Schneider et al v. CitiMortgage, Inc. et al, No. 5:2013cv04094 - Document 586 (D. Kan. 2018)

Court Description: MEMORANDUM AND ORDER granting in part and denying in part 523 Motion for Summary Judgment; granting 526 Motion for Summary Judgment; granting 528 Motion for Summary Judgment; denying 530 Motion for Partial Summary Judgment; denying 536 Motion for Review; denying 578 Motion for Summary for denial; denying 581 Motion to Strike defendants' notice of supplemental authority. See order for all details. Signed by U.S. District Senior Judge Sam A. Crow on 9/19/18. (msb)

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Schneider et al v. CitiMortgage, Inc. et al Doc. 586 I N THE UNI TED STATES DI STRI CT COURT FOR THE DI STRI CT OF KANSAS RANDALL A. SCHNEI DER and AMY L. SCHNEI DER Plaint iffs, v. No. 13- 4094- SAC CI TI MORTGAGE, I NC., et . al., Defendant s. MEMORANDUM AND ORDER Finding it s repeat ed adm onit ions for adherence t o t he let t er and spirit of Fed. R. Civ. P. 1 ignored, t he court again is inundat ed wit h filings whose num ber and lengt h are excessive, redundant , and unnecessary. These filings plainly reflect t he negat ive aspect s of t he part ies’ and counsels’ overly lit igious and cont ent ious behavior t hroughout t his suit ’s hist ory. The court ’s t im e and effort expended on t his case has great ly exceeded what should have been expect ed from t his lit igat ion if t he spirit of Rule 1 had governed t he com m unicat ion, cooperat ion and conduct of all involved. The ot her significant drain upon t he court ’s resources has been t he plaint iffs’ failure t o present t heir claim s and argum ent s consist ent ly, clearly and concisely. Cont ent ious behavior and inferior present at ions are an aggravat ing com binat ion. Dockets.Justia.com For t he sake of efficiency and expedit ion, t he court will lim it it s order t o discussing only t he m ost cent ral fact s and t o ruling only on t hose legal issues and argum ent s cont rolling in it s j udgm ent . The part ies right ly should assum e t hat t he fact ual issues and legal cont ent ions not appearing in t his order were st ill considered and researched but were found t o be nonessent ial in resolving t he sum m ary j udgm ent m ot ions. The court set s out t he following fact ual cont ext t o serve as a sim ple background for it s rulings, and it reserves fuller discussion of t he m ore specific and essent ial fact s when it addresses t he pending m ot ions in t he order in which t hey were filed. SUM M ARY JUD GM EN T STAN D ARD S Ult im at ely, a court grant s sum m ary j udgm ent “ against a part y who fails t o m ake a showing sufficient t o est ablish t he exist ence of an elem ent essent ial t o t hat part y's case, and on which t hat part y will bear t he burden of proof at t rial.” Celot ex Corp. v. Cat ret t , 477 U.S. 317, 322 ( 1986) ; see Fed. R. Civ. P. 56. But first , t he m ovant “ always bears t he init ial responsibilit y of inform ing t he dist rict court of t he basis for it s m ot ion, and ident ifying t hose port ions of ‘t he pleadings, deposit ions, answers t o int errogat ories, and adm issions on file, t oget her wit h t he affidavit s, if any,’ which it believes dem onst rat e t he absence of a genuine issue of m at erial fact .” I d. at 323. This does not m ean t he m oving part y m ust negat e t he ot her side's claim s or defenses t hrough affidavit s. I d. Upon a properly support ed m ot ion for sum m ary j udgm ent , t he nonm oving part y m ust go 2 beyond t he pleadings, t hat is, m ere allegat ions or denials, and set fort h specific fact s showing a genuine issue of m at erial fact for t rial, relying upon t he t ypes of evident iary m at erials cont em plat ed by Rule 56. I d. A court decides t he m ot ion “ t hrough t he prism of t he subst ant ive evident iary burden.” Anderson v. Libert y Lobby, I nc., 477 U.S. 242, 254 ( 1986) . So, a fact ual disput e is “ m at erial” only if it “ m ight affect t he out com e of t he suit under t he governing law.” I d. at 248. To be genuine, a fact ual disput e requires m ore t han a m ere scint illa of evidence in support of a part y's posit ion. I d. at 252. This m eans t hat t he purpose of Rule 56 “ is not t o replace conclusory allegat ions of t he com plaint or answ er wit h conclusory allegat ions of an affidavit .” Luj an v. Nat 'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct . 3177, 111 L.Ed.2d 695 ( 1990) . At t he sam e t im e, t he sum m ary j udgm ent st age does not aut horize t he court ’s weighing of t he evidence, credit ing som e over ot her, or det erm ining t he t rut h of disput ed m at t ers, but it shall decide whet her a genuine issue of m at erial fact for t rial exist s. Tolan v. Cot t on, ––– U.S. ––––, 134 S.Ct . 1861, 1866, ( 2014) . The court perform s t his t ask wit h a view of t he evidence t hat favors m ost t he part y opposing sum m ary j udgm ent . I d. Sum m ary j udgm ent m ay be grant ed if t he nonm oving part y's evidence is m erely colorable or is not significant ly probat ive. Libert y Lobby, 477 U.S. at 250–51. Essent ially, t he inquiry is “ whet her t he evidence present s a sufficient disagreem ent t o require 3 subm ission t o t he j ury or whet her it is so one- sided t hat one part y m ust prevail as a m at t er of law.” I d. at 251–52, 106 S.Ct . 2505. FACTUAL BACKGROUN D The plaint iffs’ residence in Nort onville, Kansas, was subj ect t o a resident ial m ort gage loan t hey had wit h t he lender Cit icorp Trust Bank, f.s.b. a/ k/ a Cit ibank, N.A. ( “ Cit ibank” ) . They refinanced t heir loan wit h Cit ibank on Sept em ber 17, 2007, wit h t he plaint iffs execut ing a prom issory not e for $107,996.88 for a t erm of 10 years and execut ing a m ort gage t hat grant ed Cit ibank a first - priorit y lien and securit y int erest in t he Nort onville residence. Bot h t he not e and t he m ort gage defined Cit ibank as t he “ Lender.” ( Pret rial Order ECF# 519, St ip. 1- 6) . The m ort gage conveyed a lien t o Cit ibank and t he recorded m ort gagee was Cit ibank. During t he relevant t im e t hat t he plaint iff’s m ort gage loan exist ed, Cit icorp was a federal savings bank regulat ed by t he federal Office of Thrift Supervision. Cit icorp’s business included originat ing hom e m ort gage loans for Kansas borrowers. A m erger in January of 2012 result ed in Cit icorp Trust Bank being known as Cit ibank, and it is regulat ed by t he federal Office of t he Com pt roller of t he Currency. I ncluded as volunt ary feat ures t o t he plaint iffs’ refinanced loan was a Paym ent Waiver Prot ect ion Program ( “ Paym ent Waiver Program ” or “ PWP” ) and an Equit y Builder I nt erest Rat e Discount Program ( “ Equit y Builder Program ” or “ EBP” ) . The PWP covered only Randall Schneider and 4 provided for t he paym ent of scheduled m ort gage paym ent s if he becam e disabled or involunt arily unem ployed. At t he closing on Sept em ber 17, 2007, t he plaint iffs received a docum ent ent it led, “ Addendum t o Not e Paym ent Waiver Prot ect ion Program ” and signed t he sam e t hat day. I d. St ips. 10 and 11. Approxim at ely six m ont hs lat er, Am y Schneider t im ely subm it t ed PWP docum ent s for Randall Schneider’s disabilit y. The PWP “ ult im at ely addressed plaint iffs’ responsibilit y t o m ake m ort gage paym ent s from April 2008 t hrough March 21, 2010.” I d. St ip. 12. Cit ibank serviced t he plaint iffs’ loan aft er originat ion, but Cit iMort age began servicing t he loan on or aft er June 11, 2008. Servicing t he “ loan included collect ion of paym ent s, adm inist rat ion of feat ures of t he loan, com m unicat ing wit h plaint iffs, processing paym ent s, calculat ing paym ent s, creat ing payoff st at em ent s on t he loan.” I d. St ip. 17. Cit ibank’s let t er t o t he plaint iffs explained t hat t his change of servicer would “ not affect t he t erm s and condit ions of your loan docum ent s.” ECF# 524- 19, p. 1. CLAI M S As sum m arized in t he pret rial order, t he plaint iffs wit hdrew t heir count s under t he Equal Credit Opport unit y Act and t he Real Est at e Set t lem ent Procedures Act , and t he court already dism issed t he plaint iffs’ count s for conversion, fraud, and breach of cont ract event s occurring before May 24, 2008. Broadly st at ed, t he plaint iffs’ rem aining claim s are eit her for breaches of t he im plied covenant of good fait h and fair dealing and/ or t he 5 express cont ract s, or for violat ions of unconscionable and decept ive pract ices according t o t he Kansas Consum er Prot ect ion Act , K.S.A. 50- 623 et seq. ( “ KCPA” ) . ECF# 519, pp. 15- 16. As set out in t he pret rial order, t he plaint iffs allege a num ber of breaches relat ed t o t he 2007 cont ract ual agreem ent s cont ained in t heir prom issory not e, m ort gage, Paym ent Waiver Prot ect ion Program ( “ PWP” ) , t he Equit y Builder I nt erest Rat e Discount , t he Equit y Builder bi- weekly program , and t he $.M.A.R.T. loan plan. The conduct alleged t o be in breach of t hese agreem ent s includes: int erest rat es being increased and overcharged, paym ent s not being properly credit ed, fees being post ed, unearned fees ( including PWP fees) being assessed and collect ed, benefit s of PWP not being fully provided, lat e charges being assessed when not owed or when PWP was covering loan paym ent s, and pre- paym ent penalt y being im posed. ECF# 519, p. 16- 18. As set out in t he pret rial order, t he plaint iffs allege t he following legal t heories for t he 2010 at t em pt ed refinance. ECF# 519, pp. 14- 15, 1820. They worked wit h Kerry Cobb of Prim erica in applying t o refinance t heir loan wit h Cit ibank. They allege t hat Prim erica and Cit ibank concealed t heir eligibilit y for refinancing, did not offer t hem alt ernat ive financing program s for which t hey were eligible, and denied t heir refinancing applicat ion. The plaint iffs allege t hat Prim erica cont ract ed wit h t hem in a m ort gage broker 6 agreem ent and disclosure t hat revealed Prim erica’s exclusive relat ionship wit h t he Cit i defendant s. I n t heir sum m ary j udgm ent filings, t he plaint iffs purport t o bring cont ract ual and KCPA claim s based on t he defendant s’ using int erest rat es t hat allegedly exceeded Kansas Usury laws. The defendant s cont end t he plaint iffs m ay not bring such claim s now. While Kansas recognizes an act ion for usury, t he defendant s argue t hat t he plaint iffs failed t o allege t his claim in t heir com plaint and t hat t he plaint iffs’ recent effort s t o add such a claim were denied at t he pret rial conference. ECF# 519, p. 38. The defendant s ask t he court t o keep t he plaint iffs from m aking “ an end- run” t hrough recast ing t heir unt im ely usury claim s int o anot her alleged breach of cont ract or violat ion of t he KCPA. The court sust ains t he defendant s’ obj ect ion. The plaint iffs have not t im ely pleaded t heir usury claim s and will not be allowed t o evade t he consequences t hrough new t heories for cont ract ual breaches or KCPA violat ions. I ndeed, t he plaint iffs’ usury t heory is not properly art iculat ed and disclosed in t he pret rial order as part of t heir rem aining claim s. The pret rial order does not preserve a claim for usury law violat ions const it ut ing a breach of t he im plied covenant of good fait h and fair dealing. ECF# 531, p. 18 n. 2. The pret rial order supersedes all pleadings and cont rols t he subsequent course of t he case. Fed. R. Civ. P. 16( d) ; D. Kan. Rule 16.2( b) . The “ pret rial order m easures t he dim ensions of t he lawsuit ,” and at t he final pret rial conference at t orneys “ m ust m ake a full and fair 7 disclosure of t heir views as t o what t he real issues of t he t rial will be.” Youren v. Tint ic School Dist ., 343 F.3d 1296, 1304 ( 10t h Cir. 2003) ( int ernal quot at ion m arks and cit at ions om it t ed) . I f an issue is om it t ed from t he pret rial order, t hen it is not part of t he case. I d. Thus, t he court finds t hat t he plaint iffs do not have a breach of im plied covenant / cont ract claim or KCPA claim based on t he issue or t heory t hat t he int erest rat es violat ed st at e usury laws. SUM M ARY JUD GM EN T M OTI ON OF CI TI M ORTGAGE, I N C. AN D CI TI BAN K, N .A. ECF # 5 2 3 KCPA The defendant s open t heir m ot ion arguing t hat t he plaint iffs are unable t o prove a KCPA claim because Cit ibank is not a “ supplier” under t he KCPA’s express t erm s. There is no quest ion t hat t o prevail on t heir KCPA claim s, t he plaint iffs m ust be able t o prove t hat t he defendant s are suppliers under t he KCPA. I n re Mot or Fuel Tem perat ure Sales Pract ices, 279 F.R.D. 598, 604 ( D. Kan. 2012) ; Alexander v. Cert ified Mast er Builders Corp., 268 Kan. 812, 825- 26, 1 P.3d 899 ( 2000) ; Farrell v. General Mot ors Corp., 249 Kan. 231, 242, 815 P.2d 538 ( 1991) ; K.S.A. 50- 524( l) ( definit ion of “ supplier” ; K.S.A. 50- 626( a) ( “ No supplier shall engage in any decept ive act or pract ice in connect ion wit h a consum er t ransact ion.” ) ; K.S.A. 50- 627( a) ( “ No supplier shall engage in any unconscionable act or pract ice in connect ion wit h a consum er t ransact ion.” ) . To m ake t heir argum ent , t he 8 defendant s rely on t he plain t erm s of KCPA’s own cont rolling definit ion of “ supplier” : ( l) “ Supplier” m eans a m anufact urer, dist ribut