Magee v. Nationstar Mortgage LLC
Filing
59
ORDER granting in part and denying in part 41 Motion for Summary Judgment. Signed by District Judge David C. Bramlette, III on January 4, 2022. (jm)
Case 5:20-cv-00147-DCB-MTP Document 59 Filed 01/04/22 Page 1 of 17
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
JOHN H. MAGEE
PLAINTIFF
VS.
NO. 5:20-cv-147-DCB-MTP
NATIONSTAR MORTGAGE LLC
d/b/a MR. COOPER
DEFENDANT
ORDER AND MEMORANDUM OPINION
This matter is before the Court on a Motion for Summary
Judgment [ECF No. 41](the “Motion”) filed by Defendant
Nationstar Mortgage LLC d/b/a Mr. Cooper (“Defendant”).
The
Court having examined the Motion, the parties’ submissions, the
record, and the applicable legal authority, and being informed
in the premises, finds as follows:
Background
In February 2008, John H. Magee (“Plaintiff”) entered into
a mortgage loan with Countrywide Bank, FSB, as lender.
of Trust at [ECF No. 41-1].
See Deed
The Deed of Trust was secured by
real property located in Pike County, Mississippi. 1
Ten months
The Deed of Trust erroneously states that it secures property
in Amite County, [ECF No. 41-1] at 2, but the legal description
attached to the Deed of Trust describes real property located in
1
1
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later in December 2008, Plaintiff filed for Chapter 7
bankruptcy, U.S. Bankr. S.D. Miss. 2008, Case No. 08:04005-NPO.
Although Plaintiff elected in his bankruptcy schedules to
reaffirm his debt with Countrywide Bank, 08-04005-NPO [Doc. No.
3] at 26, he never signed or filed with the bankruptcy court a
reaffirmation agreement for the debt.
The bankruptcy court
discharged his debts, including his Countrywide Bank debt, in
April 2009, id. at Doc. No. 13, and Plaintiff began making
voluntary post-discharge payments to avoid foreclosure.
[ECF
No. 41-17] at 1.
In 2013, the Deed of Trust was assigned to Defendant, [ECF
No. 41-2], who began servicing the loan.
At some point in its
loan servicing, Defendant began sending monthly “Informational
Statements” to Plaintiff, which, according to Defendant, were
required under federal laws.
[ECF No. 42] at 8.
These
statements contained a payment coupon and disclaimer language
that said it was not an attempt to collect a debt.
See
Pike County. Id. at 7. This error was later corrected in 2018
by a Scrivener’s Affidavit. [ECF No. 52-1] at 61. Also, the
legal description in the Deed of Trust omits a description of
Plaintiff’s manufactured home that was located on the mortgaged
property and purchased with proceeds from the Countrywide Bank
loan. Complaint for Judicial Foreclosure, [ECF No. 41-10] ¶ 10;
[ECF No. 52] ¶¶ 2,3. A Default Judgment, dated 11/04/2019 and
issued by the Chancery Court of Pike County in connection with
the foreclosure proceedings described in this Order, reformed
the legal description in the Deed of Trust to include the
manufactured home description. [ECF No. 52-1] at 58, 62.
2
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Informational Statements dated 12/18/2018 through 11/19/2019,
[ECF No. 41-14].
Plaintiff, however, believed the monthly
statements to be bills.
[ECF No. 52-5] at 8.
Defendant’s
records indicate that Plaintiff missed his mortgage payment in
August 2018 and made no further payments thereafter.
[ECF No.
41-17] at 2.
About five months later in January 2019, Plaintiff’s
manufactured home caught fire, which resulted in a total loss.
[ECF No. 52] at 2.
The home was insured by Mississippi Farm
Bureau Casualty Insurance Company (“Farm Bureau”), and the
policy limit exceeded the remaining balance on Plaintiff’s
mortgage loan.
Affidavit of Trevor Hightower, Farm Bureau
District Claims Mgr., [ECF No. 52-2] ¶¶ 2-4, 13.
Farm Bureau
investigated the fire loss for approximately four months and
determined that Plaintiff’s policy covered the loss.
9.
