United States District Court, N.D. Alabama, Middle Division
PASCHAL PAUL AND SHARON J. STARGELL BROTHERS, Plaintiffs,
ANDY SAAG, Defendant.
VIRGINIA EMERSON HOPKINS, District Judge.
This is a civil action filed by the pro se plaintiffs, Paschal Paul Brothers, and Sharon J. Stargell Brothers, alleging that the defendant, Andy Saag, violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., in his communications with the plaintiffs. The surviving counts in the Amended Complaint allege false and misleading misrepresentations "in violation of 15 U.S.C. § 1692e" (Count Two), and unfair practices in violation of 15 U.S.C. § 1692f (Count Three).
The case comes before the court on the defendant's motion for summary judgment. (Doc. 31). For the reasons stated herein, the motion will be GRANTED, and this case will be DISMISSED with prejudice.
I. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56, summary judgment is proper if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) ("[S]ummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.") (internal quotation marks and citation omitted). The party requesting summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. Once the moving party has met its burden, Rule 56(e) requires the non-moving party to go beyond the pleadings in answering the movant. Id. at 324. By its own affidavits - or by the depositions, answers to interrogatories, and admissions on file - it must designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If the evidence presented by the non-movant to rebut the moving party's evidence is merely colorable, or is not significantly probative, summary judgment may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden of proof on the given issue or issues at trial, then it can only meet its burden on summary judgment by presenting affirmative evidence showing the absence of a genuine issue of material fact - that is, facts that would entitle it to a directed verdict if not controverted at trial. Id. (citation omitted). Once the moving party makes such an affirmative showing, the burden shifts to the non-moving party to produce "significant, probative evidence demonstrating the existence of a triable issue of fact." Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16. First, the movant may simply show that there is an absence of evidence to support the non-movant's case on the particular issue at hand. Id. at 1116. In such an instance, the non-movant must rebut by either (1) showing that the record in fact contains supporting evidence sufficient to withstand a directed verdict motion, or (2) proffering evidence sufficient to withstand a directed verdict motion at trial based on the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant may no longer rest on mere allegations; instead, it must set forth evidence of specific facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this position may use to discharge its burden is to provide affirmative evidence demonstrating that the non-moving party will be unable to prove its case at trial. Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering evidence sufficient to withstand a directed verdict at trial on the material fact sought to be negated. Id.
A. Facts Deemed To Be Admitted
The following facts are deemed to be admitted as they were set out in the movant's initial brief, and have not been disputed:
1. On December 20, 2004, Countrywide Home Loans, Inc. ("Countrywide") loaned the [p]laintiffs $47, 500.00 (the "Loan"). In exchange, the [p]laintiffs executed a promissory note (the "Note").
2. As security for the indebtedness represented by the Note, the [p]laintiffs executed a Mortgage (the "Mortgage"). The Mortgage created a lien on certain real property located at 2370 Gamble Road, Horton, Alabama 35980 (the "Property").
3. The current owner of the Note is Federal National Mortgage Association. Bank of America, N.A., successor by merger to BAC Home Loans Servicing, LP ("Bank of America"), has serviced the Loan since December 27, 2004.
4. An assignment of mortgage was executed on or around March 2, 2010, which assigned the Mortgage to BAC Home Loans Servicing, Inc. (the "Assignment of Mortgage"). On or around November 14, 2012, a Corrective Assignment of Mortgage (the "Corrective Assignment of Mortgage") was executed for purpose of correcting the assignee name on the Assignment of Mortgage.
5. Based on certain defaults under the Mortgage and Note by the [p]laintiffs, Bank of America referred the Loan to foreclosure and retained the law firm of Sirote & Permutt P.C. to facilitate the foreclosure.
6. The [d]efendant Andy Saag is an attorney at Sirote & Permutt, P.C. A significant portion of Mr. Saag's practice involves mortgage foreclosures conducted pursuant to Alabama law. Mr. Saag has been handling mortgage foreclosures for over five years.
7. In that capacity, Mr. Saag was tasked with the responsibility of handling the foreclosure of the Property on behalf of Bank of America. As part of the foreclosure referral, Mr. Saag was given the Note, Mortgage, and the Assignment of Mortgage by Bank of America. Mr. Saag also drafted for execution the Corrective Assignment of Mortgage.
8. In order to foreclose the Mortgage on behalf of Bank of America, Mr. Saag drafted and sent several letters to the [p]laintiffs (the "Letters").
9. Specifically, Mr. Saag sent a "Notice of Acceleration of Promissory Note and Mortgage" letter to the [p]laintiffs on January 24, 2013. The January 24 letter was sent in order to provide the [p]laintiffs with certain required notices as a prerequisite to foreclosure of the Mortgage.
10. Mr. Saag also sent a letter dated January 31, 2013[, ] to the [p]laintiffs which acknowledged receipt of a January 29, 2013[, ] letter from the [p]laintiffs in which the [p]laintiffs disputed the Mortgage debt. In the January 31 letter, Mr. Saag explained to the [p]laintiffs that foreclosure proceedings would cease until written verification of the debt was provided to the [p]laintiffs.
11. After Mr. Saag received notice from Bank of America that verification of the debt was provided to the [p]laintiffs, he sent a letter to the [p]laintiffs notifying them that foreclosure proceedings would resume. The letter also made reference to a revised publication notice.
12. Mr. Saag sent the Letters to the [p]laintiffs "purely for the purposes of (1) foreclosing the Mortgage pursuant to its terms and in line with Alabama law on behalf of Bank of America, and (2) complying with any other relevant laws." [(Doc. 33-2 at 5, ¶11).]
13. Mr. Saag "relied upon [his] experience as an attorney with mortgage foreclosures, the loan documents provided to [him] by Bank of America, and Bank of America's foreclosure referral in determining that Bank of America had standing to foreclose on the Mortgage." [(Doc. 33-2 at 5, ¶12).]
14. On April 3, 2013, the Property was sold to Federal National Mortgage Association pursuant to a non-judicial foreclosure ...