ex. 5 at ¶ 5.) Viola told Tani that he was obligated to appear despite his difficulty in locating the office and also informed him that Viola was not familiar with the area and Tani was better off with Gray's directions. Id. According to Gray and Viola, Tani stated that he had wasted too much of his day already and hung up the phone. Viola and Gray maintain that they tried to call Tani twice after that but the phone had been turned off. Tani did not appear at his deposition. Tani disputes their version of the events. He states that he sought help from a sheriff deputy and at the courthouse but that no one could direct him. (Pl.'s Opp'n to Mot. to Compel and Sanction to Dismiss, at 20.) He contends that he asked counsel for someone to meet him and lead him to the deposition but that counsel refused to help.
ANALYSIS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment
shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion:
By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).
"A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed.R.Civ.P. 56(e)). The court must "view the evidence in the light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or assessing the witness' credibility," Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
Tani has failed to produce evidence linking the remaining individual Litton defendants, the President/CEO Salomon Brothers Realty Corp./Citigroup and Bruce Williams, to his allegations of failure to post payments to his loan accounts and related complaints. He does not show that either the President/CEO of Salomon Brothers Realty Corp./Citigroup or Bruce Williams was directly responsible for his account. See Steinke v. Beach Bungee Inc., 105 F.3d 192, 195 (4th Cir. 1997). As Tani has not demonstrated that there is a genuine issue for trial involving the remaining individual defendants, their motion for summary judgment will be granted.
As for the remaining defendants, the Friedman MacFadyen defendants, nine of the thirty-two counts in Tani's complaint against them are barred by the relevant statutes of limitations. In count one, Tani alleges that the defendants violated 12 U.S.C. § 4905 by improperly imposing a charge for hazard insurance upon him. The statute of limitations, however, requires all claims under section 4905 to be brought within two years of the occurrence giving rise to the action. 12 U.S.C. § 4907. Tani alleges that the conduct was the mailing of a letter on January 26, 2001, thereby necessitating a cause of action to be pursued by January 26, 2003. As Tani instituted this suit on September 5, 2003, this claim is barred. Though counts two, three, four, seven, eight, nine, thirty, and thirty-one deal with different sections of the Fair Debt Collection Practices Act ("FDCPA"), they are all subject to the same statute of limitations, namely, one year from the date that the alleged violation occurred. 15 U.S.C. § 1692k(d). None of the alleged violations occurred within one year of September 5, 2003. Accordingly, they are all time-barred.
Tani alleges in count two that the letter sent by Friedman MacFadyen on April 19, 2002 violated 15 U.S.C. § 1692e of the Fair Debt and Collection Practices Act ("FDCPA") by falsely characterizing the amount and legal status of the debt. Count three consists of Tani's complaint that the defendants violated 15 U.S.C. § 1692g by failing to provide him with initial communications about the debt or claim in their April 19, 2002 letter. In count four, Tani asserts that the defendants violated 15 U.S.C. § 1601 through § 1665 because they did not apply mortgage payments that he made between July 1, 1994 and December 31, 2001. Count seven consists of another alleged violation of 15 U.S.C. § 1692g, the defendants' alleged failure to provide Tani with a copy of the "Debt Verification or Judgment" before the collection of his debt. Tani maintains that the defendants continued to attempt to collect the debt on June 7, 2002 when they posted a foreclosure notice in the newspaper. Tani uses this same action as a basis for count eight in which he claims that the defendants violated the "Fair Debt Collections Practices" established in 15 U.S.C. § 1692g by proceeding with the foreclosure of his home on June 7, 2002. In count nine, Tani asserts that the defendants violated 15 U.S.C. § 1692e by filing a proof of claim on August 7, 2002 that "falsely characterized" the debt amount and the "legal status of the debt." (Pl.'s Compl. at ¶¶ 38, 78.) Tani's thirtieth count claims that the defendants violated 15 U.S.C. § 1692e by misrepresenting the character and amount of the debt in question in their May 13, 2002 statement of debt due under deed of trust and deed of note. (Id., Statement of Debt Due, Ex. 22.) Finally, Tani's assertion in count thirty-one is that the defendants violated 15 U.S.C. § 1692e by filing a false proof of claim on August 7, 2002 on behalf of the lender in Tani's bankruptcy proceedings. (Id., Litton's Forged/Altered Mortgage Note, Ex. 23.) All of these claims occurred more than one year before September 5, 2003.
Several of the counts in the complaint rely upon statutory provisions that do not exist. Other counts do not provide a cause of action, either because the cited statutory provision does not permit a private right of action or because there is no actionable conduct alleged. Finally, many of the counts address activities for which the Friedman MacFadyen defendants were not responsible or involved.
