Santiago et al v. Everhome Mortgage Company

Filing 20

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 3/19/2013. (JLC)

FILED
2013 Mar-19 PM 04:09
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
BELINDA G. SANTIAGO, et al.,
Plaintiffs,
v.
EVERBANK,
Defendant.

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Case No.: 1:12-CV-2793-VEH

MEMORANDUM OPINION
I.

INTRODUCTION
The plaintiffs in this lawsuit, Belinda G. and Hector R. Santiago (the

“Santiagos”), are proceeding pro se. The dispute arises out of Defendant EverBank’s
threatened foreclosure upon the Santiagos’ mortgaged home. (Doc. 1 at 2 ¶ 4). The
action was reassigned to the undersigned on February 13, 2013. (Doc. 14).
Pending before the court is EverBank’s Motion for Judgment on the Pleadings
(Doc. 10) (the “Motion”) filed on January 23, 2013. The Santiagos opposed the
Motion (Doc. 12) on January 30, 2013, and EverBank replied (Doc. 13) on February
8, 2013.
On February 14, 2013, the court converted the Motion to one for summary
judgment under Rule 56 of the Federal Rules of Civil Procedure “[b]ecause the
plaintiffs are representing themselves and because the Motion attaches evidence

which arguably falls outside the four corners of Plaintiffs’ complaint[.]” (Doc. 17 at
1). Within this same order, the court also gave the Santiagos special notice of the
summary judgment rules (Doc. 17 at 2-3, 4) and permitted them to file an additional
opposition to the Motion on or before March 18, 2013. (Id. at 1).
On March 5, 2013, the Santiagos elected to file another brief. (Doc. 19).
Accordingly, the Motion is now under submission, and for the reasons explained
below is due to be granted.
II.

STANDARD
Summary judgment is proper only when there is no genuine issue of material

fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute is genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “Once the moving party has properly supported its motion for
summary judgment, the burden shifts to the nonmoving party to ‘come forward with
specific facts showing that there is a genuine issue for trial.’” International Stamp
Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (citing
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
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III.

ANALYSIS
In their complaint, the Santiagos maintain that EverBank has failed to provide

them with a “proof of claim” related to its efforts to foreclose upon their mortgaged
home. (Doc. 1 at 2 ¶ 4). The Santiagos further indicate that the court’s jurisdiction
is premised upon 15 U.S.C. § 1692 and 18 U.S.C. §§ 241, 242. (Id. ¶ 3). The court
addresses the viability of each potential theory separately below.
A.

