WILLIAM H. STEELE, District Judge.
This matter is before the Court on the motion of the three remaining defendants ("the defendants") for summary judgment. (Doc. 107). The parties have submitted briefs
According to the second amended complaint, (Doc. 77), the plaintiff financed the purchase of her home with a loan from Wilmington Finance ("Wilmington"), executing a promissory note in favor of Wilmington and a mortgage with Mortgage Electronic Registration Systems, Inc. ("MERS") as nominee for Wilmington. The loan was sold to U.S. Bank N.A., ("U.S. Bank"), although the plaintiff disputes the validity of the transfer. MERS transferred the mortgage to GMAC but lacked authority to do so. MERS and GMAC then assigned the mortgage and note to U.S. Bank as trustee but lacked authority to do so. (Id. at 3).
Since 2010, there have been four servicers of the loan. In chronological order, they are: Green Tree Servicing, Inc. ("Green Tree"); Select Portfolio Servicing, Inc. ("Select"); Selene Finance, LP ("Selene"); and DLJ Mortgage Capital, Inc. ("DLJ"). The only remaining defendants in this action are Select, Selene and DLJ ("the defendants").
In November 2014, Selene, DLJ and U.S. Bank began foreclosure proceedings. They did so even though the plaintiff was not in default and even though the defendants had failed to accept the plaintiff's payments, had returned her payments, had accepted payments without properly crediting them to her account, had improperly assessed fees and expenses to the account, and had failed to respond to her written request for information and explanation. Moreover, the defendants initiated foreclosure proceedings even though the assignment of the note and mortgage was defective, void or otherwise unenforceable and even though the foreclosing entity lacked standing or authority to initiate such proceedings. The plaintiff's credit and reputation were damaged by the defendants' publication of information regarding the foreclosure and the plaintiff's alleged default as well as by their reporting false information regarding her alleged default to national credit bureaus. The plaintiff claims economic damages, reputational damages and mental anguish as a result of the defendants' actions. (Doc. 77 at 4-9).
The second amended complaint includes eleven causes of action, each one asserted against all three defendants:
(Doc. 77 at 9-31).
Summary judgment should be granted only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11
"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence . . . that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11
"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.
"If, however, the movant carries the initial summary judgment burden . . ., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion . . . .").
In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant . . . ." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11
There is no burden on the Court to identify unreferenced evidence supporting a party's position.
Counts One and Two allege that the defendants negligently or wantonly: (1) serviced the plaintiff's loan; (2) attempted to collect sums she did not owe; (3) caused her property insurance to be canceled; (4) defaulted her; (5) attempted a foreclosure sale; (6) failed to ensure that information disseminated to third parties regarding the loan's payment history was not false and was maximally accurate; (7) failed to properly train their employees on how to investigate disputed accounts; (8) failed to properly train and/or supervise their employees and agents regarding the handling of her account; and (9) failed to remove adverse reporting from her credit after she disputed it. (Doc. 77 at 9-11). The defendants argue that all aspects of these claims are claims for negligent or wanton mortgage servicing, which cause of action Alabama does not recognize. (Doc. 108 at 4-6).
As this Court has noted, "[r]ecent federal precedent interpreting Alabama law has uniformly found that no cause of action for negligent or wanton servicing of a mortgage account exists under Alabama law, at least in the absence of personal injury or property damage . . . ." Selman v. CitiMortgage, Inc., 2013 WL 838193 at *5 (S.D. Ala. 2013). Moreover, "[t]he Court agrees with these decisions' construction of Alabama law, and particularly their emphasis that the mortgage servicing obligations at issue here are a creature of contract, not of tort, and stem from the underlying mortgage and promissory note executed by the parties, rather than a duty of reasonable care generally owed to the public." Id. at *6. Therefore, such claims "fail as a matter of law." Id. at *5; accord James v. Nationstar Mortgage, LLC, 92 F.Supp.3d 1190, 1198-99 (S.D. Ala. 2015); Quinn v. Deutsche Bank National Trust Co., 2014 WL 977632 at *6-7 (S.D. Ala. 2014). All three of these cases involved negligent servicing claims brought against a servicer.
