GERALD PIERCE and KATHLEEN PIERCE v. OCWEN LOAN SERVICING, LLC and DEUTSCHE BANK NATIONAL TRUST COMPANY

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0427n.06
Case No. 20-6057
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
GERALD PIERCE and KATHLEEN
PIERCE,
Plaintiffs-Appellants,
v.
OCWEN LOAN SERVICING, LLC and
DEUTSCHE BANK NATIONAL TRUST
COMPANY,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
TENNESSEE
BEFORE: SILER, MOORE, and THAPAR, Circuit Judges.
SILER, Circuit Judge. Gerald and Kathleen Pierce (the Pierces), plaintiffs, appeal the
grant of summary judgment to Ocwen Loan Servicing, LLC and Deutsche Bank National Trust
Company, defendants. The Pierces claim that the district court erred by holding that the affidavit
and arguments presented in opposition to the motion for summary judgment were not sufficient to
establish the existence of a genuine issue of material fact.
The affidavit presented by the Pierces is unsupported and conclusory. The Pierces claim
that defendants wrongfully increased their monthly payments and then wrongfully refused the
Pierces’ payments is contradicted by all documentary evidence. The evidence shows that the loan,
as amended, allows for increases in escrow payments in order to cover corresponding increases in

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property taxes and insurance premiums. The record also shows that the loan allows for rejection
of partial payments that fail to bring the loan current. Defendants merely increased payments on
the escrow portion of the Pierces’ monthly payments and the Pierces subsequently failed to pay
sufficient monthly payments to bring the loan current as required. We AFFIRM.
I.
In 2004, the Pierces executed a promissory note in favor of Accredited Home Lenders, Inc.,
a California Corporation (Lender), in the amount of $171,087.00 (Note). On the same day, the
Pierces executed a Deed of Trust in favor of Mortgage Electronic Registration Systems, Inc., acting
as nominee for Lender, its successors, and assigns to secure the real property involved. The Deed
of Trust provides in part that “Lender may return any payment or partial payment if the payment
or partial payments are insufficient to bring the [l]oan current.”
The Pierces entered into a Mediation Settlement Agreement (MSA) in 2014, to settle
Pierce v. Ocwen Loan Servicing, LLC (docket number 2:13-cv-02491) then pending in district
court. The MSA indicates that the escrow portion of the Pierces’ monthly payment is subject to
adjustment and leaves in place the terms of the Deed of Trust insofar as it allows Lender to increase
escrow charges to account for projected increases in the Pierces’ real property taxes and hazard
insurance charges. The principal and interest portion of the Pierces’ monthly payment is fixed and
remained so following the execution of the MSA. There has been no subsequent modification of
these terms since the MSA, which included a settlement agreement.
The Pierces were notified and aware that a portion of their monthly payment was allocated
toward escrow for payment of real property taxes and hazard insurance. Defendants rejected and
returned the Pierces’ loan payments that failed to bring the loan current, reinstating the full amount
owed. The Pierces’ monthly charges increased due to increases in their escrow payments. The

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Pierces’ loan was due for the July 1, 2018, payment and all subsequent payments. The Pierces
were therefore in default and the bank initiated foreclosure proceedings.
In 2019, the Pierces filed a complaint in the Chancery Court for Shelby County, Tennessee
against defendants, subsequently removed to federal court. When the defendants moved for
summary judgment, the Pierces admitted that their loan charges were subject to changes for
increases in escrow but claimed that “there were not changes to taxes and insurance owed on the
property which justified an adjustment of the escrow amount in the amount requested.”
Defendants replied that the Pierces failed to raise a genuine dispute of material fact because the
Pierces’ assertions were conclusory and contradicted all documentary evidence of increases in both
taxes and insurance premiums. The district court agreed and granted defendants’ motion for
summary judgment, finding no genuine dispute of material fact existed.
II.
We review the granting of summary judgment de novo. Fisher v. Nissan North America,
Inc., 951 F.3d 409, 416 (6th Cir. 2020). Summary judgment is appropriate if “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).
III.
A.
To make a claim for breach of contract under Tennessee law, a plaintiff must show: (1) the
existence of a valid and enforceable contract; (2) deficiency in performance amounting to breach
of the contract; and (3) damages caused by the breach of the contract. Federal Ins. Co. v. Winters,
354 S.W.3d 287, 291 (Tenn. 2011).

