Aurora Loan Services LLC v. Carthenia W. Jefferson
Filing
61
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/26/2018. (KWC)
FILED
2018 Jul-26 PM 04:26
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CARTHENIA W. JEFFERSON,
)
)
Plaintiff,
)
)
v.
) Case No.: 2:16-CV-964-VEH
)
NATIONSTAR MORTGAGE LLC, )
)
Defendant.
)
MEMORANDUM OPINION
The only claims remaining in this civil action are filed by the Plaintiff,
Carthenia Jefferson, against the sole remaining Defendant, Nationstar Mortgage, LLC
(“Nationstar”).1 The Amended Complaint alleges that Nationstar is liable to Jefferson
for violations of: the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692-1692p
(the “FDCPA”) (Count One); the Fair Credit Reporting Act, 15 U.S.C. §§ 16811681x (the “FCRA”) (Count Two); and the Truth in Lending Act, 15 U.S.C. §§ 16011616 (the “TILA”), including 12 C.F.R. § 226 (Federal Reserve Board Regulation Z).
The case comes before the Court on Nationstar’s Motion for Summary
Judgment (the “Motion”). (Doc. 46). For the reasons stated herein, the Motion will
1
The Court will not again set out the long and complex road this litigation has traveled.
For that story, see document 26 in this case, and document 33 in Aurora Loan Services LLC v.
Jefferson et al., 2:16-cv-00078-VEH.
be GRANTED.
I.
STANDARD
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary 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 a judgment as a matter of law.”) (internal quotation
marks and citation omitted). The party requesting 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 that it believes demonstrate the
absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the
moving party has met its burden, Rule 56(e) requires the non-moving party to go
beyond the pleadings in answering the movant. Id. at 324. By its own affidavits – or
by the depositions, answers to interrogatories, and admissions on file – it must
designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
2
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment
may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citation omitted). Once the moving party makes such
an affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
3
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance, the
non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
II.
FACTS
The Plaintiff has proffered 29 facts in opposition to the Motion. However, in
contravention of this Court’s Uniform Initial Order (see doc. 10 at 18), and Rule
56(e), she has failed to provide citations to the record in support of any proffered fact.
Indeed, the Plaintiff has merely “cut and pasted” allegations from her Amended
4
Complaint into the brief as her “facts.” (Compare doc. 58 at 4-11, ¶¶1-29; doc. 32 at
3-8, ¶¶7-37). It is axiomatic that “Rule 56[] . . . requires the nonmoving party to go
beyond the pleadings.” Celotex, 477 U.S. at 324. Accordingly, the Court will not
consider the Plaintiff’s proffered facts.2
The facts proffered by the Defendant have not been sufficiently disputed by the
Plaintiff, and are therefore deemed to be admitted for purposes of the instant motion.3
2
The Plaintiff has also attached her affidavit to her brief (doc. 58-1 at 1-4), but never
cites to it. The Court has not considered the affidavit. (See FED. R. CIV. P. 56(c)(3) (“The court
need consider only the cited materials[.]”). Also, while the Plaintiff makes a few general
references in the body of her brief to “Plaintiff’s Deposition,” she never cites specific portions
thereof. Such a general “citation” is insufficient. The Court has not scoured the Plaintiff’s
deposition in search of support for the propositions she makes.
3
See FED. R. CIV. P. 56(e)(2). Also, this Court’s Uniform Initial Order, entered in this
case on June 20, 2016, provides:
The first section [of a brief in opposition to a Motion for Summary Judgment]
must consist of only the non-moving party’s disputes, if any, with the moving
party’s claimed undisputed facts. The non-moving party’s response to the moving
party’s claimed undisputed facts shall be in separately numbered paragraphs that
coincide with those of the moving party’s claimed undisputed facts. Any
statements of fact that are disputed by the non-moving party must be followed by
a specific reference to those portions of the evidentiary record upon which the
dispute is based. All material facts set forth in the statement required of the
moving party will be deemed to be admitted for summary judgment purposes
unless controverted by the response of the party opposing summary judgment.
(Doc. 10 at 17) (italics in original). In response to the Motion, the Plaintiff disputes only three of
Nationstar’s facts (nos. 14, 15, and 33). (Doc. 58 at 3). In doing so, Jefferson fails to cite a
specific portion of the record in support of her dispute, referring the Court only generally to
“Plaintiff’s Deposition.” As noted previously, that is hardly a “specific reference” to the record.