The plaintiff does not ask the Court to reconsider its ruling, but the defendants request the Court to extend it to all nine aspects of the negligence and wantonness claims. They note the plaintiff's "admission" in her deposition that "all of the alleged actions or inactions of the defendants in [Counts One and Two] pertain to the servicing of [her] mortgage loan." (Doc. 108 at 5). Whether conduct of a servicer falls within the prohibition on claims of negligent or wanton loan servicing, however, is a legal question that must be answered by legal authority and legal reasoning, not by a lay plaintiff's casual description of her claim.
The defendants also cite Gregory v. Select Portfolio Servicing, Inc., 2016 WL 4540891 (N.D. Ala. 2016). (Doc. 108 at 3 n.2). The plaintiff in Gregory made exactly the same allegations of negligence and wantonness as does the plaintiff herein. Id. at *10. The Gregory Court ruled that the first five of these allegations fell within the prohibition on claims of negligent or wanton loan servicing. It also ruled that the sixth and ninth allegations were preempted by FCRA and that the seventh and eighth allegations failed because the plaintiff could not establish all the elements of a claim for negligent employment. Id. at *10-11.
The Court agrees with the Gregory Court as to the first five of the plaintiff's allegations. Negligent servicing, negligent collection, negligent insurance cancellation, negligent default and negligent foreclosure all address the defendants' performance of their servicing obligations. The Court likewise considers the sixth and ninth allegations (negligent dissemination of inaccurate information and negligent failure to remove adverse reporting disputed by the plaintiff) to implicate the defendants' servicing obligations. E.g., Jackson v. Bank of New York Mellon, 2016 WL 4942085 at *4 (S.D. Ala. 2016).
The seventh and eighth allegations (negligent training and supervision) fall in a different category. While they appear also to implicate the defendants' servicing obligations, they are dressed in the language of a separately recognized family of torts, and it is not immediately apparent that the Alabama courts would not analyze them in the latter context. Even under that analysis, however, the plaintiff's claim would fail. Such a claim requires that "the employee committed a tort recognized under Alabama law . . . ." Selman, 2013 WL 838193 at *6; accord Gregory, 2016 WL 4540891 at *11. The only perceivable underlying tort an employee of the defendants could have committed with respect to investigating disputed accounts and handling the plaintiff's account is negligent or wanton loan servicing which, as noted above, is not a recognized tort under Alabama law. Id.; accord Costline v. BAC Home Loans, 946 F.Supp.2d 1224, 1235 (N.D. Ala. 2013); Collins v. BSI Financial Services, 2016 WL 6776284 at *10 (M.D. Ala. 2016); Bennett v. Nationstar Mortgage, LLC, 2015 WL 5294321 at *7 (S.D. Ala. 2015).
The plaintiff in her response does not address or contest any of the foregoing. Instead, she argues that these counts are based on a duty not to mislead her by providing inaccurate information about the status of her loan. (Doc. 116 at 52-53). The second amended complaint's allegations of negligence and wantonness have been set forth above, and they do not include any allegation of misrepresentations to, or the provision of erroneous information to, the plaintiff. (Doc. 77 at 9-11). Because the plaintiff cannot amend her complaint by brief,
For the reasons set forth above, the defendants' motion for summary judgment as to Counts One and Two is due to be granted.
Count Three alleges that the plaintiff "has been forced to pay charges" that were improper and that the defendants have been unjustly enriched "by the payment of unauthorized and unearned" fees and other charges. (Doc. 77 at 12).
The parties agree that, in order to prevail at trial on this claim, the plaintiff must prove that the defendants "hold" funds that should be returned to her. (Doc. 108 at 7; Doc. 116 at 54). See, e.g., Mantiply v. Mantiply, 951 So.2d 638, 654 (Ala. 2006) ("In order for a plaintiff to prevail on a claim of unjust enrichment, the plaintiff must show that the defendant holds money which, in equity and good conscience, belongs to the plaintiff or holds money which was improperly paid to defendant because of mistake or fraud.") (emphasis added, internal quotes omitted).
