White-Lett v. The Bank of New York Mellon, Corp.

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IT IS ORDERED as set forth below: bisraict

Date: September 30, 2022 Loh

Barbara Ellis-Monro

U.S. Bankruptcy Court Judge

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

IN RE:

SHIRLEY LETT, ! CASE NO. 10-61451-BEM

Debtor.

CHAPTER 7

SHIRLEY WHITE-LETT, :

Plaintiff,

ADVERSARY PROCEEDING NO.

v. 20-6278-BEM

THE BANK OF NEW YORK MELLON, :

CORP., et al.,

Defendants.

ORDER

This matter is before the Court on Defendant Bank of America, N.A.’s (“BANA”)

Motion for Summary Judgment (the “BANA Motion”) [Doc. 199] and Plaintiff Shirley White-

Lett’s Cross-Motion for Summary Judgment Against Bank of America, N.A. and The Bank of New

York Mellon and Opposition to Motion for Summary Judgment of Bank of America, N.A (the

“Plaintiff’s Motion” and with the BANA Motion the “Cross Motions”). [Doc. 208]. Defendant

The Bank of New York Mellon (“BONYM”) filed a Joinder to Bank of America N.A.’s Filings

Opposing Summary Judgment. [Doc. 218]. At issue in the Cross Motions is whether BANA

violated the discharge injunction and is liable for such violations. Additionally, at issue in

Plaintiff’s Motion is whether BONYM is also liable for any violations by BANA under principles

of agency. BANA also requests that if the Court finds summary judgment for BANA is not proper,

the Court enter partial summary judgment to limit the issues for trial. For the reasons set forth

below, none of the parties have shown they are entitled to summary judgment, and the Court will

deny the Cross Motions.

I. Summary Judgment Standard

Motions for summary judgment are governed by Federal Rule of Civil Procedure

56, made applicable in adversary proceedings by Federal Rule of Bankruptcy Procedure 7056.

Rule 56 requires the Court to grant summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

The movant is required to file a separate statement of facts, numbered separately, as to which it

contends there are no genuine issues to be tried. BLR 7056-1(a)(1). Facts set forth in the statement

of facts must be supported by “citing to particular parts of materials in the record, including …

affidavits[.]” Rule 56(c)(1). Affidavits “must be made on personal knowledge, set out facts that

would be admissible in evidence, and show that the affiant or declarant is competent to testify on

the matters stated.” Rule 56(c)(4).

The respondent is required to file a statement of facts, numbered separately, “to

which the respondent contends a genuine issue exists to be tried.” BLR 7056-1(a)(2). The

respondent “may not rest upon the mere allegations or denials in its pleadings” but “must set forth

specific facts showing that there is a genuine issue for trial. A mere ‘scintilla’ of evidence

supporting the opposing party’s position will not suffice[.]” Walker v. Darby, 911 F.2d 1573, 1576-

77 (11th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106. S. Ct. 2505,

2512 (1986)). Any material facts not specifically controverted by the respondent are deemed

admitted. BLR 7056-1(a)(2).

The Court will only grant summary judgment when the evidence, viewed in the

light most favorable to the nonmoving party, shows no genuine dispute of material fact. Tippens

v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986). A fact is material if it “might affect the

outcome of the suit under the governing law ….” Anderson, 477 U.S. at 248, 106 S. Ct. at 2510.

A dispute of material fact is genuine “if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Id. At the summary judgment stage the Court “‘must not resolve

factual disputes by weighing conflicting evidence[.]’” Tippens, 805 F.2d at 953 (quoting Lane v.

Celotex Corp., 782 F.2d 1526, 1528 (11th Cir. 1986)). Further, “the court may consider any

admissible facts and disregard any inadmissible statements occurring in the same affidavit.” Devan

v. Zamoiski Southeast, Inc. (In re Merry-Go-Round Enter., Inc.), 272 B.R. 140, 145 (Bankr. D.

Md. 2000); see also Peterson v. Board of Trustees of the Univ. of Ala., 644 F. App’x 951, 954

(11th Cir. 2016).

The standard for granting summary judgment is not affected by the filing of cross-

motions for summary judgment. “The court must rule on each party’s motion on an individual and

separate basis, determining, for each side, whether a judgment may be entered in accordance with

the Rule 56 standard.” 10A C. Wright, A. Miller & M. Kane, Fed. Prac. & Proc., § 2720 at 335-

36 (4th ed. Apr. 2019 update).

II. Undisputed Material Facts

A. Overview

The BANA Motion included a Statement of Undisputed Facts in Support of Motion

for Summary Judgment (“BANA’s Statement”). [Doc. 199-2]. Plaintiff did not file a separate

statement responding to those facts Plaintiff contends are in dispute. Plaintiff’s Motion included a

Statement of Undisputed Facts in Support of Plaintiff’s Motion for Summary Judgment Against

Bank of America, N.A., and The Bank of New York Mellon and in Opposition to Motion for

Summary Judgment of Bank of America, N.A. (“Pl’s Statement”). [Doc. 208 at 32]. BANA filed a

Response to Plaintiff’s Separate Statement of Undisputed Facts (“BANA’s Response”). [Doc.

213]. Because Plaintiff did not file a separate statement identifying disputed facts in BANA’s

Statement, all facts in BANA’s Statement are deemed admitted for purposes of the BANA

Motion.1

Additionally, BANA filed Objections to Plaintiff’s Evidence in Support of Cross-

Motion for Summary Judgment and Opposition to Bank of America, N.A.’s Motion for Summary

Judgment (the “Objection”) [Doc. 214] and Plaintiff filed a response thereto in which she contends

the Objections are not properly presented to the Court and that she should be excused from

responding to them because the Objections are vague, boilerplate, and unsupported. [Doc. 219].

Plaintiff did not expressly object to any of BANA’s exhibits, other than to argue that the Bernal

Declaration, as defined infra in Part II.C, makes an unsupported assertion that Plaintiff was in

default on her mortgage loan at the time BANA initiated foreclosure proceedings against her

residence. [Doc. 208 at 21 and n.9]. She argues further that BANA provided no evidence that it

1 Notwithstanding Plaintiff’s argument to the contrary [see Doc. 220 at 14], the Local Rules require a respondent to a

motion for summary judgment to provide a “separate and concise statement of material facts … as to which the

respondent contends a genuine issue exists to be tried.” BLR 7056-1(a)(2). Plaintiff has merely set forth her own list

of facts, without specifically identifying which, if any, of BANA’s facts she disputes.

sent and that Plaintiff received the two mortgage statements BANA relies upon and that the two

statements are irrelevant and insufficient as a matter of law.2 [Id. at 22].

B. BANA’s Evidentiary Objections

Plaintiff’s Motion includes two declarations and a number of exhibits.3 A list of

the materials to which BANA objects (objections in italics) are as follows:

• (A) Declaration of Shirley White-Lett in Support of Plaintiff’s Motion

(“Plaintiff’s Declaration”) [Doc. 208 at 66]; BANA objects to statements of

Ms. Brite in ¶ 1, 4, 5 as hearsay, to statements from websites in ¶ 17, 18 as

hearsay, to Plaintiff’s statements about the cause of her medical condition

in ¶ 11-15, 29, 38-47 as improper expert opinion, and to statements about

actions after November 2013 in ¶ 10-15, 19-22, 24-27, 30-37 as irrelevant.

The following exhibits are referenced in Plaintiff’s Declaration:

o (1) Declaration of Shirley White-Lett In Support of Her Motion for

Sanctions, originally filed on March 22, 2021 (“Plaintiff’s Prior

Declaration”) [Doc. 208 at 88]; BANA objects to the statements in

Plaintiff’s Prior Declaration as hearsay. Plaintiff’s Prior Declaration

references the following exhibits:

▪ (c) Log of mortgage payments and associated checks from

January 10, 2010 to March 2013 [Doc. 208 at 105]; BANA

objects as irrelevant and inadmissible hearsay with reference

to its brief for further explanation

▪ (e) BANA mortgage statements from November 2012

through March 2013 [Doc. 208 at 342]; BANA objects

because the documents are not complete; Plaintiff filed a

Motion to Supplement the Record to Supply Missing Pages

[Doc. 221] as to these documents in which she explains that

the missing pages were payment coupons that she returned

with her payments and therefore, except for the March 2013

statement, she does not have the missing pages. The Court

granted the motion to supplement. [Doc. 229].

▪ (f) December 4, 2012 letter from BANA, with check for

$24.55 [Doc. 208 at 365]; BANA objects because the exhibit

contains handwritten notes that are hearsay

2 Plaintiff describes these documents as “two random letters” and does not identify them by exhibit number or other

citation to record. Despite this lack of specificity by Plaintiff, the Court assumes she is referring to mortgage statements

dated February 28, 2012 and September 27, 2012 because no other exhibits submitted by BANA, other than an October

25, 2013 letter about transfer of loan servicing, could be so described. See infra Part II.C.

3 To the extent Plaintiff attempts to incorporate the entire record in this proceeding by reference [Doc. 208 at 33], the

Court need only consider those materials she provides citation to. Fed. R. Civ. P. 56(c)(1); BLR 7056-1(a)(3) (“All

documents and other record materials relied upon by a party moving for or opposing a motion for summary judgment

must be clearly identified for the Bankruptcy Court. Where appropriate, dates and specific page numbers must be

given.”).

▪ (h) December 4, 2012 letter from BANA, with check for

$24.55 [Doc. 208 at 370]; BANA objects because the exhibit

contains handwritten notes that are hearsay

▪ (n) Document from Broker Solutions, Inc. [Doc. 208 at 385];

BANA objects as irrelevant because it relates to actions taken

after BANA transferred servicing of the Loan

o (2) July 10, 2012 letter from BANA denying loan modification [Doc.

