Knott v. Ocwen Loan Services, LLC
REPORT AND RECOMMENDATION: Based on the foregoing, the Court respectfully RECOMMENDS that the motion for summary judgment (Docket Entry No. 23 ) of Defendant Ocwen Loan Servicing, LLC, be GRANTED and that this action be DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Barbara D. Holmes on 9/19/2017. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)
IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
OCWEN LOAN SERVICES, LLC
TO: Honorable Waverly D. Crenshaw, Jr., Chief District Judge
REPORT AND RECOMMENDATION
By Order entered December 1, 2016 (Docket Entry No. 3), this pro se action was referred to
the Magistrate Judge for pretrial proceedings under 28 U.S.C. § § 636(b)(1)(A) and (B), Rule 72(b)
of the Federal Rules of Civil Procedure, and the Local Rules of Court.
Presently pending before the Court is the motion for summary judgment filed by Defendant
Ocwen Loan Servicing, LLC. See Docket Entry No. 23. Plaintiff has not responded to the motion.
For the reasons set out below, the undersigned Magistrate Judge respectfully recommends that the
motion be granted and this action be dismissed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Gayle Knott (“Plaintiff”) is a resident of Davidson County, Tennessee. She filed this pro se
lawsuit on November 23, 2016, against Ocwen Loan Servicing, LLC (“Ocwen”), asserting a claim
under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. Specifically,
Plaintiff alleges that Ocwen communicated with her on July 17, 2016, about notice of a debt by
sending her a mortgage account statement. See Amended Complaint (Docket Entry No. 16) at ¶ 4.1
She alleges that she then sent Ocwen a qualified written request for validation of the debt on
August 3, 2016,2 but that Ocwen failed to validate the debt and continued to send her mortgage
account statements in an attempt to collect on the debt. Id. at ¶¶ 5-8. Plaintiff contends that Ocwen
is a debt collector under the FDCPA and that its actions violated the requirements set out in
15 U.S.C. § 1692g(b), which required Ocwen to cease its debt collection efforts until it validated the
debt. Id. at ¶¶ 10-13. Plaintiff seeks actual damages pursuant to 15 U.S.C. § 1692k.
Ocwen initially filed a motion to dismiss, which was denied as moot when Plaintiff was
granted leave to amend her complaint. See Order entered February 24, 2017 (Docket Entry No. 15).
Upon the filing of an answer by Ocwen, a scheduling order was entered providing for a period of
pretrial activity. See Docket Entry Nos. 19 and 20. Ocwen filed the instant motion for summary
judgment on July 6, 2017. Docket Entry No. 23. Subsequently, Ocwen requested to file a reply to
its own motion for summary judgment, which the Court permitted it to do. See Docket Entry
Nos. 27-29. As noted, Plaintiff has not responded to Ocwen’s motion for summary judgment.
II. MOTION FOR SUMMARY JUDGMENT
Ocwen asserts that it is the owner or servicer of a home loan and mortgage for which Plaintiff
is the debtor. See Memorandum in Support (Docket Entry No. 24) at 2. Ocwen contends that it sent
As an exhibit supporting this allegation, Plaintiff attached a copy of a mortgage account
statement, dated August 17, 2016, to her Amended Complaint. See Exhibit A-1 to Amended
Complaint at 5-8.
See Docket Entry No. 1-1.
a notice of default letter to Plaintiff about the debt on September 9, 2015, which informed Plaintiff
of her right to dispute the debt, but that Plaintiff did not send Ocwen a written request for verification
of the debt until nearly a year later, well beyond the thirty-day window for making a timely written
request. Id. Ocwen contends that it complied with the provisions of 15 U.S.C. § 1692g, that
Plaintiff’s failure to send a timely written request foreclosed her opportunity to request verification
of the debt from Ocwen, and that Ocwen’s subsequent communications with Plaintiff neither
violated the FDCPA nor constituted a “new” notice of debt letter that entitled Plaintiff to seek debt
verification. Id. at 4-7. In support of its motion, Ocwen filed the underlying promissory note, deed
of trust and assignment of the deed of trust (Docket Entry No. 23-1, 23-2, and 23-3), the
September 9, 2015, Notice of Default letter (Docket Entry No. 23-4), a July 18, 2016, Delinquency
letter (Docket Entry No. 23-5), and a Statement of Undisputed Material Facts (Docket Entry No. 25).
By Order entered July 10, 2017, Plaintiff was notified of the motion for summary judgment,
given a deadline of August 18, 2017, to file a response, and warned that her failure to respond could
result in the dismissal of the action. See Docket Entry No. 26. To-date, Plaintiff has not filed a
response of any type.
III. STANDARD OF REVIEW
Summary judgment is appropriate 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.” Rule 56(a) of the
Federal Rules of Civil Procedure. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct.
2548, 91 L.Ed.2d 265 (1986). In considering whether summary judgment is appropriate, the Court
must “look beyond the pleadings and assess the proof to determine whether there is a genuine need
for trial.” Sowards v. Loudon Cnty., 203 F.3d 426, 431 (6th Cir.), cert. denied, 531 U.S. 875, 121
S.Ct. 179, 148 L.Ed.2d 123 (2000). The Court must view the evidence and all inferences drawn
from underlying facts “in the light most favorable to the party opposing the motion.” See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., Ltd., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538
(1986); Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir.), cert. denied, 534 U.S. 896, 122 S.Ct.