Id. at ¶
At various points from February 2019 through June 2019, Farm
Bureau requested payoff statements from Defendant with limited
success.
Id. at ¶¶ 5-8, 10-18.
Plaintiff also made repeated
unsuccessful phone calls to obtain a payoff statement, which
resulted in mounting frustration.
See, e.g., Telephone call
audio files [ECF No. 41-15]; [ECF No. 52-1] at 3-4.
On the morning of March 13, 2019, Plaintiff and the Farm
Bureau adjuster, Trevor Hightower, spoke with Defendant by phone
and confirmed to Defendant that Plaintiff’s home had burned
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down; they also requested a payoff.
[ECF No. 52-1] at 5.
Defendant advised in this phone call that the property was not
in active foreclosure.
Id.
However, that afternoon, Defendant
approved Plaintiff's account for foreclosure and, two days
later, referred the account and a payoff statement to its
foreclosure attorneys.
Id. at 6-7.
In May 2019, Defendant’s
attorneys filed a judicial foreclosure action.
[ECF No. 41-10].
The foreclosure complaint erroneously named a deceased debtor
and his wife (Plaintiff was alive and unmarried) and contained
other factual errors.
3-4.
Id.; Amended Complaint, [ECF No. 15] ¶¶
The Pike County Sheriff’s Department attempted to serve
the “wife” named in the foreclosure complaint and returned the
summons with the notation “attempted to serve burnt house.”
[ECF No. 52-1] at 35-36.
Mr. Hightower of Farm Bureau received the final payoff
quote from Defendant on June 11, 2019, and Farm Bureau forwarded
a check for the full payoff amount to Defendant.
Aff., [ECF No. 52-2] at ¶¶ 15-16.
Hightower
After obtaining Plaintiff’s
endorsement, Defendant negotiated the check on July 15, 2019,
and deposited the proceeds in a hazard suspense account.
¶ 18; [ECF No. 41-17] at 3.
Id. at
According to Defendant, it
attempted for months thereafter to get Plaintiff to complete and
return an “Insurance Claim Packet”, which would have informed
Defendant whether Plaintiff intended to repair the property or
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payoff the loan.
complied.
[ECF No. 41-17] at 3-4.
Plaintiff never
Id. at 4; [ECF No. 41-4] at 46-47.
Despite receiving and cashing the payoff check from Farm
Bureau, the judicial foreclosure action proceeded, and
Defendant added legal fees and force-placed insurance premiums
on the destroyed home to the payoff amount.
9.
[ECF No. 52] at 7,
Plaintiff claims that Defendant charged $6,297.85 to his
account after Defendant had received the full payoff amount
from Farm Bureau, id. at 9, and Defendant counters that these
amounts were ultimately charged off.
[ECF No. 42] at 5; [ECF
No. 56] at 115.
Defendant obtained a default judgment of foreclosure
against “John H. Magee (Deceased) and Linda G. McGee” in
November 2019 (Plaintiff never was served), posted sale notices
at the Pike County Courthouse on November 7 and 13, 2019, and
ran sale notices in the Enterprise Journal newspaper, which
were scheduled for four successive weekly publications on
November 13, 20, 27 and December 4, 2019.
58, 65, 73.
[ECF No. 52-1] at
Defendant asserts that it instructed its
foreclosure attorneys to close the foreclosure file on November
19, 2019.
[ECF No. 41-17] at 3.
A foreclosure sale of
Plaintiff’s property did not occur.
In December 2019, Plaintiff’s physician began treating
Plaintiff with medication for clinical depression, which the
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physician attributed to events subsequent to Plaintiff’s fire
loss and “his ongoing difficulties with his mortgage company.”
Affidavit of Lucius Lampton, M.D., [ECF No. 52-3] ¶¶ 7 & 9.
Claiming damages for extreme mental and emotional distress and
damage to his credit, Plaintiff filed suit against Defendant in
the Circuit Court of Pike County, Mississippi, on May 14, 2020.
See Complaint for Mortgage Negligence, [ECF No. 1-1].
