PHH Mortgage Corporation v. Stuber et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PHH MORTGAGE CORPORATION,
Plaintiff,
v.
JOSEPH SCOTT STUBER, et al.,
Defendant.
Case No. 23-1123-DDC-TJJ
MEMORANDUM AND ORDER
Plaintiff PHH Mortgage Corporation filed this lawsuit seeking to foreclose on a
condominium titled in defendant Joseph Scott Stuber’s name. Plaintiff has filed a Motion for
Summary Judgment (Doc. 52). Plaintiff contends that Mr. Stuber defaulted on his loan, entitling
plaintiff to foreclose on that property. Proceeding pro se,1 Mr. Stuber offers a different view of
things. According to Mr. Stuber, plaintiff’s predecessor—Ocwen Loan Servicing, LLC—
induced his breach by misapplying his mortgage payments to an escrow account. Mr. Stuber has
marshalled sufficient evidence for a rational factfinder to agree with him. The court thus denies
plaintiff’s Motion for Summary Judgment (Doc. 52). Mr. Stuber also has filed a Motion for
Reconsideration (Doc. 50), asking the court to revisit a prior Order that dismissed his
Counterclaim. The court denies this motion, too. The court explains these results, below.
1 	Because Mr. Stuber proceeds pro se, the court construes his filings liberally and “hold[s] [them]
to less stringent standards than formal pleadings drafted by lawyers[.]” Haines v. Kerner, 404 U.S. 519,
520–21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But the court doesn’t assume the
role of advocate for the pro se litigant. Hall, 935 F.2d at 1110.
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I. 	Background
The court “view[s] the facts and draw[s] reasonable inference in the light most favorable
to the party opposing the summary judgment motion”—here, Mr. Stuber. Scott v. Harris, 550
U.S. 372, 378 (2007) (quotation cleaned up).
The property at issue in this action is 17 Chisholm Creek Dr., Unit 216, Wichita KS
67220. Doc. 45 at 2 (PTO ¶ 2.a.ii.); Doc. 53-2 at 3 (Verdooren Decl. ¶ 6).2 In July 2009, Mr.
Stuber signed a note in exchange for a loan of $70,207. Doc. 45 at 2 (PTO ¶ 2.a.v.); Doc. 53-3.
To secure the loan, Mr. Stuber also signed a mortgage. Doc. 45 at 2 (PTO ¶ 2.a.vii.); Doc. 53-4.
An assignment of mortgage assigned this mortgage to Ocwen Loan Servicing, LLC in May 2013.
Id. (PTO ¶ 2.a.ix.); Doc. 53-6. And plaintiff is the successor by merger to Ocwen. Doc. 45 at 3
(PTO ¶ 2.a.x.). Plaintiff is thus the current holder of the note and mortgage. Id. (PTO
¶ 2.a.xiii.).
In September 2017, Ocwen notified Mr. Stuber that he was in default. Doc. 53-8 at 4–6;
Doc. 53-2 at 5 (Verdooren Decl. ¶ 15). Ocwen then tried to foreclose on the property, incurring
over $4,000 in legal fees and expenses in the process. See Doc. 53-2 at 5 (Verdooren Decl.
¶ 16). The mortgage contains a provision that makes Mr. Stuber liable for all expenses incurred
while foreclosing on the property. Doc. 53-4 at 7 (Mortgage § 18). Ocwen thus attempted to
collect these fees and expenses from Mr. Stuber, who refused to pay them. Doc. 53-2 at 5
(Verdooren Decl. ¶¶ 17–18). Plaintiff purports to have exercised its right to declare the entire
mortgage debt due. Id. (Verdooren Decl. ¶ 19). Citing a declaration from one of its employees,
2 	There’s a small flap about zip codes—the stipulation portion of the Pretrial Order lists the zip
code of the condominium as 6722. Doc. 45 at 2 (PTO ¶ 2.a.ii.). But plaintiff asserts—and Mr. Stuber
doesn’t contest—that the zip code is 67220. Doc. 53-2 at 3 (Verdooren Decl. ¶ 6). Because zip codes
have five digits, a rational jury only could find that the zip code is 67220.
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plaintiff asserts that Mr. Stuber “is in complete default[.]” Doc. 53 at 4 (citing Doc. 53-2 at 5
(Verdooren Decl. ¶ 19)). And plaintiff brings a single breach-of-contract claim, seeking to
foreclose on Mr. Stuber’s condominium. Doc. 45 at 10 (PTO ¶ 4.a.).
Mr. Stuber sees this case quite differently. He asserts that the initial issues with this case
originated when Ocwen incorrectly applied his mortgage payments to the escrow account. See
Doc. 55 at 2–3. To support this assertion, Mr. Stuber submitted an escrow analysis, dated June
23, 2017. Doc. 55-1 at 3. This escrow document shows two payments in November 2016, each
contributing $3,723 to the escrow balance. Id. at 2. The escrow balance goes on to show an
ending balance of $14,054.30. Id. at 3. And the end of the document informs Mr. Stuber that
there is an escrow balance surplus of $13,527.21 (this balance equals to the total
amount paid into escrow minus the total amount of money to be paid out this year).
We will send you a check for the remaining surplus balance within 30 days.
However, if your account is not contractually current as of the analysis date, the
escrow funds will remain in the escrow account.
Id. at 4.
Mr. Stuber also cites an internal memo from one of Ocwen’s employees with the subject
line “Stuber litigation insurance questions[.]” Doc. 55 at 3 (citing Doc. 55-2). This email memo
acknowledges that there “were multiple errors on this loan[.]” Doc. 55-2 at 2. Specifically, the
memo suggests that plaintiff added an insurance policy on Mr. Stuber’s property for a coverage
amount around $8 million instead of $65,001.51. Id. It also says that after catching the original
error, the company updated the coverage amount to $496,642, not $65,001.51. Id. This
underlying document is truncated and grainy, and it’s difficult to discern the context of the
internal email. It appears to respond to some other query that’s not visible. But, the court notes,
one of the property insurance policies referenced on this internal memo—OHZ0123882—
matches a policy that appears on the escrow analysis. Compare id., with Doc. 55-1 at 2. And the
projected cost of this insurance policy on the escrow analysis is $3,723—the same amount that
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Mr. Stuber claims Ocwen incorrectly applied to his escrow account instead of his mortgage debt.
Doc. 55-1 at 2.
Mr. Stuber also asserts that Ocwen (and later, plaintiff) refused to accept his monthly
payments after May 2018 because Mr. Stuber owed additional funds. Doc. 55 at 7. Mr. Stuber
submitted no evidence that he tried to submit payments after May 2018. But two of plaintiff’s
exhibits corroborate his position that Ocwen and plaintiff would refuse payments until Mr.
Stuber submitted the entire amount owed. See Doc. 53-8 at 5 (“Payments received that are less
than the amount required to reinstate the mortgage will be returned, and will not stop any
foreclosure proceedings that have begun.”); Doc. 53-9 at 3 (similar).3
With that background, the court explains the summary judgment standard before applying
it to this record.
II. 	Summary Judgment Legal Standard
Summary judgment is appropriate where the moving party demonstrates there is “no
genuine dispute” about “any material fact” and that the movant is “entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). This standard dictates that the court “view the evidence
and make inferences in the light most favorable to the non-movant.” Nahno-Lopez v. Houser,
625 F.3d 1279, 1283 (10th Cir. 2010) (citing Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243,
1245–46 (10th Cir. 2010)).
“An issue of fact is ‘genuine’ ‘if the evidence is such that a reasonable jury could return a
verdict for the non-moving party’ on the issue.” Id. (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986)). “An issue of fact is ‘material’ ‘if under the substantive law it is
3 	The court properly may consider these documents even though Mr. Stuber didn’t cite them. See
Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it may consider other
materials in the record.”).
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essential to the proper disposition of the claim’ or defense.” Id. (quoting Adler v. Wal-Mart
Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
The moving party bears “‘both the initial burden of production on a motion for summary
judgment and the burden of establishing that summary judgment is appropriate as a matter of
law.’” Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010) (quoting Trainor v.
Apollo Metal Specialties, Inc., 318 F.3d 976, 979 (10th Cir. 2002)). To carry this burden, the
moving party “‘need not negate the non-movant’s claim, but need only point to an absence of
evidence to support the non-movant’s claim.’” Id. (quoting Sigmon v. CommunityCare HMO,
Inc., 234 F.3d 1121, 1125 (10th Cir. 2000)). Even if the non-moving party fails to respond
adequately, “the district court may not grant the motion without first examining the moving
party’s submission to determine if it has met its initial burden of demonstrating that no material
issues of fact remain for trial and the moving party is entitled to judgment as a matter of law.”
Reed v. Bennett, 312 F.3d 1190, 1194–95 (10th Cir. 2002).
If the moving party satisfies its initial burden, the non-moving party “‘may not rest on its
pleadings, but must bring forward specific facts showing a genuine issue for trial [on] those
dispositive matters for which it carries the burden of proof.’” Kannady, 590 F.3d at 1169
(quoting Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996)); see also Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986); Anderson, 477 U.S. at 248–49. The specific “facts must be identified
by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”
Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007) (citing Adler, 144
F.3d at 671). Affidavits and testimony “must be based upon personal knowledge and set forth
facts that would be admissible in evidence; conclusory and self-serving affidavits are not
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sufficient.” Tucker v. Faith Bible Chapel Int’l, 36 F.4th 1021, 1030–31 (10th Cir. 2022)
(quotation cleaned up).
