Phillips v. Ocwen Loan Servicing, LLC (92 F. Supp. 3d 1255, 2015)

OPINION AND ORDER

WILLIAM S. DUFFEY, JR., District Judge.

This matter is before the Court on Plaintiff Jeffrey Phillips’s (“Plaintiff” or “Phillips”) Objections [139] to Magistrate Judge Justin S. Anand’s Final Report and Recommendation (“R & R”) [135]. The R & R recommends granting Defendant Ocwen Loan Servicing, LLC’s (“Defendant” or “OLS”) Motion for Summary Judgment [104]. Also before the Court is Plaintiffs Motion for a Hearing [141] on his Objections.

I.BACKGROUND

A. Facts

On December 7, 1998, Plaintiff obtained a loan (the “Loan”) from HomeAmeriean Credit, Inc., d/b/a/ Upland Mortgage (“Upland”) and executed in favor of Upland a promissory note (the “Note”), in the amount of $86,400. (Note [104.4]). The Note provides, in pertinent parts:

2. INTEREST

Interest will be charged on unpaid principal until the full amount of principal has been paid. I will pay interest at a yearly rate of 10.890%.

3. PAYMENTS

(A) Time and Place of Payments

I will pay principal and interest by making payments every month.

I will make my monthly payments on the 15th day of each month beginning on January 15,1999.

I will make these payments every month until I have paid all of the principal and interest and any other charges ... that I may owe under this Note. My monthly payments will be applied to interest before principal....

(B) Amount of Monthly Payments

My monthly payment will be in the amount of U.S. $815.64.

6. BORROWER’S FAILURE TO PAY AS REQUIRED

(B) Default

If I do not pay the full amount of each monthly payment on the date it is due, I will be in default.

(C) Notice of Default

If I am in default, the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date, the Note Holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount.

(Note ¶¶ 2-3, 6).

Repayment of Plaintiffs loan was also secured by a deed (the “Security Deed”) (together with the Note, the “Loan Agreement”) to real property located at 728 Kennolia Drive, Atlanta, Georgia (the “Property”). (Security Deed [104.5]). The Security Deed was executed in favor of Upland. (Id.). The Security Deed provides, in pertinent parts:

3. Application of Payments. ... [A]ll payments received ... shall be applied: first, to any prepayment charges due under the Note; second, to amounts .payable [for escrow items, including taxes and insurance]; third, to interest due; fourth, to principal due; and last, to any late charges due under the Note.

4. Charges; Liens. Borrower shall pay all taxes, assessments, charges, fines and impositions attributable to the Property....

5. Hazard or Property Insurance. ... If Borrower fails to maintain coverage described above, Lender may, at Lender’s option, obtain coverage to protect Lender’s rights in the Property....

7. Protection of Lender’s Rights in the Property. If Borrower fails to perform the covenants and agreements contained in this Security [Deed] ... then Lender may do and pay for whatever is necessary to protect the value of the Property and Lender’s rights in the Property....

19. Sale of Note; Change of Loan Servicer. The Note or a partial interest in the Note (together with this Security [Deed]), may be sold one or more times without prior notice to Borrower. A sale may result in a change in the entity (known as the “Loan Servicer”) that collects monthly payments due under the Note and this Security [Deed]. There also may be one or more changes of the Loan Servicer unrelated to a sale of the Note....

21. Acceleration; Remedies. Lender shall give notice to Borrower prior to acceleration following Borrower’s breach of any covenant or agreement in this Security [Deed].... The notice shall specify: (a) the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security, [Deed] and sale of the Property.... If the default is not cured on or before the date specified in the notice, Lender, at its option, may require immediate payment in full of all sums secured by this Security [Deed] without further demand and may invoke the power of sale granted by Borrower....

(Security Deed ¶¶ 3-5, 7,19, 21).

In May 2005, OLS became the servicer of Plaintiffs loan. (Defs Statement of Material Facts (“SOMF”) at ¶ 6). On May 6, 2005, OLS sent Plaintiff an account statement, which states:

Please note that you have a Simple Interest Loan that accrues interest from the last date that interest was paid through the date your next payment is received. When your next payment is received, the interest amount will be calculated from the date listed in the “Interest Paid Through Date” field (listed above) through the date that your payment was received. It is important to ensure that your payments are received timely and consistently so that your accrued interest each period is limited to approximately one month’s interest. If you elect to take advantage of your grace period, please note that this will cause a greater portion or all of your payment to be applied to interest.

(05/06/2005 Account Statement [104.6]).

On October 30, 2009, OLS offered Plaintiff a loan modification. (Pi’s SOMF ¶ 11). Plaintiff did not sign the modification agreement.

On November 20, 2009, OLS sent Plaintiff a Notice of Default, which states that Plaintiffs “mortgage payments are past due, which puts [Plaintiff] in default of [his] loan agreement.” (Notice of Default [140.1] at l). The Notice of Default also states that, as of November 20, 2009, Plaintiff owes $12,068.64, which includes past due principal and interest of $2,446.92, that the “debt is owed to [OLS] as the owner or servicer of your home loan and mortgage,” and that payment is due by December 20, 2009. (Id.). The Notice of Default provides:

Failure to bring your account current may result in our election to exercise our right to foreclose on [the P]roperty. Upon acceleration, your total obligation will be immediately due and payable without further demand....

After acceleration of the debt, but prior to foreclosure, you may have the right to reinstate the mortgage loan, depending on the terms of the note and mortgage.... Payments received that are less than the amount required to reinstate the mortgage loan will be returned, and will not stop any foreclosure proceedings that have begun....

(Notice of Default at 2).

On December 21, 2009, Plaintiff sent a payment, in the amount of $855, to OLS, and OLS returned the payment to Plaintiff. (Defs SOMF ¶ 34). Plaintiff did not make another loan payment to OLS until March 9, 2010. (Id. ¶ 35).

On January 16, 2010, OLS offered Plaintiff another loan modification and sent him a Proposed Modification Agreement (“PMA”). (Defs SOMF ¶ 25; PMA [104.34]). The PMA states:

In order to accept this modification on your loan, you must complete ALL of the following steps on or before 1/29/10, (“Due Date”):

1. SIGN the bottom of the Agreement. ...

2. FAX the fully executed Agreement to [OLS]

3. PAY the full initial payment in the amount of: $1,022.82

4. NEW MONTHLY PAYMENT:

Principal and Interest Payment: $857.00

Escrow Payment: $165.82

Total (which may or may not include escrow): $1,022.82

starting on 3/15/10

... If ALL of the items above are not completed by the Due Date, the Agreement shall have no force or effect and any down payment received will be returned to you. Please be advised that [OLS] will not delay, postpone or otherwise stop any collection efforts until ALL of the steps above have been completed.

(PMA at 1). Plaintiff did not sign the PMA. (Defs SOMF ¶ 26).