or, dealer, seller, lessor, assignor, or ot her person who, in t he ordinary course of business, solicit s, engages in or enforces consum er t ransact ions, whet her or not dealing direct ly wit h t he consum er. Supplier does not include any bank, t rust com pany or lending inst it ut ion which is subj ect t o st at e or federal regulat ion wit h regard t o disposit ion of repossessed collat eral by such bank, t rust com pany or lending inst it ut ion. K.S.A. 50- 624( l) . The uncont rovert ed fact s are t hat Cit icorp and Cit ibank were subj ect t o federal regulat ion during t he relevant t im e periods. The plaint iffs respond t hat , “ Defendant s ignore t he canons of st at ut ory const ruct ion and clear legislat ive hist ory in favor of overreaching t o ignore t he lim it s of t he 2005 am endm ent , ignore t he am endm ent in 2009, t hen again ignore t he am endm ent in 2010; all of which set t le t he applicabilit y of t he KCPA t o t hese Defendant s.” ECF# 557, p. 22. The plaint iffs’ sum m ary of Kansas st at ut ory const ruct ion law st ops at , “ The int erpret at ion of a st at ut e is a quest ion of law, and it is t he funct ion of t he court t o int erpret a st at ut e t o give it t he effect int ended by t he legislat ure.” Finst ad v. Washburn Universit y, 252 Kan. 465, 471, 845 P.2d 685 ( 1993) ( cit at ion om it t ed) . The plaint iffs want t his rule t o m ean t hat all avenues for discerning legislat ive int ent are im m ediat ely and uncondit ionally available for considerat ion. This is not , however, t he law in Kansas. I n Finst ad, m ore t han t he language used in t he st at ut e was considered, because t he Court was being asked t o int erpret “ aggrieved” which was not defined in t he KCPA and 9 it s m eaning was in disput e. 252 Kan. at 469- 472. Unlike t he sit uat ion in Finst ad, t he KCPA clearly and unam biguously defines “ supplier.” “ When a st at ut e is clear and unam biguous, appellat e court s give effect t o legislat ive int ent expressed t hrough t he words of t he st at ut e, rat her t han m ake a det erm inat ion of what t he law should or should not be.” Carlson Auct ion Service, I nc. v. Kansas Corporat ion Com m ission, 55 Kan. App. 2d. 345, 349, 413 P.3d 448, 451 ( Kan. App. 2018) ( cit ing Ullery v. Ot hick, 304 Kan. 405, 409, 372 P.3d 1135 ( 2016) ) . Thus, if t he st at ut ory t erm in issue is clear and unam biguous, a court will not “ use canons of const ruct ion or legislat ive hist ory or ot her background considerat ions t o const rue t he legislat ure’s int ent .” Ullery, 304 Kan. at 409. The plaint iffs com e forward wit h no reasonable argum ent for finding am biguit y wit h t he KCPA’s definit ion of “ supplier” t hat expressly excludes a regulat ed bank, t rust com pany or lending inst it ut ion. Absent t his showing, a court m ay not resort eit her t o ot her canons of st at ut ory const ruct ion, such as in pari m at eria, or t o legislat ive hist ory as t o arrive at a legislat ive int ent different from t hat plainly expressed in t his st at ut ory definit ion. The court is not alone in it s reading and applicat ion of KCPA’s express exclusion of regulat ed banks. See, e.g., Kalebaugh v. Cohen, McNeile & Pappas, P.C., 76 F.Supp.3d 1251, 1260 ( D. Kan. 2015) ( J. Mart en) ( “ Discover Bank is not a supplier under t he KCPA if it is subj ect t o st at e or federal regulat ion.” ) ( cit ing Kast ner v. I nt rust Bank, 2011 WL 721483, at * 3 10 n.3 ( D. Kan. Feb. 22, 2011) ( M.J. Hum phries) ( “ K.S.A. § 50–624( l) appears t o exclude banks and lending inst it ut ions t hat are subj ect t o st at e and federal regulat ion from t he definit ion of ‘supplier’ and t he court assum es t hat defendant I nt rust Bank sat isfies t his except ion.” ) ) ; Briscoe v. Cohen, McNeile & Pappas, P.C., 2014 WL 4954600, at * 11 ( D. Kan. Oct . 1, 2014) ( J. Crabt ree) ( “ t he Bank is not a supplier under t he KCPA if it is subj ect t o st at e or federal regulat ion.” ) ) ; Ellis v. Chase Bank USA, NA, 2017 WL 5158311, at * 3 ( D. Kan. Nov. 7, 2017) ( J. Crabt ree) ( “ The KCPA specifically excludes st at e and federally regulat ed banks from t he definit ion of ‘supplier.’” ) ; I n re Larkin, 553 B.R. 428, 443- 445 ( Bankr. D. Kan. 2016) ( “ Adopt ing t he Larkins’ int erpret at ion would effect ively rewrit e t he “ regulat ed bank” exclusion in t he definit ion of ‘supplier.’ That is a t ask for t he Kansas legislat ure, not m e.” ( foot not e om it t ed) ) ; Whit e v. Securit y St at e Bank, 2017 WL 5507943, at * 8, 405 P.3d 1241 ( Table) ( Unpub. Op.) ( Kan. App. Nov. 17, 2017) ( “ We are persuaded t hat t he plain, com m on sense reading of t he exclusionary language of K.S.A. 2016 Supp. 50- 624( l) , as discussed in Larkin and Kalebaugh is t he proper approach t o underst anding t he legislat ure’s m eaning in draft ing t his part icular st at ut ory provision.” ) . Most of t he plaint iffs’ argum ent s for int erpret ing “ supplier” ask t he court t o look elsewhere for legislat ive int ent t han t he plain t erm s of t he express exclusion in K.S.A. § 50- 624( l) . They would have t he court assum e t he Kansas legislat ure int ended t o do som et hing ot her t han what it plainly 11 said. They would have t he court rewrit e t he express exclusion, give it a narrower m eaning, and j ust ify t hat m eaning by em ploying t he different canons of st at ut ory const ruct ion and by divining legislat ive int ent from prior and subsequent legislat ive enact m ent s. The plaint iff’s approach cont ravenes Kansas law, “ When a st at ut e is plain and unam biguous, an appellat e court does not speculat e as t o t he legislat ive int ent behind it and will not read int o t he st at ut e som et hing not readily found in it .” Ullery v. Ot hick, 304 Kan. at 409. The plaint iffs fail t o j ust ify looking out side t he st at ut ory language in det erm ining legislat ive int ent here. The Kansas Suprem e Court in Finst ad did not creat e a unique rule of st at ut ory const ruct ion for KCPA cases. I nst ead, it sim ply followed t he fundam ent al rules of st at ut ory const ruct ion for det erm ining t he m eaning of an undefined and am biguous t erm . 252 Kan. at 471- 72. The plaint iff argues t his court should rej ect t he st ring of case law int erpret ing t he KCPA’s definit ion of “ supplier,” because t hose court s did not consider legislat ive hist ory. The plaint iffs are wrong on t wo point s. First , legislat ive hist ory w as referenced by t hose court s. More im port ant ly, t hose court s rej ect ed reading a legislat ive int ent int o t he definit ion t hat was different from t he legislat ure’s plain and unam biguous language. The plaint iffs correct ly observe t hat t he cit ed case law is not cont rolling upon t his court ’s decision. Nonet heless, t his does not m ean t hat t he case law is 12 wit hout persuasive weight in underst anding and applying a st at ut ory definit ion t hat is plain on it s face. I ndeed, none of t he plaint iffs’ argum ent s convince t his court t hat Judge Mart en, Judge Nugent or Judge Crabt ree were wrong in st icking wit h t he st at ut e’s plain t erm s and in rej ect ing t he sam e narrow int erpret at ion t hat t he plaint iffs are want ing here. Judge Mart en in Kalebaugh said: Plaint iff disagrees w it h t his int erpret at ion of t he definit ion of “ supplier” and inst ead argues t hat t he KCPA only excludes banks, t rust com panies, and lending inst it ut ions when t he issue at hand is t he “ disposit ion of repossessed collat eral.” Ergo, since t he issue before t he court deals only wit h t he alleged out st anding balance on a credit card and not t he disposit ion of repossessed collat eral, Discover Bank is a supplier under t he KCPA. The court disagrees. Plaint iff offers absolut ely no support , st at ut ory or ot herwise, for t his dist inct ion. Nor did t he court find, during it s own review of t he law, any such support for t his int erpret at ion. Furt herm ore, t he court cannot ext rapolat e t his m eaning from t he plain language of t he st at ut e. The court t herefore concludes t hat Discover Bank is not a supplier under t he KCPA if it is subj ect t o st at e or federal regulat ion. 76 F.Supp.3d at 1260. Judge Nugent in Larkin concluded I concur wit h Judge Mart en’s analysis. Wit t ingly or not , t he Legislat ure has creat ed a sizable hole in t he KCPA t hrough which banks like BOA can slip, regardless of t heir conduct . While t he “ guiding principle” of t he KCPA is t o prot ect consum ers from suppliers who com m it decept ive and unconscionable act s, a goal t hat requires liberal const ruct ion, t hat only goes as far as t he words t hat are cont ained in t he st at ut e. I cannot int erpret words t hat aren’t t here or replace t hem wit h ot hers. Adopt ing t he Larkins’ int erpret at ion, would effect ively rewrit e t he “ regulat ed bank” exclusion in t he definit ion of “ supplier.” That is a t ask for t he Kansas Legislat ure, not m e. 553 B.R. at 444- 45. I n a foot not e, Judge Nugent cogent ly observed t hat if t he Kansas Legislat ure had int ended only t o carve out a t ransact ion involving repossessed collat eral t hen it should have alt ered t he definit ion of “ consum er 13 t ransact ion” inst ead of doing what it did and excluded an ent ire ent it y from t he definit ion of “ supplier.” I d. at 445, n. 79. Most recent ly, Judge Crabt ree was persuaded t o follow t hese cases and not t he legislat ive hist ory argum ent s t hat were advanced: Plaint iff assert s t hat t he st at ut e’s legislat ive hist ory support s a narrower const ruct ion of t he KCPA, applying only t o suppliers engaging in t ransact ions “ relat ing t o t he occasional sales of cert ain repossessed collat eral.” Doc. 10 at 2. But , our court has rej ect ed t his very argum ent . See Kalebaugh v. Cohen, McNeile & Pappas, P.C., 76 F.Supp.3d 1251, 1260 ( D. Kan. 2015) ( rej ect ing a plaint iff’s argum ent “ t hat t he KCPA only excludes banks, t rust com panies, and lending inst it ut ions when t he issue at hand is t he ‘disposit ion of repossessed collat eral’” because t he court found ‘no support , st at ut ory or ot herw ise for t his dist inct ion” and also could not “ ext rapolat e t his m eaning from t he plain language of t he st at ut e” ) . More recent ly, t he Bankrupt cy Court for Kansas has concluded t hat t he unam biguous st at ut ory language in t he KCPA specifically excludes from t he KCPA’s definit ion of “ supplier” any bank t hat is subj ect t o st at e or federal regulat ion. Larkin, 553 B.R. at 444. I n doing so, Judge Nugent expressly rej ect ed plaint iff’s argum ent t hat “ disposit ion of repossessed collat eral” is a prerequisit e t o conclude t hat a federal or st at e regulat ed bank is excluded from t he scope of t he t erm “ supplier” under KCPA. I d. Following t he previous decisions by our court and t he bankrupt cy court , t he court concludes here t hat t he language of t he st at ut e is plain and unam biguous. The KCPA specifically excludes st at e and federally regulat ed banks from t he definit ion “ supplier.” As explained above, defendant is subj ect t o federal regulat ion under t he OCC. Defendant t hus is a federally- regulat ed bank, and it is not a “ supplier” under t he KCPA. Ellis, 2017 WL 5158311 at * 3. Judge Crabt ree also rej ect ed t he plaint iff’s argum ent t hat t he Kansas st at e court s would t reat banks as suppliers and dist inguished t he plaint iff’s cit at ions. I d. Ten days aft er Judge Crabt ree’s decision, t he Kansas Court of Appeals in an unpublished decision 14 dist inguished ot her st at e court decisions and followed t he plain wording of “ supplier” : A plain reading of t he st at ut ory language persuades us t hat t he int erpret at ion proposed by t he Whit es is t oo narrow. The basic t ext of t he supplier exclusion does not lim it it s applicat ion t o only t hose t im es when t he bank is act ively disposing of repossessed collat eral. Rat her based on t he plain language, if a bank is generally subj ect t o regulat ions pert aining t o disposit ion of repossessed collat eral, t he bank is excluded as a supplier under t he nom enclat ure and reach of t he KCPA. . . . . We are persuaded t hat t he plain, com m on sense reading of t he exclusionary language of K.S.A. 2016 Supp. 50- 624( l) , as discussed in Larkin and Kalebaugh, is t he proper approach t o underst anding t he legislat ure’s m eaning in draft ing t his part icular st at ut ory provision. Because concluded, as a m at t er of law, t hat t he Bank was not a supplier for purposes of t he KCPA, we find no error in t he dist rict court ’s dism issal of t his claim . Whit e v. Securit y St at e Bank, 2017 WL 5507943, at * 7- * 8, 405 P.3d 1241 ( Table) ( Unpub. Op.) ( Kan. App. Nov. 17, 2017) . The court sum m arily rej ect s t he plaint iffs’ argum ent t hat an am biguit y m ust exist because t hese court s are reading t he exclusion cont rary t o t he plaint iffs’ underst anding of legislat ive int ent . This is not only a circular argum ent , but it defies Kansas law on st at ut ory const ruct ion sum m arized above. The court disagrees wit h t he plaint iffs’ posit ion t hat t hese t hree federal court decisions and one st at e court decision are no m ore t han piggyback rulings. I nst ead, t he port ions quot ed above show t hat in each inst ance t he court reviewed t he st at ut e, argum ent s and