Approximately two weeks later on May 28, 2020, one of
Defendant’s employees noted on Plaintiff’s loan Communication
History: “LOAN REVIEWED BY MANAGER … should have been paid off
with Hazard funds June 2019.”
[ECF No. 52-1] at 85.
Shortly
thereafter, Defendant applied the insurance proceeds to
Plaintiff’s loan and charged off the balance.
115.
[ECF No. 56] at
At the end of June 2020, Defendant removed the state
circuit court case to this Court on the grounds of diversity
jurisdiction.
[ECF No. 1].
Summary Judgment Standard
Summary judgment is appropriate, pursuant to Rule 56 of the
Federal Rules of Civil Procedure, “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” FED. R. CIV.
P. 56(a).
An issue of material fact is genuine if a reasonable
jury could return a verdict for the non-movant.
6
Anderson v.
Case 5:20-cv-00147-DCB-MTP Document 59 Filed 01/04/22 Page 7 of 17
Liberty Lobby, 477 U.S. 242, 248 (1986).
“Factual disputes that
are irrelevant or unnecessary will not be counted.”
Id.
A
party cannot defeat a properly-supported summary judgment motion
by directing the Court to conclusory allegations or presenting
only a scintilla of evidence.
Lincoln v. Scott, 887 F.3d 190,
195 (5th Cir. 2018).
The evidence must be reviewed in a light most favorable to
the nonmoving party.
Vann v. City of Southaven, Miss., 884 F.3d
307, 309 (5th Cir. 2018); Sierra Club, Inc. v. Sandy Creek
Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010).
The
Court neither assesses credibility nor weighs evidence at the
summary-judgment stage.
Wells v. Minnesota Life Ins. Co., 885
F.3d 885, 889 (5th Cir. 2018).
Summary judgment must be
rendered when the nonmovant “fails to make a showing sufficient
to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden of
proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986).
Legal Analysis and Discussion
As Defendant notes, Plaintiff’s complaint does not include
specific counts that lucidly set forth his claims and causes of
action.
Instead, his Amended Complaint reads:
“13.
The
aforementioned actions of [defendant], its employees and/or
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agents, resulted in the defendant being guilty of negligent
infliction of emotional distress, wrongful attempted
foreclosure, fraudulent 2, libelous, and grossly negligent 3.”
[ECF No. 15] ¶ 13.
Without objection or comment from Plaintiff,
Defendant interprets Plaintiff’s claims to fall into three
categories:
negligence, wrongful foreclosure, defamation.
No. 42] at 1-2.
[ECF
Having considered the Amended Complaint, the
Motion, and the parties’ briefs and submissions, the Court
concludes that Plaintiff has presented the following three
claims in this lawsuit, each of which Defendant now argues
should be dismissed on summary judgment:
(i) negligent
infliction of emotional distress (“NIED”); (ii) wrongful
attempted foreclosure; and (iii) defamation.
The Court will
address each claim in turn.
To the extent Plaintiff has attempted to state a claim for
fraud, he has failed to do so with particularity as required
under Federal Rule of Civil Procedure 9(b) and neither party has
briefed such a claim in their submissions. See Carroll v. Fort
James Corp., 470 F.3d 1171, 1174 (5th Cir. 2006). The Court
deems this claim (assuming it was intended to be a fraud claim)
waived and abandoned. Keenan v. Tejeda, 290 F.3d 252, 262 (5th
Cir. 2002)(“If a party fails to assert a legal reason why
summary judgment should not be granted, that ground is waived
and cannot be considered or raised on appeal.”).
2
Other than the isolated reference in paragraph 13 of his
Amended Complaint, Plaintiff makes no mention of gross
negligence in either his complaint or his Response to Motion for
Summary Judgment [ECF No. 52]. As with Plaintiff’s solitary
reference to fraud, see note 2 supra, the Court deems any claim
for gross negligence to be waived and abandoned.
3
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(i) Negligent Infliction of Emotional Distress
To state a claim for negligent infliction of emotional
distress (“NIED”), a plaintiff must prove “the usual elements of
duty, breach, causation and damages.”
Fouche v. Shapiro &
Massey LLP, 575 F.Supp.2d 776, 788 (S.D.Miss. 2008).