On March 1, 2010, Weismann Nowack Curry & Wilco, P.C., on behalf of “Bank of America, National Association, as Successor by Merger to LaSalle Bank National Association, as Trustee for the Registered Holders of Credit Suisse Seasoned Loan Trust 2006-1, Home Equity Pass-Through Certificates, Series 2006-1” (the “Trustee”), sent Plaintiff a Notice of Foreclosure Sale (“NFS”). (NFS [69.5] at 1). The NFS states that the Trustee is the holder of Plaintiffs Note and Security Deed, that OLS' is the entity with full authority to negotiate, amend and modify the terms of Plaintiffs mortgage, that Plaintiff had defaulted on his loan obligations, and that, if Plaintiff did not pay the entire balance of his loan, the Trustee would conduct a foreclosure sale of the Property. (Id.).

On March 8, 15', 22, and 29, 2010, OLS published in the Fulton County Daily Report a Notice of Sale Under Power (“NSUP”), which states that the Trustee will conduct a foreclosure sale of the Property on the first Tuesday in April, 2010. (NSUP [104.37]). The NSUP states that

the debt secured by [the] Security Deed has been and is' hereby declared due because of, among other possible events of default, failure to pay the indebtedness as and when due and in the manner provided in the Note and Security Deed. The debt remaining in default, this sale will be made for the purpose of paying the same and all expenses of this sale....

The sale will be conducted subject ... to final confirmation and audit of the status of the loan with the holder of the [Security [D]eed.

(NSUP [104.37]).

On March 9, 2010, Plaintiff mailed a payment to OLS, and OLS deposited the payment on March 11, 2010. (Pi’s Resp. to Defs SOMF ¶ 35).

On March 10, 2010, Upland assigned its rights under the Security Deed to the Trustee. (Assignment [104.35] ).

On May 3, 2010, Plaintiff, represented by counsel, filed a petition for relief under the United States Bankruptcy Code. (Defs SOMF 1130). In the Bankruptcy Action, Plaintiff stated, under penalty of perjury, that as of May 3, 2010, he was $5,000 in arrears on his loan, and he did not indicate that he disputed the amount of the debt. (Id. ¶ 31).

On May 12, 2010, OLS filed in the Bankruptcy Action its Proof of Claim, which states that the arrearage on Plaintiffs loan was $22,064.00, including $5,709.48 in missed monthly payments. (Id. ¶ 32). Plaintiff did not object to OLS’s Proof of Claim. (Id. ¶ 33).

On August 20, 2010, Plaintiffs Bankruptcy Petition was dismissed because Plaintiff failed to make payments under his proposed bankruptcy plan. (Pi’s Resp. to Defs SOMF ¶ 30).

It is undisputed that OLS has not conducted a foreclosure sale of the Property, that Plaintiff continues to reside at the Property, and that Plaintiff has not made any loan payments since March 9, 2010. (Defs SOMF ¶¶ 36-38).

B. Procedural History

On November 16, 2010, Plaintiff, proceeding pro se, filed his original complaint [1.1 at 2-7] against OLS in the Superior Court of Fulton County, Georgia. Plaintiff sought to remove the cloud on his title to the Property caused by his mortgage, to recover all loan payments he made after Upland filed for bankruptcy protection in 2005, and to'recover damages for alleged fraud and misrepresentation.

On October 5, 2012, after retaining counsel, Plaintiff filed his First Amended Complaint (“FAC”) [4], seeking to bring a putative class action and asserting additional claims, including for violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., wrongful attempted foreclosure, false light invasion of privacy, punitive damages, expenses of- litigation, and injunctive relief.

On November 2, 2012, OLS removed the Fulton County Action to this Court based on federal question jurisdiction and the Class Action Fairness Act [1].

On December 12, 2012, OLS moved to dismiss Plaintiffs FAC for failure to state a claim [13].

On September 10, 2013, the Court dismissed most of Plaintiffs claims, but allowed his claims for wrongful attempted foreclosure and false light invasion of privacy to proceed. Plaintiffs claims for punitive damages, attorney’s fees and costs, and injunctive relief were also allowed to proceed to the extent Plaintiff sought those remedies in connection with his claims for wrongful attempted foreclosure and false light invasion of privacy. (Order of Sept. 10, 2013 [51]).

On October 30, 2013, Plaintiff moved for leave to file a second amended complaint, which the Magistrate Judge granted only to the extent Plaintiff sought to add a new claim for breach of contract and to replead his claims for wrongful attempted foreclosure, false light invasion of privacy, and claims for relief.

On December 3, 2013, Plaintiff filed his Second Amended Complaint (“SAC”) [69], asserting claims for: wrongful attempted foreclosure (Count 1); false light invasion of privacy (Count 2); breach of contract (Count 3); punitive damages (Count 4); expenses of litigation (Count 5); and preliminary and permanent injunctive relief (Count 6).

On December 20, 2013, OLS moved to dismiss (1) the portions of Plaintiffs claims in his SAC that are based on Plaintiffs newly-alleged theories that the Assignment was not valid and that OLS and the Trustee lacked authority to foreclose on the Property; and (2) Plaintiffs breach of contract claim.

On May 19, 2014, OLS filed its Motion for Summary Judgment [104].

On September 12, 2014, the Court dismissed Plaintiffs claims for wrongful attempted foreclosure and false light invasion of privacy to the extent they were based on perceived defects in the Assignment and Defendant’s alleged lack of authority to foreclose. The Court found that Plaintiff cannot state a claim for relief based on his assertions that the Assignment is not valid and that OLS and the Trustee lacked authority to foreclose on the Property because these statements, even if false, do not concern Plaintiffs financial condition. The Court found that Plaintiff had alleged sufficient facts to state a plausible claim for breach of contract and declined to determine, at the motion to dismiss stage, whether OLS’s agency was disclosed to Plaintiff or whether OLS was acting as a principal or owner of the Note and Security Deed. (Order of Sept. 12, 2014 [126]).

On October 29, 2014, Magistrate Judge Anand issued his Final R & R [135], recommending that the Court grant OLS’s Motion for Summary Judgment. The Magistrate Judge concluded that Defendant is entitled to summary judgment on Plaintiffs claims for wrongful foreclosure and false light invasion of privacy because the undisputed facts show that Plaintiff failed to make his monthly payments on a timely basis, as required by the Note and Security Deed, and Plaintiff was thus in default on his loan obligations at the time the NSUP was published. The Magistrate Judge concluded that Defendant also is entitled to summary judgment on Plaintiffs breach of contract claim because the undisputed facts show that OLS was not a party to, or an assignee of, the Note or Security Deed, and as Plaintiffs loan servi-cer, OLS was a disclosed agent of the holder of the Note and Security Deed. The Magistrate Judge found further that, even if OLS is considered a party to the loan, Plaintiff failed to present any evidence creating a genuine issue of material fact whether OLS breached any of the terms of the Note or Security Deed.

