Bias v. Cenlar Agency Inc et al

Filing 56

MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 5/24/18. (MRR, )

FILED
2018 May-24 PM 03:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LEONA BIAS,
Plaintiff,
v.
CENLAR AGENCY, INC., et al.,
Defendants.

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Case No.: 2:15-cv-00768-SGC

MEMORANDUM OPINION1
The court has before it the February 1, 2018 motion for summary judgment
filed by Defendants Cenlar Agency, Inc. and Cenlar FSB (collectively “Cenlar”).
(Doc. 49). Pursuant to the court’s initial order and February 28, 2018 order, the
motion is fully briefed and under submission as of March 30, 2018. (Docs. 8, 4951, 53-55). The motion is due to be granted for the following reasons.
I.

STATEMENT OF FACTS
In October 2005, Cenlar began servicing a mortgage loan originally

executed by Plaintiff Leona Bias in October 1998.

(Doc. 50-1 at 2, 4).

In

connection with the loan, Bias executed a promissory note in the amount of
$114,000.00 in favor of New South Federal Savings Bank. (Id. at 3, 10-12). The
note was secured by a mortgage on certain real property located in Jefferson

1

The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge
pursuant to 28 U.S.C. § 636(c). (Doc. 7).

County, Alabama, at 5424 Wesley Drive, Birmingham, Alabama, 35228. (Id. at 3,
14-20). The mortgage loan is currently owned by Federal Home Loan Mortgage
Corporation (“Freddie Mac”), and the loan documents, consisting of the note and
mortgage, are held by Bank of New York Mellon. (Id. at 3). In December 2009,
New South Federal Savings Bank was closed by the Office of Theft Supervision,
and the Federal Deposit Insurance Corporation (“FDIC”) was named receiver of
the bank’s assets. (Id. at 4). On August 5, 2013, the FDIC assigned the Bias
mortgage to Cenlar FSB. (Id. at 4, 33).
Bias began having trouble making her monthly mortgage payments around
May 2014. (Id. at 4). Bias admitted she is not current as to the loan because she
ran into financial trouble after she stopped working in December 2012. (Doc. 50-2
at 11). She testified she does not recall making a mortgage payment since June
2014. (Id. at 10-11).
On May 8, 2014, Cenlar sent Bias a letter stating her mortgage payment was
thirty-seven days late and her loan was in default. (Id. at 35). The letter discussed
options for Bias to consider regarding the default and attached information on how
to receive help. (Id. at 35-52). On May 22, 2014, Bias called Cenlar and spoke to
a Cenlar representative as to her payment issues. (Doc. 50-1 at 4). As part of the
call, Bias authorized a partial payment of $516.24. (Id. at 4, 54; Doc. 50-3 at 17,
27).

Bias explained she could not afford to make a full payment at the time but
2

she would call back in June and make another $500.00 payment to complete the
full monthly payment. (Doc. 50-2 at 11; Doc. 50-3 at 27, 29). Bias testified she
did not receive anything in writing accepting the partial payment. (Doc. 50-2 at
31).
The day after the call, on May 23, 2014, the $516.24 partial payment was
reversed and placed in suspense because it was insufficient to constitute a full
payment. (Doc. 50-1 at 5). On June 6, 2014, Cenlar returned the $516.24 partial
payment to Bias via check. (Id.; Doc. 50-2 at 11-12). Bias did not make the
$500.00 follow-up payment as discussed on the telephone call. (Doc. 50-3 at 17,
29-30).
On July 23, 2014, Cenlar sent Bias a notice of default letter to the property
address. (Doc. 50-1 at 8, 57-58). The letter detailed a cure amount of $1,920.13 as
to the default. (Id.). Bias did not timely satisfy the cure amount. (Id. at 8; Doc.
50-2 at 19-20). Then, on September 15, 2014, Cenlar sent Bias a letter offering her
the opportunity to enter into a trial period plan to potentially modify the loan and
cure her default. (Doc. 50-1 at 5, 60-66). Three days later, on September 18,
2014, Cenlar sent Bias another letter discussing payment default and other options
for Bias to consider. (Doc. 50-1 at 5, 68-85). There is no evidence Bias did
anything in response to the letters.