The
difficult elements for Plaintiff to prove are, as Defendant
suggests, duty and breach given the mortgagor and mortgagee
relationship between Plaintiff and Defendant.
7;
[ECF No. 42] at
Poppelreiter v. GMAC Mortg., LLC, No. 1:11CV008-A-S, 2011 WL
6100440, at *3 (N.D. Miss. Dec. 7, 2011)(citing Merchants &
Planters Bank of Raymond v. Williamson, 691 So.2d 398, 403
(Miss. 1997))(“A relationship between a mortgagor and mortgagee
is not a fiduciary one as a matter of law, but rather an ‘armslength business transaction involving a normal debtor-creditor
relationship.’”); see also Huynh v. Phillips, 95 So. 3d 1259,
1262 (Miss. 2012) (“Duty and breach are essential elements of a
negligence claim … .”). 4
Defendant argues that because all “the
This Court faced a somewhat similar lender/borrower/rescinded
foreclosure situation in Stewart v. GMAC Mortg., LLC, No. 2:10CV-00149-DCB, 2011 WL 1296887, at *5–6 (S.D. Miss. Mar. 31,
2011) and concluded that a breach of duty claim should not be
dismissed:
Under Mississippi law, “every contract contains
an implied covenant of good faith and fair dealing.”
Merchants & Planters Bank of Raymond v. Williamson,
691 So.2d 398, 405 (Miss.1997) (citation omitted).
Good faith and fair dealing requires the “faithfulness
of an agreed purpose between two parties, a purpose
which is consistent with the justified expectations of
4
9
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conduct complained of by [Plaintiff] was expressly allowed under
the terms of the Deed of Trust, or required by federal
regulation, [Plaintiff] can provide no evidence that [Defendant]
failed to act with due care, an essential element of his claim.”
[ECF No. 42] at 7.
However, on this record of documentation
errors and foreclosure mishandling, and given the fact that
Defendant’s own loan records disclose that the loan should have
been paid off in June 2019 with the hazard suspense account
funds, it is the Court’s view that Defendant may have overstated
its position.
Defendant further argues that Plaintiff’s NIED claim fails
because Plaintiff suffered no physical injury attributable to
the actions of Defendant, which Defendant asserts is required
the other party.” Cenac v. Murry, 609 So.2d 1257, 1272
(Miss.1982). … [T]he allegations that Defendants'
representatives promised to review Stewart's short
sale proposals but instead foreclosed and failed to
respond to them may constitute a breach of the duty of
good faith and fair dealing. Though Stewart admits in
the Complaint that Defendants rescinded the
foreclosure within weeks of its occurrence which
suggests that foreclosure was a mistake, it is
premature for this Court to find that there are no
circumstances under which Stewart could
show bad faith here. … [N]umerous courts in
Mississippi and the Fifth Circuit have refused to find
a breach of the duty of good faith and fair dealing in
ordinary lender/borrower disputes. … Nevertheless, the
Court will not dismiss this claim.
Stewart, 2011 WL 1296887, at *5–6 (NIED claim dismissed on other
grounds).
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under Mississippi law for recovery on a NIED claim.
42] at 17.
[ECF No.
While recognizing some conflict in the cases
regarding the injury requirement in Mississippi for a NIED
claim, the Court believes a better explanation of the law is
found in an opinion from this district, Williams v. U.S. Bank
Nat. Ass'n:
The standard for establishing a claim for NIED in
Mississippi has never been fully settled. The primary
dispute is whether a plaintiff must show an injury or
some manifestation of harm. See Edmonds v. Beneficial
Miss., Inc., 212 F. App'x 334, 337 (5th Cir.2007)
(“Mississippi law is unclear as to whether a physical
manifestation of harm is required for negligent
infliction of emotional distress cases.”). … Where, as
here, the defendant's conduct amounts to simple
negligence, we take this opportunity to clarify that
we have moved away from the requirement of proving
some physical injury in addition to the proof of
reasonable foreseeability. Our language in the
previously cited cases, adopting the term
“demonstrable harm” in place of “physical injury,”
indicates that the proof may solely consist of
evidence of a mental injury without physical
manifestation. Adams v. U.S. Homecrafters, Inc., 744
So.2d 736, 743 (Miss.1999). “Even under the permissive
standard, ... plaintiffs must still ‘prove some sort
of injury, whether it be physical or mental.’ “
Edmonds, 212 F. App'x at 337 (citing
Ill. Cent. R.R. Co. v. Hawkins, 830 So.2d 1162, 1174
(Miss.2002)). And she must do so with “ ‘substantial
proof’ of emotional harm.” Id.