On December 3, 2014, Plaintiff filed his Objections [139] to the R & R.

II. DISCUSSION

A. Legal Standards

1. Review of a Magistrate Judge’s Report and Recommendation

After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir.1982), cert. denied, 459 U.S. 1112, 103 S.Ct. 744, 74 L.Ed.2d 964 (1983). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” ’ 28 U.S.C. § 636(b)(1). This requires that the district judge “give fresh consideration to those issues to which specific objection has been made by a party.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d 507, 512 (11th Cir.1990) (internal quotation marks omitted). With respect to those findings and recommendations to which objections have not been asserted, the Court must conduct a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).

2. Motion for Summary Judgment

A court “shall 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.” Fed.R.Civ.P. 56(a). Parties “asserting that a fact cannot be or is genuinely disputed must support that assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1).

The party seeking summary judgment bears the burden of demonstrating the absence of a genuine dispute as to any material fact. Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir.1999). Once the moving party has met this burden, the non-movant must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.1999). Non-moving parties “need not present evidence in a form necessary for admission at trial; however, [they] may not merely rest on [their] pleadings.” Id.

The Court must view all evidence in the light most favorable to the party opposing the motion and must draw all inferences in favor of the non-movant, but only “to the extent supportable by the record.” Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir.2009) (quoting Scott v. Harris, 550 U.S. 372, 381 n. 8, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007)). “[Credibility determinations, the weighing of evidence, and the drawing of inferences from the facts are the function of the jury....” Graham, 193 F.3d at 1282. “If the record presents factual issues, the court must not decide them; it must deny the motion and proceed to trial.” Herzog, 193 F.3d at 1246. But, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party,” summary judgment for the moving party is proper. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Analysis

1. Wrongful Attempted Foreclosure

In Georgia, to “recover damages for a wrongful attempted foreclosure, the plaintiff must prove a knowing and intentional publication of untrue and derogatory information concerning the debtor’s financial condition, and that damages were sustained as a direct result of this publication.” Bates v. JPMorgan Chase Bank, NA, 768 F.3d 1126, 1134 (11th Cir.2014) (quoting Aetna Fin. Co. v. Culpepper, 171 Ga.App. 315, 320 S.E.2d 228, 232 (1984)).

Here, Plaintiff claims that OLS “knowingly and intentionally published untrue and derogatory information concerning Plaintiffs financial condition, to wit that Plaintiff was ... in default under the Loan....” (SAC ¶¶77, 85). The Magistrate Judge found that the undisputed facts show that Plaintiff failed to make monthly loan payments that were due on January 15, 2010, and February 15, 2010, and therefore, under the express terms of the Note, Plaintiff was in default at the time of the first publication of the NSUP, on March 8, 2010. The Magistrate Judge also found that even if, as Plaintiff asserts, Defendant “misapplied” Plaintiffs loan payments and failed to properly allocate payment amounts to principal and interest, that would affect only the amount of the outstanding principal balance due on the Loan, not whether Plaintiff was in “default” under the terms of the Note.

In his Objections, Plaintiff does not dispute that he failed to make his January 15, 2010, and February 15, 2010, loan payments as required by the Note. Plaintiff instead argues that, because Defendant “did not properly accelerate” the Loan, the maturity date of the Note remained December 2028, and thus the statement in the NSUP that OLS and the Trustee were authorized to foreclose on the Property was false and defamatory. This argument, raised for the first time in his Objections, is not properly before the Court and the Court is not required to consider it. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.2004) (“[P]laintiff may not amend her complaint through argument in a brief opposing summary judgment.”); cf. Huls v. Llabona, 437 Fed.Appx. 830, 832 n. 4 (11th Cir.2011) (per curium) (argument not properly raised where plaintiff asserted it for the first time in response to defendant’s motion to dismiss, instead of seeking leave to file an amended complaint). Although courts have construed additional allegations in a pro se plaintiffs response as a motion to amend the complaint, ’Plaintiff has been represented by counsel throughout this litigation in this Court. Compare Newsome v. Chatham Cnty. Detention Center, 256 Fed.Appx. 342, 344 (11th Cir.2007) (per curium) (“Because courts must construe pro se pleadings liberally, the district court should have considered [plaintiffs] additional allegations in the objection as a motion to amend his complaint and granted it.”) with Rule v. Chase Home Fin. LLC; No. 3:11-cv-146-CAR, 2012 WL 1833394, at *4 (M.D.Ga. May 18, 2012) (“Plaintiff is not proceeding pro se, and therefore this Court is under no obligation to construe these additional allegations as a motion to amend the Complaint.”). Plaintiff has twice amended his complaint, each time with the assistance of counsel, and the Court declines to consider Plaintiffs untimely attempt now to inject new theories, couched as objections to the Mag-' istrate Judge’s R & R, into this litigation at the summary judgment stage.

Even if it were properly before the Court, Plaintiffs “improper acceleration” theory does not support a claim for wrongful attempted foreclosure under Georgia law, and Plaintiffs reliance on Sale City Peanut & Milling Co. v. Planters & Citizens Bank, 107 Ga.App. 463, 130 S.E.2d 518 (1963), is misplaced. In Sale City, the Georgia Court of Appeals held that the plaintiffs stated a claim for wrongful attempted foreclosure where the defendants .published, on May 7, 1960, a notice of foreclosure stating that the plaintiffs had defaulted on their loan, even though, plaintiffs alleged, “defendants knew [at the time of publication] that no part of the indebtedness was due before October 1, 1960.” Sale City, 130 S.E.2d at 519-520 (emphasis added). Sale City does not, as Plaintiff appears to contend, support a claim for wrongful attempted foreclosure based solely on a lender’s publication of a foreclosure advertisement before the maturity date of a loan. The loan at issue in Sale City was not an installment loan. Rather, the entire indebtedness was due on the maturity date, and thus the statement in the foreclosure notice that the plaintiffs had defaulted on an installment payment was clearly false because it was published “prior to the maturity date of the note and hence before there was a default in payment” Id. at 520 (emphasis added). Here, it is undisputed that the Note required Plaintiff to make a loan payment each month, that Plaintiff failed to make at least two (2) monthly payments before publication of the NSUP, and the Note expressly states, “[i]f I do not pay the full amount of each monthly payment on the date it is due, I will be in default.” (Note ¶ 6(B)).

In Bates v. JPMorgan Chase, the Eleventh Circuit held that the defendant was entitled to summary judgment on the plaintiffs wrongful attempted foreclosure claim because the information published about the plaintiffs financial condition— that she failed “to pay the indebtedness as and when due and in the manner provided in the Note and Deed to Secure Debt” and that “the debt remains in default” — was true, including because the plaintiff admitted that she failed to make her payments when due and that she did not pay the entire amount due, including late fees. Bates, 768 F.3d at 1134. To the extent the plaintiff also argued that “the mention of an allegedly invalid foreclosure sale is sufficient to give rise to liability,” the Eleventh Circuit held that “[t]his information about Chase’s intent to sell the property, however, is not a statement-of the debtor’s financial condition, but rather a statement of Chase’s future actions,” and thus did not support a claim for wrongful attempted foreclosure. Id.

