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Romero v. Bank of America, N.A.

United States District Court, D. Kansas

January 21, 2015

CHARLES N. ROMERO, Plaintiff,
v.
BANK OF AMERICA, NA, Defendant.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

Plaintiff Charles N. Romero brings this lawsuit against defendant Bank of America, NA, asserting claims for breach of a Home Affordable Modification Program ("HAMP") contract and violations of the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2601 et seq. These claims arise out of defendant's servicing of plaintiff's residential mortgage loan. This matter comes before the Court on defendant's Motion for Summary Judgment (Doc. 19). For the reasons explained below, the Court grants defendant's Motion for Summary Judgment.

I. Procedural Background

On May 21, 2014, defendant filed its Motion for Summary Judgment (Doc. 19). Plaintiff's response to that motion was due on June 11, 2014. See D. Kan. Rule 6.1(d)(2) (responses to motions for summary judgment must be filed and served within 21 days). On June 20, 2014, plaintiff filed a Motion for Extension of Time to File a Response to the Motion for Summary Judgment (Doc. 21), requesting a 90 day extension of time to file his response to defendant's summary judgment motion. The Court granted plaintiff's motion and ordered plaintiff to file a response to defendant's summary judgment motion on or before September 20, 2014. That deadline has long since passed, and plaintiff has not filed a response to defendant's summary judgment motion.

Because plaintiff has not responded to defendant's summary judgment motion, the Court may "consider and decide the motion as an uncontested motion." See D. Kan. Rule 7.4(b). "Ordinarily, the court will grant the motion without further notice." Id. But a party's failure to respond to a summary judgment motion-alone-is not a sufficient basis on which to enter judgment. Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002). Instead, the Court must determine whether judgment for the moving party is appropriate under Fed.R.Civ.P. 56. Id. Therefore, the Court considers the merits of defendant's summary judgment motion below.

But because plaintiff failed to file a response, he waives the right to respond or controvert the facts asserted in defendant's summary judgment motion. Reed, 312 F.3d at 1195. Thus, the Court accepts as true all material facts asserted and properly supported in defendant's summary judgment motion, as identified in the analysis below. Id.

II. Uncontroverted Facts

The following facts either have been stipulated by the parties in the Pretrial Order (Doc. 14) or are uncontroverted.

Plaintiff obtained a mortgage loan for $184, 500 from First Franklin Loan Services ("First Franklin") in March 2006. The loan was secured by a mortgage on plaintiff's residence, located at 5521 E. 67th Street, Mission, Kansas.

First Franklin offered plaintiff a Home Affordable Modification Trial Period Plan (the "TPP") for the Loan with an effective date of August 1, 2010. The TPP required plaintiff to make three trial plan payments in the amount of $1, 348.25 each, on or before August 1, 2010, September 1, 2010, and October 1, 2010, respectively. The TPP provides, in relevant part:

If prior to the Modification Effective Date, (i) the Servicer does not provide me a fully executed copy of this Plan and the Modification Agreement; (ii) I have not made the Trial Period payments required under Section 2 of this Plan; or (iii) the Servicer determines that my representations in Section 1 are no longer true and correct, the Loan Documents will not be modified and this Plan will terminate. In this event, the Servicer will have all of the rights and remedies provided by the Loan Documents, and any payment I make under this Plan shall be applied to amounts I owe under the Loan Documents and shall not be refunded to me; and I understand that the Plan is not a modification of the Loan Documents and that the Loan Documents will not be modified unless and until (i) I meet all of the conditions required for modification, (ii) I receive a fully executed copy of a Modification Agreement, and (iii) the Modification Effective Date has passed. I further understand and agree that the Servicer will not be obligated or bound to make any modification of the Loan Documents if I fail to meet any one of the requirements under this Plan.

TPP at ¶ 2.E (Doc. 20-1 at 26). Plaintiff signed the TPP on July 27, 2010. First Franklin did not sign the TPP.

First Franklin issued a Home Affordable Modification Agreement (Step Two of Two-Step Documentation Process) (the "HAMP Agreement") to plaintiff. Section 3 of the HAMP Agreement provides:

If my representations in Section 1 continue to be true in all material respects and all preconditions to the modification set forth in Section 2 have been met, the Loan Documents will automatically become modified on November 1, 2010 (the "Modification Effective Date") and all the unpaid late charges that remain unpaid will be waived. I understand that if I have failed to make any payments as a precondition to this modification under a workout plan or trial period plan, this modification will not take effect. The first modified payment will be due on November 1, 2010.

HAMP Agreement at ¶ 3 (Doc. 20-1 at 34). The representations in Section 1 include the representation that "I have made or will make all payments required under a Trial Period Plan or ...


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