United States District Court, N.D. Alabama, Southern Division
G. CORNELIUS U.S. MAGISTRATE JUDGE.
This matter is before the
court on the motions for summary judgment filed by the
defendants, Cenlar, F.S.B. (Doc. 39); Five Brothers Mortgage
Company Services and Securing, Inc. (Doc. 40); and
Creditsouth Financial Services, Inc. (Doc. 38). The motions
are fully briefed and are ripe for adjudication. (Docs.
41-46). For the reasons explained below, the motions are due
to be granted.
lawsuit concerns residential property located on Cromwell
Drive in Mountain Brook, Alabama ("Cromwell Drive"
or the "Property"), and purchased by the
plaintiffs, Mark and Jaime Erdberg, in March 2016. (Doc. 42
at 3). Plaintiffs did not move into the Property; instead
they planned renovations and continued living in a separate
residence they owned. (Doc. 42 at 2-3; Doc. 39 at 2). On June
22, 2016, Plaintiffs executed a mortgage loan (the
"Mortgage") on the Property from non-party, Bryant
Bank. (Doc. 39 at 2; Doc. 42 at 2-3). Plaintiffs informed
Anthony Robbins, the Bryant Bank mortgage banker, that their
planned renovations were extensive and they would continue
living at their other residence until the work at Cromwell
Drive was complete. (Doc. 42 at 2; see Doc. 42-2 at
3). Plaintiffs and Robbins contend these conversations made
it obvious that the renovations at Cromwell Drive would take
more than sixty (60) days to complete. (Doc. 42 at 2; Doc.
42-2 at 3). At some point after executing the Mortgage,
Plaintiffs decided to demolish the existing house and
construct a new one. (Doc. 42 at 2-3).
Mortgage: (1) allowed the lender-and/or its agents-to
"make reasonable entries upon and inspections of"
the Property; and (2) required Plaintiffs to occupy Cromwell
Drive as their primary residence for one year, beginning
within sixty (60) days (the "Occupancy
Requirement") of its execution. (Doc. 39-1 at 6). The
Mortgage also allowed the mortgage servicer to inspect
Cromwell Drive-either because of Plaintiffs' breach or to
ensure the Property was being properly maintained-and, if
necessary, enter the interior of the house "to make
repairs, change locks, replace or board up doors and windows,
drain water from pipes, eliminate building or other code
violations or dangerous conditions, and have utilities turned
on or off." (Id.). On August 1, 2016, Bryant
Bank transferred the Mortgage to Cenlar, a mortgage servicing
company. (Doc. 42 at 3; Doc. 42-4 at 2). The transfer of the
Mortgage to did not affect its terms. (Doc. 42-4 at
made timely Mortgage payments but on September 28, 2016,
learned Cenlar believed they had defaulted by
failing to make payments. (Doc. 42 at 4). Mr. Erdberg
responded on the same day, using his law firm letterhead and
providing copies of checks and receipts confirming the
Mortgage payments were current. (Id.; Doc. 42-5).
During this correspondence, no one at Cenlar inquired whether
Plaintiffs were residing at Cromwell Drive. (Doc. 42 at 4).
October 2016, Cenlar contacted Five Brothers, a company which
"coordinates securing and preservation services for
lenders, mortgagees and mortgage servicers." (Doc. 40 at
2-3). Cenlar requested Five Brothers to conduct an initial
"make contact" visit at Cromwell Drive.
(Id. at 5). Five Brothers, in turn, engaged a
non-party contractor to perform the visit. (Id.). On
October 22, 2016, the contractor visited the Property. (Doc.
40 at 5; see Doc. 42 at 4; Doc. 39 at 4). The
contractor did not enter the house but inspected and
photographed the exterior. The contractor reported Cromwell
Drive as vacant, which is obvious from the photos. (Doc. 40
at 5; see Doc. 40-2 at 22-25; Doc. 39 at 4). During
the October 22, 2016 inspection, the contractor left a
"calling card" on the front door, instructing
Plaintiffs to contact Cenlar. (Doc. 40 at 6; Doc. 40-2 at
October 25, 2016, Cenlar sent a letter to Plaintiffs at
Cromwell Drive, noting Cenlar's conclusion the Property
was vacant and stating it would protect the house from
vandalism and freeze damage by changing locks and taking
"reasonable action to protect and preserve" it.
(Doc. 39-3 at 2; Doc. 42 at 5). The letter further noted that
Plaintiffs were required to present any "unusual
circumstances" to Cenlar within two business days. (Doc.
39-3 at 2; Doc. 42 at 5). On October 28, 2016, Cenlar
confirmed it wanted Five Brothers to proceed with securing
Cromwell Drive. (Doc. 40 at 6; Doc. 40-2 at 26).
Brothers contracted with Creditsouth to secure the Property.
(Doc. 40 at 7). Creditsouth is a "property preservation
company" which regularly performed initial secures in
Jefferson County at the request of Five Brothers. (Doc. 38 at
3). On November 1, 2016, Creditsouth conducted an
"initial secure" by entering the interior of
Cromwell Drive, winterizing the plumbing, changing the locks
on the exterior carport door, installing a lockbox, and
mowing the yard. (Doc. 38 at 3-4). Creditsouth also
disconnected the power and water supply to Cromwell Drive and
affixed bright orange stickers-announcing the utilities were
off and the house was winterized-to the exterior of the
carport door and front window. (Doc. 42 at 5-6).
arrived at Cromwell Drive later on November 1, 2016, and
discovered the orange stickers, the disconnected utilities,
and the changed locks. (Doc. 42 at 6). While there,
Plaintiffs found Cenlar's October 25, 2016 letter in the
mailbox. (Id.). Mr. Erdberg called Five Brothers and
spoke with an employee; the employee stated the initial
secure was performed due to non-payment on the Mortgage.
(Doc. 42 at 7-8; see Doc. 40 at 8). During the phone
conversation, the Five Brothers employee gave Mr. Erdberg the
code for the lockbox so Plaintiffs could access the house
through the carport door. (Doc. 40 at 8).
November 7, 2016, Cenlar sent another letter to Cromwell
Drive, stating Plaintiffs had defaulted on the Mortgage.
(Doc. 42 at 8). After the events giving rise to this lawsuit,
Cenlar determined it had misapplied Plaintiffs' Mortgage
payments and stated in a letter to Plaintiffs-addressed to
Mr. Erdberg's law firm-that it regretted the error. (Doc.
42 at 8). Ultimately, Plaintiffs paid off the loan in full;
the Mortgage was released on May 18, 2017. (Doc. 39 at 6).
filed the initial complaint in this matter on November 22,
2016, naming Five Brothers and Cenlar as defendants and
invoking both diversity and federal question jurisdiction.
(Doc. 1). Five Brothers answered, and Plaintiffs voluntarily
dismissed Cenlar pursuant to Rule 41(a)(1)(A)(i) of the
Federal Rules of Civil Procedure. (Docs. 7, 8, 9).
In April 2017, the court ordered Plaintiffs to allege
diversity jurisdiction more specifically; Plaintiffs
responded by requesting leave to file a first amended
complaint (“FAC”). (Docs. 19, 20). The court
granted the motion, and Plaintiffs filed the FAC on May 1,
2017. (Docs. 22, 23).
alleged federal jurisdiction solely on the basis of a federal
question, reinstated Cenlar as a defendant, and added
Creditsouth as a defendant. (Doc. 23). The FAC asserted
violations of the Fