Dawson v. Litton Loan Servicing, LP
680 F. App'x 662
| 10th Cir. | 2017Background
- Litton serviced the Dawsons’ mortgage and denied them a permanent loan modification in Dec. 2009; after missed cures Litton issued a notice and foreclosed in Aug. 2011; U.S. Bank purchased the property and plaintiffs were evicted after Ocwen acquired Litton.
- Plaintiffs sued Litton and Ocwen asserting tortious interference, IIED, and Colorado Consumer Protection Act (CCPA) claims (the “Litton litigation”); IIED was dismissed and the district court later granted summary judgment for Litton and Ocwen on remaining claims.
- Plaintiffs separately sued Goldman Sachs alleging it controlled Litton and directed denials of loan modifications (the “Goldman litigation”); the district court dismissed Goldman and plaintiffs appealed both matters.
- On summary judgment review, plaintiffs relied chiefly on (1) general testimony from a former Litton employee lacking personal knowledge about the Dawsons, and (2) a one-page NPV worksheet that lacked income data to prove modification eligibility.
- The Tenth Circuit affirmed: (1) the CCPA and tortious-interference claims failed for lack of competent evidence tying defendants’ conduct to the Dawsons’ specific eligibility or causation; (2) Ocwen could not be held liable for pre-acquisition conduct; and (3) the IIED claim against Goldman failed because there were no allegations of extreme, outrageous conduct directed at the Dawsons by Goldman.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Litton violated the CCPA by misrepresenting consideration for loan modification | Litton told Dawsons it would consider modification while intending to deny them | Plaintiffs lack admissible evidence that Litton intended to deny them or that any misrepresentation caused injury | Summary judgment for Litton — no genuine fact dispute (insufficient evidence) |
| Whether Litton/Ocwen tortiously interfered with contract or expectancy | Litton’s alleged misrepresentations and Ocwen’s post-sale actions interfered with plaintiffs’ contractual expectancy | No competent evidence linking defendants’ conduct to a breach or to a likely contract; Ocwen was not servicing loan pre-sale | Summary judgment for Litton and Ocwen — claims fail for lack of proof and Ocwen not liable for pre-acquisition conduct |
| Whether Goldman is directly liable for IIED by directing mass denials of modifications | Goldman allegedly directed Litton to solicit and deny modifications en masse, causing extreme emotional distress | Goldman had no direct interactions with the Dawsons; alleged corporate directives insufficient to show outrageous conduct toward plaintiffs | Dismissal affirmed — IIED requires extreme, outrageous conduct directed at plaintiff; allegations here are insufficient |
| Whether district court erred relying on prior summary judgment when dismissing Goldman claims | Plaintiffs argued the dismissal improperly relied on the Litton SJ order | Defendants argued any reliance was harmless given affirmance of summary judgment | Court affirmed dismissal and found any error harmless because SJ affirmed |
Key Cases Cited
- Yousuf v. Cohlmia, 741 F.3d 31 (10th Cir. 2014) (standard for de novo review of summary judgment)
- Piercy v. Maketa, 480 F.3d 1192 (10th Cir. 2007) (nonmovant must identify sufficient evidence to survive summary judgment)
- MacKenzie v. City & County of Denver, 414 F.3d 1266 (10th Cir. 2005) (unsupported conclusory allegations do not create fact issues)
- Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022 (10th Cir. 1992) (nonmovant cannot rely on counsel’s allegations in briefs to defeat summary judgment)
- Campfield v. State Farm Mut. Auto. Ins. Co., 532 F.3d 1111 (10th Cir. 2008) (elements of tortious interference claims)
- Rugg v. McCarty, 476 P.2d 753 (Colo. 1970) (IIED requires conduct outrageous in character and extreme in degree)
- Coors Brewing Co. v. Floyd, 978 P.2d 663 (Colo. 1999) (court determines as a matter of law whether alleged conduct meets IIED standard)
- Teigen v. Renfrow, 511 F.3d 1072 (10th Cir. 2007) (standard of review for Rule 12(b)(6) motions)
- McGinnis v. American Home Mortgage Servicing, Inc., 817 F.3d 1241 (11th Cir. 2016) (IIED liability affirmed in a servicer case based on frequent harassing contacts; distinguished here due to lack of similar allegations)