As the defendants point out, (Doc. 108 at 16), the plaintiff admits that the fees and charges on which Count Three is based have been charged to her account but have never been paid by her, voluntarily or otherwise, and the defendants consequently do not hold any of her money. (Doc. 107-1 at 31-33). The plaintiff offers no relevant response. (Doc. 116 at 53-55). Accordingly the defendants' motion for summary judgment as to Count Three is due to be granted.
Count Four alleges that the defendants misapplied the plaintiff's monthly payments in violation of paragraph 2 of the mortgage and failed to send proper notices in violation of paragraph 22 of the mortgage. Pursuant to paragraph 22, the plaintiff disputes the existence of a default on her mortgage indebtedness. (Doc. 77 at 13-16).
The defendants do not address this claim as it relates to violations of paragraphs 2 and 22 of the mortgage. (Doc. 108 at 7-9). To that extent, the claim necessarily survives the defendants' motion.
With respect to breach of the modification agreement, the defendants argue: (1) the plaintiff has no evidence they breached the contract; (2) it is uncontroverted the plaintiff is in breach; and (3) the plaintiff admits she has no actionable damages. (Doc. 108 at 3-4, 7-8).
The first two arguments are intertwined. Looking only at the evidence submitted by the defendants,
Based on this evidence, the plaintiff's loan was current as of May 2012, and her monthly payment going forward was $806. The plaintiff timely made her next monthly payment of $806 in June 2012, but Green Tree improperly refused it and wrongly insisted the plaintiff's loan was not current but some $56,000 in arrears. The plaintiff attempted to straighten out the error and twice more attempted to make her monthly payment, but she was uniformly rebuffed by the defendants, who continued to insist she owed large amounts she did not owe.
It is an element of a claim for breach of contract that the plaintiff have performed her obligations under the contract. E.g., Winkleblack v. Murphy, 811 So.2d 521, 529 (Ala. 2001). The defendants argue the plaintiff cannot prove she performed her obligations because: (1) she admits her monthly payments after her loan modification were $1,331.22; (2) she has no documentary evidence that she ever attempted to make any $806 payments; and (3) she has no excuse for not continuing to remit monthly payments every month since June 2012. (Doc. 108 at 8).
As to the defendants' first contention, they have presented no evidence that the post-modification monthly payments were anything other than $806.
The foregoing discussion reflects that, according to the plaintiff's evidence, the defendants breached the loan modification agreement by refusing to accept her proper monthly payments and by demanding that she pay tens of thousands of dollars she did not owe. The evidence also reflects that the plaintiff did not breach the agreement but only stopped making payments when the defendants and Green Tree refused to accept her proper monthly payments and made clear they would continue to do so.
The defendants argue the plaintiff has no actionable damages from their breach of the modification agreement because she is still living in the property, the loan has not been foreclosed, she has made no (accepted) monthly payments in several years, and she has never paid the extra charges that show up on her statements. (Doc. 108 at 3-4). The defendants assume rather than demonstrate that these are the only elements of damage the plaintiff could recover under this claim. Perhaps they are right, but the Court is not required on motion for summary judgment either to accept their ipse dixit or to perform its own research on their behalf in order to determine what damages the plaintiff could or could not recover.
This leaves for consideration the plaintiff's claim that the defendants charged fees and costs not contemplated by the relevant agreements. The defendants argue the plaintiff: (1) cannot prove the total amount of the improper fees and costs; (2) cannot identify the provisions that make such fees and costs improper; and (3) has no actionable damages. (Doc. 108 at 3-4, 9).
As to the second contention, the defendants point to no record evidence that the plaintiff is unable to identify the relevant provisions.
For the reasons set forth above, the defendants' are not entitled to summary judgment as to Count Four.