Federal courts don’t view summary judgment as a “disfavored procedural shortcut.”
Celotex, 477 U.S. at 327. Instead, it represents an important procedure “designed ‘to secure the
just, speedy and inexpensive determination of every action.’” Id. (quoting Fed. R. Civ. P. 1).
III. 	Summary Judgment Analysis
Plaintiff has moved for summary judgment against two sets of defendants. One is Mr.
Stuber, who has litigated his defense actively. The other group consists of Chisholm Creek
Condominium Homeowners Association and Ester Kay Manns, who each has failed to plead.
The court takes up the summary judgment motion against Mr. Stuber before turning to the other
two defendants.
A. 	Summary Judgment Against Mr. Stuber 4
The dispositive issue for this summary judgment motion is whether Mr. Stuber has raised
a triable issue that Ocwen—plaintiff’s predecessor—caused his breach. A reasonable factfinder
4 	The parties agree that Kansas law governs this action. Doc. 45 at 2 (PTO ¶ 1.d.). In diversity
cases like this one, the court “applies the forum state’s choice-of-law rules to determine which state’s
substantive law governs a claim.” Nordwald v. Brightlink Commc’ns, LLC, 603 F. Supp. 3d 1030, 1040
(D. Kan. 2022) (citing Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). The mortgage
contains a choice-of-law provision, which specifies that the law of the jurisdiction where the property is
located—Kansas—governs the mortgage agreement. Doc. 53-4 at 6 (Mortgage § 14). Under Kansas law,
this provision is enforceable. See Brenner v. Oppenheimer & Co. Inc., 44 P.3d 364, 375 (Kan. 2002)
(“Where the parties to a contract have entered an agreement that incorporates a choice of law provision,
Kansas courts generally effectuate the law chosen by the parties to control the agreement.”).
The note doesn’t contain a choice-of-law provision. See generally Doc. 53-3. But Kansas law
instructs courts to construe simultaneously executed mortgages and notes together. Farmers &
Merchants Bank v. Copple, 373 P.2d 219, 221 (Kan. 1962) (“Where a note and mortgage are executed on
the same date and as a part of the same transaction between the same parties, they will be read and
construed together[.]”). So, the court applies the mortgage’s choice-of-law provision to the note as well.
Plus, no party has made “‘a clear showing that another state’s law should apply,’” so the court “default[s]
to Kansas substantive law.” Howard v. Ferrellgas Partners, L.P., 748 F.3d 975, 982 (10th Cir. 2014)
(quoting In re K.M.H., 169 P.3d 1025, 1032 (Kan. 2007)). Kansas substantive law thus governs both the
mortgage and the note.
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could conclude that Ocwen improperly applied Mr. Stuber’s mortgage payments to the escrow
account, thus inducing his breach. So, on this record, plaintiff doesn’t deserve summary
judgment. The court explains.
The June 2017 escrow analysis shows two payments—each for $3,723—added to the
escrow balance in November 2016. Doc. 55-1 at 2. To be sure, the analysis describes these
payments as “Lender Placed Unit Owners/H06 refund.” Id. So, it’s far from clear that Mr.
Stuber submitted these payments. They could represent some sort of refund from another source.
The problem for plaintiff is that it never explains—or even tries to explain—the source of these
payments. So, a reasonable factfinder is left with the possibility that Ocwen erroneously applied
Mr. Stuber’s mortgage payments to the loan’s escrow account. Indeed, that same document
shows an “actual ending balance” in the escrow account of $14,054.30. Id. at 3. The escrow
analysis estimates that this total amounted to a surplus in the escrow account of $13,527.21
based on the estimated annual payments. Id. at 4. Viewed in the light most favorable to Mr.
Stuber, this escrow analysis shows a significantly overfunded escrow account and suggests that
Ocwen—plaintiff’s predecessor—may have misapplied Mr. Stuber’s mortgage payments to the
escrow account.
Other evidence supports this conclusion, too. An internal memo between Ocwen’s
employees acknowledges some error on Mr. Stuber’s account. See Doc. 55-2 at 2. Specifically,
it says that an insurance policy was updated for a property value significantly greater than the
value of Mr. Stuber’s property. Id. And one of the policy numbers listed in that memo—
OHZ0123882—is identical to one listed on the escrow analysis. Compare Doc. 55-2 at 2, with
Doc. 55-1 at 2. The analysis associates the policy number with a projected escrow payment
totaling $3,723—the same amount deposited twice in the escrow account a few months earlier.