case law and was persuaded t o reach it s own conclusion t hat t he st at ut e was unam biguous and followed t he prior decisions correct ly applying Kansas st at ut ory 15 const ruct ion law. The court places no st ock in plaint iff’s inflam m at ory caricat ure of t his precedent as, “ t he recent t rend in big bank firm s persuading t he Court t o rule t o provide an except ion which was never int ended by t he legislat ure.” ECF# 557, p. 27. So t hat t he record is com plet e on t his issue, t he court quickly addresses som e of t he plaint iffs’ ot her argum ent s. Subsequent am endm ent s t o ot her provisions in t he KCPA, provisions wit hin t he Kansas Mort gage Business Act , and t he legislat ive sum m aries of subsequent am endm ent s are not viable doors for speculat ing about legislat ive int ent when t he supplier exclusion is plain and unam biguous. That t he exclusion const it ut es only one sent ence m at t ers lit t le when it serves t he cont rolling funct ion of defining a cent ral t erm of t he Act . The court ’s int erpret at ion of t his exclusion does not im plicat e or involve any concerns over preem pt ion. As st at ed above, t he plaint iffs have t he burden t o prove t hat t he defendant s were suppliers under t he KCPA, and sum m ary j udgm ent is proper against t he part y who does not m ake a sufficient showing on an essent ial elem ent t o it s case on w hich it bears t he burden of proof at t rial. Cit iMort gage Effect ive July 1, 2008, Cit iMort gage began servicing t he plaint iff’s m ort gage loan account wit h Cit ibank. ECF# 524- 19, p. 1. The let t er of not ice disclosed t hat t his only was a t ransfer of servicing right s and not debt : 16 You are hereby not ified t hat t he servicing of your m ort gage loan, t hat is, t he right t o collect paym ent s from you, is being assigned, sold or t ransferred from Cit icorp Trust Bank, fsb t o Cit iMort gage, I nc. effect ive July 1, 2008. The assignm ent , sale, or t ransfer of t he servicing of your m ort gage does not affect any t erm s or condit ions of t he m ort gage inst rum ent s, ot her t han t he t erm s direct ly relat ed t o t he servicing of you loan. . . . . Cit icorp Trust Bank, fsb originat ed loans are serviced by Cit iMort gage, I nc. ECF# 524- 19, p. 2. Cit iMort gage and Cit icorp Trust Bank were subsidiaries of Cit igroup from 2007 t hrough 2010. Being under Cit igroup’s com m on cont rol and wit h Cit iMort gage t aking over t he servicing of Cit icorp Trust Bank’s originat ed loans, t he t wo would qualify as affiliat es under t he com m on m eaning of t hat t erm . See Cray v. Kennedy, 230 Kan. 663, 672, 640 P.2d 1219 ( 1982) ( looked at condit ions of being connect ed and at t ached as m em bers wit h an elem ent of dependabilit y on one anot her) ; Black’s Law Dict ionary, AFFI LI ATE ( 10t h ed. 2014) ( “ A corporat ion t hat is relat ed t o anot her corporat ion by shareholdings or ot her m eans of cont rol; a subsidiary, parent , or sibling corporat ion.” ) . The defendant Cit iMort gage argues it t oo com es wit hin t he KCPA’s regulat ed bank exclusion as an affiliat e of Cit icorp Trust Bank. As plainly defined, t he KCPA exclusion encom passes “ any bank, t rust com pany or lending inst it ut ion.” K.S.A. 50- 624( l) . I n t his sam e “ definit ions” sect ion of t he KCPA, t he t erm , “ Lender” is defined as “ a bank, savings and loan associat ion, savings bank, credit union, financial com pany, m ort gage bank, 17 m ort gage broker and any affiliat e.” K.S.A. 50- 624( f) . Even t hough t he court s have not direct ly addressed t he applicat ion of “ affiliat e” t o t he regulat ed bank exclusion, t he defendant not es t he bankrupt cy court in Larkin recognized and discussed t he defendant bank in t he singular even t hough t he loan was serviced for a period by anot her ent it y which lat er m erged wit h t he defendant . The plaint iffs respond t hat t he defendant s effect ively adm it t hey are covered by t he KCPA by any one of t hem claim ing t o be a “ lender” and affiliat e. The plaint iffs not e t hat “ affiliat e” appears nowhere wit hin t he regulat ed bank exclusion and t hat adding “ affiliat e” would expand t he exclusion beyond it s express wording. Finally, t he plaint iffs cont end Cit iMort gage was not regulat ed nor licensed under t he Kansas Mort gage Business Act as required by K.S.A. 50- 626( 13) ( C) and speculat e t hat Cit iMort gage m ay have been t he lender because som e loan- relat ed inform at ion reached it for processing. The plain t erm s of t he bank exclusion ext end t o “ any . . . lending inst it ut ion . . . .” K.S.A. 60- 524( l) . There is not hing in t he KCPA nor in t he part ies’ present at ions t hat offers a rat ional basis for m eaningfully dist inguishing bet ween a “ lending inst it ut ion” and a “ lender” in t his case. The lat t er m ay em phasize an ent it y’s role in a t ransact ion or relat ionship while t he form er m ay m ore generally describe t he ent it y’s nat ure. Wit h t hat said, an ent it y like Cit icorp/ Cit ibank is a lending inst it ut ion which served it s role as 18 a lender in t he subj ect t ransact ion. Thus, Cit ibank is subj ect t o bot h t erm s, and t he definit ions should be read t oget her and in consonance wit h each ot her. The absence of “ affiliat e” in t he banking exclusion is of no m om ent when t he definit ion of “ lender” plainly shows an int ent t o encom pass all affiliat ed ent it ies wit hin t he m eaning of “ lender” and t hereby, “ lending inst it ut ion.” The part ies’ st ipulat ions and t he cont rolling legal docum ent s est ablish as a m at t er of law t hat Cit ibank was t he lending inst it ut ion and lender for purposes of t his t ransact ion. From t he uncont rovert ed fact s, t he court concludes t hat Cit iMort gage com es wit hin t he KCPA’s regulat ed bank exclusion because it was an affiliat e of Cit icorp/ Cit ibank during t he relevant t im e. The plaint iffs’ last effort at avoiding t his exclusion is t o say t his court has “ already ruled” t his was a “ consum er t ransact ion” under t he KCPA. ECF# 557, p. 32. What t he court decided was t he defendant s’ cont ent ions over t he m eaning of “ consum er t ransact ion,” not “ supplier.” ECF# 20 at pp. 18- 22. That ruling rem ains t he law of t he case over t he m eaning of a “ consum er t ransact ion” and it s applicat ion here. I t , however, did not address and was not a ruling on t he applicabilit y of t he regulat ed bank exclusion found in t he KCPA’s definit ion of “ supplier.” The defendant s’ sum m ary j udgm ent argum ent is not as t he plaint iffs suggest a “ re- run” of what t he court has already rej ect ed. ECF# 557, p. 33. I nst ead, t he defendant s’ argum ent s for applying t he regulat ed bank exclusion are not only new t o t he 19 case but decisive of t he plaint iffs’ KCPA claim s. The defendant m ovant s are ent it led t o sum m ary j udgm ent on t he plaint iff’s KCPA claim s. The defendant s alt ernat ively argue for sum m ary j udgm ent on cert ain KCPA claim s as unt im ely, on claim s of unconscionable conduct as lacking evidence and subj ect t o j udicial det erm inat ion, and on claim s for decept ive conduct as lacking evidence on willfulness, a dut y t o speak, and act ionable m isrepresent at ions. Because neit her defendant is a “ supplier” under t he KCPA, t he court will not address t hese addit ional cont ent ions. BREACH OF CONTRACT Choice of Law As set fort h in t he pret rial order, t he defendant s Cit ibank and Cit iMort gage cont end t hat Delaware law governs t he plaint iffs’ breach of im plied and express cont ract claim s concerning event s occurring on or aft er May 24, 2008, and relat ing t o alleged loan servicing errors. The defendant s cont end t he prom issory not e governs t he plaint iff’s repaym ent of t he debt being serviced and t hat t he not e cont ains a choice of law provision. On Sept em ber 17, 2007, t he Schneiders signed not only t he prom issory not e but also a “ Governing Law/ Prepaym ent Penalt y Addendum t o Not e.” ECF # 524- 2. Under sect ion one ent it led, “ Governing Law,” t he addendum reads: This Not e will be governed by t he Unit ed St at es federal law and, t o t he ext ent Unit ed St at es federal law is inapplicable, t hen by t he laws of t he St at e of Delaware; except t hat , wit h regard t o t he perfect ion and enforcem ent of Lender’s securit y int erest in t he Propert y, t he Not ice and Securit y I nst rum ent will be governed by t he laws of t he sit e where t he Propert y is locat ed. 20 ECF# 524- 2, p. 5. The addendum expressly st at es in it s opening sent ence t hat it is t o be “ incorporat ed int o and . . . be deem ed t o am end and supplem ent t he Not e m ade by t he undersigned ( ‘Borrower’) , in favor of Cit icorp Trust Bank, fsb ( ‘Lender’) . . . .” I d. When exercising diversit y j urisdict ion, t his court applies t he choice- of- law rules of t he st at e in which it sit s, Klaxon Co. v. St ent or Elec. Mfg. Co., 313 U.S. 487, 496 ( 1941) , and t his includes t hat forum ’s rules applicable in deciding whet her t he “ cont ract ual choice- of- law provision is enforceable.” Equifax Services, I nc. v. Hit z, 905 F.2d 1355, 1360 ( 10t h Cir. 1990) . “ Where t he part ies t o a cont ract have ent ered an agreem ent t hat incorporat es a choice of law provision, Kansas court s generally effect uat e t he law chosen by t he part ies t o cont rol t he agreem ent .” Brenner v. Oppenheim er & Co. I nc., 273 Kan. 525, 539, 44 P.3d 364 ( 2002) . This general rule is subj ect t o t he “ well- recognized except ion” of when “ t he applicat ion of t he cont ract ing part ies’ choice of law provision engenders a result cont rary t o public policy.” I d. at 540. I n short , “ [ i] f a choice of law provision is cont rary t o t he public policy of t he forum st at e, it will not be enforced by t he court ,” and t he law of t he forum will apply. I d. at 541. The plaint iffs refer t o t he public policy except ion wit hout offering any argum ent s persuasively est ablishing t he except ion. The plaint iffs were given and signed an addendum t hat expressly recognized t he governing law for t he prom issory not e as federal law and t hen Delaware law when federal 21 law was inapplicable. The defendant s point out t hat federal law is inapplicable t o t he plaint iffs’ claim s regarding t he servicing of t he not e, t hat Delaware law is largely consist ent wit h Kansas law, and t hat any differences fail t o j ust ify a public policy except ion. The plaint iffs fail t o address t he defendant s’ point s. The court agrees w it h t he defendant s’ posit ion based on t he argum ent s present ed in t he part ies’ briefs and will look t o Delaware law in resolving t he breach of cont ract claim s. When im port ant , t he court will t ake not e of parallels t o Kansas law for it s ruling. 2007 I m plied Cont ract Concerning t he 2007 not e, t he plaint iffs fact ually cont end in t he pret rial order t hat based on represent at ions by Kerry Cobb t hey had planned t o pay off t he loan in 7.5 years by building equit y and prot ect ing against a disabilit y wit h t he PWP program . This is what t he plaint iffs generally expect ed as t he benefit s flowing from t heir part icipat ion in cert ain special program s available wit h t heir loan. While t hey assert t his general expect ancy of benefit s, t hey do not connect any specific benefit s t o any express t erm s in t heir writ t en agreem ent s. The plaint iffs rely on t his general expect ancy of benefit s in bringing t heir breach of an im plied dut y of good fait h and fair dealing claim laid out in t he pret rial order: The m anner in which t he Defendant s undert ook t he servicing and adm inist rat ion of t he loan deprived t he Schneiders of t he expect ancy set fort h by Kerry Cobb and Defendant s where rat her t han building equit y on an accelerat ed basis, t he Schneiders who were always on aut opay, unt il cancelled im m ediat ely before t he refinance wit h US Bank, or covered by t he PWP prot ect ion, and added t housands in ext ra 22 principal paym ent s ended up going backwards as if t hey were m ult iple paym ent s behind and not get t ing credit for t he t im e t he balance was lower by using reversals. Not only were t he paym ent s cont inually m isapplied, but unbeknown t o t he Schneiders, Cit iMort gage didn’t even have t he abilit y t o properly service a bi- weekly loan and had accept ed t he Schneiders loan and all ot her Prim erica sim ilar originat ions cont inuing t o m ount pecuniary dam ages on t he backs of t he borrowers t o t heir foreseeable benefit . ECF# 519, p. 17. The pret rial order also assert s a breach of an im plied cont ract claim for collect ing PWP prem ium paym ent s aft er t he plaint iffs exhaust ed t heir benefit s and eligibilit y under t he PWP. I d. at p. 18. The defendant s seek sum m ary j udgm ent on t his im plied dut y claim arguing t hat Delaware law precludes using or recognizing any im plied t erm t hat essent ially adds new t erm s or overrides express t erm s. See I n re I T Group, I nc., 448 F.3d 661, 671 ( 3rd Cir. 2006) ( “ t he im plied dut y of good fait h is m erely an int erpret ive t ool t o det erm ine t he part ies’ j ust ifiable expect at ions, . . .; it m ay not be used t o add new t erm s t o an agreem ent , . . . , or t o override express cont ract ual t erm