Hopper v. Nationstar Mortgage, LLC
ORDER: Denying Defendant's Motion for Summary Judgment 25 . Discovery has closed in this case, and all other pretrial deadlines have expired. This matter is referred to Magistrate Judge Thomas Coffin for a settlement conference. The parties are ordered to contact Paul Bruch, Judge Coffin's courtroom deputy, at 541-431-4111 or email@example.com, within 21 days of this order to schedule a settlement conference. Signed on 8/24/2017 by Judge Ann L. Aiken. (ck)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
OPINION AND ORDER
GLENN E. HOPPER,
Plaintiff filed this action alleging a single violation of the Real Estate Settlement
Procedures Act ("REPSA"). 12 U.S.C. § 2601 et seq. Defendant moves for summary judgment
pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, defendant's
motion is denied.
Plaintiff, Glenn Hopper, resides in a residential property subject to a mortgage loan to
which defendant is the beneficial holder of the right to receive payments.
See Comp!., 2.
Defendant, Nationstar M01igage, LLC, is a mortgage loan servicer as defined by REPSA. Id. at
3; 12 U.S.C. § 2601(i)(2). Plaintiff asse1is he made two $1,500 payments to defendant on
Page 1 - OPINION AND ORDER
November 7, 2014, and December 12, 2014, for application to his mortgage loan. Plaintiff
fmiher asse1is that defendant failed to apply these payments to his mortgage loan account.
Comp!. at 3. As a result, defendant charged late fees and other fees to plaintiffs loan account.
On February 18, 2016, plaintiff sent a qualified written request ("QWR") to defendant.
Under REPSA, a m01igage loan servicer must provide a written response of
acknowledgement to any QWR for information relating to the servicing of a loan within five
business days. 12 U.S.C. § 2605(e)(l). 12 U.S.C. § 2605(e)(2) fmiher provides that within 30
days of receipt of a QWR, the mortgage loan servicer must: (1) "make appropriate conections in
the account of the borrower[.]" Id. at§ 2605(e)(2)(A); (2) conduct an investigation and provide
the borrower a written explanation of why the account is correct. Id. at§ 2605(e)(2)(B); or (3)
conduct an investigation and provide the borrower a written explanation of why the info1mation
requested is unavailable. Id. at § 2605(e)(2)(C).
Plaintiff alleges that defendant never responded to his QWR, and instead sent him notices
that his account was past due, in default, and in danger of foreclosure, causing him to suffer
emotional distress. Comp!. at 4. In early April 2016, plaintiff sought to refinance his property
with a different m01igage loan servicer. Plaintiff alleges that the refinance of the mortgage loan
would have saved him $800 monthly compared to his cunent mo1igage loan with defendant. Id.
Plaintiff avers that defendant's failure to respond to his QWR directly resulted in his inability to
refinance his mo1igage loan. Id.
Page 2 - OPINION AND ORDER
On April 7, 2016, plaintiff sent defendant a second QWR. On April 14, 2016, defendant
sent plaintiff a written acknowledgement of the second QWR. 1 Id. at 5; Krnger Deel. Ex. 2 (doc.
Plaintiff filed the present action on May 20, 2017. His only claim for relief is based on
defendant's failure to timely respond to his first QWR, in violation of REPSA.
Id. at 5-6.
Plaintiff asserts damages of: (1) expenses incuned co1Tesponding with defendant; (2) attorneys'
fees related to attempting to correct defendant's e11"0rs; (3) a negatively impacted credit; and (4)
emotional distress. Id. at 6. Plaintiff seeks the following judgment: (1) $3,086.78 comprising of
attorneys' fees, expenses related to correspondence, and emotional distress damages; and (2)
$800 per month from May 2016, onward reflecting pecuniary damages incmTed from the
inability to refinance the mo1igage loan.
Defendant filed a motion to dismiss for failure to state a claim, asserting it responded to
plaintiffs February 18, 2016 QWR with an acknowledgement letter dated April 4, 2016, which
was denied. See Hopper v. Nationstar lvfortg., LLC, 2016 WL 5339577, *1 (D. Or. Sept. 20,
2016) (doc. 17).
Now, defendant moves for summary judgment pursuant to Federal Rule of Civil
Procedure 56, alleging that there is no genuine issue of material fact. See Mot. Summ. J., 1 (doc.
The April 14, 2016, acknowledgement of receipt of plaintiffs second QWR is the only
conespondence about which the pmiies agree. However, plaintiffs claim for relief is based
solely on defendant's lack of response to his first QWR. Comp!. at 5-6. Therefore, the
c01Tespondence stemming from the second QWR is not relevant to this dispute.
REPSA provides damages and costs to aggrieved pmiies when a mmigage loan servicer
fails to comply with REPSA. 12 U.S.C. § 2605(f). For an individual, damages include: (1)
actual damages resulting from the failure to comply with REPSA; (2) any additional damages, as
the court may allow, in the case of a pattern or practice of noncompliance with the requirements
of § 2605, in an amount not to exceed $2,000; and (3) costs and attorneys' fees. Id. at §§
Page 3 - OPINION AND ORDER
Summary judgment is appropriate if "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). The moving
party has the burden of establishing the absence of a genuine issue of material fact. Id.; Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence ofa genuine
issue of material fact, the nonmoving party must go beyond the pleadings and identify facts
which show a genuine issue for trial.
