T.S. ELLIS, III, District Judge.
This dispute between a borrower and several mortgage lenders is yet another case in the flood of litigation spawned by the collapse of the housing market. At issue here on summary judgment is whether any of the remaining lenders is a "debt collector" under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. ("FDCPA"). Also at issue is whether the borrower's claims pursuant to the Truth in Lending Act, 15 U.S.C. §§ 1601 et seq. ("TILA"), are time-barred or otherwise fail as a matter of law. For the reasons that follow:
Over its long history, this action has involved only a single plaintiff but a large number of defendants. Plaintiff Norman Bradford ("Bradford") is a Virginia resident living at 43543 Barley Court in Ashburn, Virginia (the "Ashburn loan"). Six corporate defendants and one individual defendant have been parties to this action at some point, namely, (i) HSBC, (ii) Ally, (iii) RFC, (iv) Professional Foreclosure Corporation of Virginia ("PFCVA"), (v) Home Advantage Funding Group ("Home Advantage"), (vi) Mortgage Electronic Registration Systems ("MERS"), and (vii)
Of the seven defendants that have at one point been named as parties in this action, only three now remain, namely, HSBC, Ally, and RFC. PFCVA was originally a defendant on Bradford's initial Verified Complaint, but Bradford's claims against PFCVA were voluntarily dismissed on January 26, 2011. See Bradford v. HSBC Mortg. Corp., No. 1:09cv1226 (E.D.Va. Jan. 26, 2011) (Consent Order). Mirza has not been served nor has he entered an appearance in this case. Home Advantage was served, but because it did not file a responsive pleading, default was entered against it. See Bradford v. HSBC Mortg. Corp., No. 1:09cv1226 (E.D.Va. Sept. 21, 2010) (Entry of Default); Rule 55(a), Fed. R.Civ.P. (authorizing the clerk to enter default against any party that fails to plead or otherwise to defend a claim). By Order dated July 22, 2011, MERS was dismissed as a party. See Bradford v. HSBC Mortg. Corp., 799 F.Supp.2d 625 (E.D.Va.2011) (Order). The remaining defendants are HSBC, Ally, and RFC; Bradford continues to be the sole plaintiff.
With one exception, see Subpart I.C, the undisputed facts can be briefly summarized.
Bradford ceased making payments on the Note in October 2008 and has made no payments since then. Although foreclosure efforts commenced at various times, defendants voluntarily discontinued all such efforts — ostensibly because of the instant litigation. Thus, Bradford, who has made no payments on the Note since October 2008, has been living in the Ashburn home for over three years without having made a single payment during that time.
On May 4, 2009, the law firm Shapiro & Burson, LLP ("S & B") sent a letter to Bradford on PFCVA's behalf. The letter stated that the Note was in default, raised the possibility of foreclosure on the Ashburn home, and also mentioned several options available to Bradford to avoid foreclosure. This letter did not disclose the identity of the Note's owner. Bradford responded to S & B's letter on June 2, 2009 and therein disputed whether the Note was in default and requested various documents, including the Note itself. On June 30, 2009, S & B sent a letter to Bradford that enclosed the payment history of the Ashburn loan and a copy of the original Note, which bore an endorsement to Ally. The letter also notified Bradford that the foreclosure sale that had been scheduled for July 7, 2009 was cancelled per the lender's instructions. S & B sent another letter to Bradford on October 6, 2009, that appears to be identical to the original May 4 letter in all but one respect, namely the October 6 letter identified HSBC as "the creditor."
Resolution of the pending summary-judgment motions requires determining whether a genuine issue of material fact exists as to the chain of ownership of the Note. The parties agree that HSBC was the holder and the original obligee of the Note at the time the Note was executed in September 2006. The parties also agree that RFC currently owns the Note. What the parties dispute is the chain of the Note's ownership. Bradford contends that the ownership chain proceeded quite simply as follows: HSBC sold the loan directly to RFC in November 2006.
The record evidence establishes that, as a matter of undisputed material fact, defendants' account is correct. The Note includes a notarized endorsement from "HSBC Mortgage Corporation (USA)" to "GMAC Bank" (now known as Ally Bank).
Bradford's effort to dispute this substantial evidence fails to create a genuine issue of material fact as to the ownership chain of the Note. First, Bradford points to the MERS report indicating that a transfer of "flow servicing rights" and "beneficial rights" to RFC took place in November 2006 (Doc. 176-2 at 22). But "beneficial rights" clearly refers to the right to enforce the Deed of Trust, not the Note.