Count Five alleges that the defendants made untrue statements to the national credit reporting media and to the plaintiff's homeowner insurance carrier that she was behind on her debt, which caused her to be held up to public ridicule or shame, to have negative credit reports, and to be denied homeowner's insurance. (Doc. 77 at 16-17).
The defendants argue that a "false light" claim of invasion of privacy requires widespread dissemination of the false report and, at least in the creditor context, a "systematic campaig[n] designed to vilify the debtor or expose him to public ridicule." Liberty Loan Corp. v. Mizell, 410 So.2d 45, 47-48 (Ala. 1982). (Doc. 108 at 10, 12-13). The plaintiff offers no response to the defendants' arguments and no defense of this claim at all.
"One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability" under certain circumstances. Butler v. Town of Argo, 871 So.2d 1, 12 (Ala. 2003) (internal quotes omitted). "`Giving publicity' is making a matter public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge.. . . The `publicity' element is not satisfied by the communication of a fact to a single person or even to a small group of persons." Regions Bank v. Plott, 897 So.2d 239, 245 (Ala. 2004) (internal quotes omitted) (defendant bank's return of two checks stamped "insufficient funds" to two presenting banks and two merchants did not constitute "publicity"). The tort extends only to a communication "that reaches, or is sure to reach, the public." Butler, 871 So. 2d at 13 (internal quotes omitted) (identifying, as examples of publicity, publication in a periodical, distribution of a handbill to a large number of persons, a radio broadcast, or an address made to a large audience).
The plaintiff alleges dissemination to only a handful of entities, and she makes no argument that this satisfies the publicity requirement of Alabama law. The Court is aware that a sister court has ruled that "reporting of inaccurate information to the national credit bureaus satisfies the `publicity' requirement [of a false light claim] . . . because of the near limitless individuals and/or entities which can and do access such information." Champion v. Global Credit Card Services, LLC, 2012 WL 3542225 at *6 (N.D. Ala. 2012). The Court is doubtful. In Plott, "many of the merchants referred the matter to credit bureaus and credit-reporting agencies." 897 So. 2d at 242. While it is not clear that the two merchants involved in the false light claim had done so, the Plott Court made no suggestion that such a circumstance would make any difference to the "publicity" element. Another federal court has ruled that reporting false information to credit reporting agencies does not constitute "publicity" under Alabama law. In re: BFW Liquidation, LLC, 471 B.R. 652, 664 (Bankr. N.D. Ala. 2012). Moreover, federal courts in Pennsylvania have ruled similarly regarding that state's false light cause of action.
Because the plaintiff cannot prove the "publicity" element of her false light claim, the defendants are entitled to summary judgment as to Count Five.
Count Six alleges the foreclosure notices published in the Washington County News defamed the plaintiff by stating or implying that she was in default and that the defendants were entitled to foreclose. Count Six also alleges the defendants defamed the plaintiff by falsely informing credit reporting agencies and/or other third parties that the plaintiff had defaulted, was in foreclosure, and/or by providing these entities other false information regarding her credit history and creditworthiness. (Doc. 77 at 18-21).
The defendants raise four arguments in opposition to this claim: (1) the plaintiff in her deposition blamed others for the defamation; (2) she identified no false statement by the defendants; (3) she provided no documentation of any written statement other than the newspaper publications; and (4) she failed to plead and prove special damages as required in cases of slander per quod. (Doc. 108 at 9, 10-11).
As to the first contention, the plaintiff did not exonerate the defendants. While she did testify that someone associated with the newspaper made oral statements to the effect the plaintiff must not pay her bills, (Doc. 107-1 at 51-54), she did not testify that only this person made false statements about her; indeed, she was not asked whether anyone else had made false statements about her.
For the reasons set forth above, the defendants are not entitled to summary judgment as to Count Six.
Count Seven alleges that the defendants violated TILA by: (1) failing to provide a copy of the statutorily required notices; (2) issuing a disclosure statement that did not provide required disclosures prior to consummation of the transaction, did not provide required disclosures clearly and conspicuously in writing, and did not include in the finance charge certain charges imposed (including attorney's fees and late fees); (3) understating the annual percentage rate; (4) improperly amortizing the loan; and (5) failing to send proper monthly statements. (Doc. 77 at 21-24).
