United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA, UNITED STATES DISTRICT JUDGE
case arises from defendant Nationstar Mortgage, LLC's
efforts to collect purportedly overdue mortgage payments from
plaintiffs Tommy and Katrina Heard and Nationstar's
inaccurate reporting of the plaintiffs' payment
delinquencies to credit bureaus. The Heards contend that
Nationstar improperly billed them for force-placed property
insurance which caused Nationstar to escrow their mortgage
account. When the Heards made their mortgage payments without
the added escrow charge, Nationstar began reporting the
unpaid difference as delinquent. The Heards argue that by
reporting unverified delinquencies, Nationstar violated their
rights under the Fair Credit Reporting Act, 15 U.S.C. §
1681 et seq. Mr. Heard also contends that to collect
the escrow charges Nationstar subjected him to repeated,
autodialed collection calls in violation of the Telephone
Consumer Protection Act, 47 U.S.C. § 227 et
Heards ask the Court to enter judgment in their favor on
their FCRA and TCPA claims, leaving the issue of damages for
trial. (Doc. 47, p. 6). Nationstar opposes the Heards'
motion. (Doc. 51). For the reasons stated below, the Court
grants the plaintiffs' motion and sets the issue of
damages for trial.
STANDARD OF REVIEW
court shall grant summary judgment if the movant shows that
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). To demonstrate that there is a genuine
dispute as to a material fact that precludes summary
judgment, a party opposing a motion for summary judgment must
cite “to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials.”
Fed.R.Civ.P. 56(c)(1)(A). When considering the Heards'
summary judgment motion, the Court must view the evidence in
the record and draw reasonable inferences in the light most
favorable to the non-moving party, Nationstar. White v.
Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191
(11th Cir. 2015). “The court need consider only the
cited materials, but it may consider other materials in the
record.” Fed.R.Civ.P. 56(c)(3).
parties' dispute arises from a mortgage that the Heards
obtained in 2001 for an investment property in Jacksonville,
Alabama. (Doc. 48-2, p. 2). The Heards refinanced the
mortgage in 2005 through GMAC Mortgage, LLC. (Doc. 52, p.
30). Mr. Heard provided his cell phone number to GMAC as part
of his loan refinance application. (Doc. 48-1, pp. 35-36).
GMAC transferred the mortgage to Ocwen Loan Servicing, LLC,
and Ocwen transferred the mortgage to Nationstar in April
2015. (Doc. 48-2, p. 2; Doc. 48-15, p. 20). The facts
surrounding Ocwen's servicing of the mortgage are
somewhat murky, but it appears that just before transferring
the mortgage, Ocwen provided insurance for the Heards'
property (force-placed insurance) under the mistaken belief
that the Heards had not insured their property. (Doc. 48-15,
pp. 31, 172-73). Ocwen would have charged the Heards for the
cost of this insurance, and as a result, the Heards'
mortgage account had a negative escrow balance, which was
reflected in their account information when Ocwen transferred
the mortgage to Nationstar. (Doc. 48-15, p. 12).
on the loan information from Ocwen, Nationstar added charges
to the Heards' monthly mortgage payments to account for
the negative escrow balance. (Doc. 52, pp. 31-32). Mr. Heard
was unaware of the escrow charges and set up monthly
automatic payments in the amount he had historically paid on
the loan. (Doc. 48-2, p. 3). Because this payment amount was
less than the amount Nationstar billed to the Heards'
account, Nationstar began to record the shortfall as late.
(Doc. 48-7, pp. 13-14; Doc. 48-18, pp. 26-27).
made a collection call to Mr. Heard's cellular phone on
June 4, 2015. (Doc. 48-7, p. 3). During this call, Mr. Heard
learned that his monthly payments had increased to reflect
the addition of force-placed insurance which resulted in an
escrow balance on the account. (Doc. 48-2, p. 3). Mr. Heard
disputed the need for force-placed insurance and informed the
representative that he had maintained insurance on the
property for several years. (Doc. 48-2, p. 3). Mr. Heard had
his insurer fax proof of his property insurance to Nationstar
on June 5, 2015. (Doc. 48-7, pp. 4-5; Doc. 48-15, pp. 26-27).
