LORENZO F. GARCIA, Magistrate Judge.
THIS MATTER
The Court observes that Sartori proceeds pro se. While a pro se litigant's pleadings are liberally construed,
First, Sartori was required to file his response within fourteen calendar days after service of the motion. D.N.M.LR-Civ. 7.4(a). On May 30, 2013, Sartori filed a response to BANA's May 1, 2013 summary judgment motion. Thus, he filed the response about ten days after the deadline. Sartori's out-of-time filing was without the consent of opposing counsel [Doc. 180, at 2] or permission from the Court.
Sartori's failure to file a timely response constitutes consent to grant the motion. D.N.M.LR-Civ. 7.1(b). However, our Circuit holds that it is inappropriate to grant summary judgment simply because the nonmoving party failed to file a response. See, e.g.,
In addition to filing a late response, Sartori's response violated the page limitation imposed by D.N.M.LR-Civ. 7.5. Response briefs are not to exceed 24 pages, and Sartori's response is 33 pages.
The Court will not grant summary judgment in favor of the moving party due to Sartori's late and unauthorized response, and instead, reviews the motion, with all exhibits, on the merits.
Summary judgment provides courts with a means by which "factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources."
Upon meeting that burden, the non-moving party must identify specific facts that show the existence of a genuine issue of material fact.
The Court further observes that the "mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact."
As recently explained by the federal Utah District Court, in
Thus, while the Court examines the factual record in the light most favorable to Sartori, mere argument, assertions, conjecture, or the existence of a scintilla of evidence in support of his position will not demonstrate a genuine issue of material fact for trial.
Defendant contends it is entitled to summary judgment on Sartori's Amended Complaint that asserts claims under the Fair Debt Collection Practices Act ("FDCPA"), Fair Credit Reporting Act ("FCRA"), and the Telephone Consumer Protection Act (TCPA"). There is no dispute that Sartori's lawsuit is predicated on the ultimate foreclosure of real property he owned in New Mexico and the related credit reporting and communications from his lender BANA, after he defaulted on the mortgage. [See, e.g., Doc. 75, at 1, 3; Doc. 171-1, Ex. A (Note) and Ex. B (Mortgage).] Sartori refinanced his mortgage on the subject property in January 2008, and took out $50,000 or less in cash. [Doc. 171-7 (Sartori Dep.), at 83.] He subsequently defaulted on the terms of the loan.
Sartori attempts to contest some of the above-stated summary of underlying facts, along with other allegations by BANA. However, with respect to BANA's Undisputed Material Facts ("UMF"), Sartori did not "refer with particularity to those portions of the record" on which he relies to successfully controvert any of BANA's UMFs. And, as discussed in detail below, he fails to submit competent and admissible evidence to raise a genuine issue of material fact as to any of the claims set out in his Amended Complaint.
In support of BANA's Motion for Summary Judgment, it submits the following material facts, that are supported by competent, admissible evidence.
The Court concludes that BANA made a prima facie showing of entitlement to judgment. Based on its review of Sartori's claims and BANA's UMFs, BANA satisfied its burden of showing there is an absence of evidence to support Sartori's claims and that summary judgment is appropriate as a matter of law. Sartori then must identify specific facts showing the existence of a genuine issue of material fact. As stated, mere conjecture, allegations, denials, arguments, and contentions do not satisfy his burden. Put differently, Sartori's repeated argument that the record fails to show evidence (see, e.g., Doc. 176, at p.5-8) of various matters is not the equivalent of producing actual evidence to raise a genuine issue of material fact.
The Court reviewed Sartori's response and exhibits and finds that, for the most part, he relies on unsupported argument and contention. The majority of Sartori's proposed facts is not supported by any affidavit testimony, answers to discovery requests, or deposition testimony. For example, in many instances, Sartori states only that he "denies and disputes that Jason Bousliman (Defendant's attorney who executed a declaration) has personal knowledge whatsoever relevant to the case[.]" In addition, Sartori summarily accuses BANA of "bad behavior," muddying the waters, deceit and pretense, intransigence, entering the realm of "pure fantasy," misrepresentation, and acts of desperation. [Doc. 176, at 1-4.]
The Court also considered Sartori's personal affidavits attached to his response. [Doc. 176, at 35-49.] Sartori, for example, provided an affidavit "in rebuttal to the Declaration of Daniel Leon." In that affidavit, Sartori states he has no information to "show or prove" that Mr. Leon is "an Assistant Vice President; Operations Team Manager ("AVP") at Bank of America, N.A. ("BANA")" and "authorized to sign this declaration on behalf of BANA." [Doc. 176, at 36, ¶ 1.] Sartori further asserts that he has no information to "show or prove" that Mr. Leon is over the age of 18 or has personal knowledge of the statements in Leon's declaration. Mr. Leon's age or position are not in dispute or material to Sartori's claims. Thus, it matters not that Sartori fails to have such information. Moreover, Mr. Leon's sworn declaration provides Sartori with that information, and Sartori does not present evidence demonstrating such facts are untrue or in dispute. In responding to a summary judgment motion, Sartori can and must show material facts are genuinely disputed by citing to particular parts of materials in the record, including depositions, documents, affidavits, declarations, stipulations and responses to discovery requests. Fed. R. Civ. P. 56(c).
The majority of Sartori's affidavit testimony is similar, i.e., he states that he is not in receipt of information to "show or prove" statements in BANA's declarations. [Doc. 176, at 36, ¶¶ 3-8; Doc. 176, at 40, ¶¶ 1-8.] Whether or not Sartori is in receipt of such information does not create a genuine issue of material fact for trial.
Sartori's third affidavit, attached to the response, is signed and dated March 29, 2013, the same day BANA took Sartori's deposition. [Doc. 176, at 43 ("Ex. A"); Doc. 171-7, Ex. G (Sartori Dep. Tr.).] According to the transcript, this affidavit was attached to Sartori's deposition as an exhibit. [Doc. 171-7, Ex. G, at 12.] It is not clear how, if at all, the affidavit assists Sartori in creating a genuine issue of material fact with respect to his claims or what Sartori intended in preparing this affidavit for his deposition. For example, Sartori states in the affidavit that he disputes the alleged debt BAC claimed he owed and that BAC failed to validate the alleged debt. The mere contention that Sartori disputes something is insufficient to raise a genuine issue of material fact in accordance with Rule 56 requirements.
Sartori's affidavit also provides statements of law, e.g., that the FDCPA requires certain actions on the part of debt collectors. Sartori's statements in the third affidavit either fail to raise genuine issues of material fact or are nothing more than self-serving, conclusory contentions. [Doc. 176, at 43-49.] Moreover, in Sartori's response, he rarely, if ever, cites his affidavit as evidence of a genuine issue of material fact.
Instead, to the extent Sartori cites to exhibits in his response, those exhibits generally are inadmissible and unexplained. Exhibit 2, for example, contains very small print, and some dates along with user names. It is not clear what it is; certainly, Sartori took no steps to demonstrate it is admissible evidence that creates a genuine issue of material fact. Exhibit 3 consists of four pages of "Loss Mitigation Home Base Work Action History — 174927447." [Doc. 176, at 52.] Again, even if found admissible, it is unknown how these pages assist Sartori in presenting evidence of a genuine issue of material fact. Sartori's response cites to a number of other exhibits including a letter dated December 11, 2012 from a "Chief Deputy" to Sartori regarding copies of Power of Attorneys for Deborah A. Nesbitt and Marjorie Mendoza. [Doc. 176-1, Ex. 11.] The exhibit is not admissible evidence and does not demonstrate a genuine issue of material fact. Sartori argues that Ms. Nesbitt had no power of attorney in Valencia County, but this fact, even if established, does not create a genuine issue of material fact.