s, . . . .” ( int ernal quot at ion m arks and cit at ions om it t ed) ) . The Tent h Circuit has sum m arized Delaware law in t his way: “ Under Delaware law, an im plied covenant of good fait h and fair dealing inheres in every cont ract .” Cham ison v. Healt ht rust , I nc., 735 A.2d 912, 920 ( Del.Ch.1999) . “ As such, a part y t o a cont ract has m ade an im plied covenant t o int erpret and t o act reasonably upon cont ract ual language t hat is on it s face reasonable.” I d. “ This im plied covenant is a j udicial convent ion designed t o prot ect t he spirit of an agreem ent when, wit hout violat ing an express t erm of t he agreem ent , one side uses oppressive or underhanded t act ics t o deny t he ot her side t he fruit s of t he part ies' bargain.” I d. “ I t requires t he [ finder of fact ] t o ext rapolat e t he spirit of t he agreem ent from it s express t erm s and based on t hat ‘spirit ,’ det erm ine t he t erm s t hat t he part ies would have 23 bargained for t o govern t he disput e had t hey foreseen t he circum st ances under which t heir disput e arose.” I d. at 920–21. The “ ext rapolat ed t erm ” is t hen “ im plie[ d] ... int o t he express agreem ent as an im plied covenant ,” and it s breach is t reat ed “ as a breach of t he cont ract .” I d. “ The im plied covenant cannot cont ravene t he part ies' express agreem ent and cannot be used t o forge a new agreem ent beyond t he scope of t he writ t en cont ract .” I d. O'Tool v. Genm ar Holdings, I nc., 387 F.3d 1188, 1195 ( 10t h Cir. 2004) . Kansas law essent ially coincides wit h Delaware law: This im plied dut y is derivat ive in nat ure, m eaning t hat it does not creat e new cont ract t erm s but grows out of exist ing ones. The dut y of good fait h and fair dealing only am plifies dut ies and right s already exist ing under t he t erm s of t he agreem ent . The goal of t he im plied dut y is t o accom plish t he part ies' express prom ises, so a breach is act ionable when it relat es t o an aspect of perform ance under t he t erm s of t he cont ract . Accordingly, t he Defendant s m ust point t o a t erm in t he cont ract t hat Cargill has violat ed by failing t o abide by t he good fait h spirit of t hat t erm . Cargill Meat Solut ions Corp. v. Prem ium Beef Feeders, LLC, 168 F. Supp. 3d 1334, 1345 ( D. Kan. 2016) ( foot not es om it t ed) ; see Bonanza, I nc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792, 801 ( 1987) ( “ [ C] ont ract s im pose on t he part ies t heret o a dut y t o do everyt hing t o accom plish t he result int ended by t he part ies.” and “ [ E] ssent ial t erm s of a cont ract on which t he m inds of t he part ies have not m et cannot be supplied by t he im plicat ion of good fait h and fair dealing.” ) . Specifically, t he defendant s seek sum m ary j udgm ent on t his im plied cont ract claim because t here is no evidence t hat Kerry Cobb spoke on t heir behalf about t he servicing of t he 2007 not e and because t he not e, addendum and m ort gage expressly addressed paym ent s and adm inist rat ion 24 of t he sam e and left not hing t o im plicat ion. Thus, “ alleged account ing errors by Cit ibank/ Cit iMort gage cannot be t he subj ect of a claim for breach of an im plied covenant .” ECF# 524, p. 37. Alt ernat ively, t he defendant s argue t hat Delaware law does not perm it recovery for breach of an im plied dut y absent a special relat ionship exist ing bet ween t he part ies, and t he plaint iffs have no proof of such a relat ionship here which was like any debt or/ credit or relat ionship, t hat is, m arked by an arm s- lengt h t ransact ion and adversarial t erm s. The defendant s find support in t he plaint iffs’ dem and let t er of May 26, 2011, which did not refer t o or hint at any special relat ionship but rat her spoke out of concern for all Kansas consum ers in real est at e m ort gage m arket s. The defendant s not e t hat Kansas law regards t he borrower/ lender relat ionship as having “ an adversarial charact er” and as not being a “ special relat ionship” j ust ifying t he im posit ion of ext ra dut ies. Jack v. Cit y of Wichit a, 23 Kan. App. 2d 606, 614, 933 P.2d 787 ( 1997) ( cit ing Bank I V Wichit a, Nat . Ass’n v. Arn, Mullins, Unruh, Kuhn & Wilson, 250 Kan. 490, 505, 827 P.2d 758 ( 1992) , and Nelson v. Millier, 227 Kan. 271, 287, 607 P.2d 438 ( 1980) ) . The plaint iffs’ m em orandum opposing sum m ary j udgm ent ( ECF# 557) does not respond t o any of t he defendant s’ argum ent s sum m arized in t he prior paragraph. When a part y at t he sum m ary j udgm ent st age fails t o respond in defense of a claim , court s t ypically conclude t hat plaint iffs are abandoning a claim based on t hat failure. See C.T. v. Liberal Sch. Dist ., 562 25 F.Supp.2d 1324, 1337 ( D. Kan. 2008) See Hinsdale v. Cit y of Liberal, Kan., 19 Fed. Appx. 749, 2001 WL 980781, at * 16–17 ( 10t h Cir. 2001) ( affirm ing dist rict court 's conclusion t hat plaint iff had abandoned a claim when he failed t o address it in t he m em orandum opposing sum m ary j udgm ent and concluding t he failure t o address was “ fat al” t o t he claim s. ( cit ing Coffey v. Healt ht rust , I nc., 955 F.2d 1388, 1393 ( 10t h Cir. 1992) ) . This conclusion would not be reasonable here, because t he plaint iffs have filed t heir own m ot ion for part ial sum m ary j udgm ent on t heir im plied dut y of good fait h and fair dealing claim regarding t he 2007 loan. ECF# # 530 and 531. The plaint iffs specifically argue: I n t his case, t he Defendant s engaged in increasing rat es over t he highest possible fixed int erest rat e t o cover t he cont ract , applied paym ent s lat e and som et im es not at all, engaged in confusing recalculat ions which skim m ed unearned int erest , applied direct principal paym ent s int ended t o reduce t he balance of t he loan int o t heir own pocket s rat her t han t he Schneider’s hom e equit y which was negat ively im pact ed when t he ent ire purpose of t he of t he cont ract was t he opposit e; t o build equit y and save int erest . As such, t he Defendant s by each act and t he t ot alit y of t he act s breached dut y of good fait h and fair dealings owed t o t he Schneiders. ECF# 531 p. 17. And in t heir reply brief, t he plaint iffs sum m arily cont end: GOOD FAI TH AN D FAI R D EALI N G Defendant s again t ry t o escape Kansas law arguing Delaware has no such requirem ent . Defendant s assert how paym ent s were applied is an im plied t erm . I n fact , paym ent applicat ion and order is a m at t er of express cont ract and federal law. However, it can also be so violat ive of t he express writ t en cont ract t hat it rises t o a breach of good fait h and fair dealing as here. Defendant s argue again ignoring Plaint iffs brief which does not m eet t heir burden t o respond. 26 ECF# 567, p. 26. While abandonm ent is not a fair inference from t hese circum st ances, t he court is st ill left wit h t he uncont est ed argum ent s in t he defendant s’ m ot ion. These argum ent s plainly challenge t he m erit s of t he plaint iff’s im plied cont ract claim . The court is unable t o const rue or lift from t he plaint iffs’ m ot ion and reply m em orandum any subst ant ive argum ent s addressing t he defendant s’ sum m ary j udgm ent cont ent ions. The plaint iffs have been fully represent ed by counsel and have been afforded every opport unit y t o brief t heir posit ion on all relevant issues. Nor is it t he court ’s funct ion or responsibilit y t o fashion argum ent s and t o find aut horit ies opposing t he defendant s. Most im port ant ly, t he defendant s’ cont ent ions are not wit hout subst ance or m erit on t heir face. I n t heir present at ion of t he im plied good fait h claim s, t he plaint iffs have not shown t hem t o be derivat ive in nat ure, t hat is, conduct lacking in good fait h and having a connect ion t o an express cont ract ual t erm . I nst ead, t he plaint iffs have eit her alleged a dut y wit hout a connect ion t o t he cont ract or rest at ed an express cont ract ual dut y wit hout alleging any conduct t hat t echnically did not violat e t he dut y but t hat denied t hem t he int ended fruit of t he dut y. The plaint iffs’ reply m em orandum suggest s t hey are bringing t his im plied good fait h and fair dealing claim based on an allegat ion t hat t he defendant s egregiously breached t he loan agreem ent . The plaint iffs offer no legal aut horit y t o support such an im plied covenant t heory under Delaware or Kansas law. Consequent ly, t he plaint iffs’ 27 im plied covenant claim s are subj ect t o sum m ary j udgm ent for adding essent ial t erm s t o t he cont ract , for not showing how t he defendant s failed t o act reasonably in execut ing ot herwise reasonable cont ract ual t erm s, and for not com ing forward wit h fact s t o support a viable breach of t he im plied dut y of good fait h and fair dealing under Delaware or Kansas law. On t heir face, t he defendant s’ argum ent s are sust ained by t he record and by t he law, and t hey warrant sum m ary j udgm ent on t he im plied good fait h claim s part icularly when t he plaint iffs offer no well- st at ed legal or fact ual opposit ion t o t hem . 2010 Refinance—Express and I m plied Cont ract The defendant s argue t he plaint iffs lack any proof t hat Cit ibank prom ised in t he 2007 loan agreem ent t o lat er refinance t he loan. All com m unicat ions over t he t erm s of t he 2007 agreem ent m erged int o t he final writ t en docum ent which governs t he part ies’ relat ionship. There are no provisions in t he not e, m ort gage, or relat ed docum ent at ion evidencing t his express dut y or j ust ifying a derivat ive, im plied dut y t o refinance. The defendant s also argue t hat any claim of an im plied refinance prom ise based on Cit ibank’s agreem ent t o guarant ee t heir debt t hrough t he refinance would st ill require t he guarant ee t o be in writ ing under t he Kansas St at ut e of Frauds. Again, t he court cannot find any opposing response from plaint iffs t o any of t hese argum ent s in t heir m em oranda. Nor can any 28 response be inferred from t he plaint iffs’ own sum m ary j udgm ent m ot ion, because t he plaint iffs did not seek such relief on t heir 2010 refinancing claim . I n t hese circum st ances, t he court m ay conclude t he plaint iffs have abandoned t heir im plied cont ract claim based on t he 2010 refinance. Moreover, t he court finds t hat t he plaint iffs have not m et t heir sum m ary j udgm ent burden of showing a genuine issue of m at erial fact over t here being an im plied dut y of good fait h for refinancing. The defendant s are ent it led t o sum m ary j udgm ent on t his claim . Ot her Cont ract Claim s The defendant s cont end t he plaint iffs’ refinancing t heir loan wit h a different bank, U.S. Bank, “ bars a claim for breach of express cont ract ” under Delaware law. ECF# 524, p. 40. They ask t he court t o apply t he “ volunt ary paym ent rule” here in t hat “ m oney has been volunt arily paid wit h full knowledge of t he fact s, [ and] it cannot be recovered on t he ground t hat t he paym ent was m ade under a m isapprehension of t he legal right s and obligat ions of t he person paying.” I d. ( quot ing Nieves v. All St ar Tit le, I nc., No. N10C- 03- 191 PLA, 2010 WL 2977966 ( D. Del. July 12, 2010) ( cit at ions om it t ed) ) , aff’d, 21 A.3d 597 ( Del. Supr. 2011) . The defendant s argue t he plaint iffs were assist ed by a m ort gage broker and t heir current counsel before closing on t he U.S. Bank loan and paying off t he Cit ibank loan. Addit ionally, t he plaint iffs had been provided a payoff quot e which included t he principal, int erest , and charges on t he loan, and t hey also had billing 29 invoices from which t o assert any overcharges. Alt ernat ively, t he defendant s argue t he plaint iffs cannot show dam ages for t he alleged breach of cont ract . They t ake issue wit h t he plaint iffs’ allegat ion of dam ages in t he pret rial order as speculat ive est im at es which do not m eet t he requirem ent s of Delaware or Kansas law and as calculat ions not properly support ed by expert wit ness t est im ony. Again, t he plaint iffs’ opposit ion t o sum m ary j udgm ent ( ECF# 557) fails t o address any of t hese legal argum ent s. Thus, t he court has looked t hrough t he plaint iffs’ ot her filings t o learn t heir posit ions. I n t heir reply m em orandum filed in support of t heir sum m ary j udgm ent m ot ion ( ECF# 567) , t he plaint iffs address t he volunt ary paym ent rule denying t hat t heir paym ent s were volunt arily m ade wit h full knowledge of t he fees and int erest overcharged, of t he paym ent s not credit ed, and of t he penalt ies wrongly assessed. I nst ead, t hey argue t hat t heir paym ent s were com pelled for closing t he new loan and t hat t he overcharges, penalt ies, uncredit ed paym ent s were concealed from t hem . The court agrees t hat , at t he very least , t here are quest ions of m at erial fact on t he plaint iffs’ knowledge about som e of t he overcharges and uncredit ed paym ent s as t o preclude sum m ary j udgm ent on t he volunt ary paym ent rule. The payoff quot e sent t o Hom eQuest Mort gage did not fully disclose t he t ot al overcharged fees, int erest s and penalt ies t hat had been paid or would be paid. Nor can t he court conclude from t he billing invoices and from t he plaint iffs’ use of a 30 m ort gage