The defendants argue the plaintiff's TILA claim fails because: (1) she failed to provide proof of what the alleged violations were; (2) she failed to provide proof of how she was damaged or of a causal link between the alleged violations and her damages; and (3) the claim is barred by the statute of limitations. (Doc. 108 at 13-14).
Suit under Sections 1639, 1639b or 1639c must be brought "before the end of the 3-year period beginning on the date of the occurrence of the violation." 15 U.S.C. § 1640(e). Suit under any other provision must be brought "within one year from the date of the occurrence of the violation." Id. Count Seven expressly identifies the Code provisions under which it is brought, and they do not include the sections carrying an extended limitations period. Therefore, all aspects of the plaintiff's TILA claim are subject to a one-year limitations period.
"This Court has observed that a TILA nondisclosure violation occurs when the transaction is consummated, in other words, at the time of closing of a residential mortgage transaction." Frazile v. EMC Mortgage Corp., 382 Fed. Appx. 833, 838 (11
As noted, Count Seven also alleges that the defendants "failed to send proper monthly statements" to the plaintiff. (Doc. 77 at 24). The plaintiff testified that every monthly statement since 2012 has improperly added new late charges and finance charges and has utilized an interest rate of 9.45% even though the loan modification had reduced the interest to 2%. (Doc. 107-1 at 53-54). The defendants assert that, because the lay plaintiff in deposition could not answer the legal question of whether each statement constitutes a new statutory violation with its own limitations period, this aspect of her claim is barred by the statute of limitations. (Doc. 108 at 14). On motion for summary judgment, however, it is for the defendants to demonstrate that the most recent of the plaintiffs' monthly statements are time-barred, and they have not effectively engaged that challenge.
As to the defendants' first contention, the plaintiff described in her deposition the challenged elements of her monthly statements. (Doc. 107-1 at 51-54). Despite this testimony, the defendants say she "failed to provide proof" of the violations because she was insufficiently specific in her testimony, because she offered no documentation to prove her claims, and because she did not know the amounts of the challenged charges. (Doc. 108 at 13). The defendants have neither identified the "specifics" the plaintiff failed to provide, shown that she admitted to having no additional information regarding the claim, nor demonstrated that a plaintiff is required on penalty of dismissal to provide more detail than she provided. Likewise, the defendants have not shown that a plaintiff may not lawfully proceed on such a claim absent documentation.
As to the defendants' second contention, it may be that the plaintiff can show no causal connection between any timely raised TILA violation and some element of actual damage from the violation. The Court need not consider that possibility because the plaintiff also demands statutory damages and asserts she need not prove actual damages as a predicate to recovery of statutory damages. (Doc. 77 at 22). See, e.g., Shroder v. Suburban Coastal Corp., 729 F.2d 1371, 1380 (11
For the reasons set forth above, the defendants are entitled to summary judgment as to Count Seven to the extent, and only to the extent, it is based on nondisclosures preceding January 20, 2014.
Count Eight alleges the defendants violated RESPA by failing to respond to the plaintiff's qualified written request ("QWR"). (Doc. 77 at 24-26). The defendants raise two arguments: (1) the plaintiff cannot prove she ever sent a QWR; and (2) she has failed to establish damages caused by any RESPA violation. (Doc. 108 at 14-16).
The plaintiff testified that she sent the defendants a QWR by certified mail on September 29, 2014 and that she sent them another QWR by certified mail on November 13, 2014. (Doc. 107-1 at 11-14, 21). The defendants acknowledge this testimony but argue that, because the plaintiff has not produced a copy of the QWR's or the certified mail receipts, her claim fails "as a matter of law." (Doc. 108 at 15). The cases on which they rely for this proposition, however, do not remotely support it. To the extent the defendants use these cases to suggest a plaintiff must have evidence that the QWR included her name and address, the identity of the addressee, the subject matter of the communication and/or a statement that explains why she believes her account is in error or that provides sufficient detail regarding other information sought, (id.), they have presented nothing from the plaintiff's deposition that either negates any of these components of a QWR or that demonstrates she cannot prove they were included in her QWR's.
Absent a pattern or practice of noncompliance, RESPA provides for recovery of "actual damages." 12 U.S.C. § 2605(f)(1). "We join our sister Circuits in recognizing that damages are an essential element in pleading a RESPA claim." Renfroe v. Nationstar Mortgage, LLC, 822 F.3d 1241, 1246 (11
For the reasons set forth above, the defendants are not entitled to summary judgment as to Count Eight.
Count Nine alleges that the defendants repeatedly reported to various credit reporting agencies that the plaintiff was delinquent and in default; that she repeatedly contacted the defendants to dispute their inaccurate reporting of her delinquency and default; that she also repeatedly contacted the credit reporting agencies, advised them of the inaccurate information and disputed same; that the defendants failed to properly investigate and respond to her dispute, including her reporting to credit reporting agencies, and failed to retract or delete the false information; and that the credit reporting agencies never changed their reports because the defendants kept reporting the account as delinquent and in foreclosure. (Doc. 77 at 26-29). The plaintiff testified that this claim is based on the continued reporting of the 2010 foreclosure even after it was set aside by consent order in 2012. (Doc. 107-1 at 34).
The defendants press the following arguments: (1) the plaintiff produced no copies of any communications voicing her dispute; (2) she failed to prove the credit reporting agencies tendered the dispute to them;
As to the defendants' first contention, they have again simply assumed, without offer of any legal authority, that the plaintiffs' claim must fail if unaccompanied by documentation corroborating her testimony.
As to the defendants' global challenge to actionable damages, (Doc. 108 at 3-4), they have not identified what damages may properly be recovered in such an action, much less shown that the plaintiff has incurred no such damages. Moreover, FCRA provides for statutory damages, even absent actual damages, in the case of willful violations, 15 U.S.C. § 1681n(a)(1)(A), and the plaintiff alleges a willful violation. (Doc. 77 at 27).
For the reasons set forth above, the defendants are not entitled to summary judgment as to Count Nine.
Count Ten alleges the defendants committed multiple violations of 15 U.S.C. §§ 1692c, 1692e(2), 1692e(8), 1692e(11) and 1692(f)(1). (Doc. 77 at 29-31). The defendants' primary argument is that they are not "debt collectors" for purposes of FDCPA. (Doc. 108 at 18-19; Doc. 118 at 9-12). They also argue the plaintiff failed to establish which defendant or defendants engaged in what conduct or that the conduct violated FDCPA. (Doc. 108 at 17-18). Finally, they repeat their global argument that the plaintiff has no actionable damages. (Id. at 3-4).
FDCPA defines "debt collector" in two generally applicable ways. The term means either one who "uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts" or one who "regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). These definitions are subject to an exclusion for any "debt which was not in default at the time it was obtained by such person." Id. § 1692a(6)(F)(iii); Davidson v. Capital One Bank, N.A., 797 F.3d 1309, 1314 (11
The defendants argue they cannot be debt collectors because they are servicers "engaging in first party collection efforts." (Doc. 108 at 18-19). To the extent the defendants suggest a servicer can never be a debt collector,
The defendants do not explain how they could have been engaged in "first party" collection efforts; certainly they do not assert that the plaintiff's mortgage debt was owed to them rather than to U.S. Bank. See 15 U.S.C. § 1692a(4) (defining "creditor" as one "to whom a debt is owed"). Once again, the Court will not attempt to pour content into the defendants' ipse dixit.
