United States District Court, N.D. Alabama, Northwestern Division
MEMORANDUM OPINION AND ORDER
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
case concerns defendant JP Morgan Chase Bank N.A.‘s
attempted foreclosure sale of a house in Colbert County,
Alabama. The mortgagors of the house, plaintiffs
Rufus and Rosetta Harris, filed this lawsuit to avoid the
foreclosure and secure their interest in the house. By
previous order, the Court dismissed the Harrises‘ state
law claims for negligence, wantonness, unjust enrichment,
wrongful foreclosure, slander of title, and fraud and the
Harrises‘ federal statutory claims under TILA, TCPA,
and ECOA. (Doc. 27). Pursuant to Federal Rule of Civil
Procedure 56, Chase asks the Court to enter judgment in its
favor on the Harrises‘ remaining claims. (Doc. 53). For
the reasons explained more fully below, the Court grants
SUMMARY JUDGMENT STANDARD
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 a summary judgment
motion, a district court must view the evidence in the record
and draw reasonable inferences in the light most favorable to
the non-moving party. Asalde v. First Class Parking Sys.
LLC, 898 F.3d 1136, 1138 (11th Cir. 2018). “The
court need consider only the cited materials, but it may
consider other materials in the record.” Fed.R.Civ.P.
August 12, 2005, Mr. and Mrs. Harris executed a mortgage on
their Muscle Shoals residence with Long Beach Mortgage
Company in support of a promissory note. (Doc. 52-1, pp. 3-4,
¶¶ 3-4; Doc. 52-1, pp. 15-18, 20-28). The note
passed from Long Beach through a succession of creditors
until Chase acquired the Harrises‘ note. (Doc. 52-1,
pp. 3-4, ¶ 5). In October 2009, Chase notified the
Harrises that it would be servicing their loan. (Doc. 52-1,
p. 30). In January 2013, Chase became the mortgagee on the
Muscle Shoals property pursuant to an assignment of mortgage.
(Doc. 52-1, p. 4, ¶ 7; Doc. 52-1, pp. 61-62).
Harrises missed their monthly mortgage payment in April 2010,
and the Harrises did not make another monthly payment until
July 2013. (See Doc. 52-1, p. 5, ¶ 8; Doc.
52-1, pp. 32-59). Under a trial modification, the Harrises
made a mortgage payment in July 2013, and they made a double
payment in September 2013. The Harrises acknowledge that they have
made no other mortgage payments since April 2010, but they
remain in possession of the house. (Doc. 52-1, p. 6, ¶
12; Doc. 52-2, p. 13, tpp. 45-46; Doc. 52-2, p. 49, tp.
September 2010, after the Harrises missed six mortgage
payments, Chase sent Mr. Harris a notice of intent to
foreclose if Mr. Harris did not cure the default by October
30, 2010. (Doc. 52-1, pp. 64-65). Mr. Harris did not make a
payment after receiving Chase‘s letter. (Doc. 52-1, p.
54). As a result, on November 24, 2010, Chase gave Mr. Harris
written notice that the company was accelerating the unpaid
balance of the debt and was preparing to begin foreclosure
proceedings. (Doc. 52-1, p. 5, ¶ 10; Doc. 52-1, pp.
Harris requested mortgage assistance on October 1, 2013, on
May 30, 2014, on June 4, 2014, and on March 18, 2015. (Doc.
52-1, pp. 7-9, ¶¶ 14-17; Doc. 52-1, pp. 84-98,
100-13, 115-30, 132-48). For each of the four requests for
assistance, Chase requested a fully executed 4506T-EZ form
and other documentation. (Doc. 52-1, p. 6, ¶ 13; Doc.
52-1, pp. 150-205). Because Chase did not receive the required
information, Chase denied the Harrises‘ request for
loan modification. (Doc. 52-1, pp. 7-9, ¶¶ 14-17;
Doc. 52-1, pp. 207-10, 211-22, 222-30).
8, 2015, Mr. Kenneth Lay, the Harrises‘ attorney, sent
a qualified written request or QWR to Chase seeking
information about the loan. (Doc. 52-1, p. 9, ¶ 19; Doc.
52-1, pp. 232-33). Chase wrote to Mr. Harris advising him
that Chase needed his authorization to release confidential
information to Mr. Lay. (Doc. 52-1, pp. 9-10, ¶ 20; Doc.
52-1, pp. 237-40; Doc. 52-2, p. 34, tpp. 130-31). In
addition, between November 2015 and January 2016, Chase
emailed Mr. Lay five times requesting a signed authorization.
(Doc. 52-8, pp. 4-9). Chase responded to the June 8, 2015 QWR
on February 8, 2016. Chase‘s response includes copies
of the Harrises‘ loan transaction history, note,
security instrument, payoff quote, and mortgage assignment
and information about the unpaid principal balance and
accrued interest. (Doc. 52-1, p. 10, ¶21; Doc. 52-1, pp.
Harrises allege that they submitted three more QWRs for
information to Chase between February 2016 and July 2016.
(Doc. 20, ¶ 93). Chase does not have records of these
requests, but Mr. Lay produced the letters during discovery,
and the three letters are exhibits to Mr. Harris‘s
deposition. (Doc. 52-1, p. 10, ¶22; Doc. 52-2, pp.
269-74). Mr. Harris testified that he is sure that Mr. Lay
sent the February 2016 QWR to Chase, but he has no personal
knowledge regarding the June 2016 or July 2016 QWRs that Mr.
Lay wrote. (Doc. 52-2, pp. 35-36). Chase‘s records
indicate that it received a second request for information
from Mr. Lay in October 2016. (Doc. 52-1, p. 10, ¶ 22;
Doc. 52-1, pp. 280-81). Chase received and responded to the
October 2016 QWR. (Doc. 52-1, p. 11, ¶ 24; Doc. 52-1,
pp. 283-84, 288-329).
August 11, 2016, Chase notified the Harrises of its intent to
accelerate and foreclose on their home. (Doc. 52-1, ¶
25). Chase informed the Harrises that if they did not cure
their mortgage default within 35 days then Chase would
accelerate the loan. (Doc. 52-1, pp. 326-29). Chase then
accelerated the loan, scheduled a foreclosure sale, and
published notices in the Colbert County Reporter. (Doc. 52-8,
p. 10). In an effort to stop the November 2, 2016 foreclosure
sale the Harrises filed this action in state court. (Doc.
1-1). This lawsuit caused Chase to suspend foreclosure
proceedings. (Doc. 52-1, ¶ 26). To date, the Harrises
have neither attempted to repay the full amount due on the
promissory note nor resumed making monthly payments. (Doc.
52-2, p. 12, tpp. 43-44; Doc. 52-2, p. 46, tpp. 178-79).
moves for summary judgment on all of the Harrises‘
remaining causes of action: (1) breach of contract (Count
Six), (2) false light (Count Eight), (3) defamation, libel,
slander (Count Nine), (4) violation of the Real Estate
Settlement Procedures Act (Count Eleven), (5) violation of
the Fair Credit Reporting Act (Count Twelve), (6) violation
of the Fair Debt Collection Practices Act (Count Thirteen),
and (7) declaratory relief (Count Sixteen). The Court
addresses each claim in turn.
Breach of Contract Claim
Harrises contend that Chase breached their mortgage contract
by failing to provide a notice of default, failing to provide
a proper notice of intent to accelerate, and failing to
properly credit payments made towards the mortgage. (Doc. 20,
¶¶ 47-54). The Harrises also allege that Chase
failed to abide by the terms of the temporary loan
modification agreement. (Doc. 20, ¶ 53).
elements of a breach of contract claim under Alabama law are
(1) a valid contract binding the parties; (2) the
plaintiffs‘ performance under the contract; (3) the
defendant‘s nonperformance; and (4) resulting damages.
Reynolds Metals Co. v. Hill, 825 So.2d 100, 105
(Ala. 2002). The Harrises have not offered evidence of their
performance under the mortgage contract. See Hammett v.
Paulding Cty., 875 F.3d 1036, 1049 (11th Cir. 2017)
(“Although all reasonable inferences are to be drawn in
favor of the nonmoving party, 'an inference based on
speculation and conjecture is not reasonable‘”)
(quoting Ave. CLO Fund, Ltd. v. Bank of Am., N.A.,
723 F.3d 1287, 1294 (11th Cir. 2013) (quotation omitted)).
The Harrises state in their complaint that "[e]ven if
[they] are in default, ” Chase is liable for breach of
contract. (Doc. 1, p. 15, ¶ 53). That is a misstatement
of Alabama law. "[T]o establish that a defendant is
liable for a breach of a bilateral contract, a plaintiff must
establish that he has performed, or that he is ready,
willing, and able to perform under the contract.”
Winkleblack v. Murphy, 811 So.2d 521, 529 (Ala.
2001). To maintain their breach of contract claim, the
Harrises must demonstrate their performance under the
has submitted evidence of the Harrises‘ default. Mr.
Harris admitted in his deposition that he has not made a
mortgage payment in seven years. (Doc. 52-2, pp. 46-47, tpp.
178-81; Doc. 52-2, p. 13, tp. 45). Mr. Harris testified:
"Q: Okay. And so even though you haven‘t been
making [mortgage payments], you‘ve lived in the home
the whole time? A: Yeah.” (Doc. 52-2, p. 46, tp. 180).
Mr. Harris also affirmed: “Q: So from the time you
stopped making those payments in 2010 to now where you lived
in the home, you would have owed around $146, 599; right? A:
Yes. Q: Okay. And you haven‘t made any of those
payments? A: Huh? No.” (Doc. 52-2, p. 46, tp. 178-79).
This Court ordered the Harrises to deposit monthly mortgage
payments with the Court. (Doc. 63). The Harrises have not
complied with the order. (Doc. 64).
Harrises did not comply with the terms of the 2013 loan
modification. The trial modification required the Harrises to
make three consecutive mortgage payments. (Doc. 52-2, ¶
11; Doc. 52-2, p. 79). The Harrises were obligated to make
the trial payments on time; they didn‘t. The first
modification payment was due on July 1, 2013. (Doc. 52-2, pp.
79, 90). Western Union wire records show that the
Harrises‘ payment was sent July 15, 2013. (Doc. 52-5,
p. 7). The second payment was due on August 1, 2013. (Doc.
52-2, pp. 79, 90). The Harrises did not send a payment.
(See Doc. 52-5, p. 7). The third payment under the
modification plan was due September 1, 2013. (Doc. 52-2, pp.
79, 90). On September 11, 2013 the Harrises sent Chase $2,
466.18. (Doc. 52-5, pp. 7-9). Each of these payments was late
and breached the terms of the loan modification.
Harrises have not offered evidence to rebut the evidence that
Chase provided in support of its summary judgment motion.
Therefore, the Harrises‘ breach of contract claim fails
as a matter of law, and the Court grants Chase‘s
summary judgment motion as to that claim.
False Light Claim
Count Eight, the Harrises claim that Chase placed them in a
false light by "either speaking or writing undesirable
and negative character and reputation remarks about
Harrises[.]” (Doc. 20, ¶ 61). Under Alabama law:
One who gives publicity to a matter concerning another that
places the other before the public in a false light is
subject to liability to the other ...