3

On October 22, 2014, counsel for Cenlar sent Bias two letters. (Id. at 5, 8791). The first letter, entitled “Notice of Acceleration of Promissory Note and
Mortgage,” informed Bias the mortgage was in default, the amount due and
payable as of that date was $85,155.95, and Cenlar was “commencing foreclosure
under the terms of the [m]ortgage.” (Doc. 50-1 at 87-89). Enclosed with the letter
was a copy of the foreclosure notice noting the sale was scheduled for November
24, 2014. (Id.). The second letter also noted the foreclosure, discussed ways to
avoid it, and included contact information for Bias to discuss possible alternatives.
(Id. at 91). Notice of the November 24, 2014 foreclosure sale as to the property
was published in the Alabama Messenger on October 25, November 1, and
November 8, 2014. (Doc. 50-1 at 96).
On October 28, 2014, Cenlar sent a letter to State Farm Fire & Casualty,
Bias’ homeowner’s insurance provider, notifying State Farm “a foreclosure action
ha[d] commenced on behalf of the insured mortgagee against the above referenced
property.” (Id. at 5, 93-94). In response, State Farm contacted Bias by phone and
told her that her homeowner’s insurance would be cancelled. (Doc. 50-2 at 33).
Bias told State Farm her insurance should not be cancelled because she was still
living in the property. (Id.). State Farm confirmed the insurance coverage would
not be cancelled. (Id.). Bias did not know if there was ever a lapse in coverage

4

and stated she did not suffer any damage to the property and never submitted an
insurance claim during this period of time. (Id.).
On November 21, 2014, counsel for Bias sent Cenlar's lawyer a letter stating
Bias denied Cenlar was the holder or owner of the mortgage or note, disputed the
amount of debt, and requested the foreclosure sale be stopped. (Id. at 6, 98). That
same day, counsel for Bias sent Cenlar a qualified written request (“QWR”) under
section 6(e) of the Real Estate Settlement Procedures Act (“RESPA”). (Id. at 6,
100). In response to the letters, Cenlar postponed the foreclosure sale, sent a letter
to Bias acknowledging receipt of her recent correspondence, and sent a letter to
counsel for Bias identifying Freddie Mac as the owner of the loan. (Id. at 6, 103,
105).
On January 12, 2015, Cenlar sent counsel for Bias a QWR response letter.
(Id. at 6, 107-08). Among other documents included with the QWR response,
Cenlar enclosed a payoff quote, as well as a reinstatement quote, which were good
through January 30, 2015. (Id. at 110-14). Bias did not submit sufficient funds to
reinstate or pay off the loan. (Id. at 7; Doc. 50-2 at 24).
On February 19, 2015, Cenlar sent a letter to Bias, in care of her attorney, renoticing the foreclosure sale for March 18, 2015. (Doc. 50-1 at 7, 118-19). Notice
of the mortgage foreclosure sale was published in the Alabama Messenger on
February 21 and 28, and March 7, 2015. (Id. at 121). The foreclosure sale was
5

cancelled in response to the filing of this action against Cenlar. (Id. at 8). Cenlar
has not foreclosed the mortgage. (Doc. 50-3 at 22).
Additionally, Bias testified that before she filed her complaint, she pulled
her credit report and recalled a reference related to Cenlar stating “foreclosure.”
(Doc. 50-2 at 29). Bias did not contact the national credit reporting bureaus to
dispute the foreclosure reference on her credit report.

(Id.).

She testified,

however, she was denied a credit card in late 2014, but could not recall which
company issued the denial. (Id. at 29-30). Bias did not produce the credit report or
any documentation regarding the denial of a credit card despite being asked by
Cenlar for documents supporting her claim.
II.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(c), summary judgment is proper

“if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary
judgment always bears the initial responsibility of informing the court of the basis
for its motion and identifying those portions of the pleadings or filings which it
believes demonstrate the absence of a genuine issue of material fact. Id. at 323.
Once the moving party has met its burden, Rule 56(e) requires the non-moving
6

party to go beyond the pleadings and by his own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts showing
there is a genuine issue for trial. See id. at 324.
The substantive law identifies which facts are material and which are
irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. 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, 477 U.S. at 248. If the
evidence is merely colorable, or is not significantly probative, summary judgment
may be granted. See id. at 249.
III.