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Doc. 55-1 at 2. And plaintiff never tries to explain these two deposits or the projected payment
of the same amount. A reasonable factfinder could read the escrow analysis and internal memo
together to conclude that plaintiff improperly diverted Mr. Stuber’s mortgage payments to the
escrow account to fund the insurance policy. 5
This conclusion—that a jury reasonably could find plaintiff’s predecessor improperly
applied Mr. Stuber’s mortgage-debt payments to the escrow account—precludes summary
judgment. That’s so because the escrow analysis says that plaintiff wouldn’t refund surpluses in
the escrow account until Mr. Stuber was “contractually current[.]” Id. at 4. So, viewed in the
light most favorable to Mr. Stuber, Ocwen put Mr. Stuber in a catch-22. It misapplied his
mortgage payments to the escrow account, undermining his ability to become current on his
account. Then, plaintiff and its predecessor locked that money away until Mr. Stuber paid off his
past-due debt. A rational trier of fact thus could conclude that plaintiff (or its predecessor)
caused Mr. Stuber to breach the contract by failing to apply his payments properly. And under
Kansas law, a party can’t cause another party to breach a contract and then sue based on that
contrived breach. See Briney v. Toews, 95 P.2d 355, 355 (Kan. 1939) (“A party to a contract
may not, in absence of justifiable cause, interfere, hinder or prevent performance by the other
party and claim benefits or escape liability on the ground of nonperformance.”);6 see also
5 	The court emphasizes the incomplete nature of the record it must draw from to reach these
conclusions. The internal memo Mr. Stuber submitted is grainy and apparently cut from a larger email
thread that the record doesn’t include. See Doc. 55-2 at 2. Likewise, the escrow analysis Mr. Stuber
submitted is grainy and includes only three of six pages in the document. Doc. 55-1 at 2–4. The
summary judgment record doesn’t contain any current accounting of the escrow account. Plaintiff notes
the incompleteness of Mr. Stuber’s submissions. Doc. 58 at 8. But plaintiff hasn’t submitted complete
versions of the documents. Nor has plaintiff offered any substantive evidence to dispel Mr. Stuber’s
allegations about Ocwen mishandling his mortgage payments. So, despite the somewhat difficult record
here, the court remains duty bound to view the record in the light most favorable to Mr. Stuber, the party
opposing summary judgment.
6 	This quotation from Briney comes from that case’s syllabus. Unlike the Supreme Court of the
United States, the Kansas Supreme Court writes its cases’ syllabi. See Kan. Stat. Ann. § 20-203 (“A
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Washburn S. Apartments LLC v. Hession, 570 P.3d 1268, 1277 (Kan. Ct. App. 2025) (“[A] party
to a contract may not refuse to permit another person to perform their obligations and later claim
that the person has breached the agreement through that nonperformance.”).
Plaintiff never contests the merits of Mr. Stuber’s argument. Instead, plaintiff offers two
procedural responses. First, plaintiff asserts that Mr. Stuber’s presentation of facts doesn’t
comply with the court’s local rules or with the Federal Rules of Civil Procedure. And second,
plaintiff contends, issue preclusion prevents Mr. Stuber from asserting this improperly-applied-
payments issue. Plaintiff contends a previous bankruptcy litigation resolved this question. The
court disagrees on both points, taking them in turn, below.
1. 	Procedural Rules
Plaintiff first cries foul at Mr. Stuber’s briefing. In particular, plaintiff contends that Mr.
Stuber violated the Federal Rules of Civil Procedure and our court’s local rules by including
arguments in his “facts” section and by citing four exhibits (without page numbers) to support a
page and a half of factual assertions. Doc. 58 at 1–3. 7 The court agrees that Mr. Stuber’s
briefing won’t win a legal-writing competition. But that’s hardly surprising since Mr. Stuber
isn’t an attorney. The court declines to ignore Mr. Stuber’s presentation or deem plaintiff’s facts
admitted as a result. Mr. Stuber’s disorganized briefing—including his arguments in the “facts”
syllabus of the points of law decided in any case in the supreme court shall be stated in writing by the
judge delivering the opinion of the court, which shall be confined to points of law arising from the facts in
the case, that have been determined by the court[.]”). “Syllabus points, which appear only in published
appellate decisions, are considered binding statements of the controlling legal principles in the case.”
Campbell v. State, 526 P.3d 1083, 2023 WL 2818580, at *11 (Kan. Ct. App. 2023) (Atcheson, J.,
concurring).