5
Those facts, included here verbatim, are:4
A. The inception of Jefferson’s Home Mortgage Loan
1. On August 5, 2006, Jefferson executed a promissory note (the “Note”)
in favor of Home Loan Center, Inc. dba Lending Tree Loans (“Lending
Tree”) in the amount of $152,000.00.
2. Jefferson secured the Note by giving a mortgage on the certain
property commonly known as 2128 Oakwood Drive, Birmingham,
Alabama 35215 (the [“]Property”) in favor of Mortgage Electronic
Registration Systems, Inc. (“MERS”), solely as nominee for Lending
Tree and its successors and assigns, recorded in Book LR 200613, Page
28564, in the Office of the Judge if Probate of Jefferson County,
Alabama (the “Mortgage” and, together with the Note, the “Loan”).
3. The Note required Jefferson to make monthly payments on the first
day of each month to satisfy the debt.
4. Jefferson knowingly executed the Note and Mortgage, understood the
payment terms, understood that she would be in default if she did not
pay the full amount by the due date, and understood the fees, costs, and
expenses that could be charged.
5. Jefferson also understood that the Mortgage required her to pay all[]
assessments, and like charges attributable to the Property, that she was
required to have insurance on the Property (otherwise insurance would
be lender-placed and become additional borrower debt), and that she
was to notify the lender and insurance carrier in the event of a loss and
make repairs to the Property before insurance proceeds should be
released.5
4
Except as to one footnote which has been added with brackets, the footnotes included in
this block quote are from the original. However, most footnotes from the block quote have been
omitted.
5
The Mortgage also provides that the lender has the “right to hold such insurance
proceeds until lender has had an opportunity to inspect such property to ensure the work has been
6
B. Aurora’s 2010 Foreclosure and Early Procedural History of This
Case
6. Aurora Loan Services, LLC (“Aurora”) serviced the Loan from the
first payment due on the Loan (October 2006) until the servicing of the
loan transferred to Nationstar on July 1, 2012.
7. Jefferson fell behind on the Loan payments in 2009.
8. In May 11, 2010, Aurora foreclosed on the Property, and a foreclosure
deed vested title in Federal National Mortgage Association (“Fannie
Mae”).
9. On December 4, 2011, Aurora filed a lawsuit in the Jefferson County
Circuit Court, seeking to set aside the foreclosure and reinstate the
Mortgage (the “Original Complaint”).
10. On May 11, 2012, Jefferson answered the Original Complaint and
asserted counterclaims against Aurora, Fannie Mae, and Sirote &
Permutt, PC (“Sirote”) (the “Original Counterclaim”).
11. Among other things, Jefferson claimed that as a result of Aurora’s
foreclosure, Alfa Insurance Company canceled her home insurance
policy.
12. Because there was no insurance on the Property in 2012, Aurora
lender-placed insurance, which increased Jefferson’s monthly payments;
and Jefferson fell behind on her re-instated Mortgage while Aurora was
servicing the Loan.
13. While the Original Complaint and Original Counterclaim were
completed to the lender’s satisfaction, provided that such inspection shall be undertaken
promptly” . . . and that the proceeds may be disbursed in “a series of payments as the work [is]
completed” which Jefferson understood and agreed to. [(Doc. 48-1 at 23(87-88))].
7
pending, on July 1, 2012, servicing of the loan transferred from Aurora
to Nationstar.
14. When Nationstar began servicing the Loan in July 2012, Jefferson
was behind on her Mortgage payments and [] due for the December
2011 payment.
15. In July 2012, after it took over servicing of the Loan, Nationstar
applied funds in the Loan suspense account as the December 2011,
January 2012, and February 2012 payments, which made the Loan next
due for the March 2012 payment (which is where it currently stands).
16. On December 2012, the Original Complaint was resolved by a
Consent Order (1) expunging the foreclosure deed, (2) setting aside the
foreclosure sale, and reinstating the Mortgage, leaving only the Original
Counterclaim against Aurora and Fannie Mae.6
17. In November 2015, Aurora and Jefferson settled their dispute and
the Original Counterclaim against Aurora was dismissed, leaving only
the Original Counterclaim against Fannie Mae.