208 at 394] and January 14, 2010 letter from BANA with notice of

intent to accelerate [Doc. 208 at 397]; BANA objects due to lack of

authentication and it includes handwritten notes that are hearsay

o (3) Loan modification applications [Doc. 208 at 400]; BANA objects

due to lack of authentication and because the materials include a

letter from Plaintiff to BANA that is hearsay

o (4) Schedule J [Doc. 208 at 413]; BANA objects because it includes

Plaintiff’s purported expenses, which are hearsay and because

Plaintiff is not qualified to testify regarding the causation or amount

of her damages

o (5) 33 mortgage statements from SPS [Doc. 208 at 422]; BANA

objects due to lack of authentication and they are irrelevant because

they are related to actions taken after BANA transferred the loan

o (6) medical records regarding thoracic aortic aneurysm diagnosis

[Doc. 208 at 186]; BANA objects because medical records written by

third parties are hearsay, they violate the rule of completeness

because Plaintiff does not verify they are all the relevant medical

records, and Plaintiff is not qualified to testify regarding the

causation and amount of her damages

o (7) July 21, 2017 letter from Shellpoint [Doc. 208 at 208]; BANA

objects due to lack of authentication and it is irrelevant because it is

related to actions taken after BANA transferred the loan

o (8) July 26, 2017 letter from Shellpoint [Doc. 208 at 212]; BANA

objects due to lack of authentication and it is irrelevant because it is

related to actions taken after BANA transferred the loan

o (9) Plaintiff’s 1099s for 2014-2018 and other tax documents [Doc.

208 at 215]; BANA objects because they include Plaintiff’s purported

wages which is hearsay and because Plaintiff is not qualified to

testify regarding causation or amount of her damages

o (10) Spreadsheet of medical costs [Doc. 208 at 270]; BANA objects

because the amounts listed are hearsay and because Plaintiff is not

qualified to testify regarding causation or amount of her damages

o (11) Motion filed in district court case [Doc. 208 at 272]; BANA

objects because the statements in the motion are hearsay and

allegations are not evidence

• (B) Declaration of Gregory Daniels [Doc. 208 at 296]; BANA objects to

statements by Plaintiff (¶ 4, 5, 7) as hearsay and to statements about the

cause of Plaintiff’s medical condition (¶ 10-12) as improper expert opinion

BANA asks the Court to strike the material it has objected to. Plaintiff, relying on

The Courtland Company, Inc. v. Union Carbide Corp., No. 2:18-cv-1230, 2021 WL 2110876,

(S.D.W.V. May 25, 2021), argues that the objections are not properly presented because separate

objections and motions to strike are not allowed under Rule 56. Plaintiff further argues that the

objections are not well founded because they fail to explain why such facts cannot be presented in

a form that would be admissible in evidence as opposed to being stated in a conclusory boilerplate

fashion. Plaintiff asks the Court to strike BANA’s objections and to relieve Plaintiff from

responding to them.

Rule 56(c)(2) provides that “[a] party may object that the material cited to support

or dispute a fact cannot be presented in a form that would be admissible in evidence.” Fed. R. Civ.

P. 56(c)(2). The advisory committee notes to the 2010 amendments to Rule 56 explain that “[t]he

objection functions much as an objection at trial, adjusted for the pretrial setting. The burden is on

the proponent to show that the material is admissible as presented or to explain the admissible

form that is anticipated. There is no need to make a separate motion to strike.” Fed. R. Civ. P. 56

(2010 advisory committee notes) (emphasis added). “The plain meaning of these provisions show

that objecting to the admissibility of evidence supporting a summary judgment motion is now a

part of summary judgment procedure, rather than a separate motion to be handled preliminarily.”

Campbell v. Shinseki, 546 F. App'x 874, 879 (11th Cir. 2013).

As an initial matter, Plaintiff objects to the method BANA used to raise its

Objection, which she characterizes as an improper motion to strike and an attempt to circumvent

page limits. As the court in Courtland Company explained, Rule 56 does “not specify any

procedural method for raising such objections.” 2021 WL 2110876 at *3. The court noted further

that its local rules “page limitation applies expressly to memoranda filed in conjunction with

motions, not to objections.” Id. at *4. The court went on to direct the parties to “separately file”

their Rule 56(c)(2) objections. Id. at *4. Here, BANA filed a response to Plaintiff’s statement of

material facts, in which it noted evidentiary objections to certain facts asserted by Plaintiff. [Doc.

213]. BANA also filed a brief in response to Plaintiff’s Motion. [Doc. 212]. The Objection was a

separate 8-page filing that provided more detail about the specific materials to which BANA

objected and the basis for those objections. The Court finds this procedure to be consistent with

Rule 56(c) and it is not a basis to strike the Objection. The fact that the Objection included a request

to strike the objectionable materials does not change the result. Furthermore, by filing the

Objection as a separate document rather than incorporating it within the response brief, BANA did

not circumvent any page limits. Under BLR 7007-1(e) response briefs are limited to 25 pages, and

the substance of BANA’s response brief and Objections were a combined 23 pages.4 Additionally,

similar to the local rules in Courtland Company, the page limits in this Court’s local rules apply

to “briefs.” See BLR 7007-1(a), (e).

Plaintiff also argues the Objection

assert[s] numerous vaguely stated objections to a number of exhibits

and then proceeded to assert, in addition thereto and in chart form,

another 25 or more boilerplate, one-word and otherwise

unsupported objections to nearly every exhibit Plaintiff attached in

support of her motion and her opposition. … Such practices amount

to an attempt to circumvent page limitations, confound and confuse

Plaintiff as to what specifically she is expected to respond to

regarding such objections, and in fact makes it impossible to

effectively respond being forced into a guessing game.

[Doc. 219 at 2]. Plaintiff contends the Courtland Company case precludes such objections. The

Court disagrees with Plaintiff’s characterization of the Objection.

4 Reply briefs are limited to 15 pages. BLR 7007-1(e). BANA’s brief was titled as both a response to Plaintiff’s Motion

and a reply in support of BANA’s Motion. Because it included the response, BANA was entitled to use the full 25

pages, which is more economical than requiring BANA to file a separate reply.

The Objection identifies specific exhibits, specific portions of exhibits, and

identifies specific objections to those exhibits. The objections are limited and targeted. For

example, where exhibits include handwritten notes, only the notes are objected to as hearsay, and

then the objection is limited to the extent that the notes are offered for the truth of the matter

asserted therein. [See, e.g., Doc. 214 at 2]. The chart at the end of the Objection is not a list of

additional objections but is largely a summary of the objections already asserted. The Objection is

neither vague nor boilerplate, and the chart at the end of the Objection eliminates any guessing

game about the objections asserted and their grounds. Therefore, the Court finds no basis to strike

the Objection.

Plaintiff also argues that the Objection is deficient because it fails to show that her

materials cannot be presented in an admissible form.5 BANA is not required to do so. Rather, once

BANA has raised an objection it is Plaintiff’s burden, as the proponent of the evidence, “‘to show

that the material is admissible as presented or to explain the admissible form that is anticipated.’”

Campbell, 546 F. App'x at 879 (quoting Fed. R. Civ. P. 56, 2010 advisory committee's note).

Nevertheless, the Court will not require Plaintiff to respond to the Objection because as explained

herein, even if the Court overrules the Objection and considers all facts and documents offered by

Plaintiff that are material to her claims, she cannot show she is entitled to summary judgment.

C. Plaintiff’s Evidentiary Objections

BANA presented six documents in support of BANA’s Motion: Declaration of

Amy Bernal (the “Bernal Declaration”) [Doc. 199-3]; security deed for the Property, as defined

infra in Part II. D, executed on May 17, 2005 [Doc. 199-4, BANA Ex. 1]; assignment of security

deed executed on April 1, 2013 [Doc. 199-5, BANA Ex. 2]; notice to Plaintiff dated October 25,

5 The Court notes that Plaintiff did not follow this standard when presenting her objections to BANA’s evidence.

2013 about the transfer of servicing of the Loan to Select Portfolio Servicing, Inc. (“SPS”) [Doc.

199-6; BANA Ex. 3]; mortgage statement dated February 28, 2012 (the “February 2012

Statement”) [Doc. 199-7, BANA Ex. 4]; and mortgage statement dated September 27, 2012 (the

“September 2012 Statement”) [Doc. 199-8, BANA Ex. 5]. Additionally, in response to Plaintiff’s

Motion, BANA presented the following documents with a request that the Court take judicial

notice of them: Second Amended Complaint filed in Case No. 13-1-4212-34 in the Superior Court

of Cobb County, Georgia (the “Cobb County Case”) [Doc. 216-1, BANA Ex. A]; Order Granting

Defendants’ Motion to Dismiss in the Cobb County Case [Doc. 216-2, BANA Ex. B]; Remittitur

filed in Case No. A15A0815 in the Georgia Court of Appeals [Doc. 216-3, BANA Ex. C];

Certificate of Merger filed with the Texas Secretary of State, dated June 28, 2011 [Doc. 216-4,

BANA Ex. D]; and a letter from the Comptroller of Currency, dated July 5, 2011 [Doc. 216-5;

BANA Ex. E].

