United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION 
G. CORNELIUS U.S. MAGISTRATE JUDGE
court has before it the February 1, 2018 motion for summary
judgment filed by Defendants Cenlar Agency, Inc. and Cenlar
FSB (collectively “Cenlar”). (Doc. 49). Pursuant
to the court's initial order and February 28, 2018 order,
the motion is fully briefed and under submission as of March
30, 2018. (Docs. 8, 49-51, 53-55). The motion is due to be
granted for the following reasons.
STATEMENT OF FACTS
October 2005, Cenlar began servicing a mortgage loan
originally executed by Plaintiff Leona Bias in October 1998.
(Doc. 50-1 at 2, 4). In connection with the loan, Bias
executed a promissory note in the amount of $114, 000.00 in
favor of New South Federal Savings Bank. (Id. at 3,
10-12). The note was secured by a mortgage on certain real
property located in Jefferson County, Alabama, at 5424 Wesley
Drive, Birmingham, Alabama, 35228. (Id. at 3,
14-20). The mortgage loan is currently owned by Federal Home
Loan Mortgage Corporation (“Freddie Mac”), and
the loan documents, consisting of the note and mortgage, are
held by Bank of New York Mellon. (Id. at 3). In
December 2009, New South Federal Savings Bank was closed by
the Office of Theft Supervision, and the Federal Deposit
Insurance Corporation (“FDIC”) was named receiver
of the bank's assets. (Id. at 4). On August 5,
2013, the FDIC assigned the Bias mortgage to Cenlar FSB.
(Id. at 4, 33).
began having trouble making her monthly mortgage payments
around May 2014. (Id. at 4). Bias admitted she is
not current as to the loan because she ran into financial
trouble after she stopped working in December 2012. (Doc.
50-2 at 11). She testified she does not recall making a
mortgage payment since June 2014. (Id. at 10-11).
8, 2014, Cenlar sent Bias a letter stating her mortgage
payment was thirty-seven days late and her loan was in
default. (Id. at 35). The letter discussed options
for Bias to consider regarding the default and attached
information on how to receive help. (Id. at 35-52).
On May 22, 2014, Bias called Cenlar and spoke to a Cenlar
representative as to her payment issues. (Doc. 50-1 at 4). As
part of the call, Bias authorized a partial payment of
$516.24. (Id. at 4, 54; Doc. 50-3 at 17, 27). Bias
explained she could not afford to make a full payment at the
time but she would call back in June and make another $500.00
payment to complete the full monthly payment. (Doc. 50-2 at
11; Doc. 50-3 at 27, 29). Bias testified she did not receive
anything in writing accepting the partial payment. (Doc. 50-2
after the call, on May 23, 2014, the $516.24 partial payment
was reversed and placed in suspense because it was
insufficient to constitute a full payment. (Doc. 50-1 at 5).
On June 6, 2014, Cenlar returned the $516.24 partial payment
to Bias via check. (Id.; Doc. 50-2 at 11-12). Bias
did not make the $500.00 follow-up payment as discussed on
the telephone call. (Doc. 50-3 at 17, 29-30).
23, 2014, Cenlar sent Bias a notice of default letter to the
property address. (Doc. 50-1 at 8, 57-58). The letter
detailed a cure amount of $1, 920.13 as to the default.
(Id.). Bias did not timely satisfy the cure amount.
(Id. at 8; Doc. 50-2 at 19-20). Then, on September
15, 2014, Cenlar sent Bias a letter offering her the
opportunity to enter into a trial period plan to potentially
modify the loan and cure her default. (Doc. 50-1 at 5,
60-66). Three days later, on September 18, 2014, Cenlar sent
Bias another letter discussing payment default and other
options for Bias to consider. (Doc. 50-1 at 5, 68-85). There
is no evidence Bias did anything in response to the letters.
October 22, 2014, counsel for Cenlar sent Bias two letters.
(Id. at 5, 87-91). The first letter, entitled
“Notice of Acceleration of Promissory Note and
Mortgage, ” informed Bias the mortgage was in default,
the amount due and payable as of that date was $85, 155.95,
and Cenlar was “commencing foreclosure under the terms
of the [m]ortgage.” (Doc. 50-1 at 87-89). Enclosed with
the letter was a copy of the foreclosure notice noting the
sale was scheduled for November 24, 2014. (Id.). The
second letter also noted the foreclosure, discussed ways to
avoid it, and included contact information for Bias to
discuss possible alternatives. (Id. at 91). Notice
of the November 24, 2014 foreclosure sale as to the property
was published in the Alabama Messenger on October
25, November 1, and November 8, 2014. (Doc. 50-1 at 96).
October 28, 2014, Cenlar sent a letter to State Farm Fire
& Casualty, Bias' homeowner's insurance provider,
notifying State Farm “a foreclosure action ha[d]
commenced on behalf of the insured mortgagee against the
above referenced property.” (Id. at 5, 93-94).
In response, State Farm contacted Bias by phone and told her
that her homeowner's insurance would be cancelled. (Doc.
50-2 at 33). Bias told State Farm her insurance should not be
cancelled because she was still living in the property.
(Id.). State Farm confirmed the insurance coverage
would not be cancelled. (Id.). Bias did not know if
there was ever a lapse in coverage and stated she did not
suffer any damage to the property and never submitted an
insurance claim during this period of time. (Id.).
