United States District Court, N.D. Alabama, Southern Division
CARTHENIA W. JEFFERSON, Plaintiff,
NATIONSTAR MORTGAGE LLC, Defendant.
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
only claims remaining in this civil action are filed by the
Plaintiff, Carthenia Jefferson, against the sole remaining
Defendant, Nationstar Mortgage, LLC
(“Nationstar”). The Amended Complaint alleges
that Nationstar is liable to Jefferson for violations of: the
Fair Debt Collection Practices Act, 15 U.S.C. §§
1692-1692p (the “FDCPA”) (Count One); the Fair
Credit Reporting Act, 15 U.S.C. §§ 1681-1681x (the
“FCRA”) (Count Two); and the Truth in Lending
Act, 15 U.S.C. §§ 1601-1616 (the
“TILA”), including 12 C.F.R. § 226 (Federal
Reserve Board Regulation Z).
case comes before the Court on Nationstar's Motion for
Summary Judgment (the “Motion”). (Doc. 46). For
the reasons stated herein, the Motion will be
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.
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.
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).
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.
Plaintiff has proffered 29 facts in opposition to the Motion.
However, in contravention of this Court's Uniform Initial
Order (see doc. 10 at 18), and Rule 56(e), she has
failed to provide citations to the record in support of
any proffered fact. Indeed, the Plaintiff has merely
“cut and pasted” allegations from her Amended
Complaint into the brief as her “facts.”
(Compare doc. 58 at 4-11, ¶¶1-29; doc. 32
at 3-8, ¶¶7-37). It is axiomatic that “Rule
56 . . . requires the nonmoving party to go beyond the
pleadings.” Celotex, 477 U.S. at 324.
Accordingly, the Court will not consider the Plaintiff's
facts proffered by the Defendant have not been sufficiently
disputed by the Plaintiff, and are therefore deemed to be
admitted for purposes of the instant motion.
facts, included here verbatim, are:
A. The inception of Jefferson's Home
1. On August 5, 2006, Jefferson executed a promissory note
(the “Note”) in favor of Home Loan Center, Inc.
dba Lending Tree Loans (“Lending Tree”) in the
amount of $152, 000.00.
2. Jefferson secured the Note by giving a mortgage on the
certain property commonly known as 2128 Oakwood Drive,
Birmingham, Alabama 35215 (the [“]Property”) in
favor of Mortgage Electronic Registration Systems, Inc.
(“MERS”), solely as nominee for Lending Tree and
its successors and assigns, recorded in Book LR 200613, Page
28564, in the Office of the Judge if Probate of Jefferson
County, Alabama (the “Mortgage” and, together
with the Note, the “Loan”).
3. The Note required Jefferson to make monthly payments on
the first day of each month to satisfy the debt.
4. Jefferson knowingly executed the Note and Mortgage,
understood the payment terms, understood that she would be in
default if she did not pay the full amount by the due date,
and understood the fees, costs, and expenses that could be
5. Jefferson also understood that the Mortgage required her
to pay all assessments, and like charges attributable to
the Property, that she was required to have insurance on the
Property (otherwise insurance would be lender-placed and
become additional borrower debt), and that she was to notify
the lender and insurance carrier in the event of a loss and
make repairs to the Property before insurance proceeds should
B. Aurora's 2010 Foreclosure and
Early Procedural History of This Case
Aurora Loan Services, LLC (“Aurora”) serviced the
Loan from the first payment due on the Loan (October 2006)
until the servicing of the loan transferred to Nationstar on
July 1, 2012.
May 11, 2010, Aurora foreclosed on the Property, and a
foreclosure deed vested title in Federal National Mortgage
Association (“Fannie Mae”).
May 11, 2012, Jefferson answered the Original Complaint and
asserted counterclaims against Aurora, Fannie Mae, and Sirote
& Permutt, PC (“Sirote”) (the “Original
Because there was no insurance on the Property in 2012,
Aurora lender-placed insurance, which increased
Jefferson's monthly payments; and Jefferson fell behind
on her re-instated Mortgage while Aurora was servicing the
When Nationstar began servicing the Loan in July 2012,
Jefferson was behind on her Mortgage payments and  due for
the December 2011 payment.
December 2012, the Original Complaint was resolved by a
Consent Order (1) expunging the foreclosure deed, (2) setting
aside the foreclosure sale, and reinstating the Mortgage,
leaving only the Original Counterclaim against Aurora and
Jefferson Adds Nationstar and the Insurance Defendants to
the Case in December 2015, Shortly After She Settles with
Nationstar and the Insurance Defendants removed the case to
this Court on January 15, 2015[, ] and, ultimately, this
Court remanded the state law claims and retained jurisdiction
only of the claims against Nationstar arising under the Truth
in Lending Act (“TILA”), the Fair Credit
Reporting Act (“FCRA”), and the Fair Debt
Collection Practices Act (“FDCPA”).
The 2010, 2011, and 2012[, ] Property Damage and
Jefferson's Insurance Claims
Jefferson made insurance claims for the Damage (the
Immediately after Nationstar received the Insurance Funds,
beginning on September 23, 2013, Nationstar began sending
Jefferson letters asking her to contact Nationstar regarding
the Insurance Claims.
Jefferson did not respond to any of the letters. For example,
when asked about the first letter Nationstar sent regarding
the insurance proceeds on September 23, 2013, Jefferson
[Doc. 48-1 at 46(177))].
According to Jefferson, she gave every letter she received
from Nationstar to her attorney without opening it.
Jefferson never completed [a] Third Party Authorization form
that would have allowed Nationstar to speak with her
October 2013[, ] and March 2015, Nationstar also sent
Jefferson letters that had a detailed explanation of the
documents/information it needed to release the Insurance
Funds (and included the forms themselves).
Jefferson did not provide Nationstar any of the documents
requested nor did she return any of the forms included in the
October 2013[, ] or March 2015[, ] letters, including a
Certificate of Intent to Repair.
After Jefferson filed her suit against Nationstar,
Nationstar's counsel continued to write letters and
emails to Jefferson's counsel to try and secure the
information needed to release the Insurance Funds. There was
Nationstar has not been able to release the Insurance Funds
to Jefferson because she has not filled out and/or provided
the required documents and Nationstar has not inspected any
repairs to the Property (assuming any such repairs have been
Nationstar is still holding the Insurance Funds in the Loan
suspense account, and is prepared to release them as soon as
Jefferson satisfies the requirements for doing so.
Jefferson and Nationstar's (Simple) History and
Jefferson's last payment on the Loan was on or about June
2012, while Aurora was still servicing the loan.
Jefferson has never made a payment to Nationstar.
Nationstar tried to help Jefferson resolve the payment
delinquency and bring the Loan current in March 2015, by
unilaterally (that is, without requiring Jefferson to
[complete] a loan modification application) offering
Jefferson loan modifications that would lower her interest
rate from 7.375% to 4%, significantly reducing her payments.
Nationstar sent Jefferson the loan modification offer in
March 2015, but Jefferson did not respond to Nationstar's
After Jefferson sent Nationstar a hardship letter in April
2015, Nationstar again offered Jefferson a loan modification
in June, September, and November 2015, but Jefferson did not