"For the purpose of section 1692f(6) of this title, such term ["debt collector"] also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests." 15 U.S.C. § 1692a(6). Section 1692f(6) prohibits debt collectors from taking any nonjudicial action to effect dispossession or disablement of property unless certain conditions are satisfied. The defendants note without comment that "an enforcer of a security interest, such as a mortgage company foreclosing on mortgages of real property . . . falls outside the ambit of the FDCPA except for the provisions of section 1692f(6)." Warren v. Countrywide Home Loans, Inc., 342 Fed. Appx. 458, 460 (11
Because the defendants articulate no argument based on this quote, there is really nothing for the Court to consider. But to the uncertain extent they mean to suggest that an entity falling within one of the two generally applicable definitions of a "debt collector" is nevertheless not a debt collector for any purpose other than Section1692f(6) if it also falls within the supplemental definition and/or is enforcing a security interest, the Court is unpersuaded. Section 1692a(6) sets forth the two general definitions of a debt collector, with no identifiable limitation on the substantive provisions to which they apply. It then says the term "also" includes a third class of entities but exposes this class to liability only for violations of a single substantive provision. "Also" is a term of addition, not of subtraction, and it makes little sense to say that an entity that satisfies the "regularly collects" definition has its broad exposure to liability under many substantive provisions erased simply because it also satisfies the "security interests" definition and/or is enforcing a security interest. The Court does not read Warren to hold to the contrary.
In Reese v. Ellis, Painter, Ratteree & Adams, LLP, 678 F.3d 1211 (11
As another unpublished opinion observes, "[b]ased on the reasoning of Reese, it is apparent an entity that regularly attempts to collect debts can be a `debt collector' beyond § 1692f(6) of the FDCPA, even when that entity is also enforcing a security interest." Birster v. American Home Mortgage Servicing, Inc., 481 Fed. Appx. 579, 582 (11
The foregoing discussion exhausts the defendants' arguments regarding their status as "debt collectors" as expressed in their principal brief. However, they return to the subject with renewed vigor in their reply brief. Having conceded that a servicer can be a debt collector if it acquires the servicing of the loan after it is in default, and unable to prove the loan was not in default at that time (since they insist default occurred in mid-2012, a year before any of them first became the loan's servicer), the defendants switch to an entirely new line of argument: that the plaintiff has "failed to make an evidentiary showing" either that the "principal purpose" of their business is debt collection or that they "regularly collect" debts owed another. (Doc. 118 at 10-12).
As the Court has noted several times herein, it will not consider an argument first raised in reply, absent some good reason to do so being offered by the defendants. The defendants suggest no such reason, and the Court accordingly declines to consider their tardy argument. But even had the argument been timely raised, it could not succeed. The defendants have submitted no evidence of their own to negate that they regularly collect debts owed another or that the principal purpose of their business is debt collection. Nor have they pointed to any portion of the plaintiff's deposition either negating those points or showing she has no evidence with which to prove them. Because the defendants thus failed to carry their initial burden on motion for summary judgment, it is legally irrelevant whether the plaintiff has presented evidence to prove the defendants' status as debt collectors.
The defendants' objection to the plaintiff's proof of any FDCPA violation by any or all of them fails for similar reasons. They cite only four pages of the plaintiff's deposition regarding this claim, (Doc. 107 at 4), none of which show that the plaintiff cannot prove her claim.
The plaintiff may not have identified in her deposition which defendant did what, (Doc. 108 at 17), but the defendants have not demonstrated that they ever asked her to do so. The plaintiff may not have established that the defendants' conduct was "deceptive, unfair, or abusive," (id.), but the defendants have never successfully shifted the burden to her to do so. The plaintiff's testimony may (or may not) be "vague," (id.), but the defendants have shown neither that any vagueness is not the result of their non-exhaustive questioning nor that any such vagueness defeats her claim as a matter of law.
As for actionable damages, FDCPA provides for recovery of actual damages as well as statutory damages. 15 U.S.C. § 1692(k)(a)(1), (2)(A). The defendants have not addressed what constitutes "actual damages" under FDCPA, and the Court declines to do so on their behalf. Nor have the defendants considered whether statutory damages may be awarded even absent actual damages. See Shoup v. McCurdy & Candler, LLC, 465 Fed. Appx. 882, 885 (11
For the reasons set forth above, the defendants are not entitled to summary judgment as to Count Ten.