C. Jefferson Adds Nationstar and the Insurance Defendants to the
Case in December 2015, Shortly After She Settles with Aurora.
18. One month after settling with Aurora, on December 11, 2015,
Jefferson filed an Amended Counterclaim adding claims against
Nationstar, QBE First Insurance Agency, Inc., Balboa Insurance
Company, and QBE Americas, Inc. (collectively, the “Insurance
Defendants).
19. Nationstar and the Insurance Defendants removed the case to this
Court on January 15, 2015[,] and, ultimately, this Court remanded the
state law claims and retained jurisdiction only of the claims against
Nationstar arising under the Truth in Lending Act (“TILA”), the Fair
Credit Reporting Act (“FCRA”), and the Fair Debt Collection Practices
6
The Court granted Sirote’s motion to dismiss on August 12, 2012.
8
Act (“FDCPA”).
20. On October 26, 2016, Jefferson filed an Amended Complaint[7]
against Nationstar, including only the FCRA, TILA, and FDCPA claims.
D. The 2010, 2011, and 2012[,] Property Damage and Jefferson’s
Insurance Claims
21. Before Nationstar began servicing the Loan in July 2012, the
Property suffered damage from a[n] October 2010 burglary, [an] April
2011 tornado, and [a] January 2012 tornado (collectively, the
“Damage”).
22. Jefferson made insurance claims for the Damage (the “Insurance
Claims”).
23. On July 2, 2013[,] and August 15, 2013, QBE First Insurance
Agency, Inc. remitted two checks to Aurora Bank FSB “For the Acct of
Carthenia Jefferson” in the amounts of $1,105.23 and $18,867.77,
respectively, to resolve the Insurance Claims, which in turn Aurora
remitted to Nationstar – who was then servicing the Loan (the
“Insurance Funds”).
24. Immediately after Nationstar received the Insurance Funds,
beginning on September 23, 2013, Nationstar began sending Jefferson
letters asking her to contact Nationstar regarding the Insurance Claims.
25. Nationstar sent these letters to Jefferson at the Property address on
or about 9/23/13, 10/18/13, 12/3/13, 12/17/13, 1/13/14, 3/24/15,
5/15/15, 6/15/15, 7/14/15, 8/26/15, 10/9/15, 11/18/15, and 12/1/15.
26. Jefferson did not respond to any of the letters. For example, when
asked about the first letter Nationstar sent regarding the insurance
proceeds on September 23, 2013, Jefferson testified:
7
[See the Court’s earlier opinions for an understanding of how Jefferson went from a
Defendant filing “Counterclaims,” to a Plaintiff filing “Complaints.”]
9
Q. Okay. So you didn’t respond to this letter?
A. No, sir.
[Doc. 48-1 at 46(177))].
27. According to Jefferson, she gave every letter she received from
Nationstar to her attorney without opening it.
28. Jefferson never completed [a] Third Party Authorization form that
would have allowed Nationstar to speak with her attorney.
29. In October 2013[,] and March 2015, Nationstar also sent Jefferson
letters that had a detailed explanation of the documents/information it
needed to release the Insurance Funds (and included the forms
themselves).
30. Jefferson did not provide Nationstar any of the documents requested
nor did she return any of the forms included in the October 2013[,] or
March 2015[,] letters, including a Certificate of Intent to Repair.
31. After Jefferson filed her suit against Nationstar, Nationstar’s counsel
continued to write letters and emails to Jefferson’s counsel to try and
secure the information needed to release the Insurance Funds. There was
no response.
32. Nationstar has not been able to release the Insurance Funds to
Jefferson because she has not filled out and/or provided the required
documents and Nationstar has not inspected any repairs to the Property
(assuming any such repairs have been made).8
8
Nationstar also called Jefferson about the Insurance Claims and, on most occasions,
either left voicemails or Jefferson refused to speak with Nationstar. Nationstar did speak with
Jefferson in March 2015 [and Jefferson then] asked Nationstar to send her proof of the insurance
information needed (which is what prompted Nationstar to send her the March 2015 letters).
10
33. Nationstar is still holding the Insurance Funds in the Loan suspense
account, and is prepared to release them as soon as Jefferson satisfies the
requirements for doing so.
E. Jefferson and Nationstar’s (Simple) History and Relationship.
34. Jefferson’s last payment on the Loan was on or about June 2012,
while Aurora was still servicing the loan.