In addition, some pages of Sartori's exhibits are illegible in part, or in their entirety. [Doc. 176-1, at 5-8, 13-15.] Another problem with some of Sartori's exhibits is that they either are not sequential or are missing. In the first portion of his filing [Doc. 176 (69 pages)], the exhibits end with No. 7 (Assignment of Mortgage). The "continuation" of his filing contains another 20 pages of exhibits beginning with exhibit 11 and ending with exhibit 21. There are no exhibits 8, 9, or 10, and yet Sartori's "deposition" affidavit refers to exhibits 8, 9 and 10. [Doc. 176, at 45, 46, ¶¶ 21, 22, 24.] See
Notwithstanding Sartori's general failures to produce admissible evidence supporting his contentions, the Court analyzes the specific claims in light of BANA's UMFs and Sartori's unsupported argument or contentions.
The FDCPA prohibits the use of "abusive, deceptive, and unfair debt collection practices." 15 U.S.C. § 1692(a). "The FDCPA also establishes specific duties and prohibitions governing debt collector's communications with the debtor, §§ 1692c, 1692g, 1692j."
Sartori contends that BANA violated the FDCPA by attempting to collect a debt without responding to his request for validation of the debt, and by failing to communicate that the debt was disputed. In his Amended Complaint [Doc. 29, ¶ 15], Sartori claims that BANA sent him a written communication claiming that he owed a debt, and that he contacted BANA via telephone, disputed the debt and requested validation. In sum, Sartori contends that BANA's action in sending him a written communication and not providing written validation constituted a violation of the FDCPA.
Title 15 U.S.C. § 1692k(d) provides that any action under the FDCPA must be brought "within one year from the date on which the violation occurs." Sartori filed this lawsuit on August 10, 2011, in the U.S. District Court of the Northern District of Mississippi [Doc. 1], and it was subsequently transferred to this District.
Sartori's FDCPA claims rely on alleged communications beginning in January 2009. [Doc. 29, ¶ 15.] BANA demonstrated through undisputed facts that there were communications or attempted communications between Sartori and BANA in February and May 2009, and that between February 2009 and July 2009, BANA called Sartori at numbers he provided, regarding his loan and the alleged delinquency. Sartori failed to identify any communications or acts by BANA, or written communications from BANA to Sartori, after January 5, 2010, that might support an FDCPA claim.
Thus, since an action under the FDCPA must be brought within one year from the date the violation allegedly occurs, Sartori had one year from notification of the violation to initiate his action, but he did not file suit until August 10, 2011. Based on the one-year limitations period, all claims arising out of BANA's alleged attempts to collect a debt from Sartori, that occurred before August 10, 2010, are untimely.
Sartori argues that his FDCPA claim is not time-barred, and yet refers only to communications allegedly occurring in 2009. [Doc. 176, at 15.] As already noted, the allegations pertaining to acts by BANA in 2009 are time-barred.
Sartori also asserts that the one-year limitation period should be tolled until "the date of discovery." [Doc. 176, at 16.] Sartori states he was not aware of collection activity or that his property would be taken until he discovered "Defendants in his credit report in November 2010." [
In sum, it is uncontested that Sartori's home, foreclosed on for non-payment, was sold on January 5, 2010, bringing an end to BANA's involvement in any debt collection activity. Sartori did not cite any admissible evidence demonstrating that BANA took any action to collect a debt after January 5, 2010. Therefore, Sartori failed to bring his action against BANA for alleged violations of the FDCPA within the one-year statute of limitations. See
Even if the claim is not time-barred, Sartori could not prevail on his FDCPA claim because BANA does not qualify as a "debt collector" under the statute. The FDCPA defines a debt collector as "any person . . . who regularly collects or attempts to collect . . . debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). The definition of a debt collector under the statute does not include a person who collects or attempts to collect a debt "to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person." 15 U.S.C. § 1692a(6)(F).
Generally, "creditors, mortgagors and mortgage servicing companies are not `debt collectors' and are exempt from liability."