217, 151 L.Ed.2d 155 (2001).
The moving party has the burden of showing the absence of genuine factual disputes from
which a reasonable jury could return a verdict for the non-moving party. Anderson, at 249-50.
“Once the moving party has presented evidence sufficient to support a motion for summary
judgment, the nonmoving party is not entitled to trial merely on the basis of allegations; significant
probative evidence must be presented to support the complaint.” Goins v. Clorox Co., 926 F.2d 559,
561 (6th Cir. 1991). The party opposing the motion for summary judgment may not rely solely on
the pleadings but must present affirmative evidence supporting the claims asserted by the party. See
Bell v. Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003); Banks v. Wolfe Cnty. Bd. of Educ., 330
F.3d 888, 892 (6th Cir. 2003).
As the Sixth Circuit Court of Appeals explained in Federal Home Loan Mortg. Corp. v.
Lamar, 503 F.3d 504, 508 (6th Cir. 2007):
Congress enacted the FDCPA in order “to eliminate abusive debt collection practices
by debt collectors, to insure that those debt collectors who refrain from using abusive
debt collection practices are not competitively disadvantaged, and to promote
consistent State action to protect consumers against debt collection abuses.”
15 U.S.C. § 1692(e). “Congress designed the [FDCPA] to ‘eliminate the recurring
problem of debt collectors dunning the wrong person or attempting to collect debts
which the consumer has already paid.’” Swanson v. S. Or. Credit Serv., Inc., 869
F.2d 1222, 1225 (9th Cir.1988) (quoting S.Rep. No. 95-382, at 4 (1977), reprinted
in 1977 U.S.C.C.A.N. 1695, 1699).
503 F.3d at 508. To achieve this goal, the FDCPA provides in relevant part that consumers have the
right to receive several types of information about their debts, such as the amount of the debt, the
name of the debt holder, and notice that if the debt is not challenged within thirty days, the debt will
be assumed valid. 15 U.S.C. § 1692g(a). If the consumer disputes the debt within thirty days of
receiving the written notice of the debt, the debt collector must stop any collection activities and
communication efforts until the debtor receives verification of the debt or a copy of the judgment.
15 U.S.C. § 1692g(b).
In the instant action, Ocwen has set forth unrebutted evidence and valid legal arguments
showing that its actions were in compliance with the FDCPA and that Plaintiff’s claim that it
violated 15 U.S.C. § 1692g(b) is unsupported by any evidence. In the face of the affirmative
evidence from Defendant Ocwen, Plaintiff cannot merely rest on allegations contained in her
pleadings, but must respond with affirmative evidence supporting her claims and establishing the
existence of a genuine issue of material fact. See Celotex Corp., 477 U.S. at 323-24; Chao v. Hall
Holding Co., Inc., 285 F.3d 415, 424 (6th Cir. 2002); Cloverdale Equip. Co. v. Simon Aerials, Inc.,
869 F.2d 934, 937 (6th Cir. 1989). Plaintiff has not countered the factual and legal arguments for
summary judgment made by Ocwen and has not shown that genuine issues of material fact exist in
the action that require that the motion for summary judgment be denied.
Although Plaintiff’s status as a pro se litigant requires the Court to view her filings with some
measure of liberality, see Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652
(1972); Jourdan v. Jabe, 951 F.2d 108, 110 (6th Cir. 1991), the “lenient treatment generally accorded
to pro se litigants has limits.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir. 1996). The Court
is not required to supply or assume facts supporting Plaintiff’s case and is not required to make legal
arguments on her behalf. See Bell v. Tennessee, 2012 WL 996560, *9 (E.D. Tenn. March 22, 2012)
(quoting Thompson v. A.J. Rose Mfg. Co., 208 F.3d 215 (6th Cir. 2000). See also Brown v.
Matauszak, 415 Fed.App’x 608, 613 (6th Cir. 2011); Payne v. Secretary of Treas., 73 Fed.App'x
836, 837 (6th Cir. 2003). Additionally, Rule 56 does not impose upon the district court a duty to sift
through the record in search of evidence to support a party’s opposition to summary judgment.
Williamson v. Aetna Life Ins. Co., 481 F.3d 369, 379–80 (6th Cir. 2007). In the end, Plaintiff simply
has not produced evidence that would permit a reasonable jury to find in her favor if her FDCPA
claim was to proceed to trial. As such, Ocwen is entitled to summary judgment in its favor.
Based on the foregoing, the Court respectfully RECOMMENDS that the motion for summary
judgment (Docket Entry No. 23) of Defendant Ocwen Loan Servicing, LLC, be GRANTED and that
this action be DISMISSED WITH PREJUDICE.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of
Court within fourteen (14) days of service of this Report and Recommendation and must state with
particularity the specific portions of this Report and Recommendation to which objection is made.
Failure to file written objections within the specified time can be deemed a waiver of the right to
appeal the District Court's Order regarding the Report and Recommendation. See Thomas v. Arn,
474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Walters, 638 F.2d 947 (6th Cir.
BARBARA D. HOLMES
United States Magistrate Judge
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