DISCUSSION
Plaintiff’s complaint asserts fourteen claims against Defendants. (Doc. 1-1

at 3-20). In her brief in opposition to summary judgment, Plaintiff concedes
Defendants are entitled to summary judgment on her claims for slander of title
(Count Five) and fraud (Count Seven). (Doc. 54 n.2-n.3). The following twelve
claims remain: negligence (Count One); wantonness (Count Two); unjust
enrichment (Count Three); wrongful foreclosure (Count Four); breach of contract
(Count Six); false light (Count Eight); defamation, libel and slander (Count Nine);
violations of the Truth in Lending Act (“TILA”) (Count Ten); violations of the
7

RESPA (Count Eleven); violations of the Fair Credit Reporting Act (“FCRA”)
(Count Twelve); violations of the Fair Debt Collection Practice Act (“FDCPA”)
(Count Thirteen); and a claim for declaratory relief (Count Fourteen).

The

majority of these claims are brought pursuant to Alabama law. For the following
reasons, Defendants are entitled to summary judgment as to each claim.
A. Plaintiff’s negligence and wantonness claims are not cognizable
under Alabama law.
In Counts One and Two of the complaint, Bias alleges Cenlar engaged in
negligent and wanton conduct regarding the servicing of her loan, attempted to
collect funds not owed, caused her property insurance to be cancelled, negligently
defaulted Bias, and attempted to complete a foreclosure sale. (Doc. 1-1 at 6-8).
Additionally, Bias claims Cenlar negligently and wantonly failed to prevent the
dissemination of inaccurate and libelous information to others, including the credit
bureaus and the general public. (Id.). Finally, Bias contends Cenlar negligently
and wantonly trained and supervised the employees responsible for her mortgage
account. (Id.). Cenlar contends these claims fail as a matter of law because
Alabama law does not recognize a cause of action for negligent or wanton
servicing of a mortgage account. (Doc. 49 at 13).
“To establish negligence, [a] plaintiff must prove: (1) a duty to a
foreseeable plaintiff; (2) a breach of that duty; (3) proximate causation; and (4)
damage or injury.” Martin v. Arnold, 643 So. 2d 564, 567 (Ala. 1994) (quoting
8

Albert v. Hsu, 602 So. 2d 895, 897 (Ala. 1992)). “To establish wantonness, [a]
plaintiff must prove that the defendant, with reckless indifference to the
consequences, consciously and intentionally did some wrongful act or omitted
some known duty. To be actionable, that act or omission must proximately cause
the injury of which the plaintiff complains.”

Id.

“To establish a claim for

negligent, reckless or wanton supervision, a plaintiff must show that ‘(1) the
employee committed a tort recognized under Alabama law, (2) the employer had
actual notice of this conduct or would have gained such notice if it exercised due
and proper diligence, and (3) the employer failed to respond to this notice
accurately.’” Shuler v. Ingram & Assocs., 710 F. Supp. 2d 1213, 1227-28 (N.D.
Ala. 2010) (quoting Edwards v. Hyundai Motor Mfg. Ala., LLC, 603 F. Supp. 2d
1336, 1357 (M.D. Ala. 2009)).
Counts one and two fail as a matter of law because “Alabama law does not
recognize a tort-like cause of action for the breach of a duty created by contract.”
Blake v. Bank of America, N.A., 845 F. Supp. 2d 1206, 1210-11 (M.D. Ala. 2012)
(citations omitted). Any obligation Cenlar owed to Bias arose from the legal
relationship created by the loan documents. These obligations do not give rise to a
duty of reasonable care generally owed to members of the public.

James v.

Nationstar Mortg., LLC, 92 F. Supp. 3d 1190, 1200 (S.D. Ala. 2015). Because the
duty Bias contends Cenlar breached are based on contractual agreements, her
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negligence and wantonness claims are not legally cognizable under Alabama law.
U.S. Bank Nat’l Ass’n v. Shepherd, 202 So. 3d 302, 314-15 (Ala. 2015) (holding
that wantonness claims for servicing and handling mortgages are improper because
the underlying duties are established by contract).
The same is true of Plaintiff’s negligent training and supervision allegations.
Those claims are entirely based on the employee’s alleged negligent servicing,
handling, and investigation of the mortgage account. As such, they fail as a matter
of law because the only Alabama tort claims underlying those causes of action are
the non-cognizable negligent and wanton servicing claims. See Costine v. BAC
Home Loans, 946 F. Supp. 2d 1224, 1235 (N.D. Ala. 2013) (dismissing similar
negligent hiring and training claims). Cenlar’s motion for summary judgment on
Plaintiff’s negligence and wantonness claims is due to be granted.
B. Plaintiff’s unjust enrichment claim is not viable because of the
contract between the parties.
Count Three of the complaint alleges Cenlar was unjustly enriched by the
payment of fees, insurance proceeds, and equity in Bias’ home in connection with
the foreclosure attempts. (Doc. 1-1 at 8). Cenlar argues the unjust enrichment
claim fails because a valid contract existed between the parties. (Doc. 49 at 15).
“The doctrine of unjust enrichment is an old equitable remedy permitting the
court in equity and good conscience to disallow one to be unjustly enriched at the
expense of another.” Flying J Fish Farm v. Peoples Bank of Greensboro, 12 So.
10