Count Eleven prays that, because the defendants breached the contract and because the plaintiff is not in default, the Court enter an order declaring: (1) that she in not in default; (2) that the notice of default is null and void; and (3) that the defendants have no right or authority to foreclose on her property, and enjoining the defendants from foreclosing. (Doc. 77 at 31).
The defendants argue this claim is derivative of the plaintiff's contract and tort claims and that, because they are entitled to summary judgment as to those claims, they are also entitled to summary judgment as to this claim. As addressed in Part III, however, the defendants are not entitled to summary judgment on the plaintiff's claim for breach of contract. The defendants' premise having collapsed, their conclusion falls with it.
For the reasons set forth above, the defendants are not entitled to summary judgment as to Count Eleven.
On motion for summary judgment, the initial burden lies with the defendants to show, by certain specified means, that the plaintiff cannot prove her case. In large measure they have failed to meet their initial burden and thus have cast no burden on the plaintiff to provide the Court with record evidence sufficient to sustain her claims. At trial, the plaintiff will have the burden of proving every element of her causes of action, and her opposition brief provides little reason to believe she is prepared to do so. That suspicion, however, furnishes no legal grounds for summary dismissal before trial.
For the reasons set forth above, the defendants' motion for summary judgment is
DONE and ORDERED.
Despite receiving three extensions of time that ultimately gave her 61 days to file her opposition brief and evidentiary materials, (Doc. 115), the plaintiff filed a complete copy of her deposition two full weeks after finally submitting her brief. (Doc. 117). She neither sought nor received permission to do so, and she had been expressly warned that she would be given no further extensions of time. (Id. at 2). In such a situation, the Court has discretion to refuse to consider the deposition. E.g., Young v. City of Palm Bay, 358 F.3d 859, 864 (11
Moreover, even though Civil Local Rule 5(a) requires that "only the relevant portions of the [discovery] material shall be filed with the motion or response," the plaintiff filed the entire 146 pages of her deposition. Worse, neither in her brief nor in her notice of submission does the plaintiff cite any particular portion of her deposition. Due to this gross violation of Rule 56(c)(1)(A), the Court would not review the plaintiff's deposition on her behalf even had she timely submitted it.
The defendants move to strike the plaintiff's deposition from the record. (Doc. 118 at 3 n.1). The motion is
In any event, the defendants' only argument is the one-sentence assertion that "the record is devoid of any evidence supporting these assertions." (Doc.118 at 7). The defendants misapprehend their burden on motion for summary judgment. A movant cannot simply announce that there is no evidence to support a claim but must point specifically to those portions of the record that either affirmatively negate an element of the claim (e.g., the plaintiff admits the defendant did not breach the agreement) or show the plaintiff cannot prove the element (e.g., the plaintiff relies exclusively on a piece of evidence that does not support the element). Clark, 929 F.2d at 608. The defendants having failed to attempt either approach, it is legally irrelevant whether the plaintiff in her response presented evidence supporting her claim. Id. In short, the defendants' argument would fail even had it been timely asserted.
Moreover, the second amended complaint alleges that the plaintiff was denied credit and had her homeowner's insurance canceled due to the defendants' statements regarding default and foreclosure. (Doc. 77 at 18). The defendants have not attempted to demonstrate that Alabama law precludes the plaintiff from recovering these damages under her contract claim.
To the extent the defendants suggest the correspondence must be "labeled as a qualified written request," (Doc. 108 at 15), the very authority they cite expressly rejects the proposition. At any rate, the same point applies: the defendants failed to ask the plaintiff whether her correspondence was so labeled and thus have not shown she cannot so testify.
Even if a claim could properly be deemed "abandoned" merely by not responding to a motion for summary judgment, the plaintiff did respond. As the defendants insist, this claim is "derivative" of other claims, especially breach of contract. (Doc. 108 at 19). Because the plaintiff addressed those other claims in her responsive brief, she effectively addressed her derivative declaratory judgment claim as well.