November 21, 2014, counsel for Bias sent Cenlar's lawyer
a letter stating Bias denied Cenlar was the holder or owner
of the mortgage or note, disputed the amount of debt, and
requested the foreclosure sale be stopped. (Id. at
6, 98). That same day, counsel for Bias sent Cenlar a
qualified written request (“QWR”) under section
6(e) of the Real Estate Settlement Procedures Act
(“RESPA”). (Id. at 6, 100). In response
to the letters, Cenlar postponed the foreclosure sale, sent a
letter to Bias acknowledging receipt of her recent
correspondence, and sent a letter to counsel for Bias
identifying Freddie Mac as the owner of the loan.
(Id. at 6, 103, 105).
January 12, 2015, Cenlar sent counsel for Bias a QWR response
letter. (Id. at 6, 107-08). Among other documents
included with the QWR response, Cenlar enclosed a payoff
quote, as well as a reinstatement quote, which were good
through January 30, 2015. (Id. at 110-14). Bias did
not submit sufficient funds to reinstate or pay off the loan.
(Id. at 7; Doc. 50-2 at 24).
February 19, 2015, Cenlar sent a letter to Bias, in care of
her attorney, re-noticing the foreclosure sale for March 18,
2015. (Doc. 50-1 at 7, 118-19). Notice of the mortgage
foreclosure sale was published in the Alabama
Messenger on February 21 and 28, and March 7, 2015.
(Id. at 121). The foreclosure sale was cancelled in
response to the filing of this action against Cenlar.
(Id. at 8). Cenlar has not foreclosed the mortgage.
(Doc. 50-3 at 22).
Bias testified that before she filed her complaint, she
pulled her credit report and recalled a reference related to
Cenlar stating “foreclosure.” (Doc. 50-2 at 29).
Bias did not contact the national credit reporting bureaus to
dispute the foreclosure reference on her credit report.
(Id.). She testified, however, she was denied a
credit card in late 2014, but could not recall which company
issued the denial. (Id. at 29-30). Bias did not
produce the credit report or any documentation regarding the
denial of a credit card despite being asked by Cenlar for
documents supporting her claim.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 56(c), summary 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
judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The party asking for
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 which
it believes demonstrate the absence of a genuine issue of
material fact. Id. at 323. Once the moving party has
met its burden, Rule 56(e) requires the non-moving party to
go beyond the pleadings and by his own affidavits, or by the
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing there is a genuine
issue for trial. See Id. at 324.
substantive law identifies which facts are material and which
are irrelevant. See 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. See Fitzpatrick v. City of Atlanta,
2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine
“if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
Anderson, 477 U.S. at 248. If the evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted. See id. at 249.
complaint asserts fourteen claims against Defendants. (Doc.
1-1 at 3-20). In her brief in opposition to summary judgment,
Plaintiff concedes Defendants are entitled to summary
judgment on her claims for slander of title (Count Five) and
fraud (Count Seven). (Doc. 54 n.2-n.3). The following twelve
claims remain: negligence (Count One); wantonness (Count
Two); unjust enrichment (Count Three); wrongful foreclosure
(Count Four); breach of contract (Count Six); false light
(Count Eight); defamation, libel and slander (Count Nine);
violations of the Truth in Lending Act (“TILA”)
(Count Ten); violations of the RESPA (Count Eleven);
violations of the Fair Credit Reporting Act
(“FCRA”) (Count Twelve); violations of the Fair
Debt Collection Practice Act (“FDCPA”) (Count
Thirteen); and a claim for declaratory relief (Count
Fourteen). The majority of these claims are brought pursuant
to Alabama law. For the following reasons, Defendants are
entitled to summary judgment as to each claim.
Plaintiff's negligence and wantonness claims are not
cognizable under Alabama law.
Counts One and Two of the complaint, Bias alleges Cenlar
engaged in negligent and wanton conduct regarding the
servicing of her loan, attempted to collect funds not owed,
caused her property insurance to be cancelled, negligently
defaulted Bias, and attempted to complete a foreclosure sale.
(Doc. 1-1 at 6-8). Additionally, Bias claims Cenlar
negligently and wantonly failed to prevent the dissemination
of inaccurate and libelous information to others, including
the credit bureaus and the general public. (Id.).
Finally, Bias contends Cenlar negligently and wantonly
trained and supervised the employees responsible for her
mortgage account. (Id.). Cenlar contends these
claims fail as a matter of law because Alabama law does not
recognize a cause of action for negligent or wanton servicing
of a mortgage account. (Doc. 49 at 13).
establish negligence, [a] plaintiff must prove: (1) a duty to
a foreseeable plaintiff; (2) a breach of that duty; (3)
proximate causation; and (4) damage or injury.”
Martin v. Arnold, 643 So.2d 564, 567 (Ala. 1994)
(quoting Albert v. Hsu, 602 So.2d 895, 897 (Ala.
1992)). “To establish wantonness, [a] plaintiff must
prove that the defendant, with reckless indifference to the
consequences, consciously and intentionally did some wrongful
act or omitted some known duty. To be actionable, that act or
omission must proximately cause the injury of which the
plaintiff complains.” Id. “To establish
a claim for negligent, reckless or wanton supervision, a
plaintiff must show that ‘(1) the employee committed a
tort recognized under Alabama law, (2) the employer had
actual notice of this conduct or would have gained such
notice if it exercised due and proper diligence, and (3) the