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Boedicker v. Rushmore Loan Management Services, LLC

United States District Court, D. Kansas

February 12, 2018

DOUGLAS AND SERENITY BOEDICKER, Plaintiffs,
v.
RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Defendant.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE

         Plaintiffs claim defendant Rushmore Loan Management Services, LLC (“Rushmore”) violated a regulation under the Real Estate Settlement Procedures Act (RESPA) and a provision of the Fair Debt Collection Practices Act (FDCPA) in the course of servicing plaintiffs' mortgage loan. The matter is now before the court on Rushmore's motion for summary judgment. For the reasons stated herein, the court finds the motion should be granted.

         I. Facts

         Plaintiffs' response to summary judgment does not address the statement of facts in defendant's brief. Accordingly, defendant's statement is deemed admitted for the purposes of summary judgment. D. Kan. R. 56.1(a).

         Plaintiff Douglas Boedicker and Plaintiff Serenity Boedicker own the property located at 721 Redbud Drive, Paola, Kansas. Defendant Rushmore is the servicer for the mortgage on the Redbud Property that is the subject of the litigation between the parties.

         Plaintiffs' loan that Defendant is servicing closed on June 29, 2005. Plaintiffs modified the loan with then-servicer National City Bank in March 2008. Plaintiffs missed payments on the loan following the March 2008 modification. Plaintiffs again modified the loan with National City in July 2009. Plaintiffs missed payments on the loan following the July 2009 modification.

         Plaintiffs modified the loan with then-servicer Saxon Mortgage Services, Inc. in February 2011. Plaintiffs missed payments on the loan following the February 2011 modification. Plaintiffs modified the loan with then-servicer Specialized Loan Servicing LLC in August 2012. Plaintiffs modified the loan with then-servicer Carrington Mortgage Services, LLC in December 2013.

         Plaintiff Serenity Boedicker has an employment background in finance and is familiar with the loan modification process.

         Defendant became the servicer of the loan on July 1, 2014. On August 7, 2014, Defendant offered Plaintiffs a Reinstatement Payment Plan, which Plaintiffs accepted and subsequently breached. Plaintiffs' December 18, 2014 payment was returned unpaid due to insufficient funds. On February 10, 2015, Defendant offered Plaintiffs a Reinstatement Payment Plan, which Plaintiffs accepted and subsequently breached. Plaintiffs' April 1, 2015 payment was returned unpaid due to insufficient funds. On May 22, 2015, Defendant offered Plaintiffs a Reinstatement Payment Plan, which Plaintiffs accepted and subsequently breached. Plaintiffs' July 2, 2015 payment was returned unpaid because the account was closed. Plaintiffs' August 24, 2015 payment was returned unpaid due to insufficient funds. Plaintiffs' October 13, 2015 payment was returned unpaid due to insufficient funds.

         In October 2015, Plaintiffs applied for a loan modification. In November 2015, the loan modification was denied because of insufficient income. In December 2015, Plaintiffs applied for a loan modification. That same month, the loan modification was denied because of insufficient income. Plaintiffs appealed the denial of the December 2015 loan modification. The appeal was denied.

         On January 6, 2016, Defendant sent Plaintiffs another Reinstatement Payment Plan, which Plaintiffs accepted. Subsequent to accepting the January 6, 2016 Reinstatement Payment Plan, Plaintiffs and Defendant agreed to revise and lower the amount of the payments. Consistent with this agreement, on January 11, 2016, Defendant sent Plaintiffs another Reinstatement Payment Plan letter. This payment plan letter included a typo. Unlike the January 6, 2016 Reinstatement Payment Plan letter, the January 11, 2016 Reinstatement Payment Plan letter inserted an amount (“7392.91”) in place of a date. It stated in part: “The amount required to reinstate your loan in full as of 7392.91 is $6, 686.55.” Plaintiffs signed the January 11, 2016 Reinstatement Repayment Plan letter and returned it to Rushmore on January 13, 2016. When returning the January 11, 2016 Reinstatement Repayment Plan letter, Plaintiffs did not have any questions or express any concerns about the typo in the letter.

         The only issue Plaintiffs had with the January 11, 2016 Reinstatement Repayment Plan was its “discrepancy” with other reinstatement plans in regards to the payment amounts. The payment amounts in the January 11, 2016 Reinstatement Repayment Plan were lower. Plaintiffs did not mention the typo when discussing issues with the January 11, 2016 Reinstatement Repayment Plan. Plaintiffs failed to make any of the payments under the January 11, 2016 Reinstatement Repayment Plan. Plaintiffs' February 26, 2016 payment was returned unpaid due to insufficient funds.

         In April, 2016 Plaintiffs were offered two Reinstatement Payment Plans. They accepted one and later breached it. In June, 2016 Plaintiffs were offered a Reinstatement Payment Plan, which they accepted and later breached. Plaintiffs' June 22, 2016 payment was returned unpaid due to insufficient funds. In July 2016, Plaintiffs were offered a Reinstatement Payment Plan, which they accepted and breached.

         In August 2016, Plaintiffs applied for another loan modification. In September 2016, the loan modification was ...


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