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Thompson v. Bank of New York Mellon Trust Co.

United States District Court, E.D. Arkansas, Western Division

September 21, 2016

PHILLIP T. THOMPSON PLAINTIFF
v.
BANK OF NEW YORK MELLON TRUST COMPANY, ET AL. DEFENDANTS

          OPINION AND ORDER

          Kristine G. Baker United States District Judge.

         Before the Court is defendant/counter-plaintiff Bank of New York Mellon Trust Company's (“BONY”) motion for partial summary judgment on damages (Dkt. No. 238). Plaintiff Phillip T. Thompson filed a response opposing BONY's motion for partial summary judgment (Dkt. No. 246). BONY filed a reply (Dkt. No. 249). Mr. Thompson then filed a motion for leave to file a motion to strike BONY's reply, in which he alleges that BONY's reply is untimely filed (Dkt. No. 250). Mr. Thompson subsequently filed a notice withdrawing his motion for leave (Dkt. No. 251). The Court grants BONY's motion for partial summary judgment (Dkt No. 238) and denies as moot Mr. Thompson's motion for leave to file motion to strike untimely reply (Dkt. Nos. 250, 251).

         The Court previously granted BONY's motion for summary judgment as to liability on its counterclaim (Dkt. No. 235). The factual and procedural history of this case is set out in detail in that Order. By granting BONY's motion for summary judgment, the Court determined that Mr. Thompson is liable to BONY for the balance on a Note and Mortgage securing real property located in Pulaski County, Arkansas. The Court, however, denied BONY's motion for summary judgment on damages and determined that a genuine issue of material fact remained with regard to the amount owed by Mr. Thompson. The Court acknowledged that the issue of fact was due, in part, to the passage of time since BONY's first motion was filed (Dkt. Nos. 171, 235). Subsequently, BONY filed a motion for summary judgment concerning damages (Dkt. No. 238).

         I. Standard

         Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Hartnagel v. Norman, 953 F.2d 394, 395 (8th Cir. 1992) (citing Fed. R. Civ. Proc. 56(c)). An issue of material fact is genuine if it has a real basis in the record. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). A genuine issue of fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Procedurally, the movant has the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant is not required by the rules to support its motion with affidavits or other similar materials negating the opponent's claim. Id. “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. “Where the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.'” Id. at 587. “[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, 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.” Celotex, 477 U.S. at 322.

         II. Analysis

         In its motion, BONY contends that Mr. Thompson owes damages for the balance of the loan (Dkt. No. 239, at 2). BONY contends that, through August 1, 2013, the amount due and owing by Mr. Thompson pursuant to the Note was $399, 896.49, which represented a principal balance of $220, 304.54 plus per diem interest in the amount of $71.83 from August 2, 2013, until paid, plus other fees and funds in the amount of $44, 069.34, plus reasonable attorney's fees and all collection costs incurred by BONY (Dkt. No. 239, at 2-3).[1] BONY contends that these sums are permitted under the Note and Mortgage. BONY relies, in part, on the affidavit of Jim Mikoley, Assistant Vice President of AMS Servicing, LLC (“AMS”), the successor loan servicer for BONY, as support for its requested damages (Dkt. No. 171, Ex. 3, Mikoley Aff.).

         In his response, Mr. Thompson contends that: (1) there are clear discrepancies in BONY's records that create a genuine issue of material fact as to the amount of interest, fees, and costs that Mr. Thompson owes on the Note; (2) BONY lacks standing to seek the relief requested; (3) BONY's foreclosure suit was filed after the expiration of the five-year statute of limitations set forth in Arkansas Code Annotated § 4-3-118(a), and; (4) the Court failed to consider BONY's June 15, 2008, acceleration letter in its Order determining that BONY's action was not barred by the statute of limitations, and the failure to consider that letter gives the appearance of impropriety (Dkt. No. 247).

         A. Genuine Issues Of Material Fact

         Mr. Thompson's first point is that there are clear discrepancies in BONY's records regarding the amount he owes on the Note. Mr. Thompson appears to argue that the Court's prior Order determining that there is a genuine issue of material fact with regard to the amount owed by Mr. Thompson bars BONY's present motion for damages. Res judicata bars relitigation of a claim if: (1) the prior judgment was rendered by a court of competent jurisdiction; (2) the prior judgment was a final judgment on the merits; and (3) the same cause of action and the same parties or their privies were involved in both cases. Cardona v. Holder, 754 F.3d 528, 530 (8th Cir. 2014). Res judicata does not apply in the absence of a final judgment on the merits, particularly when the same litigation is pending. Looney v. Looney, 986 S.W.2d 858, 862 (Ark. 1999) (holding that res judicata does not apply to a judgment entered during the same litigation). The Court's prior Order was not a final judgment on the merits because the issue of damages remained. In addition, there is no “prior litigation” as the Court's order is part of the continuing trial level litigation between these parties. Therefore, res judicata is inapplicable.

         Mr. Thompson next points the Court to a letter from AMS, dated August 19, 2013, which states that the balance on the Note as of that date is $436, 875.91 (Dkt. No. 247, Ex. B, AMS Letter). Mr. Thompson contends that this letter, when compared to Mr. Mikoley's affidavit stating that the amount due as of August 1, 2013, is $399, 896.49, creates a genuine issue of material fact regarding the amount due. The Court disagrees.

         The validation of debt in Mr. Mikoley's affidavit is dated August 1, 2013, whereas the AMS letter is dated August 19, 2013. The Note and Mortgage permit the accrual of interest on a daily basis. The AMS letter indicates that the amount of the balance may include additional charges such as corporate advances, negative escrow balances, outstanding late charges, and any other outstanding allowable charges. Mr. Mikoley's affidavit states that the debt balance only includes interest accrued through August 1, 2013, and other fees and funds in the amount of $44, 069.340. Thus, the two amounts may not include the same fees and other charges.

         In addition, Mr. Thompson has failed to rebut BONY's record evidence regarding the principal amount due and the interest and fees charged with any record evidence of his own. Mr. Thompson contends that this is because he did not have the luxury of access to loan documents. However, Mr. Thompson provides no explanation for why he could not obtain those documents. Given these circumstances, the Court declines to find that the AMS letter creates a genuine issue of material fact with regard to the amount owed on the Note by Mr. Thompson.

         B. ...


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