broker and t he involvem ent of Ms. Hoffm an t hat , as a m at t er of law, t he plaint iffs volunt arily paid t he debt s wit h full knowledge of all overcharges, uncredit ed paym ent s, and im properly assessed penalt ies. As t o what has been alleged as provable dam ages for t hese breaches of cont ract , t he plaint iffs describe pecuniary dam ages for breach of cont ract in t he am ount of $26,070.20. ECF# 519, p. 37. The defendant s subm it as an uncont rovert ed fact t hat t he plaint iff’s expert “ t est ified t hat he did not prepare an am ort izat ion analysis t o det erm ine t he specific am ount of int erest allegedly overcharged on plaint iffs’ loan.” ECF# 524, p. 19. The plaint iffs’ expert report st at es, “ The int erest rat e im pact is nearly im possible t o calculat e wit hout a series of assum pt ions because review of print screens indicat e [ sic] m ult iple rat e changes which are not reflect ed in t he sam e m anner or wit h det ail on ot her docum ent s.” ECF 531- 6, pp. 3- 4. I n short , t he plaint iff’s expert saw evidence of m ore int erest rat e fluct uat ions which prevent ed him from accurat ely calculat ing t he im pact of excessive int erest rat e charges. That t he plaint iff’s expert m ay have est im at ed som e of t he pecuniary dam age elem ent s does not t aint t he rest of his calculat ions or t he plaint iffs’ ot her evidence on dam ages. While t he defendant s quot e ot her part s of t he plaint iffs’ expert ’s deposit ion t est im ony on dam ages during t he PWP paym ent period, t hey failed t o carry t heir sum m ary j udgm ent burden of present ing t his as a m at erial fact wit h no genuine disput e. 31 The part y claim ing dam ages for breach of cont ract m ust show an inj ury or loss from t he breach and “ wit h reasonable cert aint y t he am ount of dam ages suffered as a result of t he inj ury or breach.” Shult z v. Edwards, 3 Kan. App. 2d 689, 690, 601 P.2d 9 ( 1979) ( cit ing Venable v. I m port Volkswagen, I nc., 214 Kan. 43, 50, 519 P.2d 667 ( 1974) ) . I n short , t here m ust be a “ reasonable evident iary basis for com put at ion which will enable t he j ury t o arrive at an approxim at e est im at e of dam ages.” Wolfe Elec., I nc. v. Duckwort h, 293 Kan. 375, 396- 97, 266 P.3d 516, 530 ( Kan. 2011) ( cit at ion om it t ed) . Delaware law is sim ilar. Expect at ion dam ages are t he st andard m easure for breach of cont ract and are t o be proven wit h reasonable cert aint y, but if t he fact of dam ages has been proven t hen t he am ount of dam ages can be est ablished wit hout precise cert aint y. Siga Technologies, I nc. v. Parm At hene, I nc., 132 A.3d 1108, 1130- 31 ( Del. 2015) ; See Front ier Oil v. Holly Corp., 2005 WL 1039027, at * 39 ( Del. Ch. Apr. 29, 2005) , j udgm ent ent ered sub nom . Front ier Oil Corp. v. Holly Corp., 2005 WL 5794558 ( Del. Ch. 2005) ( “ A prevailing part y m ust prove it s dam ages by preponderance of t he evidence; absolut e precision is not required but t he proof m ay not be speculat ive eit her.” ) . Based on t he record present ed and t he argum ent s advanced, t he court cannot say as a m at t er of law at t his t im e t hat t he plaint iffs are unable t o show t hey were inj ured and t o show wit h reasonable cert aint y t he dam ages sust ained as a result of t he 32 defendant s’ alleged breaches in overcharging int erest rat es and fees, in not credit ing paym ent s, and in assessing penalt ies. Punit ive Dam ages The plaint iffs’ rem aining claim s are for breach of express cont ract ( 2007 loan agreem ent ) involving fees, overcharges and penalt ies im properly assessed, int erest rat e charges exceeding t he fixed loan rat e, loan paym ent s not applied or applied lat e, and ot her errors in servicing and calculat ing loan paym ent s. The defendant s addressed one or m ore of t hese claim s individually under t heir KCPA analysis, but t hey did not address t hem individually under t he breach of express cont ract t heory. The defendant s, however, do seek part ial sum m ary j udgm ent on t he plaint iffs’ recovering punit ive dam ages on t hese claim s. The defendant s look t o Kansas law in arguing t hat punit ive dam ages are not recoverable as cont ract dam ages Whet her Delaware or Kansas law, t he governing proposit ion is t he sam e t hat , punit ive dam ages are not recoverable for breach of cont ract absent conduct t hat is independent ly a t ort . See, e.g., E.I . DuPont de Nem ours and Co. v. Pressm an, 679 A.2d 436, 445 ( Del. 1996) ; Guarant ee Abst ract & Tit le Co. v. I nt erst at e Fire and Cas. Co. I nc., 232 Kan. 76, 78, 652 P.2d 665 ( 1982) . I n Guarant ee, t he Kansas Suprem e Court said: Dam ages for breach of cont ract are lim it ed t o pecuniary losses sust ained and exem plary or punit ive dam ages are not recoverable in t he absence of an independent t ort . Tem m en v. Kent - Brown Chev. Co., 227 Kan. 45, 605 P.2d 95 ( 1980) . This except ion t o t he rule of unavailabilit y of punit ive dam ages in breach of cont ract act ions is recognized when som e independent t ort or wrong result s in addit ional 33 inj ury which j ust ifies t he assessm ent of punit ive dam ages by way of punishm ent of t he wrongdoer. I n such a case t he proof of t he independent t ort m ust indicat e t he presence of m alice, fraud or want on disregard for t he right s of ot hers. The difference bet ween a t ort and cont ract act ion is t hat a breach of cont ract is a failure of perform ance of a dut y arising under or im posed by agreem ent ; whereas, a t ort is a violat ion of a dut y im posed by law. At kinson v. Orkin Ext erm inat ing Co., 230 Kan. 277, 634 P.2d 1071, adopt ing 5 Kan.App.2d 739, 625 P.2d 505 ( 1981) . Guarant ee Abst ract & Tit le Co., I nc. v. I nt erst at e Fire and Cas. Co., I nc., 232 Kan. at 78- 79. Sim ply put , t o recover punit ive dam ages in a breach of cont ract act ion, “ t here m ust be an independent t ort result ing in addit ional inj ury.” 232 Kan. at 79. I f all inj ury t o t he claim ant flows “ direct ly from t he breach of t he cont ract ual dut y,” t hen t here is “ no independent t ort upon which any punit ive dam ages could be predicat ed.” I d. Thus, “ [ b] reach of cont ract , st anding alone, does not call for punit ive dam ages even if t he breach is int ent ional and unj ust ified, but such dam ages are allowable if t here is som e independent t ort present .” Farrell v. General Mot ors Corp., 249 Kan. 231, 247, 825 P.2d 538 ( 1991) . I n sum , punit ive dam ages in cont ract act ions are perm it t ed “ when ( 1) t here is som e independent t ort am ount ing t o fraud or want on conduct , and ( 2) t he independent t ort result s in addit ional inj ury.” Osgood v. St at e Farm Mut . Aut o. I ns. Co., 848 F.2d 141, 144 ( 10t h Cir. 1988) ( cit ing Guarant ee Abst ract , 232 Kan. at 78) . The court earlier dism issed t he plaint iffs’ t wo t ort claim s. ECF# 20, pp. 14- 18. The defendant s deny t hat t he plaint iffs have alleged and shown t ort ious ( fraudulent and want on) conduct independent of cont ract ual 34 dut ies and inj uries beyond cont ract ual dam ages for t heir claim s involving t he servicing of t he 2007 loan agreem ent . The plaint iffs respond t hat t hey have briefed t his issue in t heir own m ot ion for sum m ary j udgm ent . ECF# 557, p. 47. The plaint iffs argue t hat t he defendant s’ breaches of t he 2007 loan involved a “ willful disregard” of t he plaint iffs’ right s. The defendant s deliberat ely post ed paym ent s lat e t o earn m ore int erest and t o assess lat e charges. The defendant s raised int erest rat es and skim m ed fees aft er sending out m ort gage st at em ent s t o avoid det ect ion. The defendant s cont ract ed for a bi- weekly paym ent program when t hey lacked t he soft ware t o service loans in t his way. The plaint iffs assert t he defendant s’ conduct is t ort ious for not disclosing t he soft ware’s inabilit y which am ount s t o “ int ent ional m isrepresent at ion by om ission, negligent servicing and/ or t raining for exam ple.” ECF# 531, p. 32. Addressing t he addit ional inj ury requirem ent found in Guarant ee Abst ract , t he plaint iffs also cont end: Cert ainly t he conduct in t he underlying breach of cont ract s rises t o a t ort . No doubt t oo, t he Schneiders had addit ional inj ury not j ust apparent by t he em ot ional dist ress of Randy and Am y unm ist akably apparent in t he deposit ion phot ograph, but also because t hey cont inue t o pay U.S. Bank int erest on t he m oney from t he overcharges required t o be paid off as part of t he overreaching inaccurat e payoff t o clear t he Cit i lien from t heir hom e and t hey borrowed m oney t o help pay expenses t o get t he m oney back since Cit i never provided a refund. ECF# 531, p. 33 ( foot not es om it t ed) . The court concludes t he plaint iffs have not carried t heir sum m ary j udgm ent burden of present ing specific fact s showing a genuine issue of m at erial fact on whet her defendant s engaged in independent 35 t ort ious conduct , t hat is, act ions violat ing a dut y im posed by law and am ount ing t o fraudulent or want on conduct . Act ing in willful disregard of t he plaint iffs’ cont ract ual right s is not t ort ious conduct . Nor can t he court find fraudulent conduct in t he allegat ion t hat t he defendant s failed t o disclose inabilit ies in it s soft ware. There is no evidence of affirm at ive m isrepresent at ions about t he soft ware or about t he use of m anual t ransact ion adj ust m ent s. I n t he end, t he plaint iffs have only raised a quest ion of m at erial fact over t he defendant s’ failure t o service t he loan as prom ised in t he loan agreem ent and accom panying paym ent program s. Nor has t he plaint iff com e forward wit h specific fact s showing a genuine issue of m at erial fact t hat t hey suffered any addit ional inj ury result ing from t he t ort ious conduct and not t he cont ract ual breaches. The defendant s are ent it led t o sum m ary j udgm ent on t he plaint iffs’ rem aining punit ive dam ages claim . M OTI ON FOR SUM M ARY JUD GM EN T BY D EFEN D AN T CI TI GROUP, I N C. ECF# 5 2 6 As t he court ’s elect ronic docket sheet reflect s, Cit igroup’s filing of it s sealed m ot ion for sum m ary j udgm ent and at t ached m em orandum at ECF# 525 is a duplicat e of it s m ot ion ( ECF# 526) and m em orandum ( ECF# # 527) . The court shall disregard Cit igroup’s filing at ECF# 525. Early in t his lit igat ion, Cit igroup sought sum m ary j udgm ent before discovery was com plet ed and argued t hat it was no m ore t han a parent corporat ion and not a signat ory part y t o any of t he agreem ent s in 36 quest ion. The court denied t he Cit igroup’s m ot ion at t hat t im e because of ongoing discovery, because t here was t he legal pot ent ial for Cit igroup’s liabilit y as a parent corporat ion, ( ECF# 147, p. 2) , and because when read liberally, “ t he [ plaint iffs’] counsel’s affidavit is sufficient t o show a plausible basis for her belief t hat out st anding discovery m ay lead t o evidence sufficient t o raise a genuine issue whet her eit her of t hese com panies [ Cit igroup or Prim erica] is liable for t he act s alleged in t he com plaint ,” id. at p. 4. The court concluded it s ruling wit h, “ [ i] n t he exercise of it s discret ion, t he Court finds t he m ot ion for sum m ary j udgm ent t o be prem at ure so perm it s t he Plaint iffs t he opport unit y t o discover t he u n u su a l fact s necessary t o hold t hese Defendant s liable.” I d. at p. 5 ( bolding added) . Now t hat discovery is com plet e, ( ECF# 519, p. 38) , Cit igroup seeks sum m ary j udgm ent again arguing it was not a part y t o any of t he t ransact ions and t he plaint iffs rem ain wit hout adm issible evidence t o carry t heir burden for avoiding sum m ary j udgm ent . The court agrees. I n deciding t his m ot ion, t he court relies not only on t he uncont est ed above fact ual background but on t he following as uncont rovert ed in t he sum m ary j udgm ent filings. Cit igroup is a publicly t raded corporat ion and operat es as a holding com pany for ot her ent it ies or affiliat es, such as Cit ibank, N.A. f/ k/ a Cit icorp Trust Bank ( “ Cit ibank” ) and Cit iMort gage. Cit igroup’s corporat e purpose is t o provide consist ent financial report ing for it s shareholders. Thus, Cit igroup receives business and financial 37 inform at ion from it s ent it ies for financial filings. Cit igroup’s business operat ions do not direct ly include t he issuing or servicing of m ort gage loans. The plaint iffs do not effect ively cont rovert t hese fact s. And, t he plaint iffs do not com e forward wit h adm issible evidence present ing a sufficient disagreem ent over Cit igroup’s liabilit y as t o require subm ission t o t he j ury. The plaint iffs st rain t o infer fact s from federal regulat ions and newspaper art icles, and t hey also speculat e over Cit igroup’s operat ions based on discovery conduct and am biguous evidence. Looking “ t hrough t he prism of t he [ plaint iffs’] subst ant ive evident iary burden,” Anderson, 477 U.S. at 254, t he court is confident t hat t he plaint iffs assert ed fact ual disput es are neit her m at erial, as in pot ent ially affect ing t he out com e of t he suit , nor genuine, as in being m ore t han a scint illa of evidence. The plaint iffs quot e from a federal regulat ion t hat obligat es a bank holding com pany t o “ serve as a source of financial and m anagerial st rengt h t o it s subsidiary banks.” 