MARTINS v. NATIONSTAR MORTGAGE LLC et al
OPINION. Signed by Judge John Michael Vazquez on 4/6/17. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MANUEL I. MARTINS,
Civil Action No. 15-7570
NATIONSTAR MORTGAGE LLC and
U.S. BANK, N.A., SUCCESSOR BY
MERGER TO FIRSTAR BANK, N.A.,
SUCCESSOR BY MERGER TO STAR
BANK, SUCCESSOR BY MERGER TO
GREAT FINANCIAL BANK, FSB,
John Michael Vazguez, U.S.D.J.
This matter comes before the Court pursuant to Defendant U.S Bank N.A., successor by
merger to Firstar Bank, N.A., successor by merger to Star Bank, successor by merger to Great
Financial Bank, FSB’s (“Defendant” or “U.S. Bank”) motion for summary judgment under
Federal Rule of Civil Procedure 56(a). D.E. 27. Pro se Plaintiff Manuel J. Martins (“Plaintiff’
or “Martins”) did not respond to U.S. Bank’s motion. The Court reviewed the submission in
support of the motion, and considered the motion without oral argument pursuant to Fed. R. Civ.
P. 78(b) and L. Civ. R. 78.1(b). For the reasons stated below, U.S. Bank’s motion is granted.
“Because Plaintiff has not filed an Opposition to [Defendant’s] motion for summary judgment
and thus has not filed a responsive statement of material facts, the Court deems [Defendant’s]
facts undisputed.” Robbins V. US. Foodservice, Inc., No. 11-4599, 2012 WL 3781258, at *3
(D.N.J. Aug. 30, 2012).
On or about October 27, 2006, Plaintiff obtained a S 175,000 mortgage loan (the “Loan”)
from Bank of America for his residence, located at 456 N. 11th Street, Newark, New Jersey 07107
(“the Property”). Defendant’s Statement of Undisputed Material facts (“SOF”),
defaulted on the Loan and co-defendant Nationstar Mortgage LLC (“Nationstar”) initiated a state
court foreclosure action (the “Foreclosure Action”) against Martins. Id. at
3. Martins never
answered or otherwise appeared in the Foreclosure Action and the court entered judgment for
Nationstar. Id. at ¶J 6—7. U.S. Bank did not participate in the foreclosure Action. Id. at ¶ 5.
The facts of the instant action are straightforward: U.S. Bank disclaims any connection to
the underlying Foreclosure Action, the Loan, or the Property. U.S. Bank has not commenced, nor
is it preparing to initiate, proceedings to foreclose the Property because it has no interest in, or lien
against, the Property. Id. at ¶J 19, 21. U.S. Bank is not attempting to collect a debt from Plaintiff
and it does not allege that Plaintiff owes it a debt. Id. at ¶ 17-18. U.S. Bank has no record of any
correspondence or communications with Plaintiff or anyone else at the Property. Id. at
Finally, U.S. Bank does not possess, nor did it request, Plaintiffs personal or financial information.
The only evidence of communication between Plaintiff and U.S. bank is a September
29, 2015 letter from Plaintiff addressed to U.S. Bank where Plaintiff questions U.S. Bank and
Nationstar’s status as a creditor of his mortgage. Compi. Ex. A. Plaintiff notes that he “received
[Defendants’] request for financial disclosures and money,” however, Plaintiff does not provide
the Court with a copy of that alleged communication. Id.
Plaintiff filed a five-count complaint against Defendants U.S. Bank and Nationstar. D.E.
1. Plaintiff alleged only two causes of action against U.S. Bank
Collection Practices Act, 15 U.S.C.
violation of the Fair Debt
1692 et seq. (“FDCPA”) and “identity thefi.” U.S. bank
moved for summary judgment on both counts. D.E. 27.
