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Mosley v. Quicken Loans, Inc.

United States District Court, D. South Carolina, Aiken Division

July 9, 2018

Tyrone Mosley, Plaintiff,
v.
Quicken Loans, Inc., Defendant.

          ORDER AND OPINION

         Plaintiff Tyrone Mosley filed the above-captioned action against Defendant Quicken Loans, Inc. alleging claims for violation of the South Carolina Attorney Preference Statute (“SCAPS”), SC Code § 37-10-102 (2017), in the context of a mortgage loan closing. (ECF No. 1-1 at 7 ¶ 5-8 ¶ 12.)

         This matter is before the court on Mosley's Motion to Alter or Amend Judgment pursuant to Rules 52(b) and 59(e) of the Federal Rules of Civil Procedure. (ECF No. 138.) Specifically, Mosley seeks to alter or amend the Order entered on March 9, 2018 (ECF No. 135) (the “March Order”), in which the court granted Quicken Loans' Motion for Summary Judgment and denied Mosley's Motion for Summary Judgment. (ECF Nos. 71, 74.) Quicken Loans opposes Mosley's Motion to Alter or Amend asserting that it should be denied. (ECF No. 140 at 2.) For the reasons set forth below, the court DENIES Mosley's Motion to Alter or Amend.

         I. RELEVANT BACKGROUND TO PENDING MOTIONS

         Quicken Loans “is a nationwide online mortgage lender that provides, among other things, residential mortgage loan refinances.” Boone v. Quicken Loans, Inc., 803 S.E.2d 707, 709 (S.C. 2017). “Under the Quicken Loans refinance procedure, the borrowers have already purchased the property and are simply seeking a new mortgage loan (presumably with more favorable terms) to replace the existing loan.” Id.

         On January 23, 2013, Mosley provided information to Quicken Loans for purposes of completing a loan application to refinance the mortgage on his primary residence located at 225 Bennett Street, Williston, South Carolina 29853.[1] (ECF Nos. 71-1 at 11:6-22, 71-3 at 2 & 71-5 at 3 ¶ 5.) As a result of the information provided by Mosley, Quicken Loans generated loan application documents that were made available to Mosley via Quicken Loans' internet web portal. (ECF No. 71-5 at 3 ¶ 5.) In addition to the loan application package, Quicken Loans included an Attorney/Insurance Preference Checklist (the “AIPC”). (Id.; see also ECF No. 1-1 at 8 ¶ 11.) Based on the information provided by Mosley, the AIPC was prepopulated with the following relevant information (in bold):

(a) I select I/We will not use the services of legal counsel.

Electronically signed on 1/23/2013 4:15:46 PM

Borrower Tyrone Mosley

Date

Borrower

Date

Borrower

Date

Borrower

Date

(b) Having been informed of this right, and having no preference, I asked for assistance from the lender and was referred to a list of acceptable attorneys. From that list I select

Not Applicable

Not Applicable

Borrower

Date

Borrower

Date

Not Applicable

Not Applicable

Borrower

Date

Borrower

Date

(ECF No. 71-6 at 2.)

         On January 23, 2013, Mosley electronically signed the loan application documents and the AIPC and transmitted them to Quicken Loans via its internet web portal. (Id.; see also ECF No. 71-5 at 3 ¶ 6.) On April 1, 2013, Mosley had a telephone conversation with a Quicken Loans' representative to discuss the details of the loan closing, including who would be in attendance. (ECF No. 71-5 at 3 ¶ 7.) Thereafter, Mosley was contacted by attorney Stacey E. (Pope) Besser (“Besser”) and they discussed issues relevant to the closing. (ECF No. 71-8 at 3 ¶ 6.) On April 5, 2013, Mosley signed a disclosure form agreeing to the terms of Besser's representation at the loan closing and closed the loan. (ECF No. 71-8 at 3 ¶ 7, 4-5.)

         On November 11, 2015, Mosley filed a Complaint against Quicken Loans in the Court of Common Pleas for Barnwell County, South Carolina alleging violation of the SCAPS.[2] (ECF No. 1-1 at 9 ¶ 12.) After Quicken Loans removed the case to this court (ECF No. 1), the parties engaged in and completed discovery on March 1, 2017. (ECF No. 36.) Quicken Loans then moved for summary judgment on March 31, 2017. (ECF No. 71.) On that same day, Mosley filed his Cross-Motion for Summary Judgment. (ECF No. 74.) After the court entered the March Order, Mosley moved to alter or amend judgment on April 6, 2018. (ECF No. 138.)

         II. JURISDICTION

         The court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)(1) based on Quicken Loans' allegations that there is complete diversity of citizenship between Plaintiff and Quicken Loans, and the amount in controversy herein exceeds the sum of Seventy-Five Thousand ($75, 000.00) Dollars, exclusive of interest and costs. (ECF No. 1 at 2.) Quicken Loans is a corporation organized under the laws of Michigan with its principal place of business in Detroit, Michigan. (ECF No. 1-3 at 3 ¶ 5.) Plaintiff is a citizen and resident of Barnwell County, South Carolina. (ECF No. 1-1 at 7 ¶ 1.) Moreover, the court is satisfied that the amount in controversy exceeds $75, 000.00 in accordance with Defendant's representation. (ECF No. 1 at 3-10.)

         III. LEGAL STANDARD AND ANALYSIS

         In the March Order, the court made the following observations in granting Quicken Loans' Motion for Summary Judgment:

The SCAPS requires the lender to ascertain the preference of the borrower as to legal counsel. “‘[A]scertain' means ‘to render certain or definite . . . to clear of doubt or obscurity . . . to find out by investigation.'” Parker v. Cty. of Oxford, 224 F.Supp.2d 292, 295 (D. Me. 2002) (quoting Black's Law Dictionary 114 (6th ed. 1990)); see also Morgan v. Huntington Ingalls, Inc., 879 F.3d 602, 609 (5th Cir. 2018) (“‘Ascertain' means ‘to make certain, exact, or precise' or ‘to find out or learn with certainty. . .' [t]hus, ‘ascertain' requires ‘a greater level of certainty . . . .'”) (citation omitted). In considering the requirements of the SCAPS, the court observes that the parties have not presented any dispute of fact regarding Quicken Loan's attorney preference procedure in this matter. Therefore, the matter is ripe for summary judgment.
Upon review, the court is persuaded that Quicken Loans did ascertain Plaintiff's attorney preference in compliance with the SCAPS. First, an agent of Quicken Loans asked Plaintiff if he would be using “the services of preferred legal counsel.” (ECF No. 71-5 at 3 ¶ 5.) After receiving Plaintiff's response that he did not have counsel of preference, Quicken Loans (1) sent Plaintiff an AIPC that advised him that he has “a right to select legal counsel to represent me(us) in all matters of this transaction relating to the closing of the loan” and (2) prepopulated the AIPC with the statement “I/We will not use the services of legal counsel.” (ECF No. 71-6 at 2.) Upon receipt of the AIPC, Plaintiff reviewed it, electronically signed it and electronically transmitted the document back to Quicken Loans. (Id.) There is no evidence before the court that Plaintiff had any questions about the content of the AIPC. Cf. Floyd v. Nationwide Mut. Ins. Co., 626 S.E.2d 6, 12 (S.C. 2005) (“[A] competent person usually is presumed to have knowledge and understanding of a document he signs, absent evidence his signature was obtained by misrepresentation, fraud, forgery, or duress.”) (citations omitted). Thereafter, Plaintiff had approximately ten weeks, from January 23, 2013, to before the loan closing on April 5, 2013, to express an attorney preference to Quicken Loans, which he did not do. ...

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