Fair Debt Collection Practices Act

15 U.S.C. § 1692 is part of the Fair Debt Collection Practices Act (the
“FDCPA”). The purposes of the FDCPA are:
[T]o eliminate abusive debt collection practices by debt collectors, to
insure that those debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged, and to promote
consistent State action to protect consumers against debt collection
abuses.
15 U.S.C. § 1692(e).
In its Motion, EverBank asserts that the Santiagos cannot maintain a claim
against it because, as a mortgage servicer, EverBank “does not typically fall within”
the term “debt collector” as defined under the FDCPA and therefore is not an
appropriately named defendant. (Doc. 10 at 5 ¶ 14). Alternatively, EverBank
contends that the Santiagos ’ allegations do not constitute a cognizable claim under
the FDCPA. (Id. ¶¶ 15-17).
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The FDCPA statutorily defines “debt collector” as:
[A]ny person 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 who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another.
Notwithstanding the exclusion provided by clause (F) of the last
sentence of this paragraph, the term 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. For the purpose of section 1692f(6) of this title, such
term 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. The term does not include-(A) any officer or employee of a creditor while, in the
name of the creditor, collecting debts for such creditor;
(B) any person while acting as a debt collector for another
person, both of whom are related by common ownership or
affiliated by corporate control, if the person acting as a
debt collector does so only for persons to whom it is so
related or affiliated and if the principal business of such
person is not the collection of debts;
(C) any officer or employee of the United States or any
State to the extent that collecting or attempting to collect
any debt is in the performance of his official duties;
(D) any person while serving or attempting to serve legal
process on any other person in connection with the judicial
enforcement of any debt;
(E) any nonprofit organization which, at the request of
consumers, performs bona fide consumer credit counseling
and assists consumers in the liquidation of their debts by
receiving payments from such consumers and distributing
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such amounts to creditors; and
(F) any person collecting or attempting to collect any debt
owed or due or asserted to be owed or due another to the
extent such activity (i) is incidental to a bona fide fiduciary
obligation or a bona fide escrow arrangement; (ii) concerns
a debt which was originated by such person; (iii) concerns
a debt which was not in default at the time it was obtained
by such person; or (iv) concerns a debt obtained by such
person as a secured party in a commercial credit transaction
involving the creditor.
15 U.S.C. § 1692a(6)(A)-(F).
As summarized in Jenkins v. BAC Home Loan Servicing, LP, 822 F. Supp. 2d
1369 (M.D. Ga. 2011):
It is well-established that mortgage servicers do not fall within the
definition of debt collector. See Warren v. Countrywide Home Loans,
Inc., 342 Fed. Appx. 458, 460 (11th Cir. 2009) (determining that “the act
of foreclosing on a security interest is not debt collection activity for the
purposes of the FDCPA.”); Bentley v. Bank of Am., N.A., 773 F. Supp.
2d 1367, 1371 (S.D. Fla. Mar. 23, 2011) (concluding that plaintiff's
claims under the FDCPA should be dismissed because “neither
Defendants are ‘debt collectors’ as contemplated by the statute which
explicitly excludes mortgage servicing companies”); Hennington v.
Greenpoint Mortg. Funding, Inc., Nos. 1:09–cv–676–RWS,
1:09–cv–962–RWS, 2009 WL 1372961, at *6 (N.D. Ga. May 15, 2009)
(noting that “[i]t is well established that the FDCPA applies only to
‘debt collectors’ and not to creditors or mortgage servicers.”).
Jenkins, 822 F. Supp. 2d at 1374 (emphasis added).
EverBank has not cited to any controlling precedent regarding to what extent
a mortgage servicer may be liable as a debt collector under the FDCPA. Moreover,
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the court’s own independent research has failed to uncover any binding authority
substantiating EverBank’s position.1
As explicated by several non-binding authorities, the reasoning behind the socalled mortgage servicer exception stems from the statutory interpretation doctrine
of expressio unius est exclusio alterius. More specifically, as an unpublished panel
of the Eleventh Circuit explained in a lawsuit brought against a mortgage servicer:
A “debt collector” is a term of art in the FDCPA. It is expressly
defined to mean:
any person who uses any instrumentality of interstate
In Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir.
2012), the Eleventh Circuit clarified the scope of its holding relating to the potential
liability of a law firm under § 1692e of the FDCPA:
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Because we hold that the Ellis law firm’s demand for payment on
the promissory note was debt-collection activity within the meaning of
the FDCPA, we do not reach the question of whether enforcing a
security interest is itself debt-collection activity covered by the statute.
That is, we do not decide whether a party enforcing a security interest
without demanding payment on the underlying debt is attempting to
collect a debt within the meaning of § 1692e.
Reese, 678 F.3d at 1218 n.3 (emphasis added).
Similarly, in the unpublished panel decision of Birster v. American Home
Mortg., Servicing, Inc., 481 Fed. App’x 579, 583 n.2 (11th Cir. 2012), the Eleventh
Circuit briefly mentioned the loan servicer/debt collector distinction, but did not
comment on the merits of such an argument. See id. (“The district court has not
addressed this issue in the first instance, and will have an opportunity to do so on
remand.”).
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commerce or the mails in any business the principal
purpose of which is the collection of any debts, or 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). Significantly, the statute also provides that “[f]or
the purpose of section 1692f(6)” a 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.” Id. Under the doctrine of expressio unius est
exclusio alterius, “the expression of one thing implies the exclusion of
others.” Alltel Commc’ns, Inc. v. City of Macon, 345 F.3d 1219, 1222
(11th Cir. 2003). Thus, an enforcer of a security interest only qualifies
as a “debt collector” for the purpose of § 1692f(6). See Montgomery v.
Huntington Bank, 346 F.3d 693, 700 (6th Cir. 2003) (explaining that “an
enforcer of a security interest ... falls outside the ambit of the FDCPA
for all purposes, except for the purposes of § 1692f(6)” (quotation marks
omitted)).
Ausar–El’s complaint alleges that BAC violated § 1692g in
connection with its enforcement of a security interest it held in his
property. For the reasons explained above, BAC was not acting as a
“debt collector” as that term is used in § 1692g. See id. Accordingly,
the district court did not err in dismissing Ausar–El’s FDCPA claim for
failure to state claim.
Ausar-El ex rel. Small, Jr. v. BAC Home Loans Servicing LP, 448 Fed. App’x 1, 2-3
(11th Cir. 2011) (emphasis added); see also Warren v. Countrywide Home Loans,
Inc., 342 Fed. App’x 458, 460 (11th Cir. 2009) (unpublished decision) (“ Indeed, the
statute specifically says that a person in the business of enforcing security interests
is a ‘debt collector’ for the purposes of § 1692f(6), which reasonably suggests that