Williams v. U.S. Bank Nat. Ass'n, No. 3:13CV439-DPJ-FKB, 2014 WL
847012, at *3–4 (S.D. Miss. Mar. 4, 2014).
Considering the
evidence of clinical depression that Plaintiff has submitted
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from his treating physician, see Lampton Aff., [DK#52-3], 5 the
Court finds that Plaintiff has presented sufficient proof of
injury to survive summary judgment.
The Court also finds on
this record enough evidence of troubling and arguably negligent
conduct on the part of Defendant to conclude that granting
summary judgment on the NIED claim would be premature at this
time.
(ii) Wrongful Attempted Foreclosure
Defendant argues that there is no cause of action for
attempted wrongful foreclosure under Mississippi law, and
Plaintiff’s claim must therefore be dismissed as a matter of
law.
[ECF No. 42] at 11.
position.
The Court finds merit in Defendant’s
The key fact here is that a foreclosure sale of
Plaintiff’s mortgaged property never took place.
As explained
by a court in this district:
Plaintiff has failed to cite any Mississippi law
regarding a cause of action for attempted wrongful
foreclosure. It does not appear that such a cause of
action exists. The Mississippi Supreme Court has
affirmed that there must actually be a foreclosure
before a plaintiff can assert a claim of wrongful
foreclosure. See McKinley v. Lamar Bank, 919 So.2d
918, 930 (Miss.2005). It is undisputed that Defendant
Dr. Lampton attests: “As John Magee's treating physician, I
noticed the increased severity of his anxiety and depression, as
well as his worsening appetite and insomnia, and believe his
worsening symptoms and continuing pharmacological treatment for
depression resulted from his ongoing difficulties dealing with
his mortgage company.” Lampton Aff., [DK#52-3] ¶ 9.
5
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never foreclosed on Plaintiff's property, and
Plaintiff has failed to point to any Mississippi law
imposing liability for merely threatening foreclosure.
Accordingly, the Court grants Defendant's Motion to
Dismiss with respect to this claim.
Hutcherson v. JPMorgan Chase Bank, N.A., No. 2:11-CV-154-KS-MTP,
2012 WL 37393, at *4 (S.D. Miss. Jan. 6, 2012)(emphasis in the
original), in reliance on McKinley v. Lamar Bank, 919 So.2d 918,
930 (Miss.2005)(where plaintiff’s bankruptcy filing stopped the
pending foreclosure proceedings, “[t]here was no wrongful
foreclosure because there was never a foreclosure at all.”); see
also Taylor v. Ocwen Loan Servicing, LLC, No. 2:12-CV-107-SAJMV, 2014 WL 280399, at *4-5 (N.D. Miss. Jan. 24, 2014)(“Because
Plaintiff fails to allege that a foreclosure sale has taken
place, her claim for wrongful foreclosure must be dismissed.”).
The Court will grant Defendant’s Motion with respect to
Plaintiff’s wrongful attempted foreclosure claim.
(iii) Defamation
The elements of defamation are: (1) a false and defamatory
statement was made concerning the plaintiff; (2) there was an
unprivileged publication to a third party; (3) the publisher was
negligent in publishing the defamatory statement; (4) the
plaintiff suffered damages resulting from publication of the
defamatory statement.
Mitchell v. Random House, Inc., 703
F.Supp. 1250, 1255 (S.D.Miss.1988), aff’d, 865 F.2d 664 (5th
13
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Cir.1989); see also Gales v. CBS Broadcasting, Inc., 269
F.Supp.2d 772, 777 (2003).