Here, like in Bates, the statement in the NSUP about Plaintiffs financial condition — that “the debt secured by [the] Security Deed has been and is hereby declared due because of, among other possible events of default, failure to pay the indebtedness as and when due and in the manner provided in the Note and Security Deed” — is not untrue or derogatory. See Bates, 768 F.3d at 1134; Sale City, 130 S.E.2d at 520 (“defendants knowingly published an untrue and derogatory statement concerning the plaintiffs’ financial condition”); cf. Ezuruike v. Bank of New York Mellon, No. 1:11-cv-4030-JEC, 2012 WL 3989961, at *1-2 (N.D.Ga. Sept. 11, 2012) (dismissing wrongful attempted foreclosure claim where “plaintiff makes no plausible allegation that he was not in default and therefore a foreclosure notice suggesting that he was could not falsely impugn the plaintiffs financial condition”); Peterson v. Merscorp Holdings, Inc., No. 1:12-cv-00014-JEC, 2012 WL 3961211, at *5 (N.D.Ga. Sept. 10, 2012) (Plaintiffs failed to state a claim for attempted wrongful foreclosure where they alleged only that defendant misrepresented itself as secured creditor on foreclosure notice). Plaintiffs objection is overruled. Defendant is entitled to summary judgment on Plaintiffs claim for wrongful attempted foreclosure.

2. False Light Invasion of Privacy

To support a claim for false light invasion of privacy, a plaintiff must show that the defendant knowingly or recklessly published falsehoods about him or her and, as a result, placed him or her in a false hght which would be highly offensive to a reasonable person. See Smith v. Stewart, 291 Ga.App. 86, 660 S.E.2d 822, 834 (2008).

Plaintiff alleges that “OLS knowingly and intentionally published, by means of the written advertisements of its intent to exercise its alleged power of sale under the Security Deed, false and derogatory information concerning Plaintiffs financial condition, to wit, that Plaintiff was in default under the Loan.” (SAC ¶ 85). The Magistrate Judge found that the undisputed evidence shows that Plaintiff missed at least two loan payments before the NSUP was first pubhshed on March 8, 2010, and thus under the terms of the Note, Plaintiff was in default at the time of publication.

Plaintiff states that his objection to the Magistrate Judge’s findings regarding his wrongful attempted foreclosure claim applies also to his claim for false light invasion of privacy. (Objs. at 2 n. 1). It is undisputed that Plaintiff failed to make at least two of the loan payments required under the terms of the Note, and thus the statement in the NSUP about Plaintiffs default is not a “falsehood.” See Smith, 660 S.E.2d at 834. Plaintiffs objection is overruled. Defendant is entitled to summary judgment on Plaintiffs claim for false light invasion of privacy.

3. Breach of Contract

To support a claim for breach of contract under Georgia law, a plaintiff must show (1) a valid contract; (2) material breach of its terms; and (3) damages arising from that breach. See Budget Rent-a-Car of Atlanta, Inc. v. Webb, 220 Ga.App. 278, 469 S.E.2d 712, 713 (1996). “It is axiomatic that a person who is not a party to a contract is not bound by its terms.” Kaesemeyer v. Angiogenix, Inc., 278 Ga.App. 434, 629 S.E.2d 22, 25 (2006). When an agent acts for a disclosed principal, the agent is not liable for the principal’s breach of contract. See O.C.G.A. § 10-6-53 (“The form in which the agent acts is immaterial; if the principal’s name is disclosed and the agent professes to act for him, it will be held to be the act of the principal.”); Cuba v. Hudson & Marshall Inc., 213 Ga.App. 639, 445 S.E.2d 386, 388 (1994) (noting that, “even if there were an enforceable contract for the sale of Property No. 230, plaintiffs’ remedy would be against [the principal]; defendants as agents of a disclosed principal would not be liable for the principal’s breach of contract”).

Plaintiff alleges in his Second Amended Complaint that “OLS’s arbitrary and capricious violation of the terms of the Loan and Note, and the resulting attempted foreclosure of the [Property], constituted a breach by [ ] OLS.” (SAC ¶ 9). The crux of Plaintiffs breach of contract claim appears to be that OLS misapplied Plaintiffs loan payments. In his Response to Defendant’s Motion for Summary Judgment, Plaintiff also appears to argue that OLS also breached the terms of the Note by making “improper calculation of late payment fees,” “improper payment of ad valo-rem taxes,” and “improper payment of insurance premiums.” (Pi’s Resp. [109] at 22-23).

The Magistrate Judge found that OLS cannot be held liable for any alleged breach of the Note or Security Deed because the undisputed facts are that OLS was not a party to, or an assignee of, the Note or Security Deed, and that OLS, as Plaintiffs loan servicer, was a disclosed agent of the holder of the Note and Security Deed. The Magistrate Judge also found that, even if OLS were considered a party to the Loan Agreement, Plaintiff failed to present any evidence creating a genuine issue of material fact as to whether OLS breached any' of the terms of the Note or Security Deed.

a. OLS’s relationship to the Note and Security Deed

In his Objections, Plaintiff appears to assert that Upland assigned to OLS a partial interest in the Note, based on a letter OLS purportedly sent to Plaintiff stating that the “servicing rights” to Plaintiff’s loan had been “assigned” to OLS and suggesting that Upland had assigned at least a partial interest in the Note and Security Deed to OLS. Plaintiff has not provided the Court with a copy of this letter and his new theory of liability was not raised in any of Plaintiff’s Complaints, and the Court will not consider it. See Gilmour, 382 F.3d at 1315.

To the extent Plaintiff relies on RediFloors, Inc. v. Sonenberg Co., 254 Ga.App. 615, 563 S.E.2d 505 (2002) and Chambliss v. Hall, 113 Ga.App. 96, 147 S.E.2d 334, 338 (1966), to support that OLS is liable for its alleged breach of contract because OLS failed to disclose the principal for whom it was servicing Plaintiffs Loan, those cases provide only that “an agent who makes a contract without identifying his principal becomes personally liable on the contract,” Redi-Floors, 563 S.E.2d at 506 (citing Chambliss, 147 S.E.2d at 339) (emphasis added). Here, there is no evidence to support that OLS “made” a contract with Plaintiff. Rather, the undisputed evidence is that Plaintiff executed the Loan Agreement with Upland in 1998, that OLS began servicing Plaintiff’s Loan in May 2005, and that Upland assigned the Note and Security Deed to the Trustee on March 10, 2010. OLS thus became involved with Plaintiffs Loan only after— indeed, over five (5) years after — Plaintiff entered into the contract with Upland. Redi-Floors and Chambliss simply do not apply.

Plaintiff claims that, because Upland held the Note and Security Deed while Upland was also his loan servicer, he “thought” Upland assigned the Note and Security Deed to OLS when OLS became his loan servicer. There is no evidence to support that OLS ever represented to Plaintiff that Upland assigned the Note or Security Deed to OLS, and that the Security Deed provides that there may be a change in the servicer of Plaintiffs loan unrelated to a sale of the Note, undermines Plaintiffs assertion. The Security Deed states:

19. Sale of Note; Change of Loan Servicer. The Note or a partial interest in the Note (together with this Security [Deed]) may be sold one or more times without prior, notice to Borrower. A sale may result in a change in the entity (known as the “Loan Servicer”) that collects monthly payments due under the Note and this Security [Deed]. There also may be one' or more changes of the Loan Servicer unrelated to a sale of the Note.

(Security Deed ¶ 19). Plaintiff fails to support his assertion that OLS became, or represented that it had become, the holder of the Note or Security Deed. The undisputed evidence is that OLS was not a party to, or an assignee of, the Note or Security Deed, and Plaintiff cannot state a claim against OLS for breach of the Loan Agreement. Defendant is entitled to summary judgment on Plaintiffs claim for breach of contract.

b. Whether OLS breached 'the terms of the Loan Agreement

The Magistrate Judge found that, even if OLS were considered a party to the Loan Agreement, Defendant is entitled to summary judgment on Plaintiffs breach of contract claim because Plaintiff has not presented any evidence to create a genuine issue of material fact as to whether OLS breached any of the alleged provisions of the Loan Agreement. (R & R at 1290-93).

Plaintiff appears to object to the Magistrate Judge’s conclusion that OLS did not misapply Plaintiffs loan payments. The Court conducts a de novo review of Plaintiffs claim that OLS misapplied his loan payments. Because Plaintiff did not object to the Magistrate Judge’s recommendation that Defendant be granted summary judgment on Plaintiffs claims for breach of contract based on “improper calculation of late payment fees,” “improper payment of ad valorem taxes,” and “improper payment of insurance premiums,” the Court reviews that portion of the R & R for plain error.

i. Misapplication of Payments

In his Objections, Plaintiff claims that he “presented abundant evidence and argument showing that [OLS], and Upland before it, applied 100% of Plaintiffs payments to interest, a clear breach of the Note.” (Obj. at 19). The Note expressly, states that Plaintiffs “monthly payments will be applied to interest before principal,” and the Security Deed further states that payments “shall be applied: first, to any prepayment charges due under the Note; second, to amounts payable [for taxes and insurance]; third, to interest due; fourth, to principal due; and last, to any late charges due under the Note.” (Note ¶ 3(A); Security Deed ¶ 3). Plaintiff has not identified a provision of the Note or Security Deed that requires his payments to be applied in a different manner. See Am. Casual Dining, L.P. v. Moe’s Southwest Grill L.L.C., 426 F.Supp.2d 1356, 1369 (N.D.Ga.2006) (“Because American Casual cannot point to any contractual provision that Moe’s breached by failing to act in the manner set forth above, American Casual cannot state a claim for breach of contract based on these allegations.”).

To the extent Plaintiff appears to rely on an amortization schedule (the “Amortization Schedule”) [109 at 60] to support the amount of each payment required to be allocated toward principal, Plaintiff received the Amortization Schedule from OLS in January 2010, and there is no evidence to support that the Amortization Schedule was incorporated into the terms of Plaintiffs Note. Even if it did apply, the Amortization Schedule shows the amounts of Plaintiffs payment that would be applied to interest and to principal if that payment was made on the fifteenth day of each month. The record is that Plaintiff consistently made his loan payments after the dates they were due, and there is no evidence to support that Plaintiffs payments were required to be allocated to principal and interest, as shown on the Amortization Schedule, regardless of the date on which Plaintiff made the payment.

Plaintiff testified that he “understood signing this [N]ote, there was a grace period. And if [he] paid in the grace period, then the principal mortgage amortization as [he] understood it, there was a deduction.” Plaintiff stated that he “should get full credit regardless if [he’s] paying [his] mortgage in the scope of the month” because, based on his understanding of the grace period, “paying it on the 15th or paying it on the 17th or 18th, didn’t make a difference as long as [he] paid it before the 30th.” (Phillips Dep. 62-63). When asked about the basis for his understanding, Plaintiff was evasive, ultimately stating only:

—you know, I’m not the most financial savvy guy in the world, but I also understand this. I’m not going to sign a note or sign an agreement that if I owe you on the 15th and don’t pay you until the 17th and you don’t deduct anything because you haven’t gotten a payment on ... the 15th, you know, I don’t — I’m not going-to go to work on Wall Street, but I also understood I’m not going to sign an agreement like that.

(Phillips Dep. 63:16-24).

Plaintiff fails to show any facts to support his “understanding” that he would not incur additional interest if he made his payment after the due date but within his “grace period,” and Plaintiff does not claim that his “understanding” is based on any statement by OLS. That OLS specifically told Plaintiff, “[i]f you elect to take advantage of your grace period, please note that this will cause a greater portion or all of your payment to be applied to interest,” significantly undermines Plaintiffs position.

Under the terms of the Note, Plaintiff agreed that “[interest will be charged on unpaid principal until the full amount of principal has been paid,” that he “will make [his] monthly payments on the 15th day of each month,” and that his “monthly payments will be applied to interest before principal.” (Note ¶¶2-3). The undisputed evidence shows that Defendant calculated the amount of interest accrued based on the unpaid principal of Plaintiffs Loan, that Plaintiffs payments were consistently made after the due date, and that Defendant applied Plaintiffs payment first to interest, then to principal. Plaintiff fails to show any facts to support that Defendant applied Plaintiffs payments in a manner inconsistent with the terms of the Note, and Plaintiffs eoncluso-ry assertions that his “understanding” was that OLS was required to apply Plaintiffs payments in a different manner is not sufficient to defeat a motion for summary judgment. Midwestern Waffles, Inc. v. Waffle House, Inc., 734 F.2d 705, 714 (11th Cir.1984) (unsupported, self-serving statements by party opposing summary judgment are insufficient to avoid summary judgment); Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir.1984) (“[M]ere verification of a party’s own conclusory allegations is not sufficient to oppose a motion for summary judgment.”); Ojeda v. Louisville Ladder, Inc., 410 Fed.Appx. 213, 214 (11th Cir.2010) (conclusory allegations have no probative value; nonmoving party cannot rely on conclusory allegations to avoid summary judgment); cf. Auto. Radio Mfg. Co. v. Hazeltine Research, 339 U.S. 827, 831, 70 S.Ct. 894, 94 L.Ed. 1312 (1950) (affidavit “made upon information and belief ... does not comply with Rule 56”). For this additional reason, Defendant is entitled to summary judgment on Plaintiffs claim that Defendant breached the Loan Agreement by misapplying Plaintiffs payments.

