United States District Court, D. South Dakota, Western Division
RAYMOND D. ELLIOTT, Plaintiff,
OCWEN LOAN SERVICING, L.L.C., Defendant.
JEFFREY L. VIKEN CHIEF JUDGE
Raymond D. Elliott filed this action against defendant Ocwen
Loan Servicing, L.L.C. (“Ocwen”). (Docket 20).
Plaintiff originally appeared pro se and named
multiple defendants. (Docket 1). Now he is represented by
counsel and maintains this suit against Ocwen only. (Dockets
10 & 20). He seeks relief pursuant to the Truth in
Lending Act (“TILA” or “Act”), 16
U.S.C. §§ 1601 et seq. (Docket 20).
Defendant filed a motion for summary judgment. (Docket 37).
Fed.R.Civ.P. 56(a), a movant is entitled to summary judgment
if the movant can “show that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). Once
the moving party meets its burden, the nonmoving party may
not rest on the allegations or denials in the pleadings, but
rather must produce affirmative evidence setting forth
specific facts showing that a genuine issue of material fact
exists. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256 (1986). Only disputes over facts that might affect
the outcome of the case under the governing substantive law
will properly preclude summary judgment. Id. at p.
248. “[T]he 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.” Id. at 247-48
(emphasis in original).
dispute about a material fact is genuine, that is, if the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party, then summary judgment is not
appropriate. Id. However, the moving party is
entitled to judgment as a matter of law if the nonmoving
party failed to “make a sufficient showing on an
essential element of her case with respect to which she has
the burden of proof.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In such a case
“there can be ‘no genuine issue as to any
material fact, ' since a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at p. 323.
determining whether summary judgment should issue, the facts
and inferences from those facts must be viewed in the light
most favorable to the nonmoving party. Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986). The key inquiry is “whether the evidence
presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson, 477
U.S. at pp. 251-52.
following recitation consists of the material facts developed
from plaintiff's amended complaint (Docket 20),
defendant's answer (Docket 22), defendant's statement
of undisputed material facts (Docket 39) and plaintiff's
response. (Docket 48). Where a statement of fact is admitted
by the opposing party, the court will only reference the
initiating document. These facts are “viewed in the
light most favorable to the [party] opposing the
motion.” Matsushita Elec. Indus. Co., 475 U.S.
about December 7, 2006, plaintiff refinanced the mortgage on
his property located at 2655 South Valley Drive, Rapid City,
South Dakota. (Docket 39 ¶ 1). To do this he borrowed
$340, 800 from Homecomings Financial LLC
(“Homecomings”). Id. Plaintiff executed
and delivered to Homecomings a promissory note evidencing the
$340, 800 debt owed to Homecomings. Id. ¶ 2.
executed a mortgage on his property to secure the debt
evidenced in the note. Id. ¶ 4. The mortgage
provides the note may be sold without notice to plaintiff.
Id. ¶ 6; (Docket 41-2 at p. 14). It also states
the loan servicer may change “unrelated to a sale of
the Note[, ]” and if that happened plaintiff would
receive written notice. (Dockets 39 ¶ 7 & 41-2 at p.
14). In closing his loan, plaintiff signed two documents
related to TILA titled Notice of Right of Rescission and
Truth in Lending Disclosure Statement. (Dockets 39
¶¶ 8-10 & 41-3).
the closing of the loan, Homecomings sold the note to
Residential Funding Company LLC (“Residential
Funding”). (Dockets 39 ¶ 11 & 41-1).
Residential Funding then sold the note to GMAC Mortgage
(“GMAC”), which proceeded to sell it to the
Federal Home Loan Mortgage Corporation (“Freddie
Mac”). (Dockets 39 ¶¶ 12-13, 40-7 &
40-12). Freddie Mac has retained ownership of the note since
this last transaction. (Dockets 39 ¶ 14 & 40-1).
about July 21, 2010, GMAC became the servicer for
plaintiff's loan. (Dockets 39 ¶ 15 & 41-4). GMAC
then assigned that function to defendant. (Dockets 39 ¶
17 & 40-10). Defendant was plaintiff's loan servicer
from February 16, 2013, to October 15, 2015. (Dockets 39
¶¶ 25-26, 41-7 & 41-8). Residential Credit
Solutions, Inc. (“Residential Credit”) took over
as plaintiff's loan servicer after defendant. (Dockets 39
¶ 18 & 41-8).
2010, when GMAC was servicing the loan, it initiated a
foreclosure action on plaintiff's property in state
court. (Dockets 39 ¶ 29 & 40-2). During the
foreclosure litigation, GMAC filed for bankruptcy, defendant
purchased GMAC's servicing rights and defendant was
substituted for GMAC in the foreclosure case. (Dockets 39
¶ 32 & 40-5 at p. 5). The state trial court
determined GMAC was the loan's holder and servicer and
Freddie Mac was the note's owner. (Docket 40-5 at p. 5).
Plaintiff appealed and the South Dakota Supreme Court
affirmed the trial court's ruling. (Docket 39 ¶ 35).
A Sheriff's Sale for plaintiff's property occurred on
October 31, 2014, and defendant was the highest bidder.
(Docket 39 ¶ 36).
13, 2015, plaintiff filed his original complaint in this
case. (Docket 1). Plaintiff later filed an amended complaint
consisting of one count based on TILA. (Docket 20). Plaintiff
asserts TILA provides him with a right of rescission which he
timely exercised. Id. at pp. 3-4 (citing 15 U.S.C.
§ 1635(b)); (Docket 47-1). Plaintiff sent a notice of
rescission to Homecomings on October 30, 2009. (Docket 47-1).
According to plaintiff, his rescission frees him from the
obligation to pay the $340, 800 ...