3d 1185, 1193 (Ala. 2008) (emphasis and internal quotation marks omitted).
However, “the existence of an express contract extinguished an unjust enrichment
claim altogether because unjust enrichment is an equitable remedy which issues
only where there is no adequate remedy at law.” Univalor Trust, SA v. Columbia
Petroleum, LLC, 315 F.R.D. 374, 382 (S.D. Ala. 2016). Because of the existence
of a contract here, Cenlar is entitled to summary judgment on Bias’ claim of unjust
enrichment.
C. The wrongful foreclosure claim fails because there was no
foreclosure.
In Count Four, Bias alleges Cenlar wrongfully initiated foreclosure
proceedings and wrongfully attempted to conduct a foreclosure sale. (Doc. 1-1 at
8-9). In response, Cenlar maintains the wrongful foreclosure claim fails as a
matter of law because no foreclosure sale occurred. (Doc. 49 at 16).
Under Alabama law, a “mortgagor has a wrongful foreclosure action
whenever a mortgagee uses the power of sale given under a mortgage for a purpose
other than to secure the debt owed by the mortgagor.” Reeves Cedarhurst Dev.
Corp. v. First Am. Fed. Sav. and Loan, 607 So. 2d 180, 182 (Ala. 1992). There is
“no Alabama authority . . . under which the mere scheduling of a foreclosure sale,
without more, has been found to constitute a mortgagee’s exercise of the power of
sale.” Hardy v. Jim Walter Homes, Inc., 2007 WL 174391, at *6 (S.D. Ala. 2007).
“[tT]he power of sale is exercised by selling, not merely by running a newspaper
11

advertisement preparatory to selling.”

Id.

Because there has not been a

foreclosure sale, Cenlar is entitled to summary judgment as to Plaintiff’s wrongful
foreclosure claim.
D. Plaintiff’s claim for breach of contract fails as a matter of law.
In Count Six of her complaint, Bias alleges Cenlar “breached the agreement
by failing to comply with essential terms in paragraph 2 regarding the application
of payment and the notice requirements of paragraph 22 of the agreement.” (Doc.
1-1 at 9). Bias also alleges Cenlar failed to “apply regular monthly payments,
supplemental monthly payments, in the proper manner . . .” and Cenlar failed to
apply “some payments at all to Bias’ account . . . .” (Id.). Cenlar argues Bias’
claim fails because Bias did not perform under the contract, it applied all payments
to her account, the mortgage cannot be modified by an oral statement, and Cenlar
sent all required notices. (Doc. 49 at 18-22).
“The elements of a breach-of-contract claim under Alabama law are (1) a
valid contract binding the parties; (2) the plaintiff’s performance under the
contract; (3) the defendant’s nonperformance; and (4) resulting damages.” Shaffer
v. Regions Fin. Corp., 29 So. 3d 872, 880 (Ala. 2009) (internal quotations and
citations omitted).

Bias’ argument focuses on the alleged nonperformance of

Cenlar. Without any citation to the record, she argues Cenlar failed to properly
apply payments, refused to accept payments, failed to provide all required notices,
12