ii.“Improper Calculation of Late Payment Fees”

The Magistrate Judge found that the evidence supports, and Plaintiff does not dispute, that nearly all of his payments were late, and Plaintiff fails to identify which provision of the Note or Security Deed OLS allegedly breached in calculating late payment fees. (R & R at 1291). Plaintiff did not object to the Magistrate Judge’s conclusion that Plaintiff fails to explain or show how OLS breached .the Loan Agreement by improperly calculating late fees, and the Court finds no plain error in this conclusion.

iii.“Improper Payment of Ad Valorem Taxes”

The Magistrate Judge found that the undisputed evidence shows that Plaintiff failed to pay certain taxes or assessments owed to the City of Atlanta for the Property, that Plaintiff was required under the terms of the Security Deed to “pay all taxes, assessments, charges, fines and impositions attributable to the Property,” and that the Security Deed permitted OLS to pay the charges and take action “necessary to protect the value of the Property and Lender’s rights in the Property.” (R & R at 1291-92) (quoting Security Deed at ¶¶ 4, 7). The Magistrate Judge also found that Plaintiff received a refund on his real estate taxes for the Property in 2010 and 2011 because OLS had paid them. (R & R at 1292). Plaintiff did not object to the Magistrate Judge’s conclusion that Plaintiff failed to present any evidence to support that Defendant beached the terms of the Note or Security Deed by improperly paying an assessment or tax required to be paid for the Property, and that Plaintiff had not shown that he was damaged as a result of any alleged breach. The Court finds no plain error in this conclusion.

iv.“Improper Payment of Insurance Premiums”

The Magistrate Judge found that the undisputed evidence shows that Plaintiff allowed insurance coverage on the Property to lapse, that Plaintiff was required under the Security Deed to maintain proper insurance coverage on the Property, and that, if Plaintiff failed to do so, the Security Deed permitted OLS to obtain insurance coverage on the Property “to protect Lender’s rights in the Property.” (R & R at 1292-93) (quoting Security Deed at ¶ 5). The Magistrate Judge concluded that Plaintiff fails to present sufficient evidence to create a genuine issue of material fact whether OLS breached the terms of the Loan Agreement when it obtained insurance coverage for the Property, and the Court finds no plain error in this conclusion.

The Magistrate Judge concluded that Plaintiff has not presented evidence sufficient to show that a genuine issue of material fact exists whether Defendant breached the terms of the Note or Security Deed. The Court finds no plain error in the Magistrate Judge’s conclusion, and Defendant is entitled to summary judgment on Plaintiffs breach of contract claim for this additional reason.

4. Plaintiff’s Remaining Claims

Having granted summary judgment for Defendant on Plaintiffs substantive claims for wrongful attempted foreclosure, false light invasion of privacy and breach of contract, Plaintiff cannot recover punitive damages or litigation expenses, and he cannot obtain injunctive relief. See Martin v. Martin, 267 Ga.App. 596, 600 S.E.2d 682, 683 (2004) (“Punitive damages cannot be awarded in the absence of any finding of compensatory damages.”) (citing O.C.G.A. § 51-12-5.1); Lee v. Ga. Power Co., 296 Ga.App. 719, 675 S.E.2d 465, 468 (2009) (“An award of attorney fees and expenses of litigation under O.C.G.A. § 13-6-11 is ancillary, and a party may recover them only if [he recovers] on another claim.”); Grizzle v. Kemp, 634 F.3d 1314, 1320 (11th Cir.2011) (claim for preliminary injunctive relief requires a showing of “a substantial likelihood of success on the merits of the underlying case”); United States v. Endotec, Inc., 563 F.3d 1187, 1194 (11th Cir.2009) (permanent injunction requires actual success on the merits). Defendant is entitled to summary judgment on Plaintiffs claims for punitive damages (Count Four), litigation expenses (Count Five), and preliminary and permanent injunctive relief (Count Six).

III. CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that Plaintiff Jeffrey Phillips’s Motion for Hearing [141] on Plaintiffs Objections is DENIED.

IT IS FURTHER ORDERED that Plaintiffs Objections [139] are OVERRULED.

IT IS FURTHER ORDERED that Magistrate Judge Justin S. Anand’s Final Report and Recommendation [135] is ADOPTED.

IT IS FURTHER ORDERED that Defendant Ocwen Loan Servicing, LLC’s Motion for Summary Judgment [104] is GRANTED.

FINAL REPORT AND RECOMMENDATION ON A MOTION FOR SUMMARY JUDGMENT

JUSTIN S. ANAND, United States Magistrate Judge.

Plaintiff Jeffrey Phillips filed the original Complaint initiating this action in the Superior Court of Fulton County, Georgia, on November 16, 2010. See Notice of Removal [1] at ¶ 1. On November 2, 2012, Defendant Ocwen Loan Servicing, LLC (“OLS”) removed the action to this Court. See Notice of Removal [1], The action is now before the Court on the Defendant’s Motion for Summary Judgment [104] and the Defendant’s Motion to Strike and Objections to Expert Declaration of Diana A. Crawford [116] (“Motion to Strike”).

For the reasons discussed below, the Defendant’s Motion to Strike [116] is GRANTED. The Court finds that the report of Ms. Crawford, Plaintiffs expert witness, must be excluded because the Plaintiff failed to identify her to the Defendant sufficiently early in the discovery period to allow the Defendant to depose her, as required under Local Rule 26.2C.

Furthermore, the undersigned RECOMMENDS that the Defendant’s Motion for Summary Judgment [104] be GRANTED. The undersigned finds that the undisputed facts ■ establish that Plaintiff failed to make the monthly payments on a timely basis as required by his mortgage agreement, and was thus in default on his mortgage. For that reason, Defendant is entitled to summary judgment on the Plaintiff’s claims of wrongful attempted foreclosure and false light invasion of privacy. The undisputed facts also establish that Defendant OLS was not a party to the mortgage agreement, but as the servi-cer of the mortgage was instead a disclosed agent of the principal. For that reason, Defendant is also entitled to summary judgment on Plaintiffs claim of breach of contract.

I. FACTS

Unless otherwise indicated, the Court draws the following facts from Defendant’s Statement of Material Facts [104-3] (“Def. SMF”) and Plaintiffs Statement of Additional Material Facts [110] (“PI. SMF”). The Court also draws some facts from Plaintiffs Response to Defendant’s Statement of Material Facts [110] (“PI. Resp. SMF”), and the Defendant’s Objections and Responses to Plaintiffs Statement of Additional Material Facts [115-3] (“Def. Resp. SMF”).