7 	Plaintiff also argues that Mr. “Stuber strategically included only a portion of each of the total of
four documents he attached as exhibits, leaving some question as to whether these documents would even
be admissible as evidence at all.” Doc. 58 at 5. It’s correct that Mr. Stuber’s exhibits appear grainy and
incomplete. See Doc. 55-1; Doc. 55-2; Doc. 55-3; Doc. 55-4. But plaintiff hasn’t offered complete
versions of these documents. Nor has plaintiff explained why these documents aren’t admissible. So, the
court considers them.
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section and his somewhat haphazard citations—are the sort of issues courts forgive for pro se
litigants. See Hall, 935 F.2d at 1110 (instructing courts to construe a pro se litigant’s filings
liberally despite his “failure to cite proper legal authority” and “his poor syntax and sentence
construction”). Mr. Stuber laid out his theory of the case adequately—that plaintiff’s
predecessor improperly applied his mortgage payments to the escrow account—and cited the
escrow analysis and internal memo in support. Doc. 55 at 2–4, 6. The court thus won’t ignore or
strike Mr. Stuber’s presentation of facts.
That conclusion leaves plaintiff’s other answer to Mr. Stuber’s position—issue
preclusion.
2. 	Issue Preclusion
Plaintiff’s second argument contends that Mr. Stuber can’t argue that plaintiff improperly
applied his mortgage payments because plaintiff already asserted—and lost—this issue in a
bankruptcy proceeding. Doc. 58 at 3–5. Thus, plaintiff contends, issue preclusion bars Mr.
Stuber’s argument.
Issue preclusion—also called collateral estoppel—“bars a party from relitigating an issue
once it has suffered an adverse determination on the issue, even if the issue arises when the party
is pursuing or defending against a different claim.” Burrell v. Armijo, 456 F.3d 1159, 1172 (10th
Cir. 2006) (quotation cleaned up). The party invoking the doctrine—here, plaintiff—bears the
burden to establish these four elements:
(1) the issue previously decided is identical with the one presented in the action in
question,
(2) the prior action has been finally adjudicated on the merits,
(3) the party against whom the doctrine is invoked was a party or in privity with a
party to the prior adjudication, and
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(4) the party against whom the doctrine is raised had a full and fair opportunity to
litigate the issue in the prior action.
Stan Lee Media, Inc. v. Walt Disney Co., 774 F.3d 1292, 1297 (10th Cir. 2014) (quotation
cleaned up). Plaintiff can’t carry its burden on the first or second element.
a. 	Identical Issue
It’s not at all clear that the same issue—whether Ocwen improperly applied Mr. Stuber’s
mortgage payments to the escrow account—was at play in the bankruptcy proceedings. In those
proceedings, Mr. Stuber filed a motion asking the court to issue an order “determining the
current balance owed on” his mortgage and “requiring that all amounts paid by the Chapter 13
Trustee” to plaintiff’s predecessor “be properly applied[.]” In re Stuber, No. 13-41255-13 JMK
(D. Kan. Bankr. Nov. 28, 2016), Doc. 104 at 1.8 His motion also complained that Ocwen had
“purchased ‘force-placed’ insurance” on the condominium. Id. at 4. But it didn’t say anything
about Ocwen improperly applying payments to an escrow account. See generally id. Instead, it
asserted that “the payoff information provided does not reflect payments in the amount of
$15,024.70 that were made through the plan by Chapter 13 Trustee’s Office in this case prior to
June 3, 2016.” Id. at 2. And the earlier motion also asserted that the trustee had made additional
payments after August 8, 2016, totaling $21,242.29. Id. Neither of these figures (nor the
difference between them) matches the $7,446 (i.e., two payments of $3,723) Mr. Stuber now
asserts Ocwen improperly placed in the escrow account.
With zero explanation, plaintiff asserts that “the issue [here] is identical—whether
payments on Stuber’s mortgage during the bankruptcy were properly applied.” Doc. 58 at 4. To
be sure, the bankruptcy court order resolving this motion used sweeping language. It explained
8 	The court can take judicial notice of documents filed in the bankruptcy proceeding. See Bruce v.
City and County of Denver, 57 F.4th 738, 741 n.3 (10th Cir. 2023) (“[A] federal court may take judicial
notice of another court’s publicly filed records if they have a direct relation to matters at issue.”).
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that “[a]ll amounts paid by the Chapter 13 Trustee to [plaintiff] have been properly applied to the
balance owed by” Mr. Stuber. In re Stuber, No. 13-41255-13 JMK (D. Kan. Bankr. Feb. 1,
2017), Doc. 112 at 1–2. But it’s not clear that the ostensibly improper sorting of funds was at
issue before the bankruptcy court. That is, while Mr. Stuber’s bankruptcy motion accused
Ocwen of improperly charging him for insurance, it never alleged that Ocwen wrongly applied
his mortgage payment to the escrow balance.9 Also, Mr. Stuber’s motion in the bankruptcy
proceeding never mentioned the word “escrow” or asserted that plaintiff had applied payments to
the escrow account improperly. If this sorting wasn’t litigated in the bankruptcy proceeding,
then the issue Mr. Stuber now raises wasn’t “identical” to the one in play there. Stan Lee Media,
774 F.3d at 1297. Nor was it “actually and necessarily decided” as issue preclusion requires.
Turney v. O’Toole, 898 F.2d 1470, 1472 n.1 (10th Cir. 1990).
