via- Armstrong Kellett Bartholow P.C.

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

ENZO BIBOLOTTI

v.

AMERICAN HOME MORTGAGE
SERVICING, INC., et. al.

MEMORANDUM OPINION AND ORDER

Pending before the Court are Defendants’ Motion for Summary Judgment (Dkt. #53),
Plaintiff’s Motion for Partial Summary Judgment (Liability Only) (Dkt. #55), Defendants’
Objections to, and Motion to Strike Portions of, the Affidavit of Enzo Bibolotti (Dkt. #66), and
Plaintiff’s Motion to Strike the Affidavit of Cindi Ellis (Dkt. #67).

BACKGROUND

In February 2006, Plaintiff and Jessica Bibolotti sought and obtained a mortgage loan
(the “Loan”) in connection with the property located at 3668 Braeden Court, Middleburg, Florida
32068 (the “Property”) (Dkt. #53 at Ex. A-1). The borrowers executed an Adjustable Rate Note
(the “Note”) in the amount of $200,000, and a Mortgage (the “Mortgage”) securing the
indebtedness (Dkt. #53 at Exs. A-1 and A-2).

The original lender in connection with the Loan was Option One Mortgage Corporation
(“Option One”). Id. Option One subsequently indorsed the Note in blank and transferred the
Note to Deutsche Bank National Trust Company, as trustee for Soundview Home Loan Trust
2006-OPT 2, Asset Backed Certificates, Series 2006-OPT 2 (“Deutsche”). Deutsche became the
owner of the Note on April 1, 2006, and is currently the owner of the Note indorsed in blank, and
the current creditor in connection with the Loan.

In July of 2008, Option One transferred the servicing rights on the Loan to American
Home Mortgage Servicing, Inc. (“AHMSI”), and AHMSI began servicing the Loan. At the time
the servicing was transferred to AHMSI, the Loan was current and was not in default.

On August 12, 2010, Plaintiff filed his Voluntary Chapter 7 Petition for Bankruptcy,
styled In re Bibolotti, Case No. 10-42702, in the United States Bankruptcy Court for the Eastern
District of Texas, Sherman Division (the “Bankruptcy Proceeding”) (Dkt. #53 at Ex. E-2).
Plaintiff contends he was current on his mortgage prior to his bankruptcy. In addition, Plaintiff
vacated the Property prior to moving to Texas and prior to filing bankruptcy and did not return.
Plaintiff scheduled the debt in connection with the Loan as due and owing to AHMSI, and
indicated in his statement of intentions that he wished to surrender the Property (Dkt. #53 at Ex.
E-2). On November 21, 2012, the Bankruptcy Court entered its Order granting Plaintiff’s
discharge in the Bankruptcy Proceeding. Id. at Ex. E-5.

Following Plaintiff’s discharge, Defendants sent numerous communications to Plaintiff.
On November 26, 2010, Defendant G. Moss & Associates, LLP (“Moss”) sent Plaintiff one letter
containing a notice of default and acceleration, and notice of opportunity to cure in connection
with the foreclosure. Id. at Ex. B-1. This is the only communication Plaintiff alleges Moss sent.
On November 26, 2010, December 28, 2010, and February 14, 2011, AHMSI and Deutsche sent
Plaintiff letters regarding a loan modification under the Home Affordable Modification Program
(“HAMP”) or other various “loss mitigation” options. Id. at Exs. A-6, A-9, C-2. On January 19,
2011, February 14, 2011, August 17, 2011, February 15, 2012, and August 17, 2012, AHMSI
and Deutsche sent Plaintiff letters regarding an interest rate adjustment with the Loan. Id. at Exs.
A-9, C-1. On January 25, 2011, AHMSI and Deutsche sent Plaintiff a letter regarding insurance
on the Property. Id. at Exs. A-9, C-3. In addition, on May 31, 2011, August 18, 2011, August
29, 2011, and August 30, 2011, representatives from AHMSI attempted to call or called
Plaintiff.1 Id. at Ex. A-7. Finally, beginning in September 2010 and continuing through April of
2011, AHMSI reported Plaintiff’s default history in connection with the Loan.2
Defendants received notice of Plaintiff’s bankruptcy filing and participated in the
bankruptcy by filing a motion for relief from stay. Plaintiff did not initiate or invite any of the
post-discharge communications from Defendants. In addition, Defendants had notice that
Plaintiff intended to surrender his property in bankruptcy.

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