The Court has excluded assertions of fact by either party that are immaterial or presented as arguments or legal conclusions, and has excluded assertions of fact, unsupported by a citation to admissible evidence in the record or asserted only in the party’s brief and not the statement of facts. See LR 56. IB, NDGa (“The court will not consider any fact: (a) not supported by a citation to evidence ... or (d) set out only in the brief and not in the movant’s [or respondent’s] statement of undisputed facts.”). The Court has also viewed all evidence and factual inferences in the light most favorable to Plaintiff, as required on a defendant’s motion for summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir.1994); Reynolds v. Bridge-stone/Firestone, Inc., 989 F.2d 465, 469 (11th Cir.1993).

On or about December 7, 1998, Plaintiff entered into a promissory note (“Note”) and Security Deed (“Security Deed”) with HomeAmerican Credit, Inc. d/b/a Upland Mortgage (“Upland”). Def. SMF at ¶¶ 1-2; Def. Ex. 1, 2. The Note and the Security Deed are collectively referred to as the “Loan.” Def. SMF at ¶ 2. The Security Deed secured property located at as 728 Kennolia Drive, Atlanta, Georgia 30310 (the “Property”). Def. SMF at ¶ 3. The Note required Plaintiff to make monthly payments in the amount of $815.64 as follows: “My monthly payment will be in the amount of U.S. $815.64,” “I will pay principal and interest by making payments every month,” and “I will make my monthly payments on the 15th day of each month beginning on January 15, 1999.” Def. SMF at ¶ 4; PI. Resp. SMF at ¶ 4; Def. Ex. 1 at 1. The Note also required Plaintiff to “pay Interest at a yearly rate of 10.890%.” Def. SMF at ¶ 5; Def. Ex. 1 at 1.

On or about May 6, 2005, Defendant OLS began servicing the Loan and sent Plaintiff numerous account statements, approximately one per month. Def. SMF at ¶ 6. The May 6, 2005 Account Statement (“May 6, 2005 Statement”) that was sent from OLS to Plaintiff stated in part:

Important Messages — Please note that you have a Simple Interest Loan that accrues interest from the last date that interest was paid through the date your next payment is received. When your next payment is received, the interest amount will be calculated from the date listed in the “Interest paid Through Date” field (listed above) through the date that your payment was received. It is important to ensure that your payments are received timely and consistently so that your accrued interest each period is limited to approximately one month’s interest. If you elect to take advantage of your grace period, please note that this will cause a greater portion or all of your payment to be applied to interest.

Def. SMF at ¶ 6; Def. Ex. 3.

Plaintiff does not dispute that the May 6, 2005 Statement contained that language, but he contends that the May 6, 2005 Statement also contained a “Prev-Prior Services Expense” of $1802.11, and that he wrote to OLS to request an explanation of that charge, but never received an explanation. PI. SMF at ¶ 7; PI. Resp. SMF at ¶ 6; PI. Dep. at 85-86, 96, 119, 124-25. Plaintiff further contends that the amounts shown on Defendant’s account statements were “inaccurate from the initial boarding of Plaintiffs loan from Upland, beginning in April of 2005.” PI. SMF at ¶ 8; PI. Dep. at 158-59 (Plaintiff testified during his deposition that the “problem” started in March or April of 2005).

The November 29, 2005 account statement (“November 29, 2005 Statement”) from OLS to Plaintiff stated, in relevant part:

The interest amount will be higher than scheduled if the time in between receipt of payments is greater than thirty days, thereby reducing or eliminating any application of funds to principal, and interest will be lower than scheduled, if the time is less than thirty days. Additional funds may only be applied to your principal balance after, all interest is paid current and any outstanding fees, costs, or advances are paid.

Def. SMF at ¶ 16; Def. Ex. 13. Plaintiff does not dispute that the November 29, 2005 Statement contained that language, but he contends that he “repeatedly questioned the principal and interest amounts on the statements.” PI. Resp. SMF at ¶ 16; PL Dep. at 50-51,124-25.

Defendant has produced records that include Plaintiffs payment history on the Loan to Upland and OLS, and that Plaintiff has also produced documents that include a “true and accurate summary of payments to OLS.” Def. SMF at ¶¶ 7-10; Def. Ex. 4-7, 22. Plaintiff stated he produced “all documents in Plaintiffs possession” that were responsive to Defendant’s request that Plaintiff produce “[mjonthly bank statements from any account you used to make payments on the Loan for any months in which such payments were made.” Def. SMF at ¶ 11; Def. Ex. 18. In response to Defendant’s Interrogatory requesting Plaintiff to “[i]dentify each and every payment of any kind that you made in connection with the Loan,” Plaintiff offered no objection and answered by way of reference to the bank statement documents Plaintiff produced as Set II. Def. SMF at ¶ 12; Def. Ex. 8, 10. Plaintiff produced dozens of account statements he received from Defendant OLS describing the status of his loan as Set III. Def. SMF at ¶ 13; Def. Ex. 9. In response to Defendant’s Interrogatory asking Plaintiff to “[ijdentify and describe in detail the proof you were current on the Loan,” Plaintiff again offered no objection and answered by way of reference to the bank statement documents Plaintiff produced as Set II. Def. SMF at ¶ 14; Def. Ex. 8,10.

In response to Defendant’s Interrogatory asking Plaintiff to “[ijdentify each insurance policy that you contend provided hazard or flood insurance coverage for the Property,” Plaintiff did not offer any objection and answered by way of reference to Plaintiffs document production, Set VII. Def. SMF at ¶ 19; Def. Ex. 10, 11. Plaintiff produced as Set VII “all documents in Plaintiffs possession” responsive to Defendant’s document request for “documents and communications you have sent to any insurer who provided hazard insurance coverage on the Property.” Def. SMF at ¶ 20; Def. Ex. 18. The earliest dated document showing insurance coverage is dated for coverage beginning January 11, 2005. Def. SMF at ¶ 20; Def. Ex. 11, 18. During the Defendant’s servicing of the Plaintiffs Loan, Defendant OLS charged $58.52 in net charges for placement of hazard insurance on the Property including charges of $49.00 on April 30, 2009; $18.14 on June 2, 2005; and a credit of $13.22 on June 10, 2005. Def. SMF at ¶ 21; Def. Ex. 4.

Plaintiff also produced an application for insurance which Yvonne Phillips signed on April 6, 2009, in which she stated the “[e]xpiration date of present or prior coverage” was “3/15/2008,” and that the reason for applying for coverage was “because lapsed for so long.” Def. SMF at ¶ 40; Def. Ex. 11 at PHI-SET-VII 00005. Plaintiff does not dispute that, but contends that the referenced “lapse” was for no longer than one week. Pl. Resp. SMF at ¶ 40; Pl. Decl. at ¶ 9. Plaintiff nevertheless contends that Defendant “force-placed insurance on Plaintiffs home.” Pl. SMF at ¶ 10; Pl. Decl. at ¶ 9. Defendant concedes that it placed insurance on Plaintiffs Property and charged $53.32 to do so, but notes that Plaintiff conceded that he let his insurance on the Property lapse, allegedly for one'week. Def. Resp. SMF at ¶ 10; Pl. Decl. at ¶ 9. Defendant further contends that the Plaintiffs documents produced to Defendant show a gap in insurance coverage for one year. Def. Resp. SMF at ¶ 10; Def. SMF at ¶ 40; Def. Ex. 11 at PHI-SET-VII 00005.