Mr. Heard provided Nationstar with information indicating
that the force-placed insurance was unnecessary, Nationstar
continued to bill Mr. Heard for the escrow balance created by
the force-placed insurance, and Nationstar's
representatives continued to make collection calls to Mr.
Heard's cell phone. (Doc. 48-7, pp. 13-14; Doc. 48-15, p.
14). During several of these calls, Mr. Heard contested the
amount of his mortgage payment, and the Nationstar
collections representative often would transfer his call to
Nationstar's escrow department to correct the ongoing
discrepancy. (Doc. 48-7, pp. 12-14). The record of a call on
July 24, 2015 indicates that Nationstar removed the escrow
from the Heards' account and planned to adjust the
monthly payment to reflect the change. (Doc. 48-7, p. 9).
Despite this, the Heards' monthly statements continued to
reflect their mortgage payment plus an additional escrow
ongoing discrepancy between the Heards' monthly payments
and their monthly statement caused a steady stream of
collection calls to Mr. Heard's cell phone. (Doc. 48-7,
pp. 15-34). Nationstar often would call Mr. Heard many times
a day. (Doc. 48-7, pp. 21-22; Doc. 48-14, pp. 9-10). Mr.
Heard states that on August 22, 2015, he told Nationstar to
stop calling him on his cellular phone. (Doc. 48-2, p. 5).
Nationstar's call records indicate that on October 29,
2015, Mr. Heard first told Nationstar to stop calling him.
(48-7, p. 19). Nationstar's call records also indicate
that Mr. Heard told Nationstar collections representatives to
stop calling him on ten subsequent occasions. (Doc. 48-7, pp.
20-23, 26-27, 29- 30, 32).
reported the Heards' mortgage account as thirty days
delinquent for several months during 2015. (Doc. 48-18, pp.
27-28). In response to these negative entries, the Heards
individually sent credit disputes to Transunion, Equifax, and
Experian stating that the payment histories reported by
Nationstar were inaccurate due to the incorrect forced
placement of insurance on the property and the resulting
escrow on the mortgage. (Doc. 48-23; Doc. 48-29). When
Nationstar received notice of these disputes, Nationstar
checked the information in the Heards' credit reports
against Nationstar's records of the couple's payment
history and reported that the Heards' account was
delinquent. (Doc. 48-18, pp. 27- 28; Doc. 48-19, pp. 32-33,
35; Doc. 48-20, p. 23). In fact, it was not. The Heards claim
that in addition to the time and effort they spent attempting
to correct the inaccuracies, Nationstar's incorrect
reporting of their mortgage account caused them to be denied
credit from their normal lenders and to pay higher rates with
other institutions. (Doc. 47, p. 5). Nationstar has since
revised its reporting of the mortgage loan and acknowledges
that the account is current with no delinquencies. (Doc.
28-15, pp. 14, 15).
Mr. Heard's TCPA Claim
TCPA was enacted to address certain invasive practices
related to ‘unrestricted telemarketing,' and is
designed to protect consumers from receiving unwanted and
intrusive telephone calls.” Schweitzer v. Comenity
Bank, 866 F.3d 1273, 1276 (11th Cir. 2017) (citing
Mims v. Arrow Fin. Servs., LLC, 565 U.S. 368, 372
(2012)). The TCPA makes it unlawful to use “any
automatic telephone dialing system or an artificial or
prerecorded voice” to call “any telephone number
assigned to a . . . cellular telephone service, ”
without the express consent of the party being called. 47
U.S.C. § 227(b)(1). Congress provided a private right of
action for those who receive calls made in violation of the
TCPA's prohibitions. 47 U.S.C. § 227(b)(3).
TCPA is essentially a strict liability statute” that
“does not require any intent for liability except when
awarding treble damages.” Alea London Ltd. v. Am.
Home Servs., Inc., 638 F.3d 768, 776 (11th Cir. 2011).
Because Nationstar called a number assigned to a cellular
phone service, (Doc. 48-1, pp. 47-48), the question is