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Dunavant v. Sirote and Permutt, P.C.

United States District Court, S.D. Alabama, Southern Division

June 25, 2014

ANDREW D. DUNAVANT, JR., et al., Plaintiffs,


WILLIAM H. STEELE, Chief District Judge.

This matter is before the Court on the defendant's motion for summary judgment and on the plaintiffs' motion for partial summary judgment. (Docs. 44, 47). The parties have filed briefs and evidentiary materials in support of their respective positions, (Docs. 45, 48-49, 52-54, 57, 60, 64), and the motions are ripe for resolution. After careful consideration, the Court concludes that the plaintiffs' motion is due to be denied and the defendant's motion is due to be granted in part and denied in part.


According to the complaint, (Doc. 1), the plaintiffs executed a mortgage on a residence. The plaintiffs made their payments, but the lender and/or servicer refused to accept them and ultimately instituted foreclosure proceedings. The plaintiffs obtained a state court order enjoining the lender and servicer from proceeding with any foreclosure action, but the defendant law firm thereafter published notice of foreclosure sale on two occasions.

The complaint asserts two causes of action. Count One is a federal claim for multiple violations of the Fair Debt Collection Practices Act ("the Act" or "FDCPA"), and Count Two is a state claim for invasion of privacy. By previous order, the Court granted the defendant's motion for judgment on the pleadings as to all aspects of the FDCPA claim other than its allegation of a violation of 15 U.S.C. § 1692f(6). (Doc. 32). The plaintiffs seek summary judgment on the merits of their claim under the Act. The defendant seeks summary judgment on both procedural and substantive grounds.


Summary judgment should be granted only 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 party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The moving party may meet its burden in either of two ways: (1) by "negating an element of the non-moving party's claim"; or (2) by "point[ing] to materials on file that demonstrate that the party bearing the burden of proof at trial will not be able to meet that burden." Id. "Even after Celotex it is never enough simply to state that the non-moving party cannot meet its burden at trial." Id .; accord Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must support its motion with credible evidence... that would entitle it to a directed verdict if not controverted at trial. [citation omitted] In other words, the moving party must show that, on all the essential elements of its case on which it bears the burden of proof, no reasonable jury could find for the nonmoving party." United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) (emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).

"If the party moving for summary judgment fails to discharge the initial burden, then the motion must be denied and the court need not consider what, if any, showing the non-movant has made." Fitzpatrick, 2 F.3d at 1116; accord Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608.

"If, however, the movant carries the initial summary judgment burden..., the responsibility then devolves upon the non-movant to show the existence of a genuine issue of material fact." Fitzpatrick, 2 F.3d at 1116. "If the nonmoving party fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, ' the moving party is entitled to summary judgment." Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted); see also Fed.R.Civ.P. 56(e)(2) ("If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may... consider the fact undisputed for purposes of the motion....").

In deciding a motion for summary judgment, "[t]he evidence, and all reasonable inferences, must be viewed in the light most favorable to the nonmovant...." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).

There is no burden on the Court to identify unreferenced evidence supporting a party's position.[1] Accordingly, the Court limits its review to the exhibits, and to the specific portions of the exhibits, to which the parties have expressly cited. Likewise, "[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment, " Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995), and the Court accordingly limits its review to those arguments the parties have expressly advanced.

I. Plaintiffs' Motion.

The plaintiffs seek summary judgment on the merits of their claim under Section 1692e(5) of the Act. (Doc. 45 at 8, 9). This is odd, since the Court dismissed this aspect of the federal claim several months ago. (Doc. 32 at 2, 6). In its reply brief, the plaintiffs note the Court retains power to "reassess" its earlier, interlocutory ruling. (Doc. 57 at 2). Quite so, but the plaintiffs have neither invoked a proper procedural mechanism for obtaining reconsideration nor shown that any of the narrow grounds for reconsideration are in play.