and failed to act in good faith and to deal fairly with Bias. (Doc. 54 at 26-29).
Bias' contention misses a critical element of her claim for breach of contract, her
own performance. It is undisputed, and Bias admitted multiple times in her
deposition, she was in default for failing to make payments. As such, she cannot
maintain a claim for breach of contract against Cenlar.
Even if she fully performed under the agreement, her allegations as to
Cenlar’s nonperformance fail. As to Bias’ claim Cenlar improperly or failed to
apply payments, the evidence does not support her blanket allegations. Other than
the returned partial payment in June 2014, Bias did not identify any payments
Cenlar allegedly misapplied, improperly returned, or cashed but failed to apply.
Even if a Cenlar representative told Bias she could send a partial payment and the
payment would be accepted, Cenlar’s rejection of the partial payment would not
constitute a breach of contract because the terms of the mortgage can only be
modified in writing under Alabama’s Statute of Frauds. See Ala. Code § 8-9-2(7).
Additionally, there is no evidence to support Bias’ claim regarding Cenlar’s
alleged failure to send notices. Among other correspondence discussing Bias’
default, a notice of default was mailed to Bias at the property address on July 23
2014; a notice of default and acceleration was mailed to her on October 22, 2014
along with a copy of the mortgage foreclosure sale notice related to the November
24, 2014 sale; and a foreclosure notice letter was sent in February 2015 as to the
13

March 18, 2015 foreclosure sale. (Doc. 50-1 at 5, 7, 57-58, 87-89, 118-19). Bias
presented no evidence to dispute these notices were sent and delivered to the
property. For these reasons, Bias’ breach of contract claim fails, and Cenlar is
entitled to summary judgment as to this claim.
E. Plaintiff’s false light, defamation, slander, and libel claims fail as a
matter of law.
In Counts Eight and Nine of the complaint, Bias alleges Cenlar wrongfully
publicized and communicated statements regarding her mortgage default to the
community and to credit reporting agencies. (Doc. 1-1 at 11-14). She contends the
alleged communications harmed her reputation, credit, and character. (Id.). Cenlar
argues these claims fail because Cenlar did not publicize any false statements
regarding Bias’ loan. (Doc. 49 at 24-25).
Both claims require proof of a false statement. To establish a claim for false
light, a plaintiff must show the defendant (1) “gave publicity to a matter”
concerning the plaintiff, (2) placed the plaintiff in a “false light” that would be
highly offensive to a reasonable person, and (3) did so with knowledge the
publicized matter was false or with reckless disregard to its truth or falsity.
Regions Bank v. Plott, 897 So. 2d 239, 244 (Ala. 2004) (quoting Butler v. Town of
Argo, 871 So. 2d 1, 12 (Ala. 2003)). Additionally, a false-light defendant must
communicate the matter at issue to the public at large “or to so many persons that
the matter must be regarded as substantially certain to become one of public
14

knowledge.” Id. at 245 (emphases omitted) (quoting Ex parte Birmingham News,
Inc., 778 So. 2d 814, 818 (Ala. 2000)).
Defamation also requires proof of a false statement. There are two types of
defamation: libel, which involves the use of print media to publish a defamatory
comment; and slander, which involves the oral expression of a defamatory
comment. Blevins v. W.F. Barnes Corp., 768 So. 2d 386, 390 (Ala. Civ. App.
1999).

Because Plaintiff’s claim is based on written communications, the

foreclosure sale notices, her claim is in reality one for libel, not slander. To prove
a communication was defamatory, a plaintiff must present evidence establishing
the following elements: “(1) a false and defamatory statement concerning the
plaintiff; (2) an unprivileged communication of that statement to a third party; (3)
fault amounting to at least negligence on the part of the defendant; and (4) either
actionability of the statement irrespective of special harm or the existence of
special harm caused by the publication of the statement.” McCaig v. Talladega
Pub. Co., Inc., 544 So. 2d 875, 877 (Ala. 1989) (citation omitted).
Bias argues the false statements relate to the publication of the foreclosure
sale notices, the notification to credit reporting agencies, and the notification to
Bias’ homeowner’s insurance carrier.

Specifically, and without citation to

anything in the record, Bias states “[i]t is clear from the complaint that the
Plaintiff[] allege[s] that [she was] not in default in making [her] mortgage
15

payments and that Defendant published a notice in the newspaper which claimed
that the Plaintiff[] [was] in default . . . .” (Doc. 54 at 24).
The evidence does not support Bias’ allegations.

Instead, the evidence

establishes Bias defaulted on her obligations under the loan documents, including
as to payments.

Bias admitted she missed her payments.