With respect to the February 2012 Statement and the September 2012 Statement,

Plaintiff argues they are irrelevant because her case is based on later mortgage statements that she

contends independently violated the discharge injunction. [Doc. 208 at 22]. This objection

presumes that each communication is always considered in isolation from the others. However,

the law does not require such an approach. See In re Zine, 521 B.R. 31, 38 (Bankr. D. Mass. 2014)

(“alleged violative acts need not be viewed in isolation, but also should be considered under the

totality of the circumstances to discern whether they evidence a pattern of coercive behavior”); see

also In re Cantrell, 605 B.R. 841, 856-57 (Bankr. W.D. Mich. 2019) (“After analyzing the BOA

statements in light of all the facts and circumstances” the court concluded that the first post-

discharge statement violated the discharge injunction but subsequent statements did not); Mele v.

Bank of Am. Home Loans (In re Mele), 486 B.R. 546, 556 (Bankr. N.D. Ga. 2013) (Ellis-Monro,

J.) (“[T]his Court will review each of the forms and letters individually and then assess the overall

effect of the documents to determine if Defendant was seeking to collect a debt from Plaintiff

personally.”). Therefore, the Court cannot conclude that the February 2012 and September 2012

Statements are irrelevant.

Plaintiff also argues that the statements are insufficient and that BANA has not

proven that it sent or she received the statements. [Doc. 208 at 22]. Plaintiff does not cite any Rule

of Evidence in support of this objection, and it is unclear whether this is an extension of her

relevance objection—i.e., that the statements are not relevant if she never received them. However,

in the Bernal Declaration, Bernal states that she knows BANA’s “internal processes and

procedures” and that she is “familiar with BANA’s record keeping processes.” [Doc. 199-3 ¶ 4].

Bernal further states that “BANA informed Plaintiff, in multiple communications, that BANA was

not seeking any personal liability against Plaintiff” and cited to the two statements. [Doc. 199-3 ¶

10]. This statement is sufficient to show that BANA asserts that it sent the statements to Plaintiff.

It is BANA’s conduct and the objective effect of that conduct that is relevant to whether the

discharge injunction was violated, see infra note 17, even if Plaintiff never received the two

statements.6

Plaintiff has also argued, without citing to any supporting authority, that BANA

must prove a default at the time of its attempted foreclosure and that the Bernal Declaration is

insufficient to do so. [Doc. 208 at 21 & n.9]. On summary judgment, the Court does not weigh

evidence but merely determines whether any disputes as to material fact exist. Anderson, 477 U.S.

at 249-50, 106 S. Ct. at 2511. In the Bernal Declaration, Bernal states that she has “personally

reviewed the BANA Business Records relating to the statements I make herein.” [Doc. 199-3 ¶ 5].

6 Plaintiff has not denied receiving the February 2012 and September 2012 Statements.

This is sufficient to show that BANA’s business records reflect a default, which is deemed

undisputed for purposes of the BANA Motion. Based on the foregoing, Plaintiff’s objections are

not well-founded and the Court will not exclude the February 2012 and September 2012

Statements or any portion of the Bernal Declaration for purposes of summary judgment.

D. Undisputed Material Facts

The Court finds the following facts to be undisputed based on BANA’s Statement,

Pl’s Statement, BANA’s Response, exhibits filed by the parties, other materials in the record, and

matters of which the Court may take judicial notice. Because the claims at issue are limited to

whether BANA violated the discharge injunction and whether BONYM is vicariously liable for

such violations, any facts regarding the conduct of third parties, including SPS and Shellpoint

Mortgage Servicing (“Shellpoint”) are not undisputed material facts and are not included in these

findings. See Anderson, 477 U.S. at 248, 106 S. Ct. at 2510 (“[T]he substantive law will identify

which facts are material. Only disputes over facts that might affect the outcome of the suit under

the governing law will properly preclude the entry of summary judgment. Factual disputes that are

irrelevant or unnecessary will not be counted.”). Furthermore, speculation, characterizations,

argument, and opinions, which are abundant in Pl’s Statement, are not considered as facts.

Conclusions asserted as fact are also disregarded. BLR 7056-1(a)(1). Certain of the facts are not

material, as discussed later, but are included here to provide context for arguments made by the

parties.

In May 2005, Plaintiff executed a $636,000 adjustable rate note (the “Loan”) and a

security deed (the “Deed”), which pledged property located at 456 North Saint Mary’s Lane,

Marietta, Georgia (the “Property”) as collateral for the Loan. [BANA’s Statement ¶ 1; Pl’s

Statement ¶ 1; BANA’s Response ¶ 1]. On April 1, 2013, Mortgage Electronic Registration

Systems Inc., as grantee under the Deed, assigned the Deed to BONYM, which acted as trustee for

a securitized mortgage trust. [BANA’s Statement ¶ 5].

On January 19, 2010, Plaintiff filed a Chapter 7 bankruptcy petition, commencing

case No. 10-61451 in the Bankruptcy Court for the Northern District of Georgia (the “Main Case”).

[BANA’s Statement ¶ 2; Pl’s Statement ¶ 1; BANA’s Response ¶ 1]. Plaintiff listed the Property

as her principal residence. [BANA’s Statement ¶ 4]. Also as part of the filing, Plaintiff submitted

Schedule D in which she listed BAC Homes Loans (“BAC”) as the “secured creditor” as she then

supposed the meaning of the term to be. [Pl’s Statement ¶ 1; BANA’s Response ¶ 1]. BAC was

actually a subservicer of BANA, who served as the master servicer for Mortgage-backed CWALT,

Inc. Alternative Loan Trust 2005-27, Mortgage Pass-Through Certificates Series 2005-27 (the

“Loan Trust”) that purports to own the Loan. [Pl’s Statement ¶ 2; BANA’s Response ¶ 27].

BANA was the master servicer of the Loan Trust from 2008 to present, while

BONYM served as the Trustee for the Loan Trust. [Pl’s Statement ¶ 2; BANA’s Response ¶ 2].

Subservicers were servicing the Loan as an agent for BANA. [Pl’s Statement ¶ 2; BANA’s

Response ¶ 2]. Subservicers and the master servicer also operate as agents of the Trustee,

BONYM, and are given powers of attorney by BONYM authorizing them to act as its agent and

attorney-in-fact in carrying out servicing of loans. [Pl’s Statement ¶ 3; BANA’s Response ¶ 3].

From February 25, 2012 through November 16, 2013, BANA was the servicer on the Loan.

[BANA’s Statement ¶ 6]. During this time BANA records reflect that the Property was Plaintiff’s

principal residence. [Id.].

7 BANA does not contest this fact but asserts that BAC merged into BANA on July 1, 2011, and asks the Court to take

judicial notice of the Certificate of Merger filed with the Texas Secretary of State and a letter from the Office of the

Comptroller of the Currency certifying the merger. [BANA’s Response ¶ 2; Doc 216 BANA Exs. D, E].

Upon filing her bankruptcy papers, Plaintiff submitted a Statement of Intention

seeking to have the Loan reaffirmed. [Pl’s Statement ¶ 4; BANA’s Response ¶ 4]. Within a week

after filing the Statement of Intention, Plaintiff contacted servicer BAC by phone to inform it of

the bankruptcy filing and of Plaintiff’s wish to reaffirm the Loan if possible but only if a reduced

monthly payment was possible by modifying the Loan. [Pl’s Statement ¶ 4, 30; BANA’s Response

¶ 4, 30]. The representative Plaintiff spoke to, Valerie Brite,8 remained Plaintiff’s “relationship

manager” for nearly two years which spanned most of the time her bankruptcy case was pending.

[Pl’s Statement ¶ 30; BANA’s Response ¶ 30].

The next month after filing bankruptcy, in February 2010, Plaintiff received a

mortgage statement stating the amount due and a due date, and she made the February payment

and subsequent payments to avoid collection action. [Pl’s Statement ¶ 5, 31; BANA’s Response ¶

5, 31]. During such time, Plaintiff kept attempting to determine any developments regarding the

reaffirmation and modification. [Pl’s Statement ¶ 5, 31; BANA’s Response ¶ 5, 31]. The BAC

representative responded that she had not received any word on modification but that Plaintiff

should continue making payments [Pl’s Statement ¶ 6; BANA’s Response ¶ 6]. With respect to

the reaffirmation, Plaintiff was told to apply for a loan modification, which she did in 2010. [Pl’s

Statement ¶ 31; BANA’s Response ¶ 31].9

8 Plaintiff asserts that Ms. Brite made it clear to her that she must continue making payments on the Loan until a

decision on modification and reaffirmation was reached and that BAC would initiate a collection action against

Plaintiff if she failed to make payments and would also initiate foreclosure. [Pl’s Statement ¶ 4, 30]. But that is not a

fact; it is Plaintiff’s characterization of the conversation and the conclusions she drew from it.

9 In paragraph 5 of Plaintiff’s Statement, Plaintiff states that after making the February 2010 payment, she “attempted

to discern from the servicer … any development regarding the requested modification of her loan.” In paragraph 31,

Plaintiff states that during the time she made the February 2010 payment and subsequent payments she “kept

attempting to determine any developments regarding the reaffirmation” and that she applied for a loan modification

in 2012. In paragraph 36, Plaintiff says the 2012 application for loan modification was “the last of several she had

submitted.”

Plaintiff’s plan at the time she filed bankruptcy was to obtain another more

affordable home loan, but she needed to know and be first assured that she would not be held

personally liable for the current Loan. [Pl’s Statement ¶ 7, 32; BANA’s Response ¶ 7, 32]. The

Loan was more than Plaintiff could afford at nearly $4,000 per month. [Pl’s Statement ¶ 32;

BANA’s Response ¶ 32]. Plaintiff wanted and needed to know before she continued making

payments on the Loan what the status of her loan would be in this regard. [Pl’s Statement ¶ 7;

BANA’s Response ¶ 7]. Plaintiff continued to make her monthly mortgage payments to BANA

each month after filing bankruptcy. [Pl’s Statement ¶ 8, 34; BANA’s Response ¶ 8, 34]. Plaintiff

wanted to be sure that she did not do anything that might result in her becoming the subject of a

collection action for the mortgage debt or that might have a negative impact on any future ability

to obtain a mortgage loan. [Id.].