Rather than filing a motion to obtain judgment in its favor on a claim already dismissed and thus not before the Court, the plaintiffs should have filed a motion to reconsider the Court's order of dismissal; until and unless the plaintiffs obtain reinstatement of their claim, they cannot possibly obtain summary judgment as to that claim. The plaintiffs have filed no motion to reconsider. Worse, neither their motion for partial summary judgment nor their principal brief acknowledges that their claim has been dismissed or requests alteration of that ruling. The plaintiffs' first such request came in their reply brief, which renders it untimely. Gross-Jones v. Mercy Medical, 874 F.Supp.2d 1319, 1330 n.8 (S.D. Ala. 2012) ("District courts, including this one, ordinarily do not consider arguments raised for the first time on reply.") (citing cases and explaining the underlying rationale). The plaintiffs identify no reason to depart from this well-established rule.

Even had reconsideration been properly and timely sought, the result would remain unchanged. The grant or denial of a motion to reconsider is left to the discretion of the trial court. Chapman v. AI Transport, 229 F.3d 1012, 1023-24 (11th Cir. 2000) (en banc). Such a motion may not be used as a vehicle to inject new arguments into the underlying motion, or to submit evidence previously available but not properly presented on the underlying motion. Mays v. United States Postal Service, 122 F.3d 43, 46 (11th Cir. 1997). Nor may it be used to "relitigate old matters." Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957 (11th Cir. 2009) (internal quotes omitted). Instead, "[a] motion to reconsider is only available when a party presents the court with evidence of an intervening change in controlling law, the availability of new evidence, or the need to correct clear error or manifest injustice." Gibson v. Mattox, 511 F.Supp.2d 1182, 1185 (S.D. Ala. 2007) (internal quotes omitted).[2] As this Court has noted, "[m]otions to reconsider serve a valuable but limited function. They do not exist to permit losing parties to prop arguments previously made or to inject new ones, nor to provide evidence or authority previously omitted. They do not, in short, serve to relieve a party of the consequences of its original, limited presentation." Dyas v. City of Fairhope, 2009 WL 5062367 at *3 (S.D. Ala. 2009).

The Court dismissed the plaintiffs' FDCPA claims (save for the one invoking Section 1692f(6)) because it found that the defendant's act of publishing foreclosure notices amounted only to the enforcement of a security interest and not the collection of a debt, and because it construed Section 1692a(6) as limiting potential liability for enforcement of a security interest to violations of Section 1692f(6). The Court noted that the Eleventh Circuit has stated that "the plain language of the FDCPA supports the district court's conclusion that foreclosing on a security interest is not debt collection activity for purposes of § 1692g." Warren v. Countrywide Home Loans, Inc., 342 Fed.Appx. 458, 460 (11th Cir. 2009). Thus, "an enforcer of a security interest, such as a [mortgage company] foreclosing on mortgages of real property... falls outside the ambit of the FDCPA except for the provisions of section 1692f(6)." Id. at 460-61 (internal quotes omitted). The Court acknowledged that Warren is unpublished and thus non-binding but found it persuasive, especially given the agreement of a wealth of authority as well as the Court's consistent textual analysis.

In its reply brief, the plaintiffs insist that Warren has been "overruled" by Birster v. American Home Mortgage Servicing, Inc., 481 Fed.Appx. 579, 582 (11th Cir. 2012). (Doc. 57 at 1, 2, 3). Even had the plaintiffs timely raised this argument, it could not carry the day. As a threshold matter, one unpublished Eleventh Circuit opinion cannot overrule another. At any rate, the plaintiff has failed to show such an overruling.

The plaintiffs assert that "[t]he current Shepard's report shows" that Birster overruled Warren, (Doc. 57 at 1), but the citation service used by the Court shows no such thing. The reason is clear. As addressed by the Court in its order dismissing most of the plaintiffs' FDCPA claim, both Birster and Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012), held only that a communication that both enforces a security interest (as by notifying the debtor of impending foreclosure) and attempts to collect a debt (as by demanding payment) exposes the defendant to liability beyond Section 1692f(6). The plaintiff has not attempted to show that these cases stretch any further so as to be in tension with Warren. On the contrary, and as the Court previously noted, the Reese Court expressly "d[id] not decide whether a party enforcing a security interest without demanding payment on the underlying debt is attempting to collect a debt within the meaning of § 1692e." Id. at 1218 n.3.

In their reply brief, the plaintiffs further argue that they should receive summary judgment on their claim under Section 1692f(6). (Doc. 57 at 2). For reasons discussed above, the plaintiffs' failure to seek this relief ...

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