The court acknowledges that it’s not entirely clear whether the bankruptcy court decided
the exact same issue as Mr. Stuber raises here. But that’s an issue on which plaintiff bears the
burden. And in “determining the availability of issue preclusion” on a motion for summary
judgment, the court “must view the evidence and all reasonable inferences favorably” to Mr.
Stuber. Truman v. Johnson, 60 F.4th 1267, 1272 (10th Cir. 2023). Doing so, the court
concludes that plaintiff hasn’t shouldered its burden to demonstrate that the bankruptcy court
9 	Mr. Stuber’s motion in the bankruptcy court asserted that Ocwen improperly charged him $3,723
for insurance—the same value that Mr. Stuber alleges Ocwen twice placed in the escrow account. In re
Stuber, No. 13-41255-13 JMK (D. Kan. Bankr. Nov. 28, 2016), Doc. 108 at 4. The bankruptcy order
apparently resolved this insurance-charge issue, noting that “Ocwen has removed all forced-placed
insurance fees from the balance owed by the debtor.” Doc. 55-3 at 3. But Mr. Stuber now contends that
“Ocwen had taken monies paid by Stuber as regular monthly payments, combined those payments to
equal the total of $7,446 and moved them to the escrow account.” Doc. 55 at 3. So, even if the
bankruptcy court order resolved outstanding insurance charges Ocwen had attempted to recover from Mr.
Stuber, it’s not clear that it addressed the issue Mr. Stuber now asserts—that Ocwen improperly moved
money to the escrow account to pay for those charges.
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decided whether plaintiff improperly applied Mr. Stuber’s payments to the escrow account.
Issue preclusion thus doesn’t prevent Mr. Stuber from raising his argument now.
The court would reach this same result for a second reason, as part b., following,
explains.
b. 	Fully Adjudicated
The second problems with plaintiff’s issue preclusion argument is that the bankruptcy
court didn’t actually decide the issue. Instead, the parties reached an agreement resolving Mr.
Stuber’s motion. See Doc. 55-3 at 2 (entering order based in part on “agreement of the parties”).
In fact, the bankruptcy court had set a trial to determine the merits of Mr. Stuber’s motion. See
In re Stuber, No. 13-41255-13 JMK (D. Kan. Bankr. Nov. 17, 2016), Doc. 101 at 1. But that
trial never happened—presumably because of the “agreement of the parties” referenced in the
bankruptcy court’s order. See Doc. 55-3 at 3. So, the court concludes, the bankruptcy court’s
order reflected the parties’ agreement, not an independent judicial determination. That’s a
problem for plaintiff.10
Issue preclusion doesn’t apply when a court enters an order based on the parties’
stipulation. “Generally speaking, when a particular fact is established not by judicial resolution
but by stipulation of the parties, that fact has not been ‘actually litigated’ and thus is not a proper
candidate for issue preclusion.” United States v. Botefuhr, 309 F.3d 1263, 1282 (10th Cir. 2002)
10 	The bankruptcy court’s order suggests that it made this ruling based on “the Motions, agreement
of the parties, and the record herein[.]” Doc. 55-3 at 2. But the bankruptcy court’s docket is bare beyond
that notation, containing virtually no records from which the court could find that Ocwen had applied Mr.
Stuber’s payments properly. To the contrary, the entirety of the record—as reflected on the bankruptcy
court’s docket—is Mr. Stuber’s motion with attachments and a two-page response where Ocwen denied
Mr. Stuber’s allegations without any evidentiary support. See In re Stuber, No. 13-41255-13 JMK (D.
Kan. Bankr.), Doc. 91, Doc. 95, Doc. 104. The court thus concludes that the bankruptcy court entered its
order largely based on an agreement between the parties. In any event, viewing the facts in the light most
favorable to Mr. Stuber, ample evidence supports the court’s conclusion here that the bankruptcy court
entered its order based on “agreement of the parties[.]” Doc. 55-3 at 2.