Any statements

regarding the default, or that the loan was sent to foreclosure, were accurate and
not false. Moreover, nothing in the two mortgage foreclosure notices was false.2
Accordingly, Cenlar is entitled to summary judgment on Bias’ claims for false
light and defamation, slander, and libel.
F. Plaintiff’s TILA claim fails as a matter of law.
In Count Ten of the complaint, Bias alleges Cenlar violated TILA by making
inadequate disclosures, charging unauthorized fees, and improperly calculating the
annual percentage rate. (Doc. 1-1 at 14-16). Cenlar contends this claim fails as a
matter of law because Cenlar was not Plaintiff’s “creditors” with regard to the
mortgage loan on the property. (Doc. 49 at 26). Cenlar also argues the TILA
claims are time barred. (Id. at 26-27).
TILA provides a private right of action against “any creditor” who violates
the requirements of the statute’s credit transactions section and allows for actual

2

To the extent these claims are based on credit reporting, they are preempted by the FCRA.
Gregory v. Select Portfolio Servicing, Inc., 2016 WL 4540891, at *8 (N.D. Ala. Aug. 31, 2016).
16

damages as a result of the failure and, with certain limitations, statutory damages.
15 U.S.C. § 1640(a). A “creditor” is defined as:
a person who both (1) regularly extends, whether in connection with
loans, sales of property or services, or otherwise, consumer credit
which is payable by agreement in more than four installments or for
which the payment of a finance charge is or may be required, and (2)
is the person to whom the debt arising from the consumer credit
transaction is initially payable on the face of the evidence. . . .
15 U.S.C. § 1602(g).

The civil liability provision of TILA does not apply

generally to every person the statute regulates but only to originating creditors.
Gregory, 2016 WL 4540891, at *14 (N.D. Ala. Aug. 31, 2016).

Cenlar is not a

“creditor” within the meaning of TILA because it is not the party to whom the loan
was initially payable.
Additionally, “assignees can only be held liable for violations occurring in
the original disclosure documents because any subsequent disclosure violation ‘is
not a violation apparent on the face of the disclosure statement provided in
connection with such transaction pursuant to this subchapter.’” Id. Any TILA
claims against Cenlar as an assignee of the loan based on origination disclosures
occurred in October 1998. Therefore, they are time barred by TILA’s one-year
statute of limitations. Id. at *15. For these reasons, Cenlar is entitled to summary
judgment as to Bias’ TILA claims.

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G. Plaintiff’s RESPA claim fails as a matter of law.
In Count Eleven of the complaint, Bias alleges Cenlar violated RESPA by
failing to timely acknowledge or respond to the QWR. (Doc. 1-1 at 16). In
response, Cenlar states it sent two letters, one to Bias and one to her counsel,
acknowledging receipt of the QWR and on January 12, 2015, sent a detailed
response to the QWR, including supporting documentation. (Doc. 49 at 27).
While Cenlar seemingly admits the response was untimely, Cenlar maintains her
claim fails because Bias cannot show she suffered any damages attributable to the
purported violation. (Id. at 27-28; Doc. 55 at 12-13).
The RESPA establishes the procedures a loan servicer must follow, and
certain actions it must take, upon receiving a QWR from a borrower. 12 U.S.C. §
2605(e). Section 2605(e) of the RESPA requires a loan servicer to send a written
acknowledgement of the borrower’s QWR within five days and a written response
to the QWR within thirty days.3 12 U.S.C. § 2605 (e)(1)(A), (e)(2). Failure to
adequately respond to a QWR results in liability “to the borrower for each such
failure in . . . an amount equal to the sum of any actual damages to the borrower as
a result of the failure. . . .” 12 U.S.C. § 2605(f)(1)(A). To succeed on a claim
under § 2605(e), Plaintiff “must show: (1) that Defendant is a servicer; (2) that
Defendant received a QWR from the borrower; (3) that the QWR related to the
3

Both time periods exclude public holidays, Saturdays, and Sundays.
2605(e)(1)(A), (e)(2).
18

12 U.S.C. §

servicing of the loan; (4) that Defendant failed to respond adequately; and (5) that
Plaintiff[ is] entitled to actual or statutory damages.” Buckentin v. SunTrust Mortg.
Corp., 928 F. Supp. 2d 1273, 1292 (N.D. Ala. 2013).
Bais’ QWR is dated November 21, 2014,4 but there is no evidence in the
record regarding how the letter was transmitted to Cenlar, including no evidence of
the date it was actually mailed or whether it was faxed or emailed. Cenlar was
required to acknowledge the QWR within five days, excluding legal public
holidays, Saturdays, and Sundays.

12 U.S.C. § 2605(e)(1)(A).

acknowledgment was sent on December 2, 2014.

