Green v. M&T Bank

Filing 27

MEMORANDUM OPINION AND ORDER granting 20 MOTION for Summary Judgment. Greens claims are DISMISSED WITH PREJUDICE. (Signed by Judge George C Hanks, Jr) Parties notified.(bthomas, 4)

Case 4:20-cv-04318 Document 27 Filed on 01/18/23 in TXSD Page 1 of 5
United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SHANNON L. GREEN,
Plaintiff,
VS.
M&T BANK,
Defendant.

§
§
§
§
§
§
§
§
§

January 18, 2023
Nathan Ochsner, Clerk

CIVIL ACTION NO. 4:20-CV-4318

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant M&T Bank’s Motion for Summary
Judgment. (Dkt. 20). After carefully reviewing the motion, summary judgment
record as a whole, and the applicable law, the Court finds that Defendant’s motion
should be GRANTED. Plaintiff Shannon Green’s claims are DISMISSED WITH
PREJUDICE.
FACTUAL BACKGROUND
In November 2016, Green secured a note and deed of trust from Prospect
Mortgage in the amount of $148,117 against real property located in Humble, Texas.
In September 2017, Defendant M&T Bank became the mortgage servicer for
Green’s loan—which, at the time, was not in default.

1/5

Case 4:20-cv-04318 Document 27 Filed on 01/18/23 in TXSD Page 2 of 5

Two and a half years later, Green sent M&T Bank a Notice of Dispute
pursuant to 15 U.S.C. § 1692 (i.e., the Fair Debt Collection Practices Act, or
“FDCPA”), in which he claimed that M&T Bank was in breach of an unspecified
agreement. M&T Bank responded less than a month later. Green then sent a nearly
identical dispute letter, to which M&T Bank responded with an updated payment
history. Green then filed a complaint with the Consumer Financial Protection Bureau
(“CFPB”). M&T Bank responded to that complaint as well. Green then sent M&T
Bank another dispute letter and filed two additional CFPB complaints; M&T Bank
responded each time. Finally, Green sent M&T Bank a “Notice of Default and
Opportunity to Cure.” M&T Bank responded with a detailed history of their
communications with Green over the prior eight months.
Green filed a lawsuit in federal court, alleging that M&T Bank violated five
provisions of the FDCPA (and two purported FDCPA provisions that do not exist).
M&T Bank filed a motion for summary judgment; Green did not respond. The Court
now considers M&T Bank’s motion.
LEGAL STANDARD
Federal Rule of Civil Procedure 56(a)
Summary judgment is proper when “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 dispute about a material fact is “genuine” if the evidence, taken as a
2/5

Case 4:20-cv-04318 Document 27 Filed on 01/18/23 in TXSD Page 3 of 5

whole, could lead a rational trier of fact to find for the nonmoving party. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
“Summary judgment reinforces the purpose of the Rules, to achieve the just, speedy,
and inexpensive determination of actions, and, when appropriate, affords a merciful
end to litigation that would otherwise be lengthy and expensive.” Fontenot v. Upjohn
Co., 780 F.2d 1190, 1197 (5th Cir. 1986).
A summary judgment movant who does not bear the burden of persuasion at
trial can satisfy its initial burden on the motion by pointing to the non-movant’s lack
of evidence to support an essential element of its claim or defense. See Celotex Corp.
v. Catrett, 477 U.S. 317, 325 (1986). If the movant carries that initial burden, the
burden shifts to the party opposing the motion to present competent summary
judgment evidence showing the existence of a genuine fact dispute. See Matsushita,
475 U.S. at 586-87. “[T]he nonmoving party cannot survive a summary judgment
motion by resting on the mere allegations of [her] pleadings.” Duffie v. United States,
600 F.3d 362, 371 (5th Cir. 2010). Rather, the nonmoving party must “go beyond
the pleadings” and submit competent summary judgment evidence “showing that
there is a genuine issue for trial.” Adams v. Travelers Indem. Co. of Conn., 465 F.3d
156, 164 (5th Cir. 2006) (internal quotation marks and citation omitted). See also
Matsushita, 475 U.S. at 586 (To avoid summary judgment, the non-movant must

3/5

Case 4:20-cv-04318 Document 27 Filed on 01/18/23 in TXSD Page 4 of 5

“do more than simply show that there is some metaphysical doubt as to the material
facts.”).
ANALYSIS
M&T Bank argues that summary judgment is warranted because it is not a
“debt collector” as defined under the FDCPA, and thus cannot be sued under the
FDCPA. Green did not respond to M&T Bank’s argument. The Court agrees with
M&T Bank’s interpretation of the FDCPA.
The FDCPA expressly excludes, from the statutory definition of a “debt
collector,” “any person collecting or attempting to collect any debt owed or due or
asserted to be owed or due another to the extent such activity . . . concerns a debt
which was not in default at the time it was obtained by such person.” 15 U.S.C. §
1692a(6)(F)(iii). See Perry v. Steward Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985)
(“The legislative history of Section 1692a(6) indicates conclusively that a debt
collector does not include the consumer's creditors, a mortgage servicing company,
or an assignee of a debt, as long as the debt was not in default at the time it was
assigned.”) (emphasis added).
The summary judgment evidence shows that Green’s loan was not in default
in September 2017, when M&T Bank began servicing the loan. (Dkt. 20-4 at 16-17).
Thus, (1) M&T Bank is not a “debt collector” under the FDCPA, and (2) Green’s

4/5

Case 4:20-cv-04318 Document 27 Filed on 01/18/23 in TXSD Page 5 of 5

claims under the FDCPA—the only claims raised in Green’s complaint—fail as a
matter of law.
CONCLUSION
M&T Bank’s motion for summary judgment should be GRANTED. Green’s
claims are DISMISSED WITH PREJUDICE.
SIGNED at Houston, Texas on January 18, 2023.
_______________________________
GEORGE C. HANKS, JR.
UNITED STATES DISTRICT JUDGE

5/5