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Warren v. Green Tree Servicing, LLC

United States District Court, D. Colorado

December 18, 2015

CHRISTINE WARREN, Plaintiff,
v.
GREEN TREE SERVICING, LLC, Defendant.

ORDER

PHILIP A. BRIMMER UNITED STATES DISTRICT JUDGE.

This matter is before the Court on Defendant Green Tree Servicing, LLC’s (“Green Tree”) Motion for Summary Judgment [Docket No. 75]. This Court has jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND[1]

This case arises out of an alleged violation of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq. On or about March 25, 2003, plaintiff borrowed the principal sum of $105, 700 (the “Loan”) from Cherry Creek Mortgage Co., Inc. (“CCMC”). Docket No. 75 at 3, Statement of Undisputed Material Fact (“SUMF”) 1. To evidence the Loan, plaintiff executed a note dated March 25, 2003 in the principal amount of $105, 700 in favor of CCMC and its successors and assigns. Id., SUMF 2. As a security for the Loan, plaintiff executed a Deed of Trust dated March 25, 2003 (the “Deed of Trust”) encumbering real property located at 1805 South Deframe Street, Denver, Colorado, 80228, for the benefit of CCMC and its successors and assigns. Id. at 4, SUMF 3.

On March 12, 2013, plaintiff commenced a Chapter 13 bankruptcy case by filing her Voluntary Petition with the United States Bankruptcy Court for the District of Colorado. Id., SUMF 5. Plaintiff’s petition contained various schedules, which are the only schedules filed in her bankruptcy case, wherein plaintiff under penalty of perjury disclosed to the Bankruptcy Court and her creditors her assets, including her potential claims and causes of action. Id. at 4-5, SUMF 6. On May 21, 2013, plaintiff filed an amended Chapter 13 Plan providing the payments that would be made to her creditors as part of her bankruptcy case. Id. at 5, SUMF 7. On June 17, 2013, the Bankruptcy Court entered an Order Confirming Amended Chapter 13 Plan. Id., SUMF 8. Plaintiff did not disclose any claim against her loan servicer to the Bankruptcy Court. See Docket No. 75-4; Docket No. 75-5.

On or about March 21, 2013, plaintiff received a letter from Green Tree (the “Welcome Letter”) notifying her that the servicing of her Loan was being assigned from Bank of America, N.A. to Green Tree effective April 1, 2013. Docket No. 75 at 5, SUMF 9.[2] In the Welcome Letter, Green Tree notified plaintiff that, “[i]f you want to send a ‘qualified written request’ regarding the servicing of your loan to your new servicer . . . it must be sent to this address: Green Tree, PO Box 6176, Rapid City, S.D. 57709-6176” (the “QWR Address”). Id., SUMF 10 (emphasis in original). The letter also stated under the subheading “Customer Service” that “[a]ny questions, complaints, or inquiries you have regarding your loan may always be directed in writing to our Customer Service department at the below-referenced address” and then provides: “Green Tree Servicing LLC, PO Box 6172, Rapid City, S.D. 57709-6172.” Docket No. 75-7 at 3.

Green Tree sent, and plaintiff received, “Monthly Informational Statements” regarding the Loan notifying plaintiff that any qualified written requests (“QWR”) must be delivered to Green Tree’s designated QWR Address. Id. at 5-11, SUMFs 13, 15, 18, 20-22, 27, 29, 31, 33, 35, 36.

On March 21, 2013, before Green Tree became the servicer of the loan, plaintiff sent a letter (the “First Letter”) to Bank of America and Green Tree discussing her attempts to make loan payments in advance of their due dates and pointing out a servicing error. Id. at 5, SUMF 11. The First Letter was not sent to Green Tree’s designated QWR Address, id., but rather was sent to Green Tree Servicing LLC, 345 St. Peter Street, St Paul, MN 55102. Docket No. 75-8 at 1. On or about April 23, 2013, plaintiff received a letter from Green Tree (the “April 23 Response”) acknowledging receipt of her First Letter and stating, among other things, that Green Tree was in the process of retrieving and reviewing the Loan and servicing files. Docket No. 75 at 6, SUMF 12. The last sentence of the April 23 Response states: “If you have any questions or comments, please contact Customer Service at the above address, ” and lists the address as Box 6172, Rapid City, S.D. 57709-6172. Docket No. 75-9. On or about May 9, 2013, plaintiff received a letter from Green Tree (the “May 9 Letter”) responding to her First Letter, describing how her Loan payments were applied and providing a payment history for the loan. Docket No. 75 at 6, SUMF 14.

On or about July 23, 2013, plaintiff sent a letter (the “Second Letter”) to Green Tree discussing her belief that, as a result of her advance loan payments, her Loan was current through February 2014 and requesting information regarding the same. Id. at 6-7, SUMF 16. Plaintiff did not send her Second Letter to the QWR Address, id., but rather sent it to the Box 6172 address. Docket No. 75-13 at 1. On or about August 8, 2013, plaintiff received a letter from Green Tree (the “August 8 Response”) acknowledging receipt of her Second Letter and stating that Green Tree was in the process of retrieving and reviewing the Loan and servicing files. Docket No. 75 at 7, SUMF 17. The last sentence of the August 8 Response states: “If you have any questions or comments, please contact Customer Service at the above address, ” and lists the Box 6172 address. Docket No. 75-14. On or about September 25, 2013, plaintiff received a letter from Green Tree (the “September 25 Letter”) responding to plaintiff’s Second Letter and describing how her lump-sum loan payments were applied and procedures regarding the same. Docket No. 75 at 7, SUMF 19.

On February 17, 2014, plaintiff sent a letter (the “Third Letter”) to Green Tree stating her belief that her loan was paid through February 2014 and requesting confirmation of March 2014 “invoicing.” Id. at 8, SUMF 23. Plaintiff did not send her Third Letter to the QWR Address, id., but rather sent it to the Box 6172 address. Docket No 75-20

On February 18, 2014, plaintiff sent a letter (the “Fourth Letter”) to Green Tree demanding that Green Tree respond to her Second Letter and threatening to take legal action, id., SUMF 24, even though Green Tree had already responded to plaintiff’s second letter. Id. at 7, SUMF 19. Plaintiff did not send the Fourth Letter to the QWR Address, id. at 8, SUMF 24, but rather sent it to the Box 6172 address. Docket No. 75-21.

On February 26, 2014, plaintiff received a letter (the “February 26 Letter”) from Green Tree acknowledging receipt of her Fourth Letter and stating that Green Tree was in the process of retrieving and reviewing the Loan and servicing files. Docket No. 75 at 8-9, SUMF 25. On March 4, 2014, plaintiff received another letter from Green Tree (the “March 4 Letter”) acknowledging receipt of her Fourth Letter and stating, among other things, that Green Tree was in the process of retrieving and reviewing the Loan and servicing files. Id. at 9, SUMF 26.

On or about March 12, 2014, plaintiff received a letter from Green Tree (the “March 12 Letter”) providing a payment history for the Loan and requesting that, if Loan payments were not reflected in the payment history, plaintiff provide proof of the same. Id., SUMF 28.

On or about April 9, 2014, plaintiff received a letter from Green Tree (the “April 9 Letter”) describing the allocation of her ...


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