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(quotation cleaned up); see also 18A Wright & Miller’s Federal Practice & Procedure § 4443
(3d. ed. 2025) (explaining that “issue preclusion ordinarily does not attach” to parties’ stipulation
of issues “unless it is clearly shown that the parties intended that the issue be foreclosed in other
litigation”); cf. Arizona v. California, 530 U.S. 392, 414 (2000) (“In most circumstances, it is
recognized that consent agreements ordinarily are intended to preclude any further litigation on
the claim presented but are not intended to preclude further litigation on any of the issues
presented. Thus consent judgments ordinarily support claim preclusion but not issue
preclusion.” (quotation cleaned up)). In sum, the court concludes that plaintiff hasn’t established
that the bankruptcy court “finally adjudicated” the improper-payments issue “on the merits[.]”
Stan Lee Media, 774 F.3d at 1297. On this record, the court won’t grant summary judgment
based on issue preclusion.
3. 	Conclusion
Mr. Stuber has adduced sufficient evidence for a rational trier of fact to conclude that
Ocwen improperly placed his mortgage payments in the escrow account. And a factfinder
reasonably could infer that this improper sorting of payments caused Mr. Stuber to breach his
contractual agreements. It could find that plaintiff’s predecessor wouldn’t accept further
payments until Mr. Stuber became current on his account, but Mr. Stuber couldn’t get current on
his account because plaintiff had locked thousands of his dollars in the escrow account instead of
applying it to the loan’s balance. Kansas law doesn’t permit a party to a contract to induce a
breach and then sue for that breach. Plaintiff doesn’t deserve summary judgment against Mr.
Stuber.
B. 	Service Issue – Remaining Defendants
Plaintiff also has moved for summary judgment against two additional defendants’
interest in Mr. Stuber’s condominium. Doc. 53 at 7–8. These defendants are Chisholm Creek
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Condominium Homeowners Association and Ester Kay Manns. Id. The court denies this
request because, it concludes, plaintiff hasn’t served these defendants properly. See Spiess v.
Meyers, 483 F. Supp. 2d 1082, 1096 (D. Kan. 2007) (denying “summary judgment on the ground
of insufficient service of process”).
Plaintiff contends it served these defendants by publication. Doc. 53 at 7–8; Doc. 10;
Doc. 13. And indeed, Kansas law permits in-state service by publication for foreclosure of a
lien—but only in limited circumstances. Kan. Stat. Ann. § 60-307.11 The Kansas statute
specifies service in a foreclosure action “may be made by publication . . . if the party with due
diligence is unable to serve summons in this state[.]” Id. § 60-307(a)(3) (emphasis added).
Plaintiff’s filing says that plaintiff was “unable to attempt personal service of summons on the
following defendants: Chisholm Creek Condominium Homeowners Association, Esther Kay
Manns.” Doc. 10 at 4. But plaintiff never explains why it was “unable to attempt personal
service[.]” Id. On this record, the court can’t conclude that plaintiff exercised due diligence
trying to serve these absent defendants. Cf. Unified Gov’t of Wyandotte Cnty./Kansas City v.
Adauto, 559 P.3d 354, 2024 WL 4901009, at *4 (Kan. Ct. App. 2024) (finding due diligence
satisfied where plaintiff “unsuccessfully attempted to personally serve [defendant] several
times”).
Because plaintiff hasn’t demonstrated that it has served these defendants properly, the
court directs plaintiff within 30 days of this Order either to: (1) submit a filing documenting the
due diligence plaintiff performed trying to serve these absent defendants; or (2) serve these
11 	Because the Federal Rules otherwise don’t authorize service by publication, the court consults
Kansas service law to determine whether plaintiff served these defendants properly. See Fed. R. Civ. P.
4(e)(1) (authorizing service on individuals that complies with state law), 4(h)(1)(A) (authorizing service
on an association “in the manner prescribed by Rule 4(e)(1) for serving an individual”).
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defendants and submit proof of that service. Should plaintiff fail to submit such a filing, the
court will dismiss these defendants without prejudice. See Fed. R. Civ. P. 4(m).
The court thus denies plaintiff’s Motion for Summary Judgment (Doc. 52) in its entirety.
IV. 	Motion for Reconsideration (Doc. 50)
Also before the court is Mr. Stuber’s Motion for Reconsideration (Doc. 50). Mr. Stuber
asks the court to reconsider a prior Order dismissing his Counterclaim. Mr. Stuber’s motion fails
procedurally and substantively. So the court denies it. The court explains, starting with the legal
standard that governs motions for reconsideration.
A. 	Legal Standard
“A motion to reconsider must be based on: (1) an intervening change in controlling law;
(2) the availability of new evidence; or (3) the need to correct clear error or prevent manifest
injustice.” D. Kan. Rule 7.3. That is, “a motion for reconsideration is appropriate where the
court has misapprehended the facts, a party’s position, or the controlling law.” Servants of
Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). But it “is not appropriate to revisit
issues already addressed or advance arguments that could have been raised in prior briefing.” Id.