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such a person is not a debt collector for purposes of the other sections of the Act.”).
Here, the Santiagos have not indicated in their complaint which particular
provision(s) of the FDCPA EverBank has allegedly violated. However, the nature of
their claim is comparable to the conduct complained about in Warren. Cf. Warren,
342 Fed. App’x at 460 (“We also reject Warren’s apparent argument-construed
loosely from his brief-that the district court erred by dismissing his claim that
Countrywide violated the FDCPA by failing to respond to his request for verification
of his debt before it proceeded with a foreclosure sale of his home.”) (emphasis
added). Therefore, Warren, if persuasively applied by the court, would lend support
to EverBank’s position that the Santiagos’ FDCPA claim will not lie against it as a
mortgage servicer.
However, EverBank’s own Motion concedes that its status as excepted from
debt collector status under the FDCPA is not absolute. (See Doc. 10 at 5 ¶ 14 (“As
an initial matter, a mortgage servicer such as EverBank does not typically fall within
the definition of ‘debt collector’ under [the] FDCPA”) (emphasis added)). Also, the
holding in Warren has subsequently been called into question. Cf. Birster, 481 Fed.
Appx. at 582 (“Based 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.”) (emphasis added); id. at
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583 (“Although Reese dealt with the applicability of § 1692e, the practical effect of
the case is to overrule the reasoning [in Warren] relied on by the district court, since
Reese allowed the enforcer of a security interest to be held liable under the FDCPA
beyond § 1692f(6).”); id. (“Reese provides that an entity can both enforce a security
interest and collect a debt, and constitutes binding precedent on this point.”).
Therefore, given the absence of applicable binding precedent supporting
EverBank’s position, the Eleventh Circuit published and unpublished authorities that
cast doubt upon it, and EverBank’s own acknowledgment that, at times, it may be
subject to the FDCPA, the court assumes without deciding that the Santiagos’ efforts
to assert an FDCPA claim against EverBank are not futile simply because EverBank
is a mortgage servicer.
Nevertheless, the Santiagos’ FDCPA claim fails for another reason. More
specifically, the crux of the Santiagos ’ lawsuit is over EverBank’s alleged failure to
provide them with a “proof of claim” or “any remedy for which relief can be granted.”
(Doc. 1 at 2 ¶ 4). Further, in terms of relief, the Santiagos want this court to:
“Provide ‘Proof of Claim’ or Remedy for which Relief can be granted.” (Doc. 1 at
3 ¶ 5).
However, in complaining about EverBank’s conduct and seeking such relief
from the court, the Santiagos have not referenced any particular provision of the
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FDCPA that they assert EverBank has violated. Instead, the Santiagos have only
specifically identified § 1692, which sets out the congressional findings and
declaration of legislative purpose of the FDCPA. Further, this introductory section
of the FDCPA has no actionable subparts.
Additionally, “ proof of claim” is not defined under the FDCPA, and the court
has been unable to locate a provision of the FDCPA which permits a plaintiff to sue
because a defendant generates no (or, alternatively, an inadequate) “proof of claim”
before proceeding with foreclosure. Likewise, the court cannot find authority under
the FDCPA for the court to either (i) order a defendant to provide a plaintiff with a
proof of claim or (ii) fashion a remedy for a plaintiff as an alternative to the specific
relief which Congress has deemed to be appropriate under the FDCPA.
Furthermore, to the extent that the Santiagos maintain that EverBank violated
§ 1692g(b) of the FDCPA relating to the verification of a disputed debt, it is factually
uncontested that, on July 10, 2012, EverBank provided the Santiagos with a
collection of pertinent information related to their residential loan, including an
explanatory cover letter, a payoff statement, the note, and the mortgage, after
receiving two pieces of correspondence from Mr. Santiago. (Doc. 10-1 at 2 ¶¶ 7-9);
(see also Doc. 10-2 at 2-29 (attaching correspondence from EverBank to Mr.
Santiago dated July 13, 2012, payoff statement quoted July 11, 2012, adjustable rate
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note dated February 21, 2004, and mortgage dated February 21, 2004)).2
Additionally, § 1692g(b) does not require a debt collector to format such debt
documentation in any particular manner before sending it to the consumer.
Therefore, EverBank’s Motion is due to be granted with respect to the
Santiagos’ FDCPA claim, due to the ambiguous and inactionable nature of what the
Santiagos have asserted in their pleading.