12 C.F.R. 225.4. From t his sent ence, t he plaint iffs cont end t hat Cit igroup serves as “ t he m anager, t he conduct or of t his com plicat ed net work of businesses . . . and is obviously in cont rol and responsible for t he subsidiaries ( sic) com pliance wit h t he law.” ECF# 552, p. 15. This regulat ion is not evidence of how Cit igroup operat es, and t he court does not read t his language as any regulat ory effort or at t em pt t o est ablish corporat e liabilit y upon all holding banks for t heir subsidiaries’ daily operat ions in m aking and servicing m ort gage loans. “ [ S] erve as a source of 38 financial and m anagerial st rengt h” is language bet t er charact erized as speaking t o a policy purpose rat her t han a liabilit y purpose. I d. The plaint iffs cit e no case law or aut horit y for reading t his federal regulat ion in any different way. The defendant s offer t his unpublished decision by t he Nort h Carolina Court of Appeals: I n support of t hat argum ent , Plaint iffs rely on t he “ source of st rengt h” doct rine, which t hey describe as a policy adopt ed by t he Federal Reserve Board ( “ FRB” ) t o allow plaint iff part ies t o disregard lim it ed liabilit y and pierce t he corporat e veil. Cit ing Anderson v. Abbot t for t he principle t hat “ federal laws and regulat ions are not dist urbed by st at e corporat e laws,” Plaint iffs argue t hat our St at e's principles of corporat e lim it ed liabilit y are not applicable because BOA is a bank holding com pany subj ect t o t he FRB's source of st rengt h regulat ion. See 321 U.S. 349, 88 L.Ed. 793, rehearing denied, 321 U.S. 804, 88 L.Ed. 1090 ( 1944) . We are unpersuaded. The source of st rengt h doct rine is a federal regulat ion t hat requires bank holding com panies t o st and in as a “ source of financial ... st rengt h” for t heir subsidiaries. 12 C.F.R. § 225.4( a) ( 1) ( 2011) . The FRB has st at ed t hat t his doct rine is m eant t o incent ivize bank holding com panies t o “ act as sources of st rengt h t o t heir subsidiary banks [ when t hreat ened wit h failure] by st anding ready t o use available resources t o provide adequat e capit al funds t o subsidiary banks during periods of financial st ress or adversit y.” Policy St at em ent on t he Responsibilit y of Bank Holding Com panies t o Act as Sources of St rengt h t o Their Subsidiary Banks, 52 Fed.Reg. 15,707 ( 30 April 1987) . This regulat ion does not save Plaint iffs' unfair and decept ive t rade pract ices claim . I t is a federal m echanism em ployed by t he FRB t o regulat e pract ices int ernal t o t he banking indust ry; it is not m eant t o—and does not —act as a subst it ut e for or com plem ent t o our St at e's well- est ablished j urisprudence on piercing t he corporat e veil. See generally Bd. of Governors of t he Fed. Reserve Sys. v. MCorp Fin., I nc., 502 U.S. 32, 35, 116 L.Ed.2d 358, 394 ( 1991) ( “ I n Oct ober 1988, t he [ FRB] com m enced an adm inist rat ive proceeding against MCorp, alleging t hat MCorp violat ed t he source of st rengt h regulat ion and engaged in unsafe and unsound banking pract ices t hat j eopardized t he financial condit ion of it s subsidiary banks.” ) . Plaint iffs have provided no ot her argum ent t hat t he veil should be pierced. As a result , Defendant cont ends t hat we are bound by Franklin v. Winn 39 Dixie, I nc., 117 N.C.App. 28, 450 S.E.2d 24 ( 1994) , aff'd per curiam , 342 N.C. 404, 464 S.E.2d 46 ( 1995) . We agree. Salm ony v. Bank of Am . Corp., 748 S.E.2d 776, 2013 WL 3770688 at * 4- * 5 ( N.C. App. 2013) ( foot not es om it t ed) , rev. denied, 367 N.C. 326 ( N.C. 2014) . The court agrees t oo. Under Kansas law, “ in t he absence of fraud or ot her invidious and vit iat ing circum st ances, t he fact t hat one corporat ion is inst rum ent al in t he form at ion of anot her corporat ion and owns nearly all of t he st ock of t he lat t er corporat ion does not have t he legal effect of m aking t he parent corporat ion liable for t he debt s of t he subsidiary corporat ion.” Dought y v. CSX Transp., I nc., 258 Kan. 493, 497, 905 P.2d 106, 110 ( Kan. 1995) ( cit ing Dean Operat ions, I nc. v. One Sevent y Assocs., 257 Kan. 676, 680, 896 P.2d 1012 ( 1995) ) . The Kansas Suprem e Court also explained: The Dean court not ed t hat t he fict ion of separat e corporat e ident it ies of t wo corporat ions will not be ext ended t o perm it one of t he corporat ions t o evade it s j ust obligat ions; t o prom ot e fraud, illegalit y, or inj ust ice; or t o defend crim e. Under circum st ances where t he separat e corporat e ent it y is disregarded, t he parent corporat ion m ay be held liable for t he act s of t he subsidiary. The m ere fact , however, t hat a subsidiary corporat ion was organized for t he avowed purpose of avoiding liabilit y on t he part of t he holding com pany does not in it self const it ut e fraud j ust ifying disregard of t he corporat e ent it y of t he subsidiary. The court s will disregard t he fict ion of a separat e legal ent it y when t here is such dom inat ion of finances, policy, and pract ices t hat t he cont rolled corporat ion has no separat e m ind, will, or exist ence of it s own and is but a business conduit for it s principal. 257 Kan. at 681, 896 P.2d 1012. 258 Kan. at 497. The Kansas Suprem e Court in Dought y not ed t hat while alt er- ego m ay be “ a well- est ablished doct rine in Kansas law” exam ples of 40 t he doct rine being applied “ in a parent - subsidiary corporat e cont ext are rare.” I d. at 499- 500. The Court concluded: The ult im at e t est for im posing alt er ego st at us is whet her, from all of t he fact s and circum st ances, it is apparent t hat t he relat ionship bet ween t he parent and subsidiary is so int im at e, t he parent 's cont rol over t he subsidiary is so dom inat ing, and t he business and asset s of t he t wo are so m ingled t hat recognit ion of t he subsidiary as a dist inct ent it y would result in an inj ust ice t o t hird part ies. I n addit ion t o t he fact ors used t o det erm ine a corporat e alt er ego st at us, a plaint iff m ust show t hat allowing t he legal fict ion of a separat e corporat e st ruct ure would result in inj ust ice t oward t he plaint iff. Dean Operat ions, 257 Kan. 676, Syl. ¶¶ 5, 6, 896 P.2d 1012. Dought y v. CSX Transp., I nc., 258 Kan. at 500. Ot her t han sum m arizing t he different kinds of proof for im posing liabilit y on a parent corporat ion, t he plaint iffs m ake no at t em pt t o apply t he doct rine t o t he fact s here and rely on speculat ion and innuendo. For exam ple, t he plaint iffs point t o a cont ract bet ween Prim erica and Cit igroup and t hen presum e t hat t here m ust be ot her cont ract s bet ween Cit igroup and Cit ibank and/ or Cit iMort gage which Cit igroup has failed t o disclose in discovery. “ Baseless speculat ion offered in opposit ion t o sum m ary j udgm ent is not som ehow excused by yet m ore speculat ion t hat discovery m ight uncover evidence t hat could be used t o oppose sum m ary j udgm ent — 'a plaint iff cannot defeat a m ot ion for sum m ary j udgm ent by ... am plifying [ his conclusory allegat ions] wit h speculat ion about what discovery m ight uncover,’ Bryant v. O'Connor, 848 F.2d 1064, 1067 ( 10t h Cir.1988) .” Wishneski v. Andrade, 572 Fed. Appx. 563, 569, ( 10t h Cir. 2014) ( unpub.) . Because t he purpose of sum m ary j udgm ent is t o det erm ine t he necessit y for 41 t rial, “ t he nonm oving part y m ust , at a m inim um , direct t he court t o fact s which est ablish a genuine issue for t rial” and “ m ay not rely on unsupport ed allegat ions.” Whit e v. York I nt ern. Corp., 45 F.3d 357, 360 ( 10t h Cir. 1995) . The nonm ovant “ ’cannot defeat sum m ary j udgm ent and obt ain discovery wit h j ust bald assert ions and speculat ion of wrongful conduct .’” Lat ham v. Board of Educ. of Albuquerque Public Schools, 2012 WL 2855781, at * 3, 489 Fed. Appx. 239, 243 ( 10t h Cir. 2012) ( unpub.) ( quot ing T & M Dist rib., I nc. v. Unit ed St at es, 185 F.3d 1279, 1285 ( Fed. Cir. 1999) . Thus, t he plaint iffs’ argum ent s over t he defendant s’ discovery conduct will not suffice for avoiding sum m ary j udgm ent . The plaint iffs’ exhibit 67 is a 2010 cont ract ual agreem ent ent it led a “ Transit ion Services Agreem ent ” bet ween Prim erica and Cit igroup m ade “ in cont em plat ion of Prim erica ceasing t o be so wholly owned by Cit igroup” t hat t he part ies want ed t o “ set fort h cert ain agreem ent s” on “ cert ain m at t ers.” ECF# 553- 6, p. 2. Based on t his, t he plaint iffs cont end Cit igroup’s operat ions include m ore t han financial report ing and m ust be providing ot her services t o t he subsidiaries which will now be for a fee aft er t he t ransit ion. This argum ent is st ill not hing m ore t han speculat ion. I n addit ion, t he court sust ains t he defendant s’ obj ect ion t o t he plaint iffs’ failure t o aut hent icat e t his exhibit for adm issibilit y. The Tent h Circuit does “ not require an affidavit t o aut hent icat e every docum ent subm it t ed for considerat ion at sum m ary j udgm ent ,” Law Co. v. Mohawk Const r. & Supply Co., 577 F.3d 1164, 1170 42 ( 10t h Cir. 2009) , because under Federal Rule of Evidence 901, evidence sat isfying t he aut hent icat ion requirem ent can include “ [ t ] he appearance, cont ent s, subst ance, int ernal pat t erns, or ot her dist inct ive charact erist ics of t he it em , t aken t oget her wit h all t he circum st ances.” Fed. R. Evid. 901( b) ( 4) . The plaint iffs here do not aver or disclose t he source of t his exhibit . There is an int ernet address at t he bot t om of t he pages, but t he plaint iffs’ sum m ary j udgm ent filing ( ECF# 552) does not argue for aut hent icat ion on t hat ground. Finally, t he cont ract lacks a signat ory page m aking it incom plet e. Besides proving not hing about Cit igroup’s cont rol over it s subsidiaries, t his exhibit has not been shown t o be adm issible evidence. While t he defendant s’ Bat e st am p on exhibit 66 suffices for aut hent icat ion, t his evidence does not m ove t he plaint iffs’ burden forward in proving parent liabilit y. A loan brokerage agreem ent bet ween Cit icorp Trust Bank and Cit iMort age does not evidence Cit igroup’s cont rol over it s subsidiaries. Exhibit s 84 and 85 are isolat ed pages t aken from orders by t he Board of Governors of t he Federal Reserve Syst em . Exhibit 84 appears t o be first page of a penalt y assessm ent order. ECF# 556- 7. Exhibit 85 is a consent order. ECF# 556- 8. While t hese appear t o be t he first pages of regulat ory orders, t hey are not com plet e, lack signat ory pages, and bear no m arkings of officially filed orders. The court will not assum e t he burden of aut hent icat ing t hese orders. The plaint iffs’ counsel deposed Cit icorp’s Fed. R. Civ. P. 30( b) ( 6) corporat ive represent at ive wit ness, and asked about t hese 43 orders. The wit ness answered t hat t hese orders represent ed legal posit ions t aken in cert ain legal cont ext s and t hat his opinion about Cit igroup not cont rolling subsidiaries’ operat ions was not changed by t hese orders. Because t he findings in t hese orders are am biguous and lack a fact ual and legal cont ext for const ruing t hem , t he court will not accept t hem as adm issible evidence, and even assum ing t hey were, t hey are not significant ly probat ive as t o creat e a genuine issue of m at erial fact for parent corporat ion liabilit y. The plaint iffs also argue t hat Cit igroup’s cont rol based on it s securit izat ion of m ort gage loans for invest m ent purposes. The plaint iffs offer no direct evidence of t heir loan ever being securit ized. The adm issibilit y of t he plaint iffs’ evidence t hat Cit igroup securit ized loans is quest ionable at best , and m ore im port ant ly, it fails t o provide a legal and fact ual cont ext for Cit igroup’s liabilit y as a parent holding com pany. I n sum , t he plaint iffs have not carried t heir Rule 56 burden of showing Cit igroup’s liabilit y for t he breach of cont ract claim s. Alt ernat ively, t he court also finds t hat Cit igroup did not engage in a “ consum er t ransact ion” wit h t he plaint iffs under t he KCPA and does not m eet t he KCPA’s definit ion of supplier, because neit her Cit ibank nor Cit iMort gage qualify as suppliers for t he reasons already discussed above. Cit igroup’s m ot ion for sum m ary j udgm ent on all claim s is grant ed. 44 M OTI ON FOR SUM M ARY JUD GM EN T BY D EFEN D AN T PRI M ERI CA FI N AN CI AL SERV I CES H OM E M ORTGAGES, I N C. ECF# 5 2 8 Prim erica opens by quot ing t he court ’s prior order t hat if t he plaint iffs do not discover and present as evidence “ t he unusual fact s necessary t o hold” t his defendant liable, t hen t he court w ould “ not hesit at e t o grant a sim ilar sum m ary j udgm ent m ot ion aft er t he close of discovery.” ECF# 147, p. 5. Prim erica argues t hat aft er ext ended and ext ensive discovery what t he plaint iffs have “ developed only confirm [ s] t hat Prim erica had no involvem ent in any of t he event s giving rise t o t he liabilit y claim s here.” ECF# 529, p. 1. I n deciding t his m ot ion, t he court looks t o t he background fact s set out above and t o t he following fact s as uncont rovert ed. The plaint iffs’ effort s in t heir filed m em oranda have not effect ively cont rovert ed t he following st at em ent s as present ed and support ed by t he defendant Prim erica’s m em oranda. Prim erica did not service t he plaint iffs’ 2007 loan wit h Cit icorp and did not m aint ain any business records generat ed in t he servicing of t he plaint iffs’ loan wit h Cit icorp. But , t he 2007 loan did com e about aft er t he plaint iffs cont act ed and int eract ed wit h Kerry Cobb, an independent cont ract or and represent at ive of defendant Prim erica. While called a loan originat or, Ms. Cobb principally worked wit h client s in com plet ing t he init ial loan applicat ion. She served as a docum ent conduit , t hat is, facilit at ing and gat hering t he docum ent s for t heir use in Cit ibank’s evaluat ion and 45 processing. I n her role, Ms. Cobb said she would explain what t he init ial docum ent s were t o do and were for, but she was not t he lender and did not select t he loan opt ions. She present ed t he cust om ers wit h only t he loan opt ions developed by Cit ibank. Prim erica did not represent it self as responsible for t he loan opt ions and did not act as t he part y approving t he loan applicat ion. Ms. Cobb’s role did not ext end t o closing t he loan t ransact ion or t o explaining t he t ransact ional product s and program s at closing. The plaint iff Randall Schneider avers t hat he and his wife t rust ed and relied on Ms. Cobb t o explain all Cit ibank product s and program s before t hey went t o closing and t hat Ms. Cobb “ was t he only one who ever explained our loan feat ures.” Mr. Schneider also denies t hat t he Cit ibank represent at ive explained any of t he docum ent s in closing on t he 2007 loan. I n May 2010, t he plaint iffs again went t o Ms. Cobb for refinancing wit h Cit ibank, and she worked wit h t hem in preparing t he applicat ion. As part of t his process, on May 3, 2010, t he plaint iffs signed a docum ent wit h Prim erica called a Mort gage Broker Agreem ent and Disclosure which cont ains several t erm s m at erial t o t he plaint iffs’ claim s. First , Prim erica does not “ m ake loans, guarant ee accept ance int o any part icular loan program , or prom ise any specific loan t erm s or condit ions.” ECF# 529- 13, p. 1. Second, Prim erica assist s “ in com plet ing docum ent s and disclosures, . . . subm it t ed t o t he Lender” and provides ot her services t hat include “ explaining t he available loan product s and processes associat ed wit h 46 it ; docum ent ing your inform at ion for t he inform at ion kit worksheet , educat ing you in t he hom e financing process, including advising you about t he available loan product s and how cost s and paym ent s m ay vary under different proposals . . . .” I d. at p. 1. Third, t he client agrees t o engage t he Prim erica represent at ive t o provide t hese services but wit h t he underst anding t hat t he represent at ive “ is act ing as an independent broker on behalf of PFSHMI and t he Lender, and not as your agent , broker, or represent at ive.” I d. Fourt h, t he client would not pay a fee or com pensat ion t o Prim erica. I d. Ms. Cobb’s m et wit h t he Schneiders t o ident ify and gat her t he necessary inform at ion for t he worksheet about t heir financial st at us and t heir desired t erm s for a refinance. Am y Schneider t est ified t hat she and her husband signed t his worksheet but t hat Ms. Cobb com plet ed it wit h t he required inform at ion. The worksheet and inform at ion were t hen subm it t ed t o Cit ibank which prepared a loan applicat ion from t hose subm issions and m ailed t he applicat ion t o t he plaint iffs for t heir review and approval. On May 20, 2010, t he Schneiders signed t his loan applicat ion and subm it t ed it t o Cit ibank. This applicat ion required, in part , t he Schneiders’ assessm ent of t he propert y’s valuat ion, and t he applicat ion st at ed t he propert y was valued at $130,000. This 2010 valuat ion exceeded t he propert y’s appraised value for t he 2007 loan by $10,000. As part of t he norm al m ort gage loan review, an appraisal of t he Schneiders’ propert y was ordered, and t his appraisal on 47 May 24, 2010, report ed t he propert y w as wort h only $85,000. Because of t he lower appraised value, Cit ibank represent at ives inform ed t he Schneiders t hat t hey were not qualified for t he loan for which t hey applied. I t is cont rovert ed whet her Cit ibank proposed alt ernat ive m ort gage loan t erm s t o t he Schneiders and whet her Ms. Cobb was responsible for not com m unicat ing any such t erm s. I t is uncont rovert ed, however, t hat Am y Schneider short ly t hereaft er inform ed Ms. Cobb t hat t he Schneiders would obt ain t heir financing t hrough a different lending inst it ut ion. KCPA Claim s Prim erica cont ends t he plaint iffs cannot prove it funct ioned as a “ supplier” engaged in t he “ consum er t ransact ions” under t he KCPA for it s lim it ed roles in t he 2007 loan and t he refinancing applicat ion of 2010. As t o t he plaint iffs’ KCPA claim s t hat arise out of t he servicing of t he 2007 loan, t here is no evidence t hat Prim erica issued or serviced t his loan eit her on it s own or as an agent of Cit ibank. As for t he KCPA claim s involving t he 2010 refinancing applicat ion, t here is no evidence t hat plaint iffs applied t o Prim erica, t hat Prim erica decided t he applicat ion, or t hat Prim erica played a part in deciding t he plaint iffs’ eligibilit y for t he loan or for any loan opt ions. I n short , t he plaint iffs’ KCPA claim s, as alleged, do not t urn on consum er t ransact ions wit h Prim erica. The plaint iffs refer generally t o t he Mort gage Broker Agreem ent wit h Prim erica, but t his Agreem ent confirm s t hat Prim erica did not m ake loans, did not guarant ee t he plaint iffs’ accept ance 48 int o a loan program , and did not prom ise specific loan t erm s. I nst ead, t he Agreem ent spells out t hat Prim erica only was t o assist w it h com plet ing docum ent s and disclosures for subm ission t o t he Lender, wit h explaining available loan product s and processes, wit h docum ent ing inform at ion for t he worksheet , and wit h advising about t he cost s and paym ent s associat ed wit h t he proposed loan product s. The Agreem ent also discloses t hat Prim erica would provide t hese services not as t he plaint iffs’ agent , broker or represent at ive. I n sum , t he t erm s of t his Agreem ent do not est ablish an act ionable consum er t ransact ion covered by t he plaint iffs’ claim s as alleged. I n short , Prim erica cont ends t he plaint iffs are unable t o prove it was a supplier in t he consum er t ransact ion for which t hey bring claim s for decept ive or unconscionable act s involved wit h t he servicing and enforcing t he 2007 loan and wit h t heir applying for refinancing in 2010. The plaint iffs respond wit h several point s, but none am ount t o an act ionable KCPA claim here. First , t hat grant ing a hom e loan is a consum er t ransact ion, but t he plaint iffs offer no evidence of Prim erica grant ing a hom e loan here. Second, t hat Prim erica cont ract ed under t he Mort gage Broker Agreem ent , but t he plaint iffs offer no evidence of a KCPA violat ion specifically arising out of t he cont ract ual responsibilit ies in t hat agreem ent . Third, t hat m arket ing loans is a consum er t ransact ion, but t he plaint iffs offer no evidence of Prim erica’s conduct being t he fact ual and legal conduct responsible for any of KCPA violat ion. They refer t o a Loan 49 Brokerage Agreem ent am ended in March of 2010 bet ween Prim erica, Cit ibank and Cit iMort gage. Neit her is it clear nor have t he plaint iffs explained how t his agreem ent t ends t o prove Prim erica engaged in any consum er t ransact ion wit hin t he scope of what t he plaint iffs allege as t heir claim s. Fourt h, t hat Prim erica served as a loan originat or and was involved wit h “ cont inued represent at ion of t he Paym ent Waiver Prot ect ion Program .” ECF# 559, p. 19. But , t he plaint iffs do not assert how Prim erica in it s role as loan originat or m akes it fact ually and legally liable for t he m ort gage’s com pany’s applicat ion and execut ion of t he Paym ent Waiver Program . Moreover, t he plaint iffs offer no evidence from which t o infer Prim erica’s “ cont inued represent at ion” or involvem ent in t his program or from w hich t o assert Prim erica’s liabilit y for t he m ort gage com pany’s conduct . There is no evidence of record indicat ing t hat Prim erica had assum ed any cont inuing and ongoing dut ies under t his program . Nor have t he plaint iffs com e forward wit h fact s sust aining any reasonable inference of t he sam e. That Ms. Cobb lat er assist ed in cancelling t heir enrollm ent in t he program is not evidence of Prim erica becom ing liable for t he m ort gage com pany’s adm inist rat ion of t he program . I nst ead, t he plaint iffs have adm it t ed t hat Ms. Cobb had been serving as t heir ongoing financial advisor. ( Pret rial Order, ECF# 519, p. 18) . As set out in t he pret rial order, t he plaint iffs’ cont ent ions against Prim erica are vague. As t o t he 2007 loan, t he court finds no specific allegat ions against Prim erica’s conduct in t he “ Cont ent ions of t he Plaint iffs” 50 sect ion of t he Pret rial Order. As t o t he 2010 refinancing applicat ion, t he plaint iffs fact ually cont end t hat t hey applied for refinancing t hrough Prim erica and despit e being well qualified t hey were t urned down by Cit ibank. Specifically, t hey allege t hat “ Prim erica . . . concealed t he eligibilit y and did not provide t he ‘Cit iquick’ program or any ot her alt ernat ives for which t hey were qualified.” ( Pret rial Order, ECF# 519, p. 12) . They also cont end t hat unknown t o t hem , “ Prim erica had gone public in t his t im e and was not a wholly owned subsidiary of Cit igroup.” I d. I n sum , t he plaint iffs cont end t hat Prim erica in t he 2010 refinancing applicat ion “ concealed” t he plaint iffs’ eligibilit y and failed t o provide ot her program s and alt ernat ives for which t hey were qualified. The plaint iffs’ legal claim s against Prim erica in t he pret rial order are no clearer. They assert a “ cont ract wit h Prim erica, as an agent for Defendant s sold t he PWP waiver program and cont inued t o be t he Schneiders’ reference and advisor t o st op t he PWP going so far as t o fax t he cancellat ion from Prim erica’s officer aft er t he plan benefit s were exhaust ed.” I d. at p. 18. The plaint iffs, however, concede t hey have no ot her claim against Prim erica for servicing t he 2007 loan: “ As t o Prim erica, except for t he PWP cont ract and handling of t he PWP, t he Plaint iffs do not claim Prim erica is responsible t o ot her servicing overcharges of Cit i defendant s.” I d. at p. 19. As for t he 2010 refinancing, t he plaint iffs’ claim s include t he following disconnect ed allegat ions: 51 Prim erica was also in cont ract wit h t he Schneiders by t he execut ion of t he Mort gage Broker Agreem ent and Disclosure which not ably indicat es t he exclusive relat ionship wit h Cit i defendant s. Responsibilit y of t he Defendant s is layered and int ert wined, however Prim erica was responsible for Kerry Cobb and t o t he Schneiders as regist ered under t he Kansas Mort gage Business Act , See K.S.A. 92201 et seq. Prim erica, as a licensee, had affirm at ive obligat ions t o assure it s em ployees’ com pliance wit h t he law ( K.S.A. 9- 2203) . . . . Not ably, Prim erica engages in a Mort gage Broker Agreem ent t hen in t he sam e docum ent advises t hey ( sic) are not a broker. . . . To t he ext ent Defendant s seek a defense as t o no requirem ent t o at t em pt t o get a loan, provide t he opt ions, process, or t ake best effort s t he Schneiders would look t o t he conduct in t he Kansas Mort gage Business Act , for w hich an applicable disclosure was provided by Kerry Cobb for Prim erica, essent ially an arm for Cit i Defendant s. During t he pendency of t his case, Prim erica has seem ed t o claim t o t his Court t hey were a wholly owned subsidiary yet it appears t hat at t he 2010 loan refinance at t em pt t hey had already been sold but m aint ained a cont ract ual relat ionship wit h Cirigroup ( sic) t o provide soft ware and support am ong ot her t hings ( Decem ber 2016 first disclosed and produced) . ECF# 519, at pp. 18- 19. From t hese allegat ions, t he court cannot discern any viable legal grounds for Prim erica’s liabilit y for t he Cit ibank’s servicing of t he 2007 loan or for Cit ibank’s handling of t he 2010 refinancing applicat ion. I n t heir sum m ary j udgm ent m em orandum , t he plaint iffs at t em pt t o draw out t hree claim s from t hese vague allegat ions. First , t hat Prim erica knew and failed t o disclose t hat Cit iMort gage was t he lender and not Cit ibank t o whom t hey applied for refinancing in 2010. The plaint iffs’ evidence on t his claim fails t o raise a genuine issue of m at erial fact as t o whet her Cit ibank was t he lender and corporat e ent it y which t ook legal responsibilit y for accept ing and not grant ing t heir 2010 refinancing loan applicat ion. The involvem ent and support of Cit iMort gage personnel in 52 processing t he applicat ion does not m isrepresent who is t aking legal responsibilit y for t he decision. Furt herm ore, t he plaint iffs’ evidence also fails t o show