A district court has discretion when deciding whether to grant or deny a motion to reconsider.
Hancock v. City of Oklahoma City, 857 F.2d 1394, 1395 (10th Cir. 1988).
B. 	Procedure
Mr. Stuber’s motion is untimely. He cites both Rule 54(b) and Rule 60(b). Doc. 50 at 1–
2. But he can’t rely on Rule 60(b) because the court hasn’t entered a final, appealable judgment.
See King v. IC Group, Inc., 743 F. Supp. 3d 1346, 1351 (D. Utah 2024) (explaining that “Rule
60(b) is an inappropriate avenue” to seek reconsideration of an order that “did not resolve all
outstanding issues and is not yet appealable”); see also Fed. R. Civ. P. 60(b) advisory
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committee’s note to 1946 amendment (“The addition of the qualifying word ‘final’ emphasizes
the character of the judgments, orders or proceedings from which Rule 60(b) affords relief[.]”).
Without Rule 60(b), Mr. Stuber is left with Rule 54(b), which authorizes a court to revise
“any order or other decision . . . that adjudicates fewer than all of the claims” in an action. Fed.
R. Civ. P. 54(b). Our court’s local rules require parties seeking reconsideration under Rule 54(b)
to file such a motion “within 14 days after the order is served unless the court extends the time.”
D. Kan. Rule 7.3. Mr. Stuber’s motion—filed more than four months after the order he asks the
court to reconsider—doesn’t meet this deadline. The court thus denies his motion on this basis.
But even if Mr. Stuber had filed his motion timely, the court still would deny it on
substantive grounds.
C. 	Substance
Mr. Stuber’s argument also fails on the merits. Mr. Stuber hasn’t even approached the
lofty standard required for reconsideration.
The crux of Mr. Stuber’s position is that the court improperly concluded that the statute
of limitations for his Counterclaim—one asserted under the Kansas Consumer Protection Act
(KCPA)—was three years. Doc. 50 at 3. As he explains it, his Counterclaim “is not a stand-
alone KCPA claim, but rather a breach of contract claim invoking the KCPA only for the
purpose of obtaining relief.” Id. Thus, Mr. Stuber asserts, Kansas’s five-year statute of
limitations for written contracts—not the KCPA’s three-year statute of limitations—governs his
Counterclaim. The problem with this theory is that Mr. Stuber’s Counterclaim simply and
plainly alleged a violation of the Kansas Consumer Protection Act, repeatedly alleging
“deceptive and unconscionable” acts or practices. Doc. 21 at 9–12 (Counterclaim ¶¶ 13–18);
Kan. Stat. Ann. § 50-626(a) (“No supplier shall engage in any deceptive act or practice[.]”). It
never alleged a breach-of-contract claim. See generally id. In fact, the only time the word
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“breach” appears in Mr. Stuber’s pleading is in the “Affirmative Defenses” section of the filing.
Id. at 3. And Kansas law is clear that a three-year statute of limitations governs KCPA claims.
Alexander v. Certified Master Builders Corp., 1 P.3d 899, 908 (Kan. 2000) (“[W]e conclude that
actions under K.S.A. 50-634(b) seeking damages and civil penalties are subject to the 3-year
statute of limitations found in K.S.A. 60-512(2).”).
Mr. Stuber thus has failed to demonstrate that the court’s prior Order was clearly
erroneous or otherwise caused manifest injustice. See D. Kan. Rule 7.3. He isn’t entitled to the
relief he seeks, and the court denies his Motion for Reconsideration (Doc. 50).
V. 	Conclusion
Mr. Stuber has presented a triable issue whether plaintiff’s predecessor induced his
breach by improperly applying his mortgage payments to the escrow account. Plaintiff thus
doesn’t deserve summary judgment on this record, and the court denies its Motion for Summary
Judgment (Doc. 52). The court likewise denies Mr. Stuber’s Motion for Reconsideration (Doc.
50) because it’s untimely and fails on its merits.
IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff PHH Mortgage
Corporation’s Motion for Summary Judgment (Doc. 52) is denied.
IT IS FURTHER ORDERED THAT defendant Joseph Scott Stuber’s Motion for
Reconsideration (Doc. 50) is denied.
IT IS FURTHER ORDERED THAT plaintiff must—within 30 days of this Order—
either: (1) submit a filing documenting the due diligence plaintiff performed in attempting to
serve defendants Chisholm Creek Condominium Homeowners Association and Ester Kay
Manns; or (2) serve these defendants and submit evidence of that service.
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IT IS SO ORDERED.
Dated this 16th day of December, 2025, at Kansas City, Kansas.
s/ Daniel D. Crabtree______
Daniel D. Crabtree
United States District Judge
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