35. Jefferson has never made a payment to Nationstar.
36. Nationstar tried to help Jefferson resolve the payment delinquency
and bring the Loan current in March 2015, by unilaterally (that is,
without requiring Jefferson to [complete] a loan modification
application) offering Jefferson loan modifications that would lower her
interest rate from 7.375% to 4%, significantly reducing her payments.
37. Nationstar sent Jefferson the loan modification offer in March 2015,
but Jefferson did not respond to Nationstar’s offer.
38. After Jefferson sent Nationstar a hardship letter in April 2015,
Nationstar again offered Jefferson a loan modification in June,
September, and November 2015, but Jefferson did not respond or make
the trial plan payments on any of these offers.
39. During the time it has been servicing the Loan, Nationstar has sent
all of the required Loan notices and disclosures to Jefferson.
40. All of the notices, disclosures, letters, and/or communications
Nationstar sent to Jefferson regarding her Loan were true and accurate.
41. For example, when Nationstar took over servicing of the Loan in
July 2012, in its initial communication, it sent Jefferson a “welcome
letter”, a Notice of Assignment, Sale, or Transfer of Servicing Rights
letter, and a debt validation letter. These letters contained true and
accurate information concerning Jefferson’s Loan and Jefferson did not
dispute or raise any concerns with Nationstar about these letters.
11
42. Regarding the letters, Jefferson testified:
Q. Today, as we sit here, do you know if there is anything
wrong with what is on those three letters?
A. As far as this total current amount due it, I don’t know
what the current total amount due is. Because, like I said,
so much has been going on, so I am seriously uncertain [if]
that is correct.
Q. You don’t have any personal knowledge either way, you
just have reason to doubt that number?
A. I have reason to doubt that.
Q. But as we sit here today, you can’t say right or wrong?
A. I don’t know, u-huh. But I have serious concerns.
Q. I understand. But you didn’t tell them anything about
this?
A. I did not. ...
[Doc. 48-1 at 40(154-155))].
43. All of the amounts Nationstar charged to Jefferson’s Loan,
including, but not limited to, fees, expenses, and other charges, were
correct and valid under the terms of the Mortgage.
44. All of the amounts charged to the Loan escrow account were correct
and valid under the terms of the Mortgage.
45. Nationstar accurately reported the default status of the Loan and the
amount owed on the Loan to Jefferson, and Jefferson has never disputed
the validity or accuracy of Nationstar’s letters.
12
46. In fact, Jefferson has never communicated any concerns about her
Mortgage to Nationstar.
47. Nationstar has never received a dispute (or any other
communication) from Jefferson regarding credit reporting on the Loan.9
48. Nationstar has never received notice of a dispute from the Credit
Bureaus/Credit Reporting Agencies regarding the credit reporting on the
Loan.
49. Nationstar accurately credit reported on Jefferson’s Loan.
50. When asked during her deposition about her interactions with
Nationstar, Jefferson testified as follows:
Q. So the last time we talked, I think I understood you to
tell me that you really do not remember reading anything
or communicating in any way with Nationstar?
A. I do not recall.
Q. You don’t recall having conversations or receiving
anything in writing from Nationstar?
A. If I received something in writing I forwarded it to my
attorney.
Q. And you don’t recall what if any of those things said
that you received?
A. No, sir.
9
Indeed, Jefferson does not even know if Nationstar has ever credit reported about her or
the Loan to the credit bureaus, she never disputed the credit reporting with the credit bureaus or
Nationstar, and has produced no evidence that anyone ever did on her behalf.
13
Q. And you don’t recall the substance of any conversations
you had with Nationstar?
A. No, sir.
Q. So you don’t know of anything Nationstar told you that
was untrue?
A. I don’t remember at this time.
Q. And you don’t know whether Nationstar has told
anybody else anything that’s untrue either?
A. All I know, I was told that they had insurance money
and have not released it at this time.
[(Doc. 48-13 at 69(602-603))].
(Doc. 47 at 4-15, ¶¶1-50) (citations omitted except for direct quotations).
III.
ANALYSIS
A.
Summary Judgment Is Appropriate as to the FDCPA Claim (Count
One)
The purpose of the FDCPA is “to eliminate abusive debt collection practices
by debt collectors.” 15 U.S.C.A. § 1692(e). The act prohibits “false, deceptive, or
misleading representation or means in connection with the collection of any debt” 15
U.S.C.A. § 1692e, and “unfair or unconscionable means to collect or attempt to
collect any debt” 15 U.S.C.A. § 1692f. It also sets out the ways in which “a debt
collector may . . . communicate with a consumer” and “third parties” 15 U.S.C.A. §
14
1692c(a), (b), and the requirement that a debt collector “validate” the debt with the
consumer, 15 U.S.C. § 1692g.
In Count One of the Amended Complaint, the Plaintiff alleges that the
Defendant violated numerous sections of FDCPA. Nationstar moves for summary
judgment, claiming that there is no evidence that it has violated any provision of the
FDCPA. (Doc. 47 at 24-29). It further explains:
[T]hroughout two full days of deposition testimony, Jefferson could not
recall a single thing Nationstar did wrong other than “continue what
Aurora started” and refuse to release the insurance proceeds. [(See doc.
48-13 at 69(602-603))]. When shown the principal balance of the debt,
for example, Jefferson admitted she had no knowledge that it was
incorrect. [(See doc. 48-1 at 73(288)-74(289))]. When asked about her
knowledge of Nationstar’s alleged acceleration of the loan or notice of
foreclosure, she testified that she had no knowledge of an acceleration
or notice of foreclosure. [See doc. 48-1 at 55(216)-56(219))]. Although
she alleges that the statements she received from Nationstar are
incorrect, in her deposition testified that she does not recall ever getting
any statements from Nationstar. [Id.] When asked whether she was
“aware of any specific provisions in the Note or Mortgage that
Nationstar has breached”, she answered “No, sir.” [See doc. 48-1 at
55(216)-56(217))].
(Doc. 47 at 24-25) (footnotes omitted).
In response, the Plaintiff alleges “the [D]efendant committed multiple
violations of 15 U.S.C. §§ 1692c, 1692e(2), 1692e(8), 1692e(11)[,] and 1692f(1).”
(Doc. 58 at 15). However, instead of setting out and explaining how Nationstar
violated these lengthy sections, or providing evidence in support of her allegations,
15
Jefferson spends the next few pages of her brief rebutting “[t]he defendant’s primary
argument . . . that they [sic] are not ‘debt collectors’ for purposes of the FDCPA.”
(Doc. 58 at 15; see also doc. 58 at 15-18). Nationstar makes no such argument. (See
doc. 59 at 7 (“Jefferson . . . [argues] that Nationstar is a ‘debt collector’ for the
purposes of the FDCPA, a point which Nationstar did not even argue in support of
summary judgment.”).10 She then contends that Nationstar “has never successfully
shifted the burden to her” to prove that its actions were “deceptive, unfair, or
abusive.” (Doc. 58 at 19). This argument is without merit. See, Fitzpatrick, 2 F.3d at
1116-1117 (explaining that for issues on which the movant does not bear the burden
of proof at trial, it can satisfy its initial burden on summary judgment by simply
showing that there is an absence of evidence to support the non-movant's case on the
particular issue at hand, and that the non-movant must then rebut by producing
evidence).
The Plaintiff argues that Nationstar “has not addressed, and has not . . .
considered” whether statutory damages may be awarded . . . absent actual damages.
(Doc. 58 at 19). This argument, which also fails to explain how Nationstar violated
the FDCPA in the first place, is without merit.
10
The Plaintiff also makes the same argument elsewhere in her brief. (See doc. 58 at 12-
13, 14).
16
The Plaintiff also argues that she “create[s] a reasonable inference that
[Nationstar] attempted non-judicial foreclosure” in violation of 15 U.S.C. § 1692f(6).
(Doc. 58 at 13-14). However,she provides no evidence that Nationstar participated
in any way in the foreclosure of her home. Similarly, she argues:
Here the Defendant violated 15 U.S.C. § 1692f (1) by collecting or
attempting to collect debts by using methods not permitted by law and
by otherwise using unfair and unconscionable methods. The Defendant
sought unjustified amounts, which would include demanding any
amounts not permitted under an applicable contract or as provided under
applicable law in violation of the Act §1692f(1). By seeking to collect
the incorrect amount of debt in its default and acceleration notices, the
Defendant violated the Act. Moreover, NationStar violated the Act by
instituting an improper foreclosure based on an improper acceleration
which contained an incorrect amount in the notice. Here, Jefferson has
provided substantial evidence in support of her claims pursuant to
FDCPA and said claims are due to survive NationStar’s motion for
summary judgment. See Plaintiff’s deposition.
(Doc. 58 at 14-15). This argument, which contains only bare (and vague) allegations
and a vague reference to “Plaintiff’s deposition,” is without merit. Furthermore, it is
undisputed that all of the amounts Nationstar charged to Jefferson’s Loan and escrow
account, including, but not limited to, fees, expenses, and other charges, were correct
and valid under the terms of the Mortgage. Summary judgment will be granted in
favor of Nationstar, and against Jefferson, on the FDCPA claims.11
11
The Court here has set out all of the sections of the FDCPA which the Plaintiff
discussed in her brief. The Court deems abandoned any claim by the Plaintiff that the Defendant
violated some section of the FDCPA which the Plaintiff alleged in her Amended Complaint but
17
B.
Summary Judgment Is Appropriate on the FCRA Claim (Count
Two)
The Eleventh Circuit has noted:
The FCRA governs claims by consumers . . . against a furnisher of
information . . . . based on an allegation that the furnisher submitted
incorrect information regarding the consumer to CRAs. See generally 15
U.S.C. §§ 1681a(c) & (f), 1681s–2(a). The FCRA imposes two separate
duties on furnishers. First, § 1681s–2(a) requires furnishers to submit
accurate information to CRAs. Second, § 1681s–2(b) requires furnishers
to investigate and respond promptly to notices of customer disputes.
Green v. RBS Nat. Bank, 288 F. App'x 641, 642 (11th Cir. 2008). The Defendant
argues that there is no evidence that it violated the FCRA in any way. The Plaintiff
begins her rebuttal by stating that “Nationstar, as a furnisher [of credit information],
is liable for failing to conduct a reasonable investigation of the consumer’s dispute
after the furnisher receives notice of the dispute from a consumer reporting agency.”
(Doc. 58 at 20).
The Plaintiff has provided no evidence that Nationstar furnished any credit
information regarding the Plaintiff to any person or entity12, received notice of a
did not address in her brief. See Resolution Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995) (“[G]rounds alleged in the complaint but not relied upon in summary judgment are
deemed abandoned[.]”). Regardless, the complete failure of the Plaintiff to cite to any evidence
as to any violation of any statute under which she sues Nationstar is fatal to all of her claims.
12
Indeed, in her deposition, the Plaintiff testified that she was not aware of whether
Nationstar had reported anything about her to the credit bureaus. (Doc. 48-1 at 56(217)).
18
dispute, or failed to conduct an investigation of a dispute.13 The Plaintiff also writes:
If the plaintiff has evidence that she made a dispute to a credit reporting
agency (and she does), that the credit reporting agency notified the
defendants of the dispute (and the defendants have failed to show she
does not), and that the false information nevertheless was not corrected
(and she does), a reasonable inference from those facts is that the
defendants did not notify the credit reporting agencies that the plaintiff’s
mortgage was not foreclosed or that the previous foreclosure was
rescinded. The plaintiff testified that the false reporting continued from
entry of the consent order in 2012 up until the date of her deposition.
The plaintiff also testified that she sent her disputes to the credit
reporting agencies by fax and that she did so multiple times.
(Doc. 58 at 22). The Plaintiff cites to no evidence in support of any of these
statements, and, as shown above, is incorrect to the extent that she is arguing that the
Defendants must present some affirmative evidence which disproves some portion
of this claim. Furthermore, it is undisputed that:
– Nationstar accurately reported the default status of the Loan and the amount
owed on the Loan to Jefferson, and Jefferson has never disputed the validity
or accuracy of Nationstar's letters.
– Jefferson has never communicated any concerns about her Mortgage to
Nationstar.
– Nationstar has never received a dispute (or any other communication) from
13
In her deposition, the Plaintiff testified that she was not aware of whether she had
disputed anything in her credit report. (Doc. 48-1 at 56(217)).
19
Jefferson regarding credit reporting on the Loan.
– Nationstar has never received notice of a dispute from the Credit
Bureaus/Credit Reporting Agencies regarding the credit reporting on the Loan;
and
– Nationstar accurately credit reported on Jefferson's Loan.14
Summary judgment will be granted in favor of Nationstar and against Jefferson on the
FCRA claim.
C.
Summary Judgment Is Appropriate on the TILA Claim (Count
Three)
In Count Three, the Plaintiff seeks damages pursuant to 15 U.S.C. § 1640(a)
and alleges:
Defendants did not provide a proper copy of the notices required by the
Act to the Plaintiff. The disclosure statement issued in conjunction with
this consumer credit transaction violated the requirements of Truth in
Lending and Regulation Z in the following and other respects: (a). By
failing to provide the required disclosures prior to consummation of the
transaction in violation of 15 U.S.C.§ 1638(b) and Regulation Z §
226.17(b). (b). By failing to make required disclosures clearly and
conspicuously in writing in violation of 15 U.S.C. § 1632(a) and
Regulation Z § 226.17(a). (c). By failing to include in the finance charge
certain charges imposed by Defendants payable by plaintiff incident to
the extension of credit as required by 15 U.S.C. § 1605and Regulation
Z § 226.4, thus improperly disclosing the finance charge in violation of
15 U.S.C. § 1638(a)(3) and Regulation Z § 226.18(d). Such amounts
14
Even if it did not, the FCRA does not provide a private right of action to redress such a
violation. Green, 288 F. App'x at 642.
20
include, but are not limited to the attorney fees and late fees, 15 U.S.C.
§ 1605(a), Regulation Z§ 226.4(a).
72. The regulations require that the notice shall identify the transaction
or occurrence and clearly and conspicuously disclose the following: The
retention or acquisition of a security interest in the consumer’s principal
dwelling. The consumer’s right to rescind, as described in paragraph
(a)(1) of this section. How to exercise the right to rescind, with a form
for that purpose, designating the address of the creditor’s place of
business. The effects of rescission, as described in paragraph (d) of this
section. The date the rescission period expires. (See Reg. Z §§
226.15(b)(5) and 226.23(b).
73. By charging “attorney fees” and other “fees” not authorized by the
mortgage contract, Defendants has made unauthorized charges and
failed to disclose these charges in violation of the Act. In this case,
Defendants added fees to Jefferson’s account in August 2015 and
September 2015 which are referenced in the notice of default. Moreover,
once the account was turned over to the attorney for foreclosure in
October 2015, additional fees were improperly added to the account.
Each time a default notice was sent to the Plaintiff up to and including
September 2016, Defendants added additional and unauthorized fees to
Jefferson’s account balance.
74. By calculating the annual percentage rate (APR) based upon
improperly calculated and disclosed finance charges and amount
financed, 15 U.S.C. § 1606, Regulation Z§ 226.22, Defendants
understated the disclosed annual percentage rate in violation of 15
U.S.C. § 1638(a)(4) and Regulation Z § 226.18(c).
75. That the Defendants have been improperly amortizing the loan, and
have failed to provide proper disclosures to the Plaintiff. Defendants
failed to send proper monthly statements to Jefferson in violation of the
Act.
(Doc. 32 at 17-18, ¶¶71-75). The Defendant moves for summary judgment, arguing
21
that there is no evidence that it engaged in any of the conduct alleged by the Plaintiff.
In response, just as with her other claims, the Plaintiff provides no evidence of
any violation of TILA or Regulation Z.15 Furthermore, and as noted previously, it is
undisputed that all of the amounts Nationstar charged to Jefferson’s Loan, and the
escrow account, including, but not limited to, fees, expenses, and other charges, were
correct and valid under the terms of the Mortgage.
Furthermore, even if the Plaintiff had provided evidence of some violation, any
action on same must be brought “within one year from the date of the occurrence of
the violation.” 15 U.S.C.A. § 1640(e). “[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 Mortg. Corp., 382 F. App'x 833,
838 (11th Cir. 2010) (quoting Smith v. Am. Fin. Sys., Inc. (In re Smith), 737 F.2d
1549, 1552 (11th Cir.1984)). A non-disclosure violation “‘is not a continuing
violation for purposes of the statute of limitations.’” Id. The mortgage and note were
executed on August 5, 2006. Any “violation” would have occurred on that date, and
the statute of limitations for bringing an action regarding same would have expired
15
The Court rejects the Plaintiff’s vague referenced to her “testimony,” without citation
thereto, and her arguments that she does not have to provide evidence to support her claims. (See
Doc. 58 at 26-27). Furthermore, the Court rejects the Plaintiff’s contention that summary
judgment is inappropriate because TILA provides for statutory damages. The Plaintiff must still
show that TILA has been violated.
22
on August 5, 2007.16
Finally, as the Eleventh Circuit has noted
The TILA imposes the duty to disclose upon “creditors” as that term is
defined by 15 U.S.C. § 1602. Section 1602(f) defines “creditor” as
follows:
The term “creditor” refers only to a person who both (1)
regularly extends ... 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 of indebtedness....
15 U.S.C. § 1602. The parallel provision in Regulation Z provides:
Creditor means: (i) A person (A) who regularly extends
consumer credit that is subject to a finance charge or is
payable by written agreement in more than 4 installments
(not including a downpayment), and (B) to whom the
16
The Plaintiff argues:
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).
(Doc. 58 at 26). However, the statute actually reads:
An action to enforce a violation of section 1639, 1639b, 1639c, 1639d, 1639e,
1639f, 1639g, or 1639h of this title may also be brought by the appropriate State
attorney general in any appropriate United States district court, or any other court
of competent jurisdiction, not later than 3 years after the date on which the
violation occurs.
15 U.S.C.A. § 1640(e) (emphasis added). The statute of limitations available to the Plaintiff is
one year.
23
obligation is initially payable, either on the face of the note
or contract, or by agreement when there is no note or
contract.
12 C.F.R. § 226.2(a)(17). Section 1640 provides that creditors who fail
to comply with the TILA's disclosure requirements are subject to civil
liability. 15 U.S.C. § 1640(a) (“[A]ny creditor who fails to comply with
any requirement imposed under this part, including any requirement
under section 1635 of this title ... with respect to any person is liable to
such person....”).
Parker v. Potter, 232 F. App'x 861, 864 (11th Cir. 2007). The Defendant points out,
correctly, that the Plaintiff fails to provide any evidence that it is a “creditor” under
TILA.17 Indeed, even assuming that Nationstar “regularly extends consumer credit
that is subject to a finance charge or is payable by written agreement in more than 4
installments (not including a downpayment),” it is undisputed that it was Lending
Tree, not Nationstar, to whom the debt was originally payable. Nationstar is not a
“creditor” under TILA. Summary judgment will be granted in favor of Nationstar, and
against Jefferson, as to Count Three.18
17
The Plaintiff does not even address this argument in her brief.
18
The Court also takes judicial notice of the Circuit Court of Jefferson County’s recent
decision, on July 20, 2018, in Jefferson v. Federal National Mortgage Association, et al. 01-CV2011-904407.00, in which that Court, addressing the claims remanded by this Court, found that:
The record shows that Nationstar sent the required notices and disclosures to
Jefferson under the Loan and that Nationstar's communications with Jefferson
were true and correct, as were the amounts Nationstar charged to Jefferson's loan.
Likewise, the record demonstrates that Nationstar accurately reported the default
status of the Loan and the amount owed on the Loan to Jefferson, and Jefferson
24
IV.
CONCLUSION
For the foregoing reasons, summary judgment will be GRANTED in favor of
Nationstar and against Jefferson on all counts of the Amended Complaint. The Court
interprets the Defendant’s request for “costs and fees” in its reply brief (see doc. 59
at 11), as a motion for sanctions. That motion is DENIED.
DONE and ORDERED this 26th day of July, 2018.
VIRGINIA EMERSON HOPKINS
United States District Judge
has never disputed the validity or accuracy of Nationstar's letters. Nationstar has
never received a dispute (or any other communication) from Jefferson or the
Credit Bureaus regarding credit reporting on the Loan.
(Doc. 60 at 9-10, ¶¶13-14). The state court also found:
It is undisputed that Jefferson has never made a payment to Nationstar. Further,
Jefferson has presented no evidence to dispute that the amounts charged by
Nationstar on Jefferson's loan were correct and valid under the terms of the
Mortgage.
(Doc. 60 at 14). The Defendant argues that “[b]ased on these findings alone, should this Court
agree with the Jefferson County Circuit Court, Nationstar’s pending motion for summary
judgment is clearly due to be granted.” (Doc. 60 at 2). This Court’s holding is based on the
undisputed facts and law in this case.
25
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