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Santoro v. Ocwen Loan Servicing, LLC

United States District Court, D. Oregon

February 28, 2019

STEPHEN A. SANTORO, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, ALTISOURCE SOLUTIONS, INC., AND KITSAP PROPERTY PRESERVATION, LLC, Defendants.

          FINDINGS & RECOMMENDATION AND ORDER

          THOMAS M. COFFIN UNITED STATES MAGISTRATE JUDGE.

         This is a diversity action which has been consolidated. Several motions are presently before the court as discussed in more detail below.

         FACTUAL BACKGROUND

         Plaintiff Santoro was in default on his mortgage loan in 2014 and his property was in foreclosure.

         Defendant Ocwen Loan Servicing (Ocwen) was the servicer for plaintiff's mortgage and had retained defendant Altisource Solutions, Inc. (Altisource) to provide property inspection and preservation services for properties in Ocwen's inventory that were going through the foreclosure process. Altisource engaged a vendor to conduct periodic inspections. A report appeared to indicate that the property was vacant and abandoned. Ocwen told Altisource to proceed with preservation of the property.

         Altisource ordered preservation services from defendant Kitsap Property Preservation (Kitsap).

         Kitsap, in turn, engaged an individual named Carl Faris (Faris) to perform the services which included winterizing the property and changing locks. Faris submitted a declaration in the underlying Coos County foreclosure action attesting that he preserved the property because, upon arriving, he noticed that all the doors were unlocked, and one was ajar, and the interior was disorganized, leading him to believe that the property had been left in a hurry and was vacant. Paragraphs 5-8, # 93-7.

         Plaintiff asserts the property was not abandoned and he returned to it later that day. He asserts that certain property was stolen from the property, including items that he owned and items that his children owned.

         Plaintiff filed a police report in which plaintiff identified Faris as the suspect who took the property. Plaintiff asked police to pursue charges, but they declined after interviewing Faris.

         Plaintiff has filed a Consolidated Amended Complaint (#76) containing several claims . Defendant Ocwen filed motions (#110, #106) for summary judgment and defendant Altisource filed motions (#112, 108) for partial summary judgment. Plaintiff was represented by counsel for the aforementioned filings and related responsive filings, but there was a subsequent discharge of plaintiff's counsel.

         Plaintiff now proceeds pro se and has filed motions (#153, #154) to certify a question to the Oregon Supreme Court.

         STANDARD

         Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Rule 56(c) mandates the entry of summary judgment against a party who 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 of proof at trial. In such a situation, 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. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Id. at 32. There is also no genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355 (1986); Taylor v. List, 880 F.2d 1040 (9th Cir. 1989).

         On a motion for summary judgment, all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion. Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).

         DISCUSSION

         I. DEFENDANT OCWEN

         Under the aforementioned standard summary judgment, there is no genuine issue of material fact and Ocwen should be entitled to summary judgment as a matter of law on all the claims against it.

         Althisource, Kitsap and Faris were not in an employment or agency relationship with Ocwen such that there would be vicarious liability for Ocwen, and there was not ratification

         As discussed below, Ocwen persuasively argues that Altisource, Kitsap and Faris were not in an employment or agency relationship with Ocwen such that there would be vicarious liability for Ocwen. Ocwen demonstrates that it is not vicariously liable because Ocwen did not have the requisite right of control over Altisource, Kitsap or Faris, and moreover, did not have the requisite control over the allegedly injury causing action. Ocwen also demonstrates that there was not ratification.

         Ocwen argues that the other parties were, at most, independent contractors, and relied on the test under McQuiggin v. Burr, 119 Or.App. 202 (1993). Plaintiff does not address McQuiggin in his Opposition, but argues that Altisource, Kitsap and Faris were non-servant agents of Ocwen. However, like the test for independent contractors under McQuiggin, to prove an agency relationship plaintiff must establish Ocwen's right to control Altisource, Kitsap and Faris. See, Larrison v. Moving Floors Inc, 127 Or.App. 720, 723 (1994) (whether express or inferred by conduct, ...


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