Cenlar’s

(Doc. 50-1 at 6, 103).

Therefore, excluding Thanksgiving and intervening weekends, Cenlar’s response
was sent six days after Plaintiff’s QWR was written.
“In other contexts, federal regulations provide a presumption that mail is
received within five days of mailing.”

Buckentin, 928 F. Supp. 2d at 1293

(citations omitted). Absent any proof to the contrary, the court gives Cenlar the
presumption the QWR was received within five days of mailing. Therefore,
assuming the QWR was mailed the day it was written, the court presumes Cenlar
4

The complaint alleges Bias sent two QWRs on September 12, 2014, and November 5, 2014, via
certified mail, which were “signed for by Defendants acknowledging receipt of the QWR.”
(Doc. 1-1 at 16). The evidence belies these assertions. First, the only QWR was dated
November 21, 2104. (Doc. 50-1 at 100-01). Second, there is no evidence Bias mailed the QWR
by certified mail or that Cenlar signed for the letter. In fact, Bias failed to respond to Cenlar’s
request for admission stating “[a]dmit that you do not have any documents which support the
claim in paragraph 92 of your [c]omplaint that the alleged [QWR] was sent by certified mail and
was signed for by Defendants.” (Doc. 50-5 at 6). Her failure to respond results in automatic
admission no such documents exist. See Fed. R. Civ. P. 36(a).
19

received it on November 26, 2014.5 Excluding the weekend and Thanksgiving day
holiday following the presumed date of receipt, Cenlar had until December 4,
2014, to respond. Because Cenlar responded on December 2, 2014, Bias has not
shown Cenlar failed to acknowledge their QWR within the appropriate time frame.
Additionally, even if Cenlar’s response was untimely, Bias failed to show
she suffered any actual damages attributable to the alleged RESPA violation. Bias’
home was not foreclosed as a consequence of insufficient or untimely information
by Cenlar. Instead, the November 24, 2014 foreclosure sale was postponed after
Bias sent her QWR, Cenlar provided all requested information in January 2015,
and the rescheduled March 18, 2015 foreclosure sale never went forward. (Doc.
50-1 at 6-8). Bias did not take any action in response to receiving Cenlar’s January
2015 response to the QWR. There is certainly no evidence she made any attempts
to reinstate or pay off the loan.
“Plaintiff[] arguably may recover for non-pecuniary damages, such as
emotional distress and pain and suffering, under RESPA.” McLean v. GMAC
Mortg. Corp., 398 F. App'x. 467, 471 (11th Cir. 2010) (citing Banai v. Sec'y U.S.
Dep't of Hous. & Urban Dev. ex rel. Times, 102 F.3d 1203, 1207 (11th Cir. 1997)
(a case under the Fair Housing Act)). Bias, however, has not presented any
competent evidence demonstrating any of her alleged emotional distress injuries

5

The letter was mailed from Birmingham, Alabama, to Ewing, New Jersey. (Doc. 50-1 at 100).
20

were caused by the RESPA violation. Bias’ own testimony suggests she did not
even know the QWR letter was sent on her behalf.

(Doc. 50-2 at 22-23).

Therefore, Cenlar is entitled to summary judgment on Bias’ RESPA claims
because she failed to establish either Cenlar failed to respond adequately or in a
timely manner to her QWR or that she suffered actual damages as a result of the
alleged RESPA violation.6
H. Plaintiff’s FCRA claim fails as a matter of law.
In Count Twelve of the complaint, Bias asserts a violation of the FCRA.
(Doc. 1-1 at 16-18). She alleges Cenlar inaccurately reported to national credit
reporting agencies she was delinquent and in default as to her loan. (Id.). Bias
also states in her complaint she contacted national credit reporting agencies and
disputed the inaccurate information. (Id.).
“The FCRA imposes two separate duties on furnishers. First, [15 U.S.C.] §
1681s-2(a) requires furnishers to submit accurate information to [credit reporting
agencies]. Second, § 1681s-2(b) requires furnishers to investigate and respond
promptly to notices of [consumer] disputes.” Green v. RBS Nat’l Bank, 288 F.
App'x 641, 642 (11th Cir. 2008). The FCRA provides a private right of action for
violations of § 1681s-2(b) only when “the furnisher received notice of the