Alternatively, any FDCPA claim

purportedly premised upon § 1692g(b) fails because the record undisputedly
establishes that EverBank provided the Santiagos with documentation substantiating
their consumer debt.
B.

Federal Criminal Statutes

18 U.S.C. § 241 and § 242 are both federal criminal statutes.

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specifically, § 241 criminalizes conduct that constitutes a conspiracy against rights
and states:
If two or more persons conspire to injure, oppress, threaten, or
intimidate any person in any State, Territory, Commonwealth,
Possession, or District in the free exercise or enjoyment of any right or
privilege secured to him by the Constitution or laws of the United States,
or because of his having so exercised the same; or
If two or more persons go in disguise on the highway, or on the premises
of another, with intent to prevent or hinder his free exercise or
The page references to Doc. 10-2 correspond with the court’s CM/ECF
numbering system.
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enjoyment of any right or privilege so secured-They shall be fined under this title or imprisoned not more than ten
years, or both; and if death results from the acts committed in violation
of this section or if such acts include kidnapping or an attempt to
kidnap, aggravated sexual abuse or an attempt to commit aggravated
sexual abuse, or an attempt to kill, they shall be fined under this title or
imprisoned for any term of years or for life, or both, or may be sentenced
to death.
18 U.S.C. § 241 (emphasis added).
Section 242 criminalizes conduct which constitutes a deprivation of rights
under color of law and provides:
Whoever, under color of any law, statute, ordinance, regulation, or
custom, willfully subjects any person in any State, Territory,
Commonwealth, Possession, or District to the deprivation of any rights,
privileges, or immunities secured or protected by the Constitution or
laws of the United States, or to different punishments, pains, or
penalties, on account of such person being an alien, or by reason of his
color, or race, than are prescribed for the punishment of citizens, shall
be fined under this title or imprisoned not more than one year, or both;
and if bodily injury results from the acts committed in violation of this
section or if such acts include the use, attempted use, or threatened use
of a dangerous weapon, explosives, or fire, shall be fined under this title
or imprisoned not more than ten years, or both; and if death results from
the acts committed in violation of this section or if such acts include
kidnapping or an attempt to kidnap, aggravated sexual abuse, or an
attempt to commit aggravated sexual abuse, or an attempt to kill, shall
be fined under this title, or imprisoned for any term of years or for life,
or both, or may be sentenced to death.
18 U.S.C. § 242 (emphasis added).
As neither one of these criminal statutes supports a claim for civil liability (of
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any kind), the Motion is due to be granted on the Santiagos’ “proof of claim” theory
that is alternatively tied to these two inapplicable laws.
IV.

CONCLUSION
Therefore, EverBank’s Motion is due to be granted, and the Santiagos’ case is

due to be dismissed with prejudice. The court will enter a separate order.
DONE and ORDERED this the 19th day of March, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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