On October 27, 2010, BAC, on behalf of BONYM, filed a motion for relief from

stay in the bankruptcy case. [Pl’s Statement ¶ 9; BANA’s Response ¶ 9]. The motion was later

withdrawn on January 21, 2011. [Id.].

On February 25, 2011, the Bankruptcy Court entered an order granting a discharge,

which was served on February 28, 2011 and indicates service on BAC. [BANA’s Statement ¶ 3;

Pl’s Statement ¶ 10; BANA’s Response ¶ 10]. BAC merged into BANA on July 1, 2011. [Doc.

216-4, BANA Ex. D]. During the period of February 25, 2011 to November 16, 2013, BANA

informed Plaintiff in multiple communications that BANA was not seeking any personal liability

against Plaintiff, including the February 2012 Statement, the September 2012 Statement, and a

letter notifying Plaintiff of the initiation of foreclosure proceedings. [BANA’s Statement ¶ 8, 10].

The loan modification process continued for the entire pendency of Plaintiff’s

bankruptcy case. [Pl’s Statement ¶ 35; BANA’s Response ¶ 35]. Plaintiff received a letter dated

July 10, 2012, which was 10 days before the bankruptcy case closed on July 20, 2012. [Id.]. The

letter stated that Plaintiff did not qualify for any loan modification under consideration but that

other options might be available. [Id.] The letter also stated:

Important Information about foreclosure proceedings

Please call us as soon as possible to determine if you qualify for one

of the options listed above. We are now returning your loan to

normal collection activity, which could include referral to

foreclosure and a foreclosure sale. Do not ignore any legal notices

about your home. We may be able to postpone foreclosure

proceedings; however, foreclosure postponement is not guaranteed

and you will need to respond to all notices to protect your legal

rights.

If you have any questions about the collection or foreclosure

process, please call us. If you do not understand the legal

consequences of foreclosure, we encourage you to contact an

attorney or housing counselor for assistance.

[Id.].

After the discharge and the bankruptcy case had closed on July 20, 2012, BANA

sent Plaintiff a monthly mortgage statement for November 2012 with the following language:

If we do not hear from you immediately, we will have no alternative

but to take appropriate action to protect the interest of the

Noteholder in your property. This action may include returning

payments that are less than the total payments due to bring loan

current.

Please give this matter your most urgent attention. Please send the

amount due with the coupon below immediately. Additional

amounts may become past due.

Bank of America, N.A. will proceed with collection action until

your account is brought fully current, and you will be responsible

for all costs incurred in this process to the full extent permitted by

law.

[Pl’s Statement ¶ 11; BANA’s Response ¶ 11; Doc. 208 at 360, Pl. Ex. A.1.E]. Similar statements

with identical language would follow consecutively for the months of December 2012 through

March 2013. [Pl’s Statement ¶ 12; BANA’s Response ¶ 12]. After receiving consecutive mortgage

statements that contained no communication that Plaintiff was not personally responsible for

payment due to her discharge, Plaintiff saw no need to examine every mortgage statement she

received as the habit of payment had already been formed. [Pl’s Statement ¶ 37; BANA’s Response

¶ 37].

Plaintiff made a payment in April 2012 in the amount of $3,951.54. [Pl’s Statement

¶ 13; BANA’s Response ¶ 13]. BANA sent Plaintiff a letter dated December 12, 2012 that stated

as follows: “Your monthly payment due 04/01/2012 for your loan is $3591.34. We received a total

of $24.55 to be applied to your loan; however, this amount does not represent a full monthly

payment. We are unable to accept partial payments on your account.” [Id.]. In the next paragraph,

the letter stated: “Since we have not received the remining amount of $3926.79 needed to complete

your total monthly payment, we are returning these funds to you in the enclosed check.” [Pl’s

Statement ¶ 14; BANA’s Response ¶ 14]. Plaintiff’s banking records show, by way of a copy of

the canceled check, that BANA received Plaintiff’s check in the amount of $3,951.34. [Pl’s

Statement ¶ 14; BANA’s Response ¶ 14]. The following month, Plaintiff made a payment by check

in the amount of $3,951.34. [Pl’s Statement ¶ 16; BANA’s Response ¶ 16.] This check was cashed

by BANA. [Id.]. BANA sent Plaintiff a letter dated January 15, 2013 that stated:

Your monthly payment due 05/01/2012 for your loan is $3951.34.

We received a total of $33.01 to be applied to your loan; however,

this amount does not represent a full monthly payment. We are

unable to accept partial payments on your account.

Since we have not received the remaining amount of $3926.79

needed to complete your total monthly payment, we are returning

these funds to you in the enclosed check.

[Id.]. The enclosed check issued by BANA was for $33.01. [Pl’s Statement ¶ 17; BANA’s

Response ¶ 17].

At this point, Plaintiff began to perceive that BANA was engaging in an attempt to

create the existence of a default so as to initiate foreclosure. [Id.]. Nevertheless, Plaintiff continued

to make numerous mortgage payments to BANA. [Pl’s Statement ¶ 19; BANA’s Response ¶ 19].

Plaintiff became very nervous and anxious to the point she could not sleep. [Pl’s Statement ¶ 25;

BANA’s Response ¶ 25]. She was worried about not having a place to stay and she had no more

savings to make another home purchase or even to move to a rental. [Id.]. Plaintiff felt she had no

choice but to pay the monthly payments. [Id.]. In order to make the monthly mortgage payments,

Plaintiff had to drastically reduce expenditures including basic needs, like eating cheaper and less

healthy foods and eliminating entertainment. [Pl’s Statement ¶ 26, 37; BANA’s Response ¶ 26,

37]. Plaintiff was very unhappy, worried, and angry during this time and by early 2013 was

beginning to suffer regular headaches. [Id.]. While she was undergoing significant emotional

distress and anxiety during this time, which continued the following year, Plaintiff continued

having headaches and also began to feel tired over the period of 2013 to 2014. [Pl’s Statement ¶

38; BANA’s Response ¶ 38]. Plaintiff had not yet been diagnosed with any sickness and had no

medical history of any sort up until this time. [Id.].

The total number of mortgage payments made on the Loan since January 10, 2010

through and including March 2013 is $147,469.18. [Pl’s Statement ¶ 20; BANA’s Response ¶ 20].

Because Plaintiff was in default on the Loan10, BANA sought to enforce in rem rights in the

property through foreclosure and retained the firm of Shuping, Morse & Ross, LLP to conduct the

foreclosure proceedings. [BANA’s Statement ¶ 9]. Plaintiff received a letter dated May 1, 2013

from attorneys Shuping, Morse & Ross, LLP representing BANA as servicer for BONYM

initiating a foreclosure. [Pl’s Statement ¶ 18; BANA’s Response ¶ 18; BANA’s Statement ¶ 10].

10 This fact is undisputed with respect to the BANA Motion.

In November 2013, Plaintiff received notice from SPS that it would be the new

servicer. [Pl’s Statement ¶ 22; BANA’s Response ¶ 22; BANA’s Statement ¶ 7]. After SPS began

servicing the Loan, SPS sent Plaintiff monthly mortgage statements over a three-year period that

the Court determined violated the discharge injunction. [Pl’s Statement ¶ 39; BANA’s Response

¶ 39]. This caused Plaintiff’s stress and anxiety to continue and took a toll on Plaintiff’s health.

[Pl’s Statement ¶ 40; BANA’s Response ¶ 40]. By early 2015, Plaintiff’s headaches and ability to

breathe worsened, and she began experiencing chest pains and dizziness for the first time. [Pl’s

Statement ¶ 43; BANA’s Response ¶ 43].

Plaintiff remains financially unable to purchase alternative housing to this day

because her credit history reflects the foreclosure initiation and responsibility for the unpaid

mortgage. [Pl’s Statement ¶ 27; BANA’s Response ¶ 27]. BONYM has continued to file

foreclosures with the latest initiation being in late 2018. [Pl’s Statement ¶ 28; BANA’s Response

¶ 28]. When Plaintiff applied for a loan she was turned down because the lender identified the

multiple foreclosures initiated by Defendants and noted that there were pending and unresolved

foreclosures showing up in its credit investigation. [Id.]. For nearly 10 years, as a result of the

foreclosures that appeared of record, Plaintiff could not finance another home. [Pl’s Statement ¶

29; BANA’s Response ¶ 29]. As a result, Plaintiff has been in a constant state of worry and

unhappiness and struggles sometimes to see a reason to keep going. [Pl’s Statement ¶ 29; BANA’s

Response ¶ 29].

Plaintiff earned income by operating a subcontracting/outsourcing customer service

and call center for various business and conducted sales and marketing for some of these clients.

[Pl’s Statement ¶ 53; BANA’s Response ¶ 53]. There was no limit as to the number of hours

Plaintiff could work for any such business, and she hired employees periodically to make calls and

would earn a percentage of service fees generated from their work. [Id.]. Through 2011, Plaintiff

had been working an average of 40 hours a week, and often more, as vice president of a debt

collection firm. [Pl’s Statement ¶ 44; BANA’s Response ¶ 44]. There were no medical issues

affecting Plaintiff’s life or ability to work prior to the above experiences; Plaintiff enjoyed life and

the ability to engage in exercise and other physical activities without limitation. [Id.].

In a related adversary proceeding commenced by Plaintiff [AP 20-6031, the “SPS

AP”], Plaintiff stated the following with regard to the timing of the onset of damages:

18. By late 2014 and early 2015, Plaintiff had begun having bouts

of dizziness, shortness of breath and chest pains. Feeling alarmed

and afraid regarding these physical events, Plaintiff immediately

sought to be evaluated by her physician. Plaintiff’s physician

discovered that she had developed a thoracic aortic aneurysm which

was causing the symptoms she had been experiencing.

19. Plaintiff had never been sick prior to that time and had no family

history of any heart disease or hypertension. As a result of this

diagnosis, which was based in part upon a transthoracic

echocardiograph report, Plaintiff had been prescribed several

medications.

[BANA’s Statement ¶ 12 & AP 20-6031 Doc 1 ¶ 18, 19 (emphasis added)].

Plaintiff decided to seek medical attention in or around March 2015, at which time

she was diagnosed with a thoracic-aortic-aneurysm. [Pl’s Statement ¶ 45; BANA’s Response ¶

45]. As a result of that diagnosis and per instructions from her treating physician and the

medication he prescribed, Plaintiff felt physically unable to work and did not attempt to work in

2015 but instead planned to rest and recover. [Id.]. Plaintiff had been informed by her treating

physician that the medication prescribed will likely be necessary for the rest of her life. [Pl’s

Statement ¶ 46; BANA’s Response ¶ 46].

Since her diagnosis, Plaintiff began to do some research as to the management of

her condition, reading articles on medical websites. [Pl’s Statement ¶ 47-48; BANA’s Response ¶

47-48]. This information placed Plaintiff in a state of fear that her quality of life may never be the

same and that she could lose her life. [Pl’s Statement ¶ 49; BANA’s Response ¶ 49]. Plaintiff

suffered and continues to suffer despair, depression, and fear for these reasons. [Pl’s Statement ¶

49; BANA’s Response ¶ 49].

During the months that followed her March 2015 diagnosis, Plaintiff attempted to

follow all the instructions and to heed all the warnings from her physician and the information she

learned from her own research. [Pl’s Statement ¶ 50; BANA’s Response ¶ 50]. Plaintiff reduced

the hours she had been working or intended to work during 2015 and 2016 and took her medication

as directed. [Id.].

After servicing of the Loan was transferred to Shellpoint in December 2016,

Plaintiff’s emotional stress was reduced, and having continually taken the medication as

prescribed, the adverse symptoms of her condition stabilized, and Plaintiff was able to return to

working more hours. [Pl’s Statement ¶ 51-52; BANA’s Response ¶ 51-52]. Plaintiff made

arrangements to adjust the level of customer service calls her business would handle based on the

expectation that she would be returning to work as her condition improved or stabilized over 2016

and early 2017. [Pl’s Statement ¶ 54; BANA’s Response ¶ 54]. Plaintiff began to work 28-30 hours

per week and increased her service call volume and was on track to earn $1,330 per month. [Pl’s

Statement ¶ 54, 61; BANA’s Response ¶ 54, 61]. Plaintiff became angry and frustrated again about

the circumstances of her mortgage and perceived collection efforts in 2017 and experienced a

relapse that caused her to stop working completely. [Pl’s Statement ¶ 59; BANA’s Response ¶ 59].

After a few months of rest, Plaintiff began working sporadically during 2018 and only earned

$4,500 plus $1,500 in commissions and fees. [Pl’s Statement ¶ 60; BANA’s Response ¶ 60]. From

2019 to present, due to an increase in hourly pay, Plaintiff’s 15-hour work week now generates

approximately $1,020 per month or $12,240 annually, not including bonuses. [Pl’s Statement ¶ 62;

BANA’s Response ¶ 62]. Plaintiff’s medical-related expenditures average $5,000 per year. [Pl’s

Statement ¶ 68; BANA Response ¶ 68]. Plaintiff will incur these costs for the remainder of her life

according to her physician. [Id.]. From January 10, 2010 through March 2013, Plaintiff made a

total of $147,469.18 in mortgage payments. [Pl’s Statement ¶ 20, 24; BANA’s Response ¶ 20, 24].

Plaintiff commenced this proceeding in December 2020. [BANA’s Statement ¶ 11].

BANA cannot verify as to whether all records that BANA originally maintained regarding the

Loan still exist with BANA because the servicing transferred to SPS on November 16, 2013.

[BANA’s Statement ¶ 13].

III. Legal Analysis

A. New Claims by Plaintiff

The first half of Plaintiff’s Motion seeks summary judgment against BANA and

BONYM for violations of the automatic stay under 11 U.S.C. § 362(a), which prohibits collection

of a prepetition debt, among other things. At no time has Plaintiff asserted a claim for violation of

the automatic stay in this proceeding. Such a claim was not included in Plaintiff’s original

complaint [Doc. 1], in her amended complaint [Doc. 9], or any subsequent proposed amendments,

[Docs. 133, 136, 137, 153, 200, 224], although her most recent proposed amendments seem to

assume that she has asserted such a claim. [Doc. 224]. Plaintiff contends that she alleged facts that

support a claim for violation of the automatic stay and that she is not required to do more than that.

Federal Rule of Civil Procedure 8(a), made applicable in adversary proceedings by

Federal Rule of Bankruptcy Procedure 7008, provides that to state a claim for relief, a pleading

must contain: “a short and plain statement of the claim showing that the pleader is entitled to

relief[.]” Fed. R. Civ. P. 8(a)(2). The Court must construe pleadings “so as to do justice.” Id. 8(e).

While the pleadings of pro se plaintiffs are liberally construed, they must comply with the Rules

of Procedure. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007). The purpose of Rule 8 is

to “give the defendant fair notice of what the … claim is and the grounds upon which it rests.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964 (2007) (internal quotation

marks and citations omitted).

Here, Plaintiff identified five claims in the title to her Amended Complaint, none

of which included violation of the automatic stay: “Plaintiff’s Amended Rule 7001 and 3007(b)

Adversary Proceeding for the Following Purposes: (1) To Determine Validity and Secured Status

of a Lien[,] (2) Obtain Declaratory and Injunctive Relief as to Validity and Enforceability of a

Debt and Security[,] (3) Avoidance of Unperfected Lien Under Section 544[,] (4) Objections to

Proof of Claim[, and] (5) Contempt Sanctions for Violations of Discharge Injunction.” [Doc. 9].

Headings in the Amended Complaint include “Declaratory Judgment as to BONYM,”

“Declaratory Judgment as to Bank of America, N.A.,” and “Sanctions Against Bank of America

and BONYM for Violations of Discharge Injunction.” [Doc. 9 at 35, 43]. The prayer for relief in

the Amended Complaint is cut off mid-sentence, providing in its entirety, “WHEREFORE Plaintiff

seeks that the Court determine as follows: 1. That no Defendant validly holds the Note at issue

herein and has no right”. [Doc. 9 at 51].

Plaintiff contends headings in a complaint are not determinative of the claims

asserted therein and that she pleaded an automatic stay violation because her Amended Complaint

alleged that she listed BANA’s predecessor as a secured creditor and, within a week of filing a

statement of intention, she contacted her mortgage servicer to inform it of her bankruptcy filing

and her intent to reaffirm the mortgage loan. Plaintiff alleged that “[t]he representative with whom

Plaintiff spoke could not confirm whether or when her loan would be reaffirmed but made clear

that she must continue making her mortgage payments in any case until a decision on reaffirmation

is reached and that BAC would initiate a collection action against her if she failed to make [her]

payments.” [Amended Complaint, Doc. 9 ¶ 118]. Plaintiff also alleged that she received a

mortgage statement the month after she filed her bankruptcy case with an amount due and a due

date and that she made the payment. Plaintiff further alleged that she made the payments out of

fear of a collection action and that she suffered emotional distress upon learning that she was never

required to make the payments.11 [Doc. 220 at 3-4 (citing Amended Complaint, Doc. 9 ¶ 116, 118-

120, 122-123, 137)].

Plaintiff cites to Phillips v. Girdich, 408 F.3d 124, 130 (2d Cir. 2005), in support

of her argument that she need not identify a claim for stay violation so long as she alleges facts

regarding a stay violation. The case does not stand for the proposition that pro se plaintiffs are

excused from identifying the claims they are asserting or that pro se plaintiffs may identify some

claims while leaving others to be deduced by the opposing party and the court.12 Instead, after

determining that the pro se plaintiff’s complaint “contained three clearly enumerated claims,” the

court in Phillips found that the factual allegations supported at least some of those claims and

explained that a pro se plaintiff did not have to “plead the legal theory, facts, or elements

underlying his claim.” Id. at 129, 130.

Here, Plaintiff’s pleadings do not clearly enumerate a claim for violation of the

automatic stay and are not adequate to provide notice of such a claim to BANA or BONYM. This

is evident from the prior motions and orders in this proceeding. BANA filed a motion to dismiss

Plaintiff’s claims against it [Doc. 48], and BONYM filed a motion to dismiss and motion for

11 All these allegations were presented under the heading “SANCTIONS AGAINST BANK OF AMERICA AND

BONYM FOR VIOLATIONS OF THE DISCHARGE INJUNCTION.” [Doc. 9 at 43].

12 The plaintiff in Phillips was incarcerated and used a form complaint made available to all prisoners for alleging

civil rights violations under 42 U.S.C. § 1983. 408 F.3d at 126.

judgment on the pleadings as to the claims against it [Doc. 102]. In litigating and deciding those

motions, none of BANA, BONYM, Plaintiff, or the Court raised or recognized a claim for violation

of the automatic stay13. Plaintiff cannot use a summary judgment motion to seek relief outside the

scope of the pleadings or to raise new claims. There is no basis for such relief and Plaintiff’s

Motion will be denied to the extent she seeks a judgment for violation of the automatic stay. See

Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1314-15 (11th Cir. 2004) (“Liberal pleading

does not require that, at the summary judgment stage, defendants must infer all possible claims

that could arise out of facts set forth in the complaint.”).

