Yeager et al v. Ocwen Loan Servicing, LLC

Filing 39

OPINION AND ORDER: it is ORDERED as follows: (1) Defendant's 34 objections are overruled. (2) The United States Magistrate Judge's 33 recommendation is adopted. (3) Defendant's 27 motion for judgment on the pleadings is denied, albeit with leave to renew its arguments as set forth above. (4) Defendant's alternate motion for certification pursuant to 28 U.S.C. § 1292(b) (doc. no. 34 ) is denied. (5) This case is referred back to the magistrate judge for further proceedings. Signed by Honorable Judge Myron H. Thompson on 5/3/2016. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION
RICHARD A. YEAGER and
DEANA J. YEAGER,
individually and on behalf
of a class of similarly
situated individuals,
Plaintiffs,
v.
OCWEN LOAN SERVICING, LLC,
Defendant.

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CIVIL ACTION NO.
1:14cv117-MHT
(WO)

OPINION AND ORDER
Plaintiffs Richard A. Yeager and Deana J. Yeager
bring claims under the Fair Debt Collection Practices
Act, 15 U.S.C. §§ 1692 through 1692p, against defendant
Ocwen

Loan

Servicing,

LLC

for

failing

to

provide

a

notice of debt validation required to be provided under
the statute.

This case is before the court on the

recommendation of the United States Magistrate Judge
that Ocwen Loan’s motion for judgment on the pleadings
be denied.
objections

Also before the court are Ocwen Loan’s
to

the

recommendation

and

its

included

alternative motion to certify for interlocutory appeal.
After an independent and de novo review of the record,
the court is of the opinion that the objection should
be

overruled,

the

recommendation

adopted,

and

the

motions denied, with leave to Ocwen Loan to renew its
standing

arguments

at

any

time

after

the

Supreme

Court’s decision in Spokeo, and to renew its remaining
arguments on a motion for summary judgment.*

*
The court pauses here to note that it is
disturbed
by
defense
counsel’s
repeated
mischaracterizations of the magistrate judge’s findings
and reasoning. For example, defense counsel represents
that Judge Greene “acknowledges that the Eleventh
Circuit has held that Article III requires more than a
statutory violation to create standing,” and suggests
that
he
ignores
the
law
in
spite
of
this
acknowledgement.
Objection (doc. no. 34) at 3.
Yet
what
defense
counsel
characterizes
as
an
acknowledgement was simply the magistrate judge’s
setting forth Ocwen Loan’s argument; by doing so, the
magistrate judge acknowledged only that the argument
had been made. Worse, Ocwen Loan argues at length that
the magistrate judge recommended denying Ocwen Loan’s
motion “because he believes factual development is
necessary to determine whether any of the prior
servicers of Yeagers’ loan sent them a debt validation
notice.”
Id. at 6.
That is false.
What the
magistrate judge actually wrote is that discovery is
needed to determine whether the prior servicer was
(continued)
2

***
Accordingly, it is ORDERED as follows:
(1) Defendant’s

objections

(doc.

no.

34)

are

overruled.
(2) The
recommendation

United
(doc.

States
no.

Magistrate
33)

is

Judge's
adopted.

required to send a debt-validation notice, not whether
it had sent one before.
Report and Recommendation
(doc. no. 33) at 10.
As Ocwen Loan is surely aware,
not all prior mortgage servicers are “debt collectors”
under the FDCPA that are required to send such notices.
See, e.g., Bentley v. Bank of Am., N.A., 773 F. Supp.
2d 1367, 1371 (S.D. Fla. 2011) (Dimitrouleas, J.)
(FDCPA “explicitly excludes [from the definition of
debt collector] mortgage servicing companies where the
debt was not in default at the time it was assigned”).
Nothing in the complaint allows this court to determine
whether the prior servicer was a “debt collector” under
the FDCPA that accordingly would have been required to
send a debt-validation notice.
The magistrate judge
simply observed that discovery is required to determine
whether Ocwen Loan was the first “debt collector” as
defined by the FDCPA, and therefore whether it may have
had the obligation to provide the debt-validation
notice.
While
the
court
assumes
that
these
mischaracterizations
are
the
result
of
misunderstanding, sloppiness, or overzealousness rather
than an attempt at deception, counsel would be wise to
take greater care in characterizing the writings of a
fellow judge before this court.

3

(3)

Defendant’s

motion

for

judgment

on

the

pleadings (doc. no. 27) is denied, albeit with leave to
renew its arguments as set forth above.
(4) Defendant’s alternate motion for certification
pursuant

to

28

U.S.C.

§

1292(b)

(doc.

no.

34)

is

denied.
(5) This case is referred back to the magistrate
judge for further proceedings.
DONE, this the 3rd day of May, 2016.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE