Smith v. Nationstar Mortgage LLC et al

Filing 37

OPINION AND ORDER granting 32 Motion for Summary Judgment. Signed by District Judge Marianne O. Battani. (BThe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JASON A. SMITH,
Plaintiff,
Case No. 09-14572
v.
HON. MARIANNE O. BATTANI
NATIONSTAR MORTGAGE, LLC, ORLANS
ASSOCIATES, P.C., WAYNE COUNTY
TREASURER, FIRST AMERICAN REO
SERVICING, and TITLE SOURCE,
Defendants.
____________________________________/
OPINION AND ORDER GRANTING DEFENDANT ORLANS
ASSOCIATES, P.C.’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Orlans Associates, P.C.’s (Orlans) Motion for
Summary Judgment (Doc. No. 32). The Court has reviewed all the relevant filings and
finds oral argument will not aid in the resolution of this dispute. See E. D. Mich. LR

7.1(f)(2). For the reasons discussed below, the Court GRANTS Defendant’s motion.
I.

STATEMENT OF FACTS
In his complaint, Plaintiff Jason A. Smith alleges violations of state and federal

law arising out his mortgage agreement and the subsequent foreclosure. The Court
previously dismissed the other Defendants and claims. The remaining claim is based
on Smith’s allegation that Orlans violated the Fair Debt Collection Practices Act by
failing to verify a debt and continuing collection efforts pending verification. Specifically,
Smith contends that Orlans “failed to cease and desist collection activities as a third

party debt collector, when [Plaintiff] disputed the debt alleged by Defendant Nationstar
Mortgage and asked for verification of the debt.” (Doc. No. 1, ¶ 33.)
Orlans was retained on January 8, 2009, to assist in conducting a mortgage
foreclosure by advertisement on a residential mortgage executed by Plaintiff, Jason
Smith, and Alia Smith in March 2007. (Doc. No. 342, Ex. 2, ¶ 6.). According to Orlans,
its Loan Resolution Department received a “debt dispute” letter on November 23, 2009.
(Id. at ¶ 7.) Orlans is unable to locate the actual letter received, but the file contains no
other receipt of correspondence disputing the debt from Plaintiff. (Id. at ¶¶ 8, 9.).
II.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c) authorizes the Court to grant summary

judgment “if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” There is no genuine issue of
material fact if there is not a factual dispute that could affect the legal outcome on the
issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining
whether to grant summary judgment, this Court “must construe the evidence and draw
all reasonable inferences in favor of the nonmoving party.” Hawkins v. AnheuserBusch, Inc., 517 F.3d 321, 332 (6th Cir. 2008).
III.

ANALYSIS
The FDCPA gives consumers, such as Plaintiff, the right to a validation notice,

including the right to make a written request for verification of the debt and to dispute
the validity of the debt. 15 U.S.C. §1692g(a). After a debt collector provides notice to
the consumer that the debt will be assumed to be valid, the consumer has 30 days from
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receipt of the notice to dispute the debt. 15 U.S.C. § 1692g(a)(4); Fed. Home Loan
Mortgage Corp. v. Lamar, 503 F.3d 504, 508 n. 3 (6th Cir. 2007). If the consumer
disputes the debt within the 30-day period, § 1692g(b) provides, in part, that “the debt
collector shall cease collection of the debt. . .until the debt collector obtains verification
of the debt or a copy of a judgment. . .and a copy of such verification or judgment. . .is
mailed to the consumer by the debt collector.”
Here, Orlans’ initial communication for purposes of § 1692g occurred on January
9, 2009. (Doc. No. 32, Ex. B.) Upon completion of discovery, Plaintiff was unable to
provide anything other than the undated letter he attached to his complaint, to show that
he requested that “Orlans cease and desist collection activities prior to the validation of
purported debt.” (Doc. No. 1, p. 13.) It is undisputed that Orlans received a demand for
validation letter from Smith on November 23, 2009. (Doc. No. 32, Ex 2.)
At his deposition, Plaintiff was asked to produce any proof of mailing of a
validation demand. Although Smith produced evidence of a certified mailing, it was
dated January 29, 2011, well beyond the date of receipt recorded by Orlans. Plaintiff
provided no evidence to show that he disputed the debt within the statutory time frame
The only evidence of a mailing of a debt dispute letter is the letter itself and the file
receipt dated November 23, 2009. Consequently, the dispute letter was filed too late.
In sum, Plaintiff’s claim that Orlans violated § 1692g(b) by failing to cease
collection activities until the debt was verified, cannot be sustained because Plaintiff has
failed to support the claim with facts showing that Plaintiff sent a written notice of the
dispute within the 30 days of the § 1692g(a) notice. Therefore, to the extent that Orlans
engaged in “collection activities,” those activities were not prohibited under the statute.
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In fact, when Orlans received Plaintiff's letter, the foreclosure sale had already occurred.
Based upon the undisputed evidence, the Court finds as a matter of law that Orlans did
not violate the FDCPA.
Plaintiff also alleges in his complaint that Orlans violated Rule 17, of the Federal
Rules of Civil Procedure, because it “has not provided Ratification of Commencement,”
as requested in a letter dated January 1, 2009. (Doc. No. 1, ¶ 34.) Plaintiff argues in
his response brief, that Orlans is not the “true owner of the claim sued upon and that
[Orlans] is not the real party in interest and is not shown to be authorized to bring this
foreclosure action.” (Doc. No. 35, ¶ 1.)
Rule 17 governs the ability of a plaintiff to bring a suit in federal court. See 6A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure
§ 1543 (2010) (“By its very nature, Rule 17(a) applies only to those who are asserting a
claim and thus is of most importance with regard to plaintiffs” and parties asserting
cross-claims and counterclaims). Here, Orlans status as a real party in interest capable
of prosecuting an action is not at issue. It is defending a claim that it violated the
FDCPA.
IV.

CONCLUSION
Accordingly, Defendant’s’ Motion for Summary Judgment is GRANTED.

In light

of the Court’s holding, Plaintiff’s Motion for a Declaratory Judgment Necessary to
Determine the Liability and Damages (Doc. No. 25) is MOOT, and Plaintiff’s Complaint
is DISMISSED in its entirety.
IT IS SO ORDERED.

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s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE

DATED: June 10, 2011

CERTIFICATE OF SERVICE
Copies of this Order were served upon Plaintiff and counsel of record on this
date by ordinary mail and electronic filing.

s/Bernadette M. Thebolt
Case Manager

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