In response to Defendant’s Interrogatory requesting Plaintiff to “[ijdentify each instance after December 1998 that You or Your wife were denied credit,” Plaintiff offered no objection and answered by way of reference to Plaintiffs Set VI as documenting his denial for credit, which indicates that the earliest such denial was July 24, 2012. Def. SMF at ¶ 39; Def. Ex. 10; Def. Ex. 16 at PHI-SET-VI-0053.

Plaintiff produced as Set VIII “all documents in Plaintiffs possession” responsive to Defendant’s document request for “documents and communications you received from any taxing authority concerning real estate taxes.” Def. SMF at ¶ 22; Def. Ex. 18, 19. Defendant contends that the documents reflect that Plaintiff failed to pay taxes owed to the City of Atlanta in 2005, resulting in a civil action brought by the City of Atlanta against Plaintiff and his wife as reflected on the document. Def. SMF at 1123; Def. Ex. 19 at PHI-SET-VIII-00023. Plaintiff disputes that and contends that the document at issue reflects a “Solid Waste Fi. Fa. for amounts owed for garbage collection.” Pl. Resp. SMF at ¶ 23. Plaintiff contends that he subsequently paid the amount of $1004.97 owed to the City of Atlanta for solid waste collection. Pl. Resp. SMF at ¶ 23; Def. Ex. 19 at PHI-SET-VIII-00005; Pl. Decl. at ¶ 8. Plaintiff received a refund on his real estate taxes in 2010 and 2011 because Defendant had already paid the taxes due. Def. SMF at ¶ 24; Def. Ex. 10.

Defendant contends that, on or about December 21, 2009, Plaintiff attempted to make a payment to OLS, but OLS returned the payment as insufficient to cure the default. Def. SMF at ¶ 34; Def. Ex. 14. Plaintiff does not dispute that he made a payment of $855 to OLS on December 21, 2009, and that it was returned by OLS. Pl. Resp. SMF at ¶34. He contends, however, that “OLS misapplied Plaintiffs mortgage payments from the time that it became the servicer of Plaintiffs mortgage, and OLS’s misapplication of Plaintiffs mortgage payments resulted in an incorrect determination that Plaintiff had defaulted on his loan.” Pl. Resp. SMF at ¶ 34; Pl. SMF at ¶ 1; Pl. Dep. at 50-51, 68, 124. Defendant, on the other hand, contends that Plaintiff’s deposition testimony does not support his contention that OLS “misapplied” his mortgage payments. See Def. Resp. SMF at ¶ 1. It is undisputed by the parties that OLS applied most of the Plaintiffs payments to interest, rather than principal, but they dispute whether that constituted “misapplication.” Pl. SMF at ¶ 1; Def. Resp. SMF at ¶ 1.

Plaintiff also contends that “Ocwen’s misapplication of Plaintiffs mortgage payments resulted in an incorrect determination that Plaintiff had defaulted on his loan.” Pl. SMF at ¶ 2; Pl. Dep. at 61. In support of that contention, Plaintiff cites to his own deposition testimony, in which he testified as follows:

Q Well, it says, if I do not pay the full amount of each monthly payment on the date it is due, I will be in default. That’s what it says. Do you disagree with that?

A I disagree with that.

Q Do you disagree that it says that?

A I don’t disagree that it says that, but I disagree that it — I disagree that I was in default.

Pl. Dep. at 61. Defendant contends that Plaintiffs testimony does not provide any support for his contention that Defendant made an “incorrect determination” that the Plaintiff was in default on the Loan. Def. Resp. SMF at ¶ 2.

Following the December 21, 2009 attempt, Plaintiff did not make a payment to OLS until March 11, 2010. Def. SMF at ¶ 85; Def. Ex. 8, 12. Plaintiff states that this fact is “disputed,” but he has not cited to any evidence in the record that disputes that fact or otherwise demonstrates that Plaintiff made a payment between December 21, 2009, and March 11, 2010. See Pl. Resp. SMF at ¶ 35. Instead, Plaintiff contends that he “was under the assumption that if he mailed a payment by March 15, he would be under the loan modification.” Pl. Resp. SMF at ¶ 35; Pl. Dep. at 241, 245. It is undisputed that Plaintiff has not made a payment on the Loan since on or about March 11, 2010. Def. SMF at ¶ 38; Pl. Resp. SMF at ¶ 38.

Plaintiff contends that OLS first offered him a loan modification on or about October 30, 2009. Pl. SMF at ¶ 11; Pl. Dep. at 208-11. He further contends that he disputed the balance of the Loan, and “an Ocwen representative” told him that “corrected documents were being sent.” Pl. SMF at ¶ 11; Pl. Dep. at 208-11. Based on that representation, Plaintiff contends that he “believed that the documentation would be ‘fixed’ and that his loan had been modified.” Pl. SMF at ¶ 11; Pl. Dep. at 208-11. It is undisputed that Defendant OLS made another proposed loan modification to Plaintiff on or about January 16, 2010 (the “Loan Modification Offer”), and made the same offer to Plaintiff in writing on more than one occasion. Def. SMF at ¶ 25; Def. Ex. 14, 20; Pl. Dep. at 209, Ex. 115. It is further undisputed that Plaintiff did not sign the Loan Modification Offer or any similar written agreement to modify the Loan. Def. SMF at ¶ 26; Pl. Dep. at 208-11.

On March 8, 2010, the first publication of the foreclosure against Plaintiff (“Publication”) was published in the Daily Report. Def. SMF at ¶ 29; Def. Ex. 23. Plaintiff contends that “Ocwen’s misapplication of Plaintiffs mortgage payments resulted in publication of an untrue statement that Plaintiff was in default.” PI. SMF at ¶ 3; Def. Ex. 23. In support of that contention, Plaintiff cites only to the publication itself. See Def. Ex. 23. Defendant contends that the publication does not support the Plaintiffs contention that it was an “untrue statement that Plaintiff was in default.” Def. Resp. SMF at ¶ 3.

Plaintiff also alleges that “Oewen did not follow the provisions governing the notice of default and the acceleration of the entire remaining indebtedness secured by the Note outlined in the Security Deed, which was executed with the Note.” PI. SMF at ¶ 4; Def. Ex. 2. In support of that contention, Plaintiff cites only to the Security Deed it