Finally, the statement that an HSBC representative named "Susan" made to Bradford over the telephone
To summarize, for purposes of deciding defendants' motions for summary judgment, the undisputed material facts establish both that HSBC sold the Note to Ally in November 2006, and that Ally sold the same loan to RFC in December 2009.
The July 22, 2011, 799 F.Supp.2d 625 Memorandum Opinion described the procedural history up to that date.
Now at issue are defendants' motions for summary judgment on Bradford's FDCPA claims and defendants' motions to dismiss Bradford's two new TILA claims.
Summary judgment is appropriate where, on the basis of undisputed material facts, the moving party is entitled to judgment as a matter of law. Rule 56(a), Fed.R.Civ.P. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The question on summary judgment is "whether a reasonable jury could find in favor of the non-moving party, taking all inferences to be drawn from the underlying facts in the light most favorable to the non-movant[.]" In re Apex Express, 190 F.3d 624, 633 (4th Cir. 1999). Importantly, to defeat summary judgment the non-moving party may not rest upon a "mere scintilla" of evidence, but must set forth specific facts showing a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548; accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Thus, the party with the burden of proof on an issue cannot prevail at summary judgment on that issue unless that party adduces evidence that would be sufficient, if believed, to carry the burden of proof on that issue at trial. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548.
To survive summary judgment on his FDCPA claim, Bradford must adduce legally admissible evidence that (i) he was a "consumer" targeted for debt-collection activity, (ii) each defendant engaged in the collection activity as a "debt collector," and (iii) each defendant engaged in an act or
Bradford has failed to make any evidentiary showing that HSBC, Ally, or RFC meets the definition of "debt collector" that 15 U.S.C. § 1692a(6) puts forth. The FDCPA "generally appl[ies] only to debt collectors." Scott v. Wells Fargo Home Mortg., 326 F.Supp.2d 709, 717 (E.D.Va.2003). The statute defines a "debt collector" as:
15 U.S.C. § 1692a(6). Bradford's complaint alleges that because these "[d]efendants regularly engage in the collection of debts in the ordinary course of their business," they are rightly considered debt collectors. 4th Verif. Amend. Compl. ¶ 84. Despite this allegation, the summary-judgment record discloses no evidence that any of these defendants "regularly collects or attempts to collect ... debts owed or due... another." 15 U.S.C. § 1692a(6). Bare allegations of the complaint or of counsel in briefs and argument do not raise a genuine issue of material fact as to whether any of these defendants is a "debt collector." See Rountree v. Fairfax Cnty. Sch. Bd., 933 F.2d 219, 223 (4th Cir.1991); Skeeter v. City of Norfolk, 681 F.Supp. 1149, 1153-54 (E.D.Va.1987). For the purpose of deciding the summary-judgment motions, none of the defendants falls within the definition of "debt collector" that § 1692a(6) provides.
Moreover, Ally is not a "debt collector" because it falls within the so-called creditor exemption of the FDCPA, under which the statutory definition of "debt collector" generally excludes creditors. See 15 U.S.C. §§ 1692a(6)(A) & (F). The FDCPA defines a "creditor" as "any person who offers or extends credit creating a debt or to whom a debt is owed." 15 U.S.C. § 1692a(4). Because Ally has only ever been a person "to whom a debt is owed" with respect to the Note, it follows that absent one of several narrow exceptions inapplicable here, Ally cannot be a debt collector with respect to the Note. See FTC v. Check Investors, 502 F.3d 159, 173 (3d Cir.2007) ("[A]s to a specific debt, one cannot be both a `creditor' and a `debt collector,' as defined in the FDCPA, because those terms are mutually exclusive.").
Whether either HSBC or RFC is a "debt collector" under the FDCPA deserves closer scrutiny. Bradford argues that because HSBC and RFC each falls into a different exception to the creditor exclusion, each of these defendants can still be considered a "debt collector" under the FDCPA even if neither satisfies § 1692a(6)'s definition of "debt collector." With respect to HSBC, Bradford contends that HSBC should nonetheless be considered a "debt collector" inasmuch as HSBC falls under the "false name" exception to the creditor exclusion.