In Plaintiff’s Motion, she argues that BANA’s “foreclosure efforts also negatively

impacted her credit and ability to obtain another loan ….” [Doc. 208 at 19]. It appears that she is

arguing this as a component of her damages rather than as an independent claim, and the Court

does not construe Plaintiff’s filings as asserting a separate claim for injury to her credit.

B. Violation of the Discharge Injunction

1. Applicable Law and Contentions of the Parties

A Chapter 7 discharge “discharges the debtor from all debts that arose before the

date of the order for relief[.]” 11 U.S.C. § 727(b). The discharge “operates as an injunction against

the commencement or continuation of an action, the employment of process, or an act, to collect,

recover or offset any [discharged] debt as a personal liability of the debtor[.]” 11 U.S.C.

§ 524(a)(2). This section makes clear that personal liability is discharged when an individual

receives a Chapter 7 discharge. But, it is equally clear that a Chapter 7 discharge does not avoid

13 The Court notes one reference to violation of the automatic stay in Plaintiff’s Response to BANA’s Motion to

Dismiss. [Doc. 57 at 23]. There Plaintiff argues that BANA is not prejudiced by having to defend multiple suits and

states that even assuming Plaintiff should have known about a violation of the automatic stay immediately BANA is

not prejudiced. This is the only reference to the automatic stay and in continuing the argument Plaintiff refers to the

discharge injunction not the automatic stay such that it is not clear that she intended to reference the automatic stay

rather than the discharge injunction and does not provide notice of a claim.

or otherwise affect a lien against property of the debtor. Sellers v. Rushmore Loan Mgmt Servs.,

LLC, 941 F.3d 1031, 1035 (11th Cir. 2019); Mele v. Bank of Am. Home Loans (In re Mele), 486

B.R. 546, 555 (Bankr. N.D. Ga. 2013) (Ellis-Monro, J.) (citing Long v. Bullard, 117 U.S. 617,

620-21, 6 S. Ct. 917, 918 (1886)). Additionally, the discharge injunction does not apply to “an act

by a creditor that is the holder of a secured claim, if—(1) such creditor retains a security interest

in real property that is the principal residence of the debtor; (2) such act is in the ordinary course

of business between the creditor and the debtor; and (3) such act is limited to seeking or obtaining

periodic payments associated with a valid security interest in lieu of pursuit of in rem relief to

enforce the lien.” 11 U.S.C. § 524(j).

The test for violation of the discharge injunction is “‘whether the objective effect

of the creditor’s action is to pressure a debtor to repay a discharged debt.’” Roth v. Nationstar

Mortg., LLC (In re Roth), 935 F.3d 1270, 1276 (11th Cir. 2019) (quoting GreenPoint Credit, LLC

v. McLean (In re McLean), 794 F.3d 1313, 1322, (11th Cir. 2015)). A creditor who violates the

discharge injunction may be held in civil contempt under 11 U.S.C. § 105(a)14 “if there is no fair

ground of doubt as to whether the [discharge] order barred the creditor’s conduct. In other words,

civil contempt may be appropriate if there is no objectively reasonable basis for concluding that

the creditor’s conduct might be lawful.” Taggart v. Lorenzen, 139 S. Ct. 1795, 1799, 1801 (2019)

(emphasis in original); Roth, 935 F.3d at 1275; compare McLean, 794 F.3d at 1323 (requiring that

the creditor “was aware of the discharge injunction and intended the action that violated it” in order

to impose sanctions). The debtor has the burden of establishing a violation of the discharge

injunction by clear and convincing evidence. Daniels v. Howe Law Firm, P.C. (In re Daniels), 591

B.R. 814, 822 (Bankr. N.D. Ga. 2018) (Ritchey Craig, J.) (citations omitted).

14 “The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of

this title.” 11 U.S.C. § 105(a).

Plaintiff argues BANA violated the discharge injunction by sending mortgage

statements for November 2012 through March 2013 that contained language Plaintiff contends

warned her of personal liability. Plaintiff also contends BANA waited eight months to warn

Plaintiff that she had missed mortgage payments for April and May 2012, and commenced

foreclosure based on the two missed payments despite Plaintiff having proof of making the

payments, thus inducing foreclosure by fraud. Despite these allegations of fraudulent inducement

of default, Plaintiff states in her Motion that she “has not based her violation of the discharge

injunction on a letter from the Shuping Law Firm [providing notice of the initiation of foreclosure

proceedings] but rather the mortgage statements that expressly warned of a collection action

against Plaintiff personally.” [Doc. 208 at 22]. BANA contends that it did not violate the discharge

injunction because it only sought to enforce rights against the Property and its communications

with Plaintiff were authorized by § 524(a) and (j). But even if it did violate the discharge

injunction, Plaintiff cannot recover damages because there is a fair ground of doubt whether the

discharge injunction barred BANA’s conduct, Plaintiff does not have any damages arising from

BANA’s conduct, and Plaintiff is barred from recovering damages based on the doctrines of laches

and unclean hands. BANA also argues that any claims that BANA improperly applied payments

are subject to res judicata.

2. Manufactured Default and Misapplication of Payments

As an initial matter, Plaintiff argues that BANA must establish that she was in

default on the Loan at the time foreclosure was attempted, which Plaintiff denies. Plaintiff further

argues that BANA cannot establish a default without first presenting the note, authenticating it,

establishing BANA’s right to enforce it, and establishing Plaintiff’s failure to pay. The discharge

injunction only affects Plaintiff’s personal liability, and any post-discharge attempt to foreclose

on the lien does not run afoul of the discharge injunction. See Sellers, 941 F.3d at 1035; Mele, 486

B.R. at 555. Thus, Plaintiff’s argument regarding the necessity of proving a default fails.

3. Communications From BANA to Plaintiff

On February 25, 2011, Debtor received a discharge. At that time BAC, which

merged into BANA on July 1, 2011, was the servicer of the Loan. There is no dispute that BAC

received actual notice of the discharge at or near the time of its entry or that BANA has at all

relevant times been aware of the discharge. Neither party has provided any written

communications between BAC/BANA and Plaintiff during the one-year period after entry of the

discharge.15

On February 28, 2012, BANA issued a mortgage statement with the following

language on the first page: “Important Bankruptcy Notice – Your Payment Options: This is

not an attempt to collect a debt that is stayed or that has been discharged. This is not a demand for

payment. The information below is provided as a courtesy to you.” [Doc. 199-7, BANA Ex. 4

(emphasis in original)].

On July 10, 2012, BANA issued a letter to Debtor stating that her Loan was not

eligible for a principal forgiveness modification program. [Doc. 208 at 394, Pl. Ex. A.2]. The letter

includes the following language:

We want to work with you to help you avoid foreclosure. Depending

on your situation, we may have other modification options for you.

… If a modification is not an option, these other alternatives to

foreclosure may also be available to you:

Short Sale – the property is listed for sale at fair market

value, even if that value is lower than what you owe on the

mortgage. If a buyer is identified and the property is sold, the

15 In its briefing, BANA asserted that the February 2012 Statement was “issued right after entry of the Discharge

Order” [Doc. 199-1 at 13] and described the February 2012 and September 2012 Statements as “monthly statements

from February and September 2011[.]” [Doc. 212 at 11]. However, both statements provided by BANA are dated in

2012.

proceeds from the sale are applied towards the mortgage debt, even

if the proceeds are less than the amount owned on the mortgage. You

may be responsible for any balance remaining after the sale.

Deed in Lieu of Foreclosure – you agree to transfer the title

or ownership of your property to the owner or servicer of your loan

in order to avoid foreclosure sale and satisfy all or a portion of the

mortgage debt. The amount of debt satisfied by this transfer of

ownership is based on the approved value of your home. In some

cases, you may be responsible for a remaining balance of the

mortgage debt over and above the approved value.

…

Although our records show that you are currently in bankruptcy, we

want to explore your available options. Your bankruptcy attorney or

other advisor can assist you in evaluating these options.

Important Information about foreclosure proceedings

Please call us as soon as possible to determine if you qualify for one

of the options listed above. We are now returning your loan to

normal collection activity, which could include referral to

foreclosure and a foreclosure sale. …

If you have any questions about the collection or foreclosure

process, please call us.

…

Bank of America, N.A. is required by law to inform you that this

communication is from a debt collector. However, the purpose of

this communication is to let you know about the status of

modification request and your potential eligibility for programs to

help you avoid foreclosure sale.

[Id. (bold in original; italics added)].

On September 27, 2012, BANA issued a mortgage statement with the following

language on the first page:

FOR INFORMATION PURPOSES

…

The Impact of the Bankruptcy: Our records indicate that in the

past you received a discharge of this debt in a bankruptcy case.

Section 524 of the Bankruptcy Code tells us the discharge of this

debt means you have no personal obligation to repay it. The

discharge also protects you from any efforts by anyone to collect

this discharged debt as a personal liability of the debtor. You cannot

be pressured to repay this debt. On the other hand, the security

agreement allows foreclosure if the requirements under the loan

documents are not met.

[Doc. 199-8, BANA Ex. 5 (emphasis in original)].

On October 30, 2012, BANA issued a mortgage statement with the following

language on the first page:

IMPORTANT NOTICE

Bank of America, N.A. services your home loan on behalf of the

holder of your note (Noteholder). This is to advise you that your

account remains seriously delinquent.