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The terms of both the Settlement Agreement and the MSA inform the Pierces that escrow
charges may be subject to increases. The Pierces claimed in district court that defendants
“attempted to unilaterally modify the Agreement by changing the amount of payments and refusing
other payments.” The Pierces’ payments, however, increased due only to increases in escrow that
the Pierces have failed to show were improper, and, therefore, their claims lack factual and legal
support.
Conclusory allegations, unsupported by specific evidence, cannot establish factual dispute
sufficient to defeat a motion for summary judgment. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
888 (1990); see Fed. R. Civ. P. 56(e); O’Donnell v. City of Cleveland, 838 F.3d 718, 724 (6th Cir.
2016). In an unpublished opinion, we similarly dismissed a borrower’s breach of contract claim
based on unsupported, conclusory allegations that mortgagees improperly increased an escrow
account for borrower’s residential loan. Taylor v. JPMorgan Chase Bank, N.A., No 19-5044, 2019
WL 7596923, at *2 (6th Cir. 2019). We affirmed summary judgment in Taylor, stating the
borrower presented:
[N]othing below . . . [or] here showing that there is a genuine dispute that the bank
somehow breached its obligations . . . when it applied escrow funds to pay the premiums
for the insurance policy.
Id. A conclusory affidavit “which conflicts with all of the documentary evidence” does not create
a genuine dispute of material fact whether a defendant overcharged a plaintiff. G.D. Deal
Holdings, LLC v. Baker Energy, Inc., 291 F. App’x 690, 696 (6th Cir. 2008).
The Pierces offered only Mr. Pierce’s unsupported, conclusory affidavit, and all the
documentary evidence contradicts its claims. The affidavit does not identify specific discrepancies
between the amounts of escrow items due and the escrow charged. Mr. Pierce does not state any
facts to support that the escrow charges were improper. The district court highlighted that the

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affidavit did not “prove, or even assert, that the taxes and premiums did not increase from 2016 to
2019.” All the documentary evidence – which demonstrates regular increases in real property
taxes and hazard insurance charges – conflicts with Mr. Pierce’s affidavit. No returns of excess
disbursements are apparent in the payment history, suggesting that the charges did not exceed the
amounts owed for insurance and tax payments for the property. All evidence of payments made
by the Pierces show that payments were insufficient for the full monthly payment and insufficient
to bring the loan current. Therefore, the Pierces have not “tendered the appropriate payments,” as
claimed in the affidavit but instead failed to perform pursuant to the current terms of the loan.
B.
The Pierces suggest that the district court erred in disregarding Mr. Pierce’s affidavit
because defendants never moved to strike it. However, a movant is not required to move to strike
an affidavit in further support of its summary judgment. Fed. R. Civ. P. 56(c) (2010 Advisory
Committee Notes) (“There is no need to make a separate motion to strike. If the case goes to trial,
failure to challenge admissibility at the summary-judgment stage does not forfeit the right to
challenge admissibility at trial.”). We have recognized that a district court may “disregard” the
contents of an affidavit if the affidavit does not comport with Rule 56, rather than striking the
affidavit. Reed v. City of Memphis, Tennessee, 735 F. App’x 192, 197 (6th Cir. 2018). Further,
“any conceivable error in failing to strike the filing [is] harmless.” Id.
The district court properly determined that the conclusory statements in Mr. Pierce’s
affidavit did not create a genuine dispute of material fact. A motion to strike was not required and
therefore the district court did not err in granting summary judgment even though defendants did
not move to strike the affidavit.
AFFIRMED.

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