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Jefferson v. Nationstar Mortgage, LLC

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

July 26, 2018

CARTHENIA W. JEFFERSON, Plaintiff,
v.
NATIONSTAR MORTGAGE LLC, Defendant.

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE

         The only claims remaining in this civil action are filed by the Plaintiff, Carthenia Jefferson, against the sole remaining Defendant, Nationstar Mortgage, LLC (“Nationstar”).[1] 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).

         The 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 GRANTED.

         I. STANDARD

         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.

         II. FACTS

         The 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 proffered facts.[2]

         The 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.[3]

         Those facts, included here verbatim, are:[4]

A. The inception of Jefferson's Home Mortgage Loan

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 charged.
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 be released.[5]
B. Aurora's 2010 Foreclosure and Early Procedural History of This Case

         6. 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.

         8. In May 11, 2010, Aurora foreclosed on the Property, and a foreclosure deed vested title in Federal National Mortgage Association (“Fannie Mae”).

         10. On May 11, 2012, Jefferson answered the Original Complaint and asserted counterclaims against Aurora, Fannie Mae, and Sirote & Permutt, PC (“Sirote”) (the “Original Counterclaim”).

         12. 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 Loan.

         14. When Nationstar began servicing the Loan in July 2012, Jefferson was behind on her Mortgage payments and [] due for the December 2011 payment.

         16. On 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 Fannie Mae.[6]

         C. Jefferson Adds Nationstar and the Insurance Defendants to the Case in December 2015, Shortly After She Settles with Aurora.

         19. 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”).

[7]

         D. The 2010, 2011, and 2012[, ] Property Damage and Jefferson's Insurance Claims

         22. Jefferson made insurance claims for the Damage (the “Insurance Claims”).

         24. 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.

         26. 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 testified:

         A. No, sir.

[Doc. 48-1 at 46(177))].

         27. According to Jefferson, she gave every letter she received from Nationstar to her attorney without opening it.

         28. Jefferson never completed [a] Third Party Authorization form that would have allowed Nationstar to speak with her attorney.

         29. In 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).

         30. 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.

         31. 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 no response.

         32. 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 made).[8]

         33. 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.

         E. Jefferson and Nationstar's (Simple) History and Relationship.

         34. Jefferson's last payment on the Loan was on or about June 2012, while Aurora was still servicing the loan.

         35. Jefferson has never made a payment to Nationstar.

         36. 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.

         37. Nationstar sent Jefferson the loan modification offer in March 2015, but Jefferson did not respond to Nationstar's offer.

         38. 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 ...


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