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Estate of Nickerson v. Ocwen Loan Servicing, LLC

United States District Court, E.D. Michigan, Southern Division

December 17, 2019

ESTATE OF KIMBERLY ANN NICKERSON, DECEASED, WAYNE COUNTY PROBATE COURT NUMBER 12-827514-DE, BY MOLLY BROWN, PERSONAL REPRESENTATIVE, Plaintiff,
v.
OCWEN LOAN SERVICING, LLC Defendant.

          ORDER AND OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [14]

          Nancy G. Edmunds, United States District Judge.

         This dispute centers on whether Ocwen Loan Servicing, LLC is liable for personal property that was destroyed in connection with impending foreclosure proceedings following the death of the homeowner. Pending before the Court is Defendant's motion for summary judgment. (ECF No. 14.)[1] On October 23, 2019, the Court held a hearing in connection with the motion. For the reasons set forth below, Defendant's motion is GRANTED IN PART and DENIED IN PART.

         I. Background

         Plaintiff is the estate of Kimberly Ann Nickerson, deceased. Molly Brown was Nickerson's only daughter and sole heir. She is the personal representative of Nickerson's estate. On November 1, 2016, Nickerson passed away. On or about May 7, 2017, a probate estate for Nickerson was opened in the Wayne County Probate Court. Initially, Nickerson's sister, Kelly Greene was appointed as the personal representative of the estate. Shortly after Nickerson's death, Greene filed a purported will for Nickerson with the probate court that named Greene the personal representative of Nickerson's estate and gave ownership of Nickerson's property to Greene's daughter. Brown was nineteen years old at the time. When Brown discovered Greene and her daughter were claiming ownership of Nickerson's property by virtue of the purported will, Brown retained an attorney to contest the will. Brown moved to remove Greene as personal representative and to set aside the will. Ultimately, Greene and her daughter agreed to an order recognizing that the will was a forgery and acknowledging that Brown was the sole heir and successor personal representative of Nickerson's estate. On October 30, 2017, Brown was appointed successor personal representative of the estate.

         At the time of her death, Nickerson owned and resided in her home located at 31522 Palmer Rd., Westland, MI 48186. Brown occasionally stayed at the property and kept some of her personal belongings there. The estate is now the owner of the property, and the contents of the property are at the center of this dispute.

         The property was secured by a mortgage and Defendant Ocwen Loan Servicing, LLC serviced the mortgage. The summary judgment record reflects that from November 2017 through March 2018 no payment was made on the mortgage. In March 2018, Defendant began its foreclosure process on the property. On April 3, 2018, Brown faxed Defendant documents confirming she was the personal representative of the estate. She requested that all communications concerning the property be sent to her and provided a contact address in Farmington Hills, Michigan. Defendant's records confirm receipt of Brown's notice.

         Brown also claims that at or around this time she learned the mortgage was several months delinquent. The summary judgment evidence reflects that on April 30, 2018, Brown made a $3, 200 payment on the mortgage to bring it current. Defendant's records confirm receipt of this payment and note that the foreclosure process was stopped once the mortgage became current.

         It is unclear whether any additional payments were made on the mortgage after April 2018. In its motion, Defendant claims the mortgage was in default as of May 1, 2018. But a letter from Defendant dated May 7, 2018 provides that “On 05/02/2018, foreclosure proceedings were stopped, as the loan was re-instated.” And although the May 7, 2018 letter states foreclosure proceedings were stopped, Defendant apparently continued the foreclosure process. On June 29, 2018, Defendant's vendor-Altisource- placed a label on the door of the property requesting an occupant to call Altisource. No one ever called Altisource, which led Altisource to conclude the property was vacant. There is no evidence in the record that Altisource or Defendant ever reached out to Brown or took any additional steps to verify the occupancy status of the property at that time.

         Defendant states that on July 27, 2018 Brown, as personal representative of Nickerson's estate, filed her first property inventory with the probate court. The source of this July 27, 2018 date is not clear from the record. The inventory shows January 27, 2018 as the signature date and April 5, 2018 as the date of filing with the probate court. Notwithstanding, the inventory submitted by Brown was identical to the original inventory submitted by Greene and listed the house as the only property of the estate.