Counts four, five, six, twenty, and thirty-one contain citations to one or more statutory provisions that do not exist.
Certain statutory provisions listed in counts one, twelve, sixteen, twenty-one, twenty-two, twenty-three, twenty-four, twenty-five, twenty-six, twenty-eight, twenty-nine, and thirty-two do not permit a private right of action. In count one, Tani cites 12 U.S.C. § 2609 which is explicitly excluded from 12 U.S.C. § 2614's grant of jurisdiction over private causes of action for 12 U.S.C § 2605 through § 2608. Likewise, there is no indication that a private cause of action is created by 12 C.F.R § 227.14, the regulation cited by Tani in counts twelve and sixteen. Count twenty-one is based on Maryland Rule 1-341 which supplies no private right of action or remedy in federal court. Counts twenty-two through twenty-six and count thirty-two rely on three criminal statutes, 18 U.S.C. § 1006, 18 U.S.C. § 1506, and 18 U.S.C. § 1509. These statutes were not intended to be used in civil litigation or as a basis for a private right of action. The same is true for criminal statutes, 18 U.S.C. § 1341 and 18 U.S.C. § 1343, cited by Tani in counts twenty-eight and twenty-nine. In addition, there is no actionable conduct alleged in counts three, seven, eight, nineteen, twenty-four, twenty-six, twenty-seven, and thirty. In count three, Tani complains that the defendants failed to provide him with "initial communications" about the debt or claim in their April 19, 2002 letter. However, the letter did contain the information required to be included in an initial communication by 15 U.S.C. § 1692g. In the same vein, Tani alleges in counts seven and nineteen that the defendants did not provide him with a debt verification or judgment in violation of 15 U.S.C. § 1692g. However, in his response to Friedman MacFadyen's request for admission of facts, Tani referred to a payment history he had solicited from the defendants. (Friedman MacFadyen Defs.' Mot. for Summ. J., Pl.'s Resp. to Friedman MacFadyen Defs.' Admission of Facts Request Ex. 6, at Resp. No. 25; Pl.'s Complaint, Litton's Mortgage Payment Disclosure, Ex. 2.) Even if unclear, as Tani asserts, that payment history provided him the debt verification he sought. (Id.) If he had had trouble reading it, he could have contacted Litton. He does not claim that he did. Counts eight and twenty-seven consist of Tani's charge that the defendants violated 15 U.S.C. § 1692g by proceeding with the foreclosure of his home. As Tani still lives in his home and it was never foreclosed, these claims fail to allege any actionable conduct against the defendants. Similarly, Tani cannot maintain a cause of action for a judge's order to proceed with foreclosure, as he does in count twenty-four, when that foreclosure never came to fruition. Tani's unsupported assertion in count twenty-six that the defendants removed his name from the court's docketing system for notice of the foreclosure action but returned it to the list of those to be notified of the court's order is not actionable because it is mere speculation without any hint of evidentiary support. Lastly, count thirty fails to state a cause of action because in it, Tani alleges that the defendants violated 15 U.S.C. § 1692e by misrepresenting the character and amount of the debt in their May 13, 2002 statement of debt due under deed of trust and deed of note. However, Tani's complaint only states that the defendants did not substantiate the amounts identified in the statement, not that the information was false.
Counts one, thirty, and thirty-two are based upon letters drafted and sent by Litton, not the Friedman MacFadyen defendants. Similarly, Litton drafted and disseminated the modification agreements that are at issue in counts ten, eleven, twelve, fourteen, fifteen, and sixteen. Though Friedman MacFadyen drafted the letters at issue in counts two, nine, and seventeen, they did not calculate the debt addressed in those letters and did not participate in the receipt or posting of Tani's loan payments as is implied by counts four and five.
As all the counts fail to state any genuine issue of material fact for trial, the Friedman MacFadyen defendants' motion for summary judgment will be granted. The Friedman MacFadyen defendants' pending motions to compel and for dismissal and Tani's pending motion demanding sanctions and dismissal, therefore, will be denied as moot.
A separate order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:
1. the defendants' motions for summary judgment (docket entries no. 38 and 40) are GRANTED;
2. the Friedman MacFadyen defendants' motion to compel (docket entry no. 36) and motion for sanction of dismissal (docket entry no. 37) are DENIED as moot;
3. Tani's motion demanding sanctions and dismissal (docket entry no. 45) is DENIED as moot;
4. the Clerk shall CLOSE this case; and
5. copies of this Order and the accompanying Memorandum shall be sent to counsel of record and to plaintiff Kess Tani.