A. Standard of Review
A moving party is entitled to summary judgment where “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). A fact is “material” when a dispute over that fact “might affect the outcome
of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Importantly, “[f]actual disputes that are irrelevant or unnecessary will not be counted.” Id. A
material fact raises a “genuine” dispute “if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.” Williams v. Borough of W Chester, $91 F.2d 458, 459 (3d
Cir. 1989) (quoting Liberty Lobby, 477 U.S. at 248). “Where the record taken as a whole could
not lead a reasonable trier of fact to find for the non-moving party, there is no genuine issue for
trial.” Matsushita Elec. Inthts. Co. v. Zenith Radio Coip., 475 U.S. 574, 587 (1986) (internal
quotation marks omitted). “When analyzing the sufficiency of the evidence, the court must view
the facts and any reasonable inferences drawn therefrom in the light most favorable to the party
opposing summary judgment.” Inter Vest, Inc. v. Bloomberg, L.F., 340 F.3d 144, 159-60 (3d Cir.
2003) (citing Eastman Kodak Co. v. Image Technical Sen’s., Inc., 504 U.S. 451, 456 (1992)).
Summary judgment is appropriate “against a party who 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 C”orp. v (atrett, 477 U.S. 317, 322 (1986). Under those
circumstances, “there can be ‘no genuine issue asto any material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Id. at 322-23. However, to withstand a motion for summary judgment, the
nonmoving party need only “come forward with evidence which, if believed, would support a
finding in its favor.” In re Bressrnan. 327 f.3d 229, 237 (3d Cir. 2003).
A party’s failure to respond to a motion for summary judgment “is not alone a sufficient
basis for the entry of summary judgment.” Robbins v. US. Foodservice, Inc., No. 11-4599, 2012
WL 3781258, at *3 (D.N.J. August 30, 2012) (internal quotation marks omitted). Even for an
unopposed summary judgment motion, the Court must still detennine whether the motion is made
properly and whether granting summary judgment is appropriate under Rule 5 6(e). Id. When “the
moving party does not have the burden of proof on the relevant issues.
the Court must determine
that the deficiencies in Plaintiffs evidence designated in or in connection with the motion entitle
the Defendants to judgment as a matter of law.” Id.
A. Plaintiffs FDCPA Claim
U.S. Bank argues that Plaintiff does not have a valid FDCPA claim because he has
produced no evidence of oral communication or written correspondence showing that U.S. Bank
contacted him seeking to collect a debt, nor can U.S. Bank locate any record that it communicated
with Plaintiff. D.E. 27 at 5. The Court agrees.
The FDCPA “creates a private right of action against debt collectors who fail to comply
with its provisions.” Grztbb v. Green Tree Sen’icing, LLC, No 13-07421, 2014 WL 3696126, at
*4 (D.N.J. July 24, 2014). The FDCPA was enacted by Congress in 1977 with the purpose of
eliminating “abusive, deceptive, and unfair debt collection practices” by debt collectors. 15 U.S.C.
§ 1692(a). “As remedial legislation, the FDCPA must be broadly construed in order to give full
effect to these purposes.” Caprio v. Healthcare Revenue Recovejy Grp., LLC, 709 F.3d 142, 148
(3d Cir. 2013). To that end, “[l]ender-debtor communications potentially giving rise to claims
under the FDCPA should be analyzed from the perspective of the least sophisticated debtor.”
Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 200$) (quoting Brown v. Card Serv. Ctr.,
464 F.3d 450, 454 (3d Cir. 2006)). “[A]lthough this standard protects naive consumers, it also
‘prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a
quotient of reasonableness and presuming a basic level of understanding and willingness to read
with care.” Wilson v. Qitadramed Corp., 225 f.3d 350, 354-55 (3d Cir. 2000) (quoting United
States v. Nat’l fin. Servs., Inc., 98 F.3d 131, 136 (4th Cir. 1996)).
To succeed on an FDCPA claim, a plaintiff must demonstrate that “(1) she is a consumer,
(2) the defendant is a debt collector, (3) the defendant’s challenged practice involves an attempt to
collect a ‘debt’ as the Act defines it, and (4) the defendant has violated a provision of the FDCPA
in attempting to collect the debt.” Doitglass v. Convergent Outsoitrcing, 765 F.3d 299, 303 (3d
Cir. 2014). Here, Plaintiff fails to present sufficient evidence to establish any of the four elements.
The FDCPA defines a consumer as “any natural person obligated or allegedly obligated to
pay any debt.”