         On or about August 6, 2018, Altisource contracted with JGM Property, Inc. to “secure the property.” It is not clear from the record why JGM was needed to secure the property at that time or how Altisource made the decision to secure the property. According to Defendant, on or about August 31, 2018, all personal property was removed from the home and destroyed. According to Plaintiff, Defendant also placed locks on the property at this time to prevent Brown from entering. Defendant, however, does not mention the lock-out in its summary judgment briefing. It is not clear whether Brown continues to be locked out from the property, and if she is locked out, under what authority Defendant was permitted to take such actions.

         In support of its motion for summary judgment, Defendant submits an affidavit of JGM's owner who attests to JGM's actions taken in connection with the property. She states that JGM confirmed the property was not occupied and that JGM's contractor inspected the property and determined that “there was a large amount of droppings both rat and mouse along with horrific odor through the home and that the living conditions were unsanitary.” She states that JGM's contractor determined that “the droppings were not only on the floor but on top of and in personal property that was left behind. Although rodent urine is not visible to the naked eye, it could only be assumed that the urine was also in all areas that fecal droppings were present.” And she states that JGM's contractor concluded that “due to the fact that Hantavirus Pulmonary Syndrome and other contagious diseases are spread through the droppings and urine of rodents, everything was considered contaminated and hazardous, therefore all items were bid to be removed and then removed as debris.”

         There are problems with the JGM affidavit. One problem is that affidavit is incomplete. There are references to photographs in a report, but no photographs are included in the exhibit. Another problem is the lack of personal knowledge of the affiant. The affidavit is made by JGM's owner, but there is no indication that she was involved in the trash-out or had any first-hand knowledge about the property. Further, all the quoted language where JGM's contractor is purportedly explaining the reason for the trashing of Plaintiff's personal property comes from a memorandum written by JGM to Altisource dated October 3rd, 2018, which is apparently addressing Plaintiff's initial complaints to Defendant. There is no report from JGM's contractor. There is no explanation as to the source of the quoted language. There are no communications from the time of the trash-out. And none of the records now relied upon by Defendant appear to have been made simultaneously or at the time of the trash-out.

         There are also inconsistencies between the affidavit and other facts in the record. Defendant's internal notes reflect that as early as August 20, 2018, Plaintiff's counsel notified Defendant that Brown resided at the property. Defendant's records reflect that on August 22, 2018, a door knock was performed by one of its agents at the property and found it to be “occupied” with an overall condition of “average.” Plaintiff also submits evidence suggesting that the trash-out of the property was conducted on September 4, 2018, not August 31, 2018. The affidavit also does not explain why Plaintiff's trees and bushes were removed from the property.

         In addition, Defendant's representative testified that: (1) the utilities were on in the house at the time of the trash-out; (2) the home was being lived in at the time of the trash-out, which was evidenced by the presence of furniture and personal belongings in the bed rooms, kitchen, and living room; and (3) the JGM report identified the condition of the house to be average for the neighborhood. Further, Altisource's records indicate that the presence of animal waste was not the reason for the trash-out. Finally, it is not clear from the summary judgment evidence that the mortgage was in fact in default or that the property was or should have been in the foreclosure process at the time of the trash-out.

         After the trash-out, on September 14, 2018, Plaintiff's counsel wrote an e-mail to Defendant asserting the estate's claim against Defendant for destroying Plaintiff's personal property. Plaintiff also made an offer to pay off the loan in its entirety. Defendant did not respond. On November 21, 2018, Plaintiff initiated this lawsuit in state court. Defendant subsequently removed the case to this Court on diversity grounds. Neither Altisource nor JGM are included as defendants in the complaint. On May 7, 2019, Plaintiff served discovery responses to Defendant that included a list of all personal property allegedly destroyed by Defendant or its agents for which Plaintiff now seeks damages. These items were not included on the original inventory filed in the probate proceedings. On June 4, 2019, Brown filed an amended inventory in the probate court claiming personal property valued at approximately $40, 000. This inventory did not itemize the specific personal property claimed.

         Following the close of discovery, Defendant moved for summary judgment on all of Plaintiff's claims. Defendant's motion is now before the Court. In addition, at the hearing to consider Defendant's motion, Plaintiff orally moved the Court to consider granting summary judgment in its favor. The Court declines to entertain Plaintiff's oral motion for ...


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