Indeed, Congress committee notes comment on the following exclusion from the definition:
It is undisputed that Sartori's loan was not in default when BANA acquired the loan. BANA began servicing Sartori's loan on February 13, 2008, before it acquired an interest in the mortgage on July 28, 2009. Because it was servicing Sartori's loan before the loan was in default, BANA does not come within the definition of a debt collector. Sartori's arguments to the contrary are conclusory and essentially re-state the statutory language demonstrating that BANA is not a debt collector. [See Doc. 176, at 17-19.] Thus, the FDCPA claims against BANA are subject to dismissal on this ground as well.
Title 15 U.S.C. § 1692g requires a debt collector to provide the consumer, within five days after initial communication, with written notice of a debt, including the amount of the debt, the name of the creditor to whom the debt is owed, and additional information. Further, "if the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt . . . is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt . . . until the debt collector obtains verification of the debt" and the verification is mailed to the consumer. 15 U.S.C. § 1692g(b). See
Sartori alleges that, in January 2009, he "contacted [BANA] via telephone and disputed the alleged debt, requesting written validation." He further contends that in April 2009, he "again disputed the alleged debt, demanding written validation and cessation of telephone calls" in reference to calls BANA made to him. Sartori asserts that he sent a certified debt validation letter to BANA and that the evidence shows BANA received his letter in March 2009. [Doc. 176, at 20.] In support, Sartori cites Exhibit 2 and BANA's response to Sartori's request for admission No. 5. Exhibit 2 attached to Sartori's response is virtually unreadable, and does not constitute evidence that supports Sartori's allegation. The response to the admission relied upon by Sartori states that BANA received an undated letter from Sartori. Similarly, it is not evidence that BANA received the alleged letter in March 2009. Indeed, BANA's UMFs demonstrate that between January 2009 and January 5, 2010, BANA never received a written letter from Sartori disputing the validity of the debt.
Sartori failed to provide admissible evidence showing a written notification to BANA on the date in question. Thus, he did not comply with the statutory requirement that a consumer notify the debt collector in writing within a thirty-day period of the dispute, and the FDCPA claim is subject to dismissal on this ground as well.
In sum, Sartori's FDCPA claim is time-barred and subject to dismissal on that ground alone. Alternatively, the claim is subject to dismissal because BANA does not meet the definition of a "debt collector" under the statute, or because Sartori failed to provide required written notification of a dispute in accordance with statutory language. Thus, the Court recommends that Sartori's FDCPA claims against BANA be denied and dismissed, with prejudice.
Congress enacted the FCRA, in part, to protect consumer privacy by limiting the furnishing of consumer credit reports to certain statutorily enumerated purposes. See
Sartori alleges a number of violations of the FCRA in his First Amended Complaint. He claims that BANA "pulled [his] credit report with no permissible purpose as defined in 15 U.S.C. § 1681b in violation of 15 U.S.C. § 1681b(f)." [Doc. 29, ¶ 25.] In addition, he asserts that BANA violated 15 U.S.C. § 1681s-2(b) by failing "to correct or validate disputed information to the credit reporting agencies" after he filed a dispute. [
In
There is no evidence showing that BANA pulled his consumer report. Indeed, the contention in his Amended Complaint is that Co-Defendant SCLA pulled the credit report. Nowhere in the Amended Complaint did Sartori specifically allege that BANA did so,
In response to BANA's interrogatory asking Sartori to state each fact supporting his contention that BANA violated the FCRA, Sartori objected and responded as follows:
[UMF No. 16, Interrogatory No. 13.] The interrogatory answer does not show that BANA pulled Sartori's credit report or that BANA pulled it for an impermissible purpose. Moreover, even if BANA pulled Sartori's credit report, it would be permissible for BANA to do so in order to review the accuracy of his account. 15 U.S.C. §§ 1681b(a)(3)(A)&(F). Sartori failed to raise genuine issues of material fact in relation to the allegations under § 1681b(f), and they are subject to dismissal.