Id. at 324. "Summary judgment is inappropriate if
reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict
in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th
Here, defendant moves for summary judgment, asse1iing that there is no genuine dispute
of material fact because it sent plaintiff timely coJTespondence in response to his first QWR, in
compliance with REPSA. Mot. Summ. J. at 3--4. Defendant entered three letters into the record
to supp01i this argument. See Kruger Deel. Supp. Mot. Summ. J. Ex. 3. This evidence, viewed
on its own, establishes the absence of a genuine issue of material fact. Fed. R. Civ. P. 56(a).
However, in response, plaintiff, the nonmoving pmiy, goes beyond the pleadings and identifies
facts that show a genuine issue for trial. Celotex Corp., 477 U.S. at 324. I discuss the parties'
positions in greater detail below.
Defendant proffers its correspondence with plaintiff to demonstrate it responded to
plaintiffs first QWR.
Kruger Deel. Supp. Mot. Summ. J. Ex. 3 (doc. 26-3).
defendant references: (1) a letter dated February 25, 2016, acknowledging receipt of plaintiffs
first QWR and advising him to expect a response by March 30, 2016; (2) a letter dated April 4,
Page 4 - OPINION AND ORDER
2016, again acknowledging receipt of plaintiffs first QWR and advising him to expect a
response by April 25, 2016; and (3) a letter dated April 25, 2016, advising plaintiff that no errors
were identified during the course of defendant's investigation. Id. Defendant asserts that its
correspondence with plaintiff demonstrates compliance with REPSA. Mot. Summ. J. at 3-4.
Plaintiff responds to defendant's Motion for Summary Judgment with two arguments.
See Resp. Mot. Summ. J. (doc. 28). First, plaintiff generally challenges the authenticity of the
letter dated April 4, 2016, and April 25, 2016. Id. at 3. Second, plaintiff argues that defendant's
proffered correspondence with plaintiff does not demonstrate that any of the letters were ever
Plaintiff enters into the record a document obtained in discovery titled
"collection history profile." See Harpham Deel. Supp. Resp. Mot. Summ. J. (doc. 29). This
document is defendant's internal record of its "actions in communicating with Plaintiff,
including the preparation and mailing of letters." Resp. Mot. Summ. J. at 4. Plaintiff asserts the
collection history profile "is devoid of any reference to the creation of the April 4, 2016 letter ...
or that such letter was actually sent." Id. Plaintiff notes that the collection history profile does
show at least pmtial records of the February 25, 2016, and the April 25, 2016, correspondence.
Harpham Deel. Supp. Resp. Mot. Summ. J. at 4, 10. The collection history profile generally
seems to indicate when co1Tespondence was processed and sent. Again, there is no indication
that the April 4, 2016 letter was sent, or even existed. See id.
In response, defendant argues that the letters, including the April 4, 2016 letter, are
authentic because they: (1) are on Nationstar Mortgage, LLC's letterhead; and (2) were produced
during discovery. Reply Supp. Mot. Summ. J., 2 (doc. 30). Defendant also argues there is no
genuine issue of material fact because plaintiff did not put fo1th any evidence to show that the
Page 5 - OPINION AND ORDER
April 4, 2016, letter was never sent. Defendant claims plaintiff only establishes "metaphysical
doubt[.]" Id. at 4.
Indeed, plaintiff has established a genuine issue for trial on the question of whether the
April 4, 2016, was sent. 3
The collection history profile denotes defendant's "actions in
communicating with Plaintiff, including the preparation and mailing of letters[,]" yet it does not
list any reference of the April 4, 2016, letter at issue, nor does it indicate such letter was ever
sent. Resp. Mot. Summ. J. at 4; see Harpham Deel. Supp. Resp. Mot. Summ. J. The existence of
a discrepancy in defendant's records is not to say the issue is resolved in plaintiffs favor. But
defendant's argument that "[n]o reasonable jury could conclude ... that [defendant] failed to
send the April 4th letter" necessarily fails. Reply Supp. Mot. Summ. J. at 4. Based on the
evidence currently in the record, I am confident that a reasonable jury, drawing all inferences in
plaintiffs favor, could conclude that defendant failed to send the April 4, 2016, letter.
Additionally, questions of fact remain about the letter defendant allegedly sent on
February 25, 2016.
Plaintiff maintains that the summary judgment record provides no
information indicating that the February 25, 2016, letter was actually sent. Resp. Mot. Summ. J.
Defendant's collection history profile only says that the February 25 letter was
"processed[,]" not sent. Harpham Deel. Supp. Resp. Mot. Summ. J. at 4. In contrast, other
entries in the collection history profile specifically say that a letter was sent. See id. at 5-8, 10.
At trial, both patties may put foith testimony to support their respective positions. There
may be compelling evidentiary suppmt for either patty's position outside of the summary
I note that the while the letters may or may not be authentic, that issue need not be
resolved to determine that a genuine issue of material fact remains as to whether the April 4,
2016, letter was actually sent in response to plaintiffs QWR.
Page 6 - OPINION AND ORDER
In sum, because the summary judgment record is open to multiple
interpretations, summary judgment is inappropriate.
Defendant's Motion for Summary Judgment (doc. 25) is DENIED. Discovery has closed
in this case, and all other pretrial deadlines have expired. This matter is refeJTed to Magistrate
Judge Thomas Coffin for a settlement conference. The paiiies are ordered to contact Paul Bruch,
Judge Coffin's comiroom deputy, at 541-431-4111 or firstname.lastname@example.org, within 21
days of this order to schedule a settlement conference.
IT IS SO ORDERED.
2'f day of August, 2017.
United States District Judge
Page 7 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?