t his t o be a m at erial fact , which if not disclosed, would be a violat ion of t he KCPA or t he Kansas Mort gage Business Act or would be a breach of cont ract or im plied dut y of good fait h. Second, t hat Prim erica concealed it s own sale j ust before t he refinancing applicat ion. Again, t he plaint iffs’ evidence does not show any m at erial m isrepresent at ion or om ission or breach based on t his event and it s alleged t im ing. Finally, t hat Prim erica concealed Cit ibank’s alt ernat ive loan proposal t o t hem as const it ut ing t he “ concealing” of t he plaint iffs’ eligibilit y. The plaint iffs have no evidence of Ms. Cobb concealing t he plaint iffs’ eligibilit y. At m ost , t here is evidence t hat besides not accept ing t he plaint iffs’ applicat ion, Cit ibank asked Prim erica t o t ake t he plaint iffs an addit ional proposal for a sm aller loan wit h cash paym ent , but t he plaint iffs, in t he m eant im e, sought full refinancing of t heir loan from anot her inst it ut ion and subsequent ly inform ed Ms. Cobb of t he sam e. Assum ing for t he sake of argum ent t hat Ms. Cobb failed t o com m unicat e t his proposal, t his is hardly a concealm ent of any m at erial fact as t o violat e t he KCPA or t o const it ut e a breach of cont ract . The plaint iffs cert ainly should have known and appreciat ed t hat t hey could always apply t o refinance for a sm aller loan m ore in keeping wit h t he propert y’s appraised value and t o use w hat ever cash t hey had available t o cover t he difference. I nst ead of pursuing what Ms. Cobb described as an ongoing process, t he 53 plaint iffs went elsewhere and refinanced for t he full am ount . The court finds no plausible quest ion of m at erial fact as t o preclude sum m ary j udgm ent on t his allegat ion. Finally, t he court agrees t hat t he plaint iffs have not com e forward wit h any evidence t o show how t hey were harm ed by Prim erica’s alleged breaches of cont ract . The discovery is closed, and t he plaint iffs’ speculat ions and allegat ions will not prevent sum m ary j udgm ent . As fully discussed above, t he plaint iffs’ evidence in support of t heir KCPA and breach of cont ract claim s against Prim erica is not significant ly probat ive. Besides lacking t he necessary evidence t o sust ain t hem , t he plaint iffs’ legal t heories are lacking in subst ance and specifics. Prim erica is ent it led t o sum m ary j udgm ent on all t he plaint iffs’ claim s. M OTI ON FOR PARTI AL SUM M ARY JUD GM EN T BY PLAI N TI FFS RAN D LL A. SCH N EI D ER AN D AM Y L. SCH N EI D ER. ECF# 5 3 0 I n t he m ot ions already decided herein, t he court has grant ed t he defendant s’ m ot ions for sum m ary j udgm ent but for t he plaint iffs’ claim s against t he defendant s Cit ibank and Cit iMort age for breach of t he express t erm s of t he 2007 loan agreem ent . The court denied t he defendant s’ sum m ary j udgm ent argum ent s based on t he volunt ary paym ent rule which necessarily m eans t he plaint iffs cannot prevail on t heir disposit ive m ot ion because of t his defense. To assist t he resolut ion of t his case, t he court finds t he following fact s should be regarded as uncont rovert ed: 54 1. The plaint iffs refinanced t heir resident ial m ort gage loan wit h Cit ibank on Sept em ber 17, 2007, for $107,996.88 for a t erm of 10 years wit h a fixed int erest rat e of 7.96544% . Cit iMort gage has adm it t ed t hat t he plaint iffs’ m ont hly m ort gage st at em ent s dat ed June 23, 2010, and July 27, 2010, reflect an int erest rat e of 8.2154% on t he plaint iffs’ loan, and t his was in error. 2. Cit ibank’s represent at ive, Ms. Daust er- Adam s, t est ified in t he Rule 30( b) ( 6) deposit ion t hat from her review of t he “ dat a not es” regarding t he plaint iffs’ loan she found t hat t he plaint iffs were put back on t he equit y builder program aft er t he PWP paym ent s ended, but t hat t hey did not t hen receive t he benefit of t he int erest rat e reduct ion under t he program from March 23, 2010, t hrough June 14, 2010. ECF# 532- 11, p. 2. 3. The defendant s obj ect t o t he plaint iffs’ st at em ent s of fact ( S- 45 t hrough S- 48) addressing t he aut om at ic loan paym ent s t aken from t heir bank account from Novem ber 13, 2007, t hrough August 18, 2008. The defendant s obj ect t o plaint iffs’ exhibit 6, ECF# 531- 7, arguing aut hent icit y, failure t o produce in discovery, failure t o ident ify wit ness in discovery, failure t o est ablish wit ness’ s com pet ency, and it s cont radict ion of t he part ies’ st ipulat ion. The court overrules t hese obj ect ions as t he plaint iffs have subm it t ed an affidavit by t his sam e wit ness dat ed February 25, 2015, as cust odian of business records, which apparent ly accom panied t he bank’s product ion of it s records t o t he defendant s. ECF# 568- 11. As for t he part ies’ 55 st ipulat ion t hat t he plaint iffs’ responsibilit y t o m ake m ort gage paym ent s was “ ult im at ely addressed” by t he PWP, t he t erm s of t his st ipulat ion do not necessarily preclude proof t hat t he defendant s also m ade aut om at ic wit hdrawals from t he plaint iffs’ account during t his sam e period. Consequent ly, t he plaint iffs’ st at em ent s of fact appearing at S- 45 t hrough S48 are uncont rovert ed. ECF# 531. 4. The defendant s do not effect ively cont rovert t he plaint iffs’ cit at ion and quot at ion of what appears on t he face of Cit iMort gage’s st at em ent s issued t o t he plaint iffs and appearing at ECF# 531- 9. The defendant s’ obj ect ions t o aut hent icit y are denied, as t hese pages bear not only t he charact erist ics of what t hey purport t o be, but t hey also include t he defendant s’ Bat es st am p. Thus, t he plaint iffs’ fact s appearing at S- 48 t hrough S- 53 are uncont rovert ed. 5. The plaint iffs part icipat ed in t he $.M.A.R.T. Com plet ion Plan expect ing t o build up t heir hom e equit y m ore quickly by including an ext ra $89.86 direct principal reduct ion paym ent in t he scheduled aut om at ic wit hdrawal paym ent s from Novem ber 13, 2007, t hrough August 18, 2008. 6. The plaint iffs received reim bursem ent checks from Cit iMort gage in t he am ount s of $1,434.73 on Sept em ber 24, 2008, and $2,368.35 on Oct ober 3, 2008. The am ount of $1,434.73 equals a m ont hly not e paym ent ( $1,308.33) plus a PWP paym ent ( $126.40) . The am ount of $2,368.35 is $501.11 less t han $2,869.46 ( $1,434.73 x 2) . 56 7. Paym ent s on t he Schneiders’ loan were m ade on June 1 and 14, 2010, but t hese paym ent s were not credit ed unt il June 15, 2010, and were t reat ed as one paym ent . 8. Cit iMort gage sent plaint iffs a let t er dat ed July 8, 2010, st at ing t heir m ort gage paym ent was overdue in t he am ount of $656.38, including $65.41 in lat e fees. Cit iMort gage’s st at em ent dat ed July 27, 2010, represent ed t hat t he Schneiders were past due $2,869.46. Cit iMort gage sent a let t er dat ed July 29, 2010, st at ing t he Schneiders’ loan was in default wit h a past due am ount of $1,964.71, including $65.41 in lat e charges. 9. I n Decem ber of 2008 and January of 2009 while loan paym ent s were t he responsibilit y of t he PWP program , Cit Mort gage draft ed t hree aut om at ic paym ent s on Decem ber 29, January 11, and January 25 from t he plaint iffs’ bank account . Cit iMort gage reversed t hese t ransact ions on January 29 wit hout any adj ust m ent or credit for having t aken and depriving t he plaint iffs of t hese funds for t hat t im e. 10. When t he t wo years of PWP’s coverage of paym ent s ended March of 2010, Cit iMort gage aut om at ically resum ed aut o draft paym ent s under t he Equit y Builder Plan on April 19, May 3, May 17, June 1, and June 14 of 2010. The defendant s’ m ort gage st at em ent dat ed April 26, 2010, reflect s t he April 19 paym ent as received on April 20 and st at es t hat t he plaint iffs have a past due am ount of $1434.73 wit h a lat e charge of $65.41. The defendant s’ m ort gage st at em ent dat ed May 27, 2010, reflect s t he May 3 paym ent as 57 received on May 5 and t he May 17 paym ent as received on May 18. This st at em ent also reflect s t hat on May 5 a lat e charge of $65.41 was assessed against t he ext ra principal paym ent of $89.86 and t hat a com plet ion plan fee of $126.40 was assessed against t he principal credit applied from t he regular loan paym ent of $717.36. 11. The com plet ion plan fee assessed on May 5 was for t he PWP program . Based on ot her sum m ary j udgm ent filings, it is uncont rovert ed t hat t he Schneiders received correspondence from Cit iMort gage back in July of 2008 st at ing t hat Cit iAssurance Services had not ified Cit iMort gage “ t o cancel your opt ional Com plet ion Plan. Your m ont hly m ort gage paym ent has been adj ust ed t o reflect t his change. However, please not e t hat any past due unpaid fees will be included in any Payoff St at em ent you request , and collect ed at t he t im e your loan is paid in full.” ECF# # 557 and 557- 15. When t his com plet ion plan fee appeared on May m ort gage st at em ent , Am y Schneider t elephoned t he defendant s asking it t o st op t his plan fee. Ms. Cobb t yped a let t er of cancellat ion t hat was signed by Randall Schneider and faxed t o Cit i Assurance Services on May 14, 2010. From t he defendant s’ m ot ion for sum m ary j udgm ent , it is uncont rovert ed “ t hat t he loan was assessed t he $126.40 Paym ent Waiver program fee in five or six invoices from March 2010 t hrough t he dat e plaint iffs refinanced t he loan wit h an unrelat ed lender. . . . The t ot al of t he fees plaint iffs cont end were im proper ( $126.40 x 6) is $768.40.” ECF# 524, p.10, ¶ 34. 58 12. Cit iMort gage’s payoff st at em ent dat ed June 17, 2010, included a prepaym ent penalt y of $829.42 and a fax/ st at em ent fee of $25.00, and it specified an int erest rat e of 8.215% . The loan and ot her cont ract docum ent s do not provide for a fax/ st at em ent fee. To clear t he t it le, Schneiders paid Cit iMort gage’s required payoff including int erest t hrough August 13, 2010, for a t ot al of $84,931.70. Cit iMort gage received t he paym ent on August 9, 2010. Cit iMort gage sent a let t er on August 10, 2010, indicat ing t he paym ent was insufficient by $6.76 and asking for addit ional funds. Since t he payoff, no defendant has provided any refund. D EFEN D AN TS’ M OTI ON FOR REVI EW OF FI N AL PRETRI AL ORD ER ECF# # 5 3 4 AN D 5 3 6 a n d PLAI N TI FFS’ M OTI ON FOR SUM M ARY D EN I AL OF TH ESE M OTI ON S ECF # 5 7 8 . The defendant s filed t wice what appears t o be t he sam e set of obj ect ions t o t he pret rial order. These filings lack a m em orandum necessary in providing bot h a legal and fact ual basis for t he defendant s’ obj ect ions. The filings present ly offer only conclusory obj ect ions wit hout support ing cit at ions, legal aut horit ies, and fact ual record. The defendant s’ obj ect ions are of t he kind t hat require a support ing record and cit at ions. These filings also refer t o an exhibit which is not at t ached. Because t he defendant s’ filings are ent irely deficient wit hout a support ing m em orandum and at t achm ent , t he court sum m arily denies t hem pursuant t o D. Kan. Rule 7.4( a) . Besides t his procedural ground, t he court ’s sum m ary j udgm ent rulings effect ively m oot t wo of t he defendant s’ obj ect ions, and t he defendant s’ rem aining 59 obj ect ion t o t he plaint iffs’ dam age calculat ions fails t o show t he m agist rat e j udge’s work t o be clearly erroneous or cont rary t o law. Thus, t he court denies bot h t he defendant s’ m ot ion for review and t he plaint iffs’ m ot ion for sum m ary denial. PLAI N TI FFS’ M OTI ON TO STRI KE ECF# 5 8 1 D EFEN D AN TS’ N OTI CE OF SUPPLEM EN TAL AUTH ORI TY ECF# 5 7 5 . This is t he last filed m ot ion st ill pending. The court denies t his m ot ion as m oot because of t he court ’s above sum m ary j udgm ent ruling. I T I S THEREFORE ORDERED t hat t he sum m ary j udgm ent m ot ion of Cit iMort gage and Cit ibank ECF ( # 523) is grant ed against t he plaint iffs’ KCPA claim s, im plied cont ract claim for 2007 loan, express and im plied cont ract claim s for 2010 refinancing, and punit ive dam age claim s, and is grant ed in it s request t o enforce t he cont ract ual choice of law provision in t he 2007 loan, but it is denied as t o t he 2007 express cont ract claim s; I T I S FURTHER ORDERED t hat t he sum m ary j udgm ent m ot ion of defendant Cit igroup ( ECF # 526) is grant ed; I T I S FURTHER ORDERED t hat t he sum m ary j udgm ent m ot ion of defendant Prim erica ( ECF# 528) is grant ed; I T I S FURTHER ORDERED t hat t he part ial sum m ary j udgm ent m ot ion of t he plaint iffs ( ECF# 530) is denied but t he court regards cert ain fact ual st at em ent s t o be uncont rovert ed; 60 I T I S FURTHER ORDERED t hat t he defendant s’ m ot ions for review of t he final pret rial order ( ECF# # 534 and 536) and t he plaint iffs’ m ot ion for sum m ary for denial of t hese m ot ions ( ECF# 578) are denied; I T I S FURTHER ORDERED t hat t he plaint iffs’ m ot ion t o st rike t he defendant s’ ( ECF# 581) not ice of supplem ent al aut horit y ( ECF# 581) is denied. Dat ed t his 19 t h day of Sept em ber, 2018 at Topeka, Kansas. s/ Sam A. Crow Sam A. Crow, U.S. Dist rict Senior Judge 61

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