6

To recover statutory damages, a servicer must engage in "a pattern or practice of noncompliance with RESPA." McLean, 398 F. App'x at 471. There is no such evidence in this case.
21

consumer’s dispute from a consumer reporting agency.” Peart v. Shippie, 345 F.
App'x 384, 386 (11th Cir. 2009).
Despite Bias’ argument to the contrary, the undisputed evidence clearly
shows Bias did not make a dispute to a credit reporting agency. Bias testified she
did not contact the national credit reporting bureaus to submit a dispute. (Doc. 502 at 29). Additionally, Bias failed to respond to Cenlar’s request for admission
stating “[a]dmit that you do not have any documents which support the allegation
of paragraph 94 of your [c]omplaint that ‘Plaintiff disputed the account and false
credit reporting.’” (Doc. 50-5 at 6). Her failure to respond results in automatic
admission no such documents exist. See Fed. R. Civ. P. 36(a). Bias’ conclusory
statements in her brief fail to create a genuine issue of material fact. See Anderson,
447 U.S. at 248. Therefore, Cenlar is entitled to summary judgment on Bias’
FCRA claims.
I. Plaintiff’s FDCPA claim fails because Cenlar is not a “debt collector”
under the statute.
In Count Thirteen of the complaint, Bias asserts violations of the FDCPA.
(Doc. 1-1 at 18-19). Bias alleges Cenlar sought unjustified amounts under the
mortgage, threatened legal action, communicated with third parties regarding the
nature of her debt, and falsely stated the amount of the debt owed. (Id.). Cenlar
argues this claim fails because it is not a “debt collector” as defined by the
FDCPA. (Doc. 49 at 29-31).
22

The FDCPA provides a civil cause of action against debt collectors who
violate the provisions of the Act. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270
(11th Cir. 2011). To assert a claim under the FDCPA, a plaintiff must establish the
following elements: “(1) the plaintiff has been the object of collection activity
arising from consumer debt, (2) the defendant is a debt collector as defined by the
FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the
FDCPA.” Janke v. Wells Fargo and Co., 805 F. Supp. 2d 1278, 1281 (M.D. Ala.
2011).
A debt collector is defined as “any 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.” 15 U.S.C.
§ 1692a(6). In general, the FDCPA “applies only to debt collectors and not to
creditors or mortgage servicers.” Ingram v. Green & Cooper, Attorneys L.L.P.,
2012 WL 1884598 *3 (N.D. Ga. 2012); see also Madura v. Lakebridge Condo.
Ass’n Inc., 382 F. App'x 862, 864 (11th Cir. 2010). “[C]onsumer’s creditors, a
mortgage servicing company, or an assignee of a debt are not considered debt
collectors, as long as the debt was not in default at the time it was assigned.”
Reese v. JPMorgan Chase & Co., 686 F. Supp. 2d 1291, 1307 (S.D. Fla. 2009)
(internal quotations and citations omitted).
23

It is undisputed Cenlar first became involved with the servicing of Bias’
mortgage loan in 2005. There is no evidence Bias was in default in 2005. Instead,
Bias testified she made all her mortgage payments before June 2014. (Doc. 50-2 at
11).

Accordingly, the mortgage loan was not in default when Cenlar began

servicing it, and Cenlar is not a “debt collector” under the FDCPA. Cenlar is
entitled to summary judgment on Bias’ claims under the FDCPA.
J. Plaintiff is not entitled to declaratory relief.
In the fourteenth and final count of the complaint, Bias seeks declaratory
relief based on the alleged wrongdoing of Cenlar. (Doc. 50-1 at 19). Because
Cenlar is entitled to judgment as a matter of law on all other counts of her
complaint, she cannot receive declaratory relief. See Creative Compounds, LLC v.
Starmark Labs., 651 F.3d 1303, 1316 (Fed. Cir. 2011) (“Without an underlying
legal cause of action, any adverse economic interest that the declaratory plaintiff
may have against the declaratory defendant is not a legally cognizable interest
sufficient to confer declaratory judgment jurisdiction.”).
IV.

CONCLUSION
For the foregoing reasons, Defendants Cenlar Agency, Inc. and Cenlar FSB

are entitled to judgment as a matter of law on all the claims asserted in Plaintiff’s
complaint. As such, Defendants’ motion for summary judgment is due to be

24

granted in full. (Doc. 49). A separate order will be entered.
DONE this 24th day of May, 2018.
______________________________
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE

25