HSBC plainly falls outside the false name exception. Although the fact that HSBC was the original obligor of the Note would otherwise exempt HSBC from the definition of "debt collector," the FDCPA provides that the term "debt collector" "includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts." 15 U.S.C. § 1692a(6). By enacting this provision, Congress intended to forbid the practice of "flat-rating," wherein a creditor "attempt[s] to intimidate debtors by creating the false impression that a third party is participating in the debt-collection process." Chiang v. Verizon New England, 595 F.3d 26, 41-42 (1st Cir.2010). This exception does not apply, however, where "the third party is participating in the debt collection, for then there is no deception." White v. Goodman, 200 F.3d 1016, 1017 (7th Cir.2000).
With respect to RFC, it is unnecessary to reach or decide whether it falls into any exception to the creditor exclusion because the undisputed material facts demonstrate that RFC engaged in no activity that could have violated the FDCPA.
Although Bradford's original TILA rescission claim was dismissed, the Fourth Verified Amended Complaint contains two
With respect to Bradford's § 1641(f)(2) claim — asserted only against HSBC — HSBC contends that the claim is untimely.
The record evidence establishes that on November 21, 2008, HSBC sent a response to Bradford's September 23, 2008 request for the contact information of the Note's owner and that this response did not contain such information.
Neither position is persuasive; there is no statutory warrant for importing either time period into § 1641(f)(2).
In this case, HSBC's inadequate response was sent approximately sixty days after Bradford had sent his request. By no means can this period of time be said, as a matter of law, to be unreasonable. Thus, because Bradford filed his action within one year of November 23, 2008 — the date on which HSBC sent its inadequate response — HSBC's argument fails, and Bradford's § 1641(f)(2) claim survives this bar.
Bradford also claims that Ally and RFC each violated § 1641(g), which provides that if a "mortgage loan is sold or otherwise transferred or assigned to a third party, the creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such transfer" within thirty days. Ally argues that because § 1641(g) was not in effect when it received ownership of the Note in November 2006, it cannot be held liable under TILA for failing to notify Bradford of the transfer. Section 1641(g) applies only to transfers prior to the May 20, 2009 effective date of the amendments to TILA that added it. See Angelini v. Bank of Am., No. Civ. 11-3011, 2011 WL 2433485, at *5 (D.Or. Apr. 27, 2011). As previously noted (see Subpart I.C), the undisputed material facts demonstrate that HSBC transferred the Note to Ally in November 2006, well before the May 2009 effective date of § 1641(g). Nothing in TILA indicates that this provision should be applied retroactively, and retroactive application of the provision to Ally's receipt of the Note would undoubtedly and impermissibly "attach[] new legal consequences to events completed before its enactment." Landgraf v. USI Film Prods., 511 U.S. 244, 269-70, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994). Thus, to give effect to the well-established presumption against retroactivity here compels the conclusion that Ally's failure to give Bradford notice that it had acquired the Note is not actionable under § 1641(g), which had no legally operative effect at the time of Ally's receipt of the Note. Ally is therefore entitled to summary judgment on the § 1641(g) claim.
RFC, which acquired the Note after § 1641(g)'s effective date,
An appropriate Order will issue.
Va.Code § 8.3A-203 cmt. 1. See also Lord, supra, § 60:27.
As a matter of logic and statutory structure, acquiring a debt that was in default at the time simply makes a defendant ineligible for this particular exclusion from the definition of "debt collector;" it does not follow from this ineligibility that the defendant satisfies the definition of "debt collector" that § 1692a(6) puts forth or cannot be considered a "creditor" pursuant to § 1692a(4). By logical operation of the FDCPA's plain language, only if a defendant receives a defaulted debt for the purpose of collecting that debt for someone else is that defendant not a creditor and therefore necessarily considered a "debt collector." See McKinney v. Cadleway Properties, 548 F.3d 496, 505-06 (7th Cir.2008) (Manion, J., concurring). Puzzlingly, the majority of courts that have addressed the issue have held that a defendant who acquires a debt that was in default at the time of transfer is necessarily a debt collector, rather than simply ineligible for this particular exclusion from the "debt collector" definition, even if it attempts to collect on the defaulted debt for itself alone. Zirogiannis v. Dreambuilder Investments, 782 F.Supp.2d 14, 19-20 (E.D.N.Y.2011) (citing cases). In any event, the issue need not be decided here because the record discloses no evidence that RFC acted in contravention of the FDCPA.