Plaintiff argues that the publication of the default
judgment against him, the posting of notices of foreclosure at
the courthouse, and the publication of foreclosure notices in
the newspaper defamed him because all of these “falsely stated
that his loan was unpaid, and that it was necessary to sell his
property to raise money to pay the note.”
[ECF No. 52] at 21. 6
This, according to Plaintiff, subjected him to public ridicule
and embarrassment.
Id. at 22.
These notices were published in
unprivileged communications to the general public, and third
parties read the notices as evidenced by solicitation letters
that Plaintiff received from at least three different
foreclosure defense attorneys.
77.
Id. at 22; [ECF No. 52-1] at 75-
Given that Defendant had on deposit in its hazard suspense
account funds sufficient to pay the loan in full, Plaintiff
argues that Defendant knew that there was no need to sell
Plaintiff’s land and the totally destroyed manufactured home to
pay the loan note.
[ECF No. 52] at 22-23.
Publications
indicating otherwise were false and the result of Defendant’s
Curiously, the notice of foreclosure stated: “Any foreclosure
of this deed of trust will include the manufactured home
situated thereon.” Defendant knew that this statement was
incorrect and that the manufactured home had been totally
destroyed in a fire.
6
14
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negligence.
Id.
Plaintiff points to his diagnosis of clinical
depression, which his treating physician attributed to
Defendant’s conduct, as proof of the harm that he has suffered.
Id. at 23; Lampton Aff., [ECF No. 52-3].
Defendant counters by arguing that the false statements
about Plaintiff
(e.g., that he was dead, married, and had
children) do not rise to the level of “public hatred, contempt,
or ridicule, degrade him in society, lessen him in public esteem
or lower him in the confidence of the community.”
Journal
Publ’g Co. v. McCullough, 743 So. 2d 352, 360 (Miss. 1999).
Defendant also argues that the “litigation privilege”, Franklin
Collection Serv., Inc. v. Kyle, 955 So. 2d 284, 292 (Miss.
2007), protects all words written in the foreclosure complaint
and the foreclosure notices, but cites to no precedent that
expressly extends the litigation privilege to protect all false
statements in published foreclosure notices.
Indeed, the
Mississippi Supreme Court case relied on by Defendant, Franklin
Collection, did not endorse broad applications of the common law
litigation privilege.
Id. at 293 (“[W]e reject Franklin's
argument that any publications made in a legal pleading are
absolutely privileged.”).
Viewing the evidence in the light most favorable to
Plaintiff -- as the Court must do at the summary judgment stage,
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the Court is not persuaded for now that Defendant is entitled to
summary judgment on the defamation claim.
The Court is not
insensitive to the fact that Plaintiff was a debtor who had a
history of missed payments and had been in default.
On the
other hand, Defendant’s own loan records indicate that the loan
should have been paid off with the insurance proceeds in June
2019, which would have avoided any need for a judicial
foreclosure proceeding and the publication of the allegedly
negligent and defamatory notices.
[ECF No. 52-1] at 85.
The
Court also is not persuaded that being subject to foreclosure
does not diminish one’s public esteem, as Defendant suggests.
[ECF No. 42] at 13.
In sum, having carefully reviewed the
record, the Court concludes that there may be facts for further
development or clarification at trial and that the better
course, at this time, is for the Court to refrain from granting
summary judgment on the defamation claim.
Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513–14, 91 L.
Ed. 2d 202 (1986)(“Neither do we suggest that the trial courts
should act other than with caution in granting summary judgment
or that the trial court may not deny summary judgment in a case
where there is reason to believe that the better course would be
to proceed to a full trial.”).
ACCORDINGLY,
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IT IS HEREBY ORDERED AND ADUDGED that Defendant’s Motion
for Summary Judgment [ECF No. 41] is GRANTED in part and DENIED
in part as follow:
(i) Summary judgment is DENIED on the negligent infliction
of emotional distress claim;
(ii)
Summary judgment is GRANTED on the attempted
foreclosure claim; and
(iii) Summary judgment is DENIED on the defamation claim.
SO ORDERED AND ADJUDGED this 4th day of January 2022.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
17
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