United States District Court, D. Oregon
JEFFREY SLUSHER, an individual, KARIN SLUSHER, an individual, Plaintiffs,
DITECH FINANCIAL, LLC, a Foreign Corporation, Defendant.
R. Dowell THE DOWELL LAW FIRM Attorney for Plaintiff
William G. Fig Elizabeth A. Semler SUSSMAN SHANK LLP
Attorneys for Defendant
OPINION & ORDER
A. Hernandez United States District Judge
Jeffrey and Karin Slusher bring this action against Defendant
Ditech Financial, contending that a mortgage payoff statement
issued by Defendant contained erroneous charges which
"caused the termination of" an initial sale of the
mortgaged property. Compl. ¶ 9, ECF 1-1 at 3-9.
Plaintiffs contend that Defendant breached contractual
obligations and the implied duty of good faith and fair
dealing by issuing the allegedly incorrect payoff statement
and by refusing to retract the allegedly erroneous charges.
Id. ¶¶ 12-22. They further contend that
the payoff statement errors amounted to fraudulent material
misrepresentations supporting a claim of common law fraud.
Id. ¶¶ 31-34. Finally, they allege that
Defendant violated the Real Estate Settlement Procedures Act,
12 U.S.C. §§ 2601-2610 (RESPA), by making a
negative credit agency report following Plaintiffs'
dispute resolution request and thereby injuring
Plaintiffs' credit. Id. ¶¶ 23-30.
moves for summary judgment on all claims. I grant the motion.
Complaint, Plaintiffs allege that they owned residential
property in Creswell Oregon ("the Morse Property").
Id. ¶ 1. In late 2014, Defendant initiated
foreclosure proceedings against the Morse Property. Semler
Decl., Ex. 1 ("J. Slusher Dep.")
29:25-30:22. However, in early October 2015,
Plaintiffs entered into a Loan Modification Agreement with
Defendant related to the Morse Property mortgage which
terminated the foreclosure. Compl. ¶ 2; J. Slusher Dep.
summer of 2017, Plaintiffs listed the Morse Property for sale
for $240, 000, and shortly thereafter received an offer to
purchase the property. Id. ¶ 4; J. Slusher Dep.
16:10-17; J. Slusher Dep.-Decl. 12:6-14:1. The buyers entered
into an earnest money agreement. J. Slusher Dep. 14:21-15:3.
In response to a request by the escrow agent, Defendant
generated a payoff statement on September 7, 2017, showing a
payoff amount of $174, 106.01. Compl. ¶ 4; Compl., Ex.
2, ECF 1-1 at 16-17. That amount included "Corporate
Advances" of $1, 559.73 and $332.10 in late fees.
Id.; Compl., Ex. 2. It also showed $2, 456.51 in
escrow funds and a principal balance of $171, 830.89.
Id.; Compl., Ex. 2. According to Jeffrey Slusher,
Plaintiffs would have received $36, 015.06 in proceeds based
on the $235, 000 sale price and amounts payable to Defendant.
J. Slusher Dep. 16:10-17:11.
to Plaintiffs, since the October 2015 Loan Modification
Agreement, all monthly payments had been made through
September 2017 and no late fees had appeared on any monthly
online statement. Id. ¶ 4. Additionally,
since the Loan Modification Agreement, the Morse Property had
not been in judicial or non-judicial foreclosure proceedings.
Id. ¶ 5.
"September and October of 2017," Plaintiffs
contacted Defendant about the payoff statement and then made
a formal dispute resolution request. Id. ¶ 7;
see also J. Slusher Decl. ¶ 4 (stating that
from September 2017 through November 2017, he contested and
had communications with Defendant regarding the allegedly
incorrect payoff amounts). In the factual background section
of the Complaint, Plaintiffs do not assert the exact date of
this formal dispute request. However, in support of their
RESPA claim, they allege that they invoked formal dispute
resolution procedures on October 6, 2017. Compl. ¶ 25.
September 20, 2017 letter from Defendant to Plaintiff,
presumably sent in response to one of Plaintiffs'
communications, Defendant provided a breakdown of the
corporate advances shown in the payoff statement. Compl., Ex.
3, ECF 1-1 at 18-19. For the period before October 4, 2015,
when the Loan Modification Agreement was executed, the
information shows three sets of charges and corresponding
payments on those charges. Id. (charges and payments
through Jan. 6, 2014). In September 2017, $3, 205.02 was
added for charges related to an escrow deficiency,
"escrow unbilled," and past due escrow.
Id. These were paid on October 7, 2015, just three
days after the Loan Modification Agreement was executed.
Id. Thus, as of October 7, 2015, there were no
"Corporate Advance" fees owing. Id.
October 20, 2015, the account was charged $2, 228.25 for
"Court Costs," "Attorney Fees,"
"Trustee Sale," and "Trustee Fee."
Id. However, the account was credited on three
separate dates with payments toward those charges.
Id. (showing $170.88 credit on Dec. 9, 2015; $341.76
credit on Jan. 8, 2016; and $170.88 credit on Mar. 11, 2016).
The $2, 228.25 amount charged on October 20, 2015 less the
total $683.52 credited, left a balance of $1, 544.73. On May
1, 2017, the account was charged $15 for an inspection,
making the total "Corporate Advance" fees owing $1,
559.73, the amount shown on the September 7, 2017 payoff
allege that on November 11, 2017, they received
Defendant's November 2, 2017 response to their dispute
communication in which Defendant again demanded the same
amounts as stated in the September 7, 2017 payoff request.
Compl. ¶ 8. Plaintiffs allege that Defendant's
"refusal to make adjustments to the payoff amount
requested . . . caused the termination of the initial sale of
the Morse Property." Id. ¶ 9. Plaintiffs
re-listed the property for sale. Id.; J. Slusher
Dep. 39:6-17. Plaintiffs sold the home in mid-November 2017
for $245, 000 and paid Defendant the disputed payoff amount.
Id. ¶ 11; J. Slusher Dep. 40:13-22. Plaintiffs
received $47, 464.73 from the proceeds of the
sale. J. Slusher Dep. 42:22-43:18. Plaintiffs
filed this lawsuit approximately one month later.
judgment is appropriate if there is no genuine dispute as to
any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving
party bears the initial responsibility of informing the court
of the basis of its motion, and identifying those portions of
"'the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,' which it believes demonstrate the
absence of a genuine issue of material fact."
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(quoting former Fed.R.Civ.P. 56(c)).
the moving party meets its initial burden of demonstrating
the absence of a genuine issue of material fact, the burden
then shifts to the nonmoving party to present "specific
facts" showing a "genuine issue for trial."
Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924,
927-28 (9th Cir. 2009) (internal quotation marks omitted).
The nonmoving party must go beyond the pleadings and
designate facts showing an issue for trial. Bias v.
Moynihan, 508 F.3d 1212, 1218 (9th Cir. 2007) (citing
Celotex, 477 U.S. at 324).
substantive law governing a claim determines whether a fact
is material. Suever v. Connell, 579 F.3d 1047, 1056
(9th Cir. 2009). The court draws inferences from the facts in
the light most favorable to the nonmoving party. Earl v.
Nielsen Media Research, Inc., 658 F.3d 1108, 1112 (9th
factual context makes the nonmoving party's claim as to
the existence of a material issue of fact implausible, that
party must come forward with more persuasive evidence to
support his claim than would otherwise be necessary.