In his response, Sartori contends that his Amended Complaint also alleges that BANA/BAC violated 15 U.S.C. § 1681b(a). Because Sartori claims that BANA did not dispute this claim, he believes "it must be presumed that it is accepted and agreed to by the Defendant." [Doc. 176, at 20.] Sartori's position is unfounded. The only mention of 15 U.S.C. § 1681b(a) in his Amended Complaint is at paragraph 19, and it relates only to a single Defendant — SCLA. Thus, the Court rejects Sartori's position that he intended to assert such a claim against BANA and that the claim must proceed to trial based on nothing more than the mere mention of that statute in reference to SCLA.
Sartori failed to present evidence demonstrating a genuine issue of material fact in dispute with respect to the above-described allegations. Thus, those claims are subject to dismissal.
The Court next evaluates Sartori's claim under 15 U.S.C. § 1681s-2(b) that sets forth the obligations of a furnisher to a consumer. There are two components to this provision.
Moreover, when a consumer disputes the credit information furnished, the credit furnisher has an affirmative duty to conduct an investigation with respect to the disputed information, review the information provided to the credit bureau, and report findings. 15 U.S.C. § 1681s-2(b)(A),(C),(E). However, a credit agency is not obligated to investigate a dispute if it "reasonably determines that the dispute is frivolous or irrelevant."
Stated differently, for a plaintiff to affirmatively plead a claim for a violation under § 1681s-2(b), this section imposes certain duties on a "furnisher of information." Sartori was required to allege that BANA, as an information furnisher, failed to conduct a reasonable investigation in response to a notice of dispute from a credit bureau. Otherwise, such allegations amount to nothing more than an inaccurate reporting claim under § 1681s-2(a), which does not provide a private right of action. See
Sartori did not allege any facts which demonstrate that BANA refused to investigate disputed credit information. Therefore, he neither stated a cause of action under 15 U.S.C. § 1681s-2(b), nor raised a genuine issue of material fact with respect to that claim. At most, Sartori alleged that he disputed BANA's credit reporting after he discovered BANA "in his credit report." Sartori contends that the credit reporting agencies, Equifax, Experian and TransUnion reported to him that BANA affirmed the accuracy of its reporting.
As noted above, Sartori argues that he never had an account with BANA, and, therefore, any report by BANA was erroneous and inaccurate, and even if he had an account, his credit report contains conflicting information concerning the account and the debt, and that BANA failed to mark his credit reports in dispute and failed to remove or correct erroneous reporting. BANA sought to explore this at Sartori's deposition.
For example, BANA specifically asked Sartori how BANA's credit reporting was inaccurate. Sartori maintained that BANA never responded to his dispute, failed to mark the account in dispute, and did not investigate. He offered no evidence to support a claim that the information BANA furnished was erroneous. Thus, despite Sartori's allegations, he provided no factual support for his claims that the information was inaccurate.
BANA's uncontested facts demonstrate that it properly reported information regarding Sartori's accounts, and responded to each dispute sent to it by credit bureaus and confirmed the accuracy of the information report. Accordingly, BANA satisfied its legal obligation to investigate Sartori's dispute, and it provided required information. There is no basis for any of Sartori's FCRA claims and they are subject to dismissal. Thus, the Court recommends denial and dismissal of the FCRA claims, with prejudice.
The TCPA makes it unlawful for any person to "make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial pre-record voice . . . to any telephone number assigned to a . . . cellular telephone service . . . ." 47 U.S.C. § 227(b)(1)(A)(iii).
Sartori contends that he received weekly telephone calls from April 2009 to July 2009 on his cell phone by an autodialer. In further clarification, Sartori alleged he began receiving calls in January or February 2009 at phone number (530) 305-3346. He claims he never provided that number to BANA.
The TCPA makes it unlawful to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system, etc. "to any telephone number assigned to a . . . cellular telephone service . . . or any service for which the called party is charged for the call[.]" 47 U.S.C. § 227(b)(1)(A)(iii). The law grants the Federal Communications Commission ("FCC") authority to prescribe regulations implementing the TCPA. 47 U.S.C. § 227(b)(2).
In a 2007 declaratory ruling, the FCC found that "the provision of a cell phone number to a creditor, e.g., as part of a credit application, reasonably evidences prior express consent by the cell phone prescriber to be contacted at that number regarding the debt. 23 F.C.C.R. 559, 564. Indeed, the FCC determined that autodialed and prerecorded message calls to wireless numbers, which were provided by the party to a creditor, are permissible because the calls were made with "prior express consent" of the called party. 23 F.C.C.R. at 564. As the FCC also observed, the restrictions on calls to emergency lines, pagers, etc. does not apply when the called party provided the telephone number of such a line to the caller for use in normal business communications.
It is undisputed that Sartori provided, in the normal course of business, his cell phone number ending in 3346 for calls concerning the loan. It is also unchallenged that BANA received a phone call from Sartori on February 4, 2009, and that in the normal course of business, Sartori provided an updated phone number for BANA to call him concerning the loan at the 3346 cell phone number. Sartori did not provide evidence that he revoked the consent he gave on February 4, 2009, and he never requested, either verbally or in writing, that BANA stop calling this number.
Under these circumstances, and there being no dispute as to the material facts, BANA demonstrates that Sartori consented to be contacted via the telephone number provided. Consequently, there can be no TCPA claim against BANA. As there is no evidence of genuine issues of material fact in relation to the alleged violations of the TCPA, the Court need not discuss Sartori's claim for willful violation, as heightened damages can only occur if there is a willful violation. The TCPA claims are subject to dismissal. Therefore, the Court recommends that the TCPA claims be denied and dismissed, with prejudice.
Sartori's main claim is that BANA is a stranger to his loan and property. He repeatedly argues that MERS lacked the authority to execute the assignment of mortgage, and therefore, BANA had no interest in the property and lacked standing to foreclose. But, Sartori provided no evidence or facts to support this position.
Foreclosures of property are governed by state law. New Mexico statutes provide:
NMSA § 55-3-301. Comments to this statutory section confirm that a note may be enforced by any "person who under applicable law is a successor to the holder or otherwise acquires the holder's rights." Official Comment to § 3-302. See also
Sartori intimates that BANA lacks standing to enforce the note, but also expressly agreed in the execution of the mortgage. For example, Sartori agreed in the mortgage that New Day "and its assigns" could enforce the note by foreclosing the mortgage. [UMFs 1, 2.] Moreover it is undisputed that the mortgage provides that MERS "is a mortgagee under this Security Instrument." The mortgage provides, "For this purpose, Borrower does hereby mortgage, grant and convey to MERS (solely as nominee for lender and lender's successors and assigns) and to the successors and assigns of MERS [the subject property]." It is, therefore, undisputed that Sartori granted MERS the right to foreclose and sell the property. [
The closing documents specifically provide that Sartori "understands and agrees that MERS holds . . . legal title to the interests granted by Borrower in this Security Instrument . . . ." There is simply no dispute that Sartori executed the mortgage and that MERS assigned the mortgage and note to BANA. This assignment expressly conveyed not only the mortgage but the note. MERS "hereby assigns said mortgage and the obligation secured to" BANA. Sartori fails to contest the UMFs demonstrating that the assignment of mortgage showed that the note was also assigned to BANA. See
Based on the undisputed facts, Sartori fails to demonstrate that BANA is a "stranger to his loan," and that MERS lacked authority to assign the mortgage and loan to BANA. Thus, the claims regarding MERS is subject to dismissal. The Court recommends that any claims brought with respect to the validity of the MERS assignment be denied and dismissed, with prejudice.
In sum, a review on the merits leaves the Court with the well-supported conclusion that BANA's Motion for Summary Judgment should be granted. The undersigned Magistrate Judge, therefore, recommends that the trial judge adopt this Report and Recommendation, grant summary judgment in favor of BANA, and dismiss Sartori's Amended Complaint and claims against BANA with prejudice.