If we do not hear from you immediately, we will have no alternative

but to take appropriate action to protect the interest of the

Noteholder in your property. …

Please give this matter your most urgent attention. Please send

the amount due with the coupon below immediately. Additional

amounts may become past due. Bank of America, N.A. will proceed

with collection action until your account is brought fully current,

and you will be responsible for all costs incurred in this process to

the full extent permitted by law.

[Doc. 208 at 360, Pl. Ex. A.1.E (bold in original, italics added)]. BANA issued mortgage

statements with the same language on November 28, 2012 [Doc. 208 at 356, Pl. Ex. A.1.E], on

December 31, 2012 [Doc. 208 at 352, Pl. Ex. A.1.E], on January 30, 2013 [Doc. 208 at 348, Pl.

Ex. A.1.E], and on March 28, 201316 [Doc. 208 at 342, Pl. Ex. A.1.E].

On May 1, 2013, Shuping, Morse & Ross, L.L.P., issued a Notice of Sale Under

Power advising Plaintiff that foreclosure proceedings had been initiated. [Doc. 208 at 379, Pl. Ex.

A.1.M]. The first paragraph of the Notice states:

In the event that you are presently in a bankruptcy case or have

received a discharge in bankruptcy with respect to the indebtedness

that is the subject of this letter, anything herein or in any

16 The record does not include a mortgage statement issued in February 2013.

correspondence from this office to the contrary notwithstanding, no

personal liability is sought to be imposed upon you and our actions

would be limited to foreclosure of any deed to secure debt securing

the indebtedness described herein.

[Id.].

The Court now turns to whether these communications with Plaintiff violated the

discharge injunction. In the SPS AP, the Court found that two letters sent by SPS were

informational in nature and did not violate the discharge injunction. However, 33 mortgage

statements sent by SPS violated the discharge injunction because they did not include any express

acknowledgment of Plaintiff’s bankruptcy, any bankruptcy disclaimers, or any indication that

payment is voluntary; they did include a due date, amount due, and amount of late fee charged for

a late payment on the statement and on the payment coupon; they included language that the

statement was an attempt to collect a debt, and some of the statements included a delinquency

notice with the total amount due and statement that failure to bring the loan current could result in

fees and foreclosure.

Here, unlike in the SPS AP, the parties have provided the Court with only a portion

of the mortgage statements sent by BANA. Also, unlike in the SPS AP, two of those statements—

the February 2012 Statement and the September 2012 Statement—include prominent bankruptcy

disclaimer language. Plaintiff does not argue that these statements violated the discharge

injunction, and the Court finds that they do not.

The later statements present a closer question. They are more like the SPS

statements in that they do not include any express acknowledgment of Plaintiff’s bankruptcy, any

bankruptcy disclaimers, or any indication that payment is voluntary; they do include a payment

due date, minimum payment amount, amount due to bring loan current, a request to “Please send

the amount due with the coupon below immediately,” a statement that BANA “will proceed with

collection action until your account is brought fully current,” and a payment coupon. However,

these statements differ from the SPS statements in three important respects: (1) they do not include

language that the statement is an attempt to collect a debt, (2) they include language that if BANA

does not hear from the customer immediately, it will “take appropriate action to protect the interest

of the Noteholder in your property”; and (3) they include language limiting collection action to

the “full extent permitted by law.” These facts mitigate against a conclusion that the statements

violate the discharge injunction because they indicate that BANA is seeking payment to avoid

foreclosure rather than to collect on any personal liability. Additionally, they must be considered

in light of the earlier mortgage statements by BANA, which expressly disclaimed any effort to

collect on personal liability and may thereby alter the objective effect17 of the later statements, and

in light of Plaintiff’s stated intention to reaffirm the Loan. Considering the totality of the evidence,

the Court concludes that the failure to include disclaimer language outweighs the other facts, and

the later statements violated the discharge injunction.

BANA, unlike SPS, has argued that its mortgage statements fall within the safe

harbor of § 524(j), which “provides an exception to the discharge injunction for creditors who hold

claims secured by the debtor's principal residence as long as the creditor's acts are in the ordinary

course of business between the debtor and the creditor, and limited to seeking payments in lieu of

in rem relief.” Best v. Nationstar Mortg. LLC, 540 B.R. 1, 9 (B.A.P. 1st Cir. 2015). Plaintiff did

not address the safe harbor defense in her response to BANA’s Motion. To establish a defense

under § 524(j), BANA must demonstrate (1) that the creditor “retains a security interest in real

property that is the principal residence of the debtor”; (2) that the “act is in the ordinary course of

business between the creditor and the debtor”; and (3) that the “act is limited to seeking or

17 Plaintiff’s positions rely in large part on the subjective effect of BANA’s conduct, but the test for violation of the

discharge injunction is an objective one. Roth, 935 F.3d at 1276.

obtaining periodic payments associated with a valid security interest in lieu of pursuit of in rem

relief to enforce the lien.” 11 U.S.C. § 524(j).

As to the first element, BANA asserts that the Property is subject to a security deed

that has been assigned to BONYM [BANA’s Statement ¶ 1, 5], and BANA provided a copy of the

security deed executed by Plaintiff in favor of Aegis Wholesale Corporation (“AWC”) on May 17,

2005 [Doc. 199-4, BANA Ex. 1] and a copy of the assignment of the security deed from Mortgage

Electronic Registration Systems, Inc. as nominee for AWC to BONYM executed on April 1, 2013

[Doc. 199-5, BANA Ex. 2]. BANA also asserts that Plaintiff scheduled the Property as her

principal residence in the bankruptcy case and that BANA’s records reflect that it was Plaintiff’s

residence during the time BANA serviced the Loan. [BANA’s Statement ¶ 4, 6]. Although Plaintiff

has previously challenged various aspects of the security deed and BONYM’s interest therein, she

did not controvert these facts or object to these exhibits in response to BANA’s Motion.18

Therefore, the Court finds the first element of the safe harbor defense is satisfied.

The second element requires that the acts at issue were in the ordinary course of

business between BANA and Plaintiff. “The focus in section 524(j)(2) is on the normal or usual

practices between the creditor and the debtor occurring after the entry of the discharge order. The

salient factors include the timing of contacts, the purpose of the contacts, and variations in the

overall pattern of contacts[.]” Giles v. James B. Nutter & Co. (In re Giles), 502 B.R. 892, 902

(Bankr. N.D. Ga. 2013) (Massey, J.). BANA offered no evidence as to this element. The record

currently before the Court does not even reflect that BANA sent statements to Plaintiff every

month after entry of the discharge. At best, it shows that BANA sent mortgage statements that

were clearly labeled as informational only during some months in 2012 then later in 2012 and 2013

18 Even if Plaintiff had contested these facts, it would not change the Court’s determination.

sent mortgage statements without such labeling. Therefore, the Court cannot conclude that BANA

has established the second element of the safe harbor defense.

The third element requires the Court to consider whether the statements were

appropriately limited to seeking periodic payments in lieu of foreclosure. Courts are split as to the

application of this element. Some courts hold that “secured creditors must inform discharged

debtors, by way of clear and prominent disclaimers, that they are solely seeking payment as a

substitute for pursuing their in rem rights.” In re Biery, 543 B.R. 267, 285 (Bankr. E.D. Ky. 2015)

(collecting cases). Other courts “require only that secured creditors seek payment to the exclusion

of pursing in rem relief and the content of the statement is irrelevant to the inquiry of whether the

creditor’s actions comply with § 524(j).” Id. (collecting cases); see also In re Cantrell, 605 B.R.

841, 856 (Bankr. W.D. Mich. 2019) (a post-discharge mortgage statement that did not differ from

pre-discharge statements and included no disclaimer language did not satisfy § 524(j)(3); later

statements with disclaimers satisfied § 524(j)). As noted above, October 2012 through March 2013

Statements request payment but include no specific bankruptcy disclaimers. In addition, any

language indicating that such payment is solely in lieu of foreclosure is not prominent and is

somewhat vague—i.e., making reference to protecting the creditor’s interest in the Property, and

limiting collection action to the extent provided by law. Therefore, the Court cannot conclude that

BANA has satisfied the third element of the safe harbor defense. As a result, BANA is not entitled

to judgment as a matter of law under § 524(j).

BANA contends that even if its conduct violated the discharge injunction, it is not

subject to sanctions because there is a fair ground of doubt about whether the discharge injunction

barred its conduct. Under the fair ground of doubt standard, “civil contempt may be appropriate if

there is no objectively reasonable basis for concluding that the creditor’s conduct might be lawful.”

Taggart, 139 S. Ct. at 1799. The Supreme Court made clear that this is an objective standard and

that “neither a standard akin to strict liability nor a purely subjective standard is appropriate”

although “subjective intent is not always irrelevant[.]” Id. at 1799, 1802. “Under the fair ground

of doubt standard, civil contempt may be appropriate when the creditor violates a discharge order

based on an objectively unreasonable understanding of the discharge order or the statutes that

govern its scope.” Id. at 1802 (emphasis added).

As Plaintiff points out, BANA initially presented its fair ground of doubt argument

in a conclusory manner and did not identify any specific facts it contends supports a finding of fair

ground of doubt until its Reply in Support of Its Motion for Summary Judgment and Opposition to

Plaintiff’s Cross-Motion for Summary Judgment. Nevertheless, the fact that Plaintiff expressed her

intention to reaffirm the Loan, that Plaintiff sought a loan modification, and that BANA sent

Plaintiff statements with appropriate disclaimers in February and September 2012 could create a

fair ground of doubt that the statements sent in October 2012 through March 2013 violated the

discharge injunction, which precludes summary judgment for Plaintiff. However, on the record

currently before the Court, because of the fact-sensitive nature of this inquiry, and because BANA

did not fully develop its position until its reply brief, the Court cannot conclude that BANA has

shown it is entitled to summary judgment based on fair ground of doubt.