§ 1692a(3). Plaintiff produced no evidence that he entered into a transaction with
U.S. Bank, and therefore cannot establish that he is a consumer of U.S. Bank. While Plaintiff
claims that the Bank sent him letters seeking to collect a debt, and produces his own letters in
apparent response to U.S. Bank’s letters, he produces no evidence of any original letters sent by
U.S. Bank. Compl., Ex. A. Furthermore, U.S. Bank denies that it seeks to collect, or is even owed,
a debt from Plaintiff. SOF at ¶ 17-18. Thus, Plaintiff is not obligated, or even allegedly obligated,
to pay a debt to U.S. Bank, and is therefore not a consumer of U.S. Bank.
Next, the FDCPA defines a debt collector 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). “creditors
as opposed to
generally are not subject to the FDCPA.” Poilice v. Nat’t Tax funding, L.P.,
225 F.3d 379, 403 (3d
cir. 2000). “The statute does not apply to persons or businesses collecting
debts on their own behalf,” Staub v. Harris, 626 F.2d 275, 277 (3d Cir. 1980), “[b]ecause creditors
are generally presumed to restrain their abusive collection practices out of a desire to protect their
corporate goodwill,” Pollice, 225 F.3d at 403. Instead, “[the FDCPA] is directed to those persons
who are engaged in business for the principal purpose of collecting debts.” Id.
U.S. Bank is a creditor, rather than a debt collector, under the FDCPA because even if U.S.
Bank were seeking to collect a debt from Plaintiff, it would be doing so on its own behalf. Thus,
assuming Plaintiff were a consumer of U.S. Bank, Plaintiff still does not present adequate proof
of an FDCPA claim because Defendant is not a debt collector under the statute.
Plaintiff also does not meet the third element of an FDCPA claim because U.S. Bank is not
attempting to collect a debt from Plaintiff.
Instead, U.S. Bank explicitly denies that it has
attempted, or is attempting, to collect a debt from Plaintiff SOF
¶ 19. Plaintiff therefore fails to
meet the fourth element because there can be no violation of a provision of the FDCPA without
first showing an attempt to collect a debt.
Accordingly, Plaintiff fails to meet his burden to show a violation of the FDCPA. There
is no genuine dispute of material fact and U.S. Bank is entitled to judgment as a matter of law on
B. Plaintiff’s Identity Theft Claim
Plaintiff alleges that U.S. Bank committed identity theft because it attempted to acquire
Plaintiffs credit and financial information, led him to make financial disclosures, and threatened
Plaintiff with taking his home and money unless he provided certain sensitive information. Compl.
at 17. Plaintiff alleges that copies of communication between U.S. Bank and Plaintiff are located
in Exhibit B of the Complaint. Id. at 20. Defendant argues that Plaintiff has no cause of action
for identity theft because the record, including Exhibit B, is devoid of any evidence suggesting
that U.S. Bank ever communicated with Plaintiff Def’s Moving Br. 8.
New Jersey Statutes Section 2C:21—17.4(a) “permits a person who has suffered ‘any
ascertainable loss of moneys or property, real or personal, as a result of the use of that person’s
personal identifying information,’ to bring a cause of action against the thief.” fogctrty v.
Household Finance Corp. III, No. 14-4525, 2015 WL 852071, * 14 (D.N.J. Feb. 25, 2015) (quoting
Plaintiff alleges the “loss of the actual fair market value of his home because [U.S. Bank]
has been encumbering [Plaintiffs] property, before, during and following the foreclosure thereof.”
Compi. at 21. However, Plaintiff fails to produce any evidence of correspondence that connects
U.S. Bank to this claimed loss of the fair market value of his home. The claim is further lacking
because there is no evidence that U.S. Bank possesses any of Plaintiffs personal or financial
On the contrary, U.S. Bank denies that it possesses or ever possessed such
information. SOF at
In short. Plaintiff presents no proof that U.S. Bank is the “thief’ who
caused him to suffer the alleged loss of the fair market value of his home.
Therefore, the Court grants summary judgment in favor of U.S. Bank as to Count Four.
For the foregoing reasons, U.S. Bank’s motion for summary judgment is granted. An
appropriate Order accompanies this Opinion.
Dated: April 6, 2017
John Michael Vazquç1T)S.DJ.
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