4. Damages

BANA contends that even if it is liable for violation of the discharge injunction,

Plaintiff suffered no damages and therefore cannot recover for any such violation. BANA contends

that it stopped servicing the Loan in November 2013 and by Plaintiff’s own admission in the SPS

AP, she did not begin suffering health problems until approximately a year later in late 2014 and

early 2015. Plaintiff contends that in stating she was never sick prior to 2014, she was referring to

her aneurism diagnosis, and that the sickness that developed was the result of sustained emotional

distress that she began suffering due to BANA’s conduct. [Doc. 208 at 24-25; Pl’s Statement ¶

38]. Even taking the admissions in the SPS AP as true, Plaintiff is not precluded from potentially

proving causation and damages such that the Court cannot grant summary judgment to BANA

based on lack of damages.

C. Laches and Unclean Hands

Laches is an equitable defense “that serves to bar suit by a plaintiff ‘whose

unexcused delay, if the suit were allowed, would be prejudicial to the defendant.’” Black Warrior

Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1283 (11th Cir. 2015) (quoting

Russell v. Todd, 309 U.S. 280, 287, 60 S. Ct. 527, 531 (1940)). Under the doctrine, a defendant

must prove: “(1) there was a delay in asserting a right or a claim, (2) the delay was not excusable,

and (3) the delay caused [a defendant] undue prejudice.” Groucho’s Franchise Sys., LLC v.

Grouchy’s Deli, Inc., No. 1:14-cv-1725, 2015 U.S. Dist. LEXIS 180373, at *5 (N.D. Ga. July 1,

2015) (citing U.S. v. Barfield, 396 F.3d 1144, 1150 (11th Cir. 2005)) (alteration in original); Black

Warrior Riverkeeper, 781 F.3d at 1283.

To determine whether laches applies, courts must look to the specific facts of each

case and decide whether a plaintiff’s delay in bringing suit was reasonable. See Groucho’s

Franchise Sys., 2015 U.S. Dist. LEXIS 180373, at *5 (citing Studiengesellschaft Kohle mbH v.

Eastman Kodak Co., 616 F.2d 1315, 1325 (5th Cir. 1980) (“Laches and estoppel are equitable

defenses whose appropriateness must be determined in each case under its particular factual

situation.”)); see also Holman v. Citimortgage, Inc. (In re Holman), No. 07-70272, AP 09-70031,

2010 Bankr. LEXIS 1518, at *15-16 (Bankr. N.D. Ala. May 6, 2010). Because it is a fact intensive

pursuit that looks to the reasonableness of plaintiffs’ delays, it is generally not appropriate for

courts to determine issues of laches on a motion for summary judgment. See Holman, 2010 Bankr.

LEXIS 1518, at *15-16 (quoting Tate v. Citimortgage, Inc. (In re Tate), No. 99-13169, AP 09-

1059, 2009 Bankr. LEXIS 4591, at *7 (Bankr. S.D. Ala. Oct. 29, 2009)) (“Because a court asked

to apply laches must determine the reasonableness of—and hence the reasons and excuses for—

the plaintiff's delay in filing suit, as well as the resulting prejudice suffered by the defendant, laches

generally cannot be decided on a motion for summary judgment let alone motion to dismiss.”); see

Kling v. Hallmark Cards, Inc., 225 F.3d 1030, 1041 (9th Cir. 2000) (“because a claim of laches

depends on a close evaluation of all the particular facts in a case, it is seldom susceptible of

resolution by summary judgment”) (internal quotation marks omitted).

First, as to delay and the reason therefor, Plaintiff received a discharge on February

25, 2011, BANA stopped servicing the Loan in November 2013, and Plaintiff filed this proceeding

on December 14, 2020. There is no dispute that Plaintiff filed this proceeding seven years after

BANA stopped servicing the Loan, which is a delay.19 Second, as to the reason for delay, Plaintiff

argues that any delay is excusable because she did not learn that BANA and its subservicers had

no right to pursue her for personal liability until 2017.20 [Doc. 220 at 11; Pl’s Statement ¶ 58].

However, this assertion by Plaintiff is disputed by the discharge order, which was mailed to

Plaintiff on February 27, 2011 and which states “SEE THE BACK OF THIS ORDER FOR

IMPORTANT INFORMATION REGARDING THE BANKRUPTCY DISCHARGE IN A

CHAPTER 7 CASE.” [Case No. 10-61451, Doc. 23, 24]. The second page of the discharge order

states

Collection of Discharged Debts Prohibited

19 To the extent BANA remained the master servicer on the Loan after November 2013, the Court has previously ruled

that Plaintiff cannot seek to hold BANA liable for the conduct of the subservicers in this proceeding as doing so would

constitute impermissible claim splitting. [Doc. 222].

20 In her summary judgment papers, Plaintiff does not explain how she learned of the effect of the discharge injunction

in 2017 and why she was unaware of it sooner.

The discharge prohibits any attempt to collect from the

debtor a debt that has been discharged. …

…

However, a creditor may have the right to enforce a valid

lien, such as a mortgage or security interest, against the debtor’s

property after the bankruptcy, if that lien was not avoided or

eliminated in the bankruptcy case. Also, a debtor may voluntarily

pay any debt that has been discharged.

…

Debts That are Discharged

The chapter 7 discharge eliminates a debtor’s legal

obligation to pay a debt that is discharged. Most, but not all, types

of debts are discharged if the debt existed on the date the bankruptcy

case was filed. …

[Id. (emphasis in original)].

With respect to the third element of laches, undue prejudice to BANA, Plaintiff

argues that the prejudice BANA offers—inability to verify whether the records it maintained

regarding the Loan still exist with BANA since the transfer of servicing—is legally unavailable

because BANA is required by federal law and contract to be in possession or have access to the

records. Assuming without deciding that Plaintiff is correct, BANA’s asserted prejudice is not

limited to availability of documents, but also to the availability of employees familiar with the

facts. [Doc. 199-1 at 19]. “Forcing BANA to defend against allegations from ten years ago clearly

results in prejudice against BANA, a large organization, due to employee turnover and document

retention issues.” [Id. (emphasis added)]. Because there are factual questions regarding the reason

for Plaintiff’s delay in seeking relief against BANA and the prejudice to BANA, BANA is not

entitled to summary judgment based on laches.

BANA also argues that Plaintiff is barred from recovery because she has unclean

hands. “To assert an unclean hands defense, a defendant must show that (1) the plaintiff's

wrongdoing is directly related to the claim, and (2) the defendant was personally injured by the

wrongdoing.” Bailey v. TitleMax of Georgia, Inc., 776 F.3d 797, 801 (11th Cir. 2015). The only

mention of unclean hands in BANA’s Memorandum of Points and Authorities in Support of

Motion for Summary Judgment is in footnote 2, which states in full: “BANA further submits that

Plaintiff’s admissions that she has no damages prior to 2014 and commencing this Adversary

Proceeding against BANA constitutes unclean hands further barring Plaintiff from any recovery.”

[Doc. 199-1 at 18 n.2 (citation omitted)]. Plaintiff did not expressly address the unclean hands

defense in her response, but as explained above, she contends that her illness in 2014 was caused

by emotional distress that began when BANA was servicing the Loan and that she suffered

additional emotional distress upon learning in 2017 that her personal liability had been discharged,

giving rise to a dispute of fact that precludes summary judgment.

In BANA’s Reply in Support of Its Motion for Summary Judgment and Opposition

to Plaintiff’s Cross-Motion for Summary Judgment, BANA expanded its unclean hands defense to

include assertions that Plaintiff filed “her bankruptcy case in bad faith in an attempt to force a

modification through a chapter 7 case for a mortgage that she could not afford” in addition to

making arguments in this proceeding that have already failed in cases filed by Plaintiff against

BANA in other courts [Doc. 212 at 13 (emphasis in original)]. BANA contends it has been injured

because Plaintiff’s conduct has caused it to incur legal fees. Because these arguments were made

for the first time in BANA’s reply, the Court will not consider them for purposes of summary

judgment, while also noting that the undisputed facts do not address Plaintiff’s reasons for filing

bankruptcy and she has not previously asserted claims for violation of the discharge injunction

against BANA.

IV. Conclusion

Plaintiff seeks to hold BANA and BONYM liable for violation of the discharge

injunction based on mortgage statements BANA sent to her between October 2012 and March

2013. The Court finds these statements violated the discharge injunction. However, questions of

fact preclude a determination about whether there is no fair ground of doubt that BANA’s conduct

violated the discharge order. Additionally, BANA has failed to provide sufficient evidence for the

Court to determine whether the statements fall within the safe harbor of § 524(j) or to establish an

equitable defense of laches or unclean hands, and factual issues preclude a determination about the

existence and extent of Plaintiff’s damages. For these reasons, the Court cannot grant summary

judgment to Plaintiff, BANA, or BONYM in full or in part. Accordingly, it is

ORDERED that BANA’s evidentiary objections [Doc. 214] and Plaintiff’s

evidentiary objections are OVERRULED for purposes of the Cross Motions and without prejudice

to such objections being renewed at trial; it is further

ORDERED that Plaintiff’s Motion for Summary Judgment is DENIED; it is further

ORDERED that BANA’s Motion for Summary Judgment, which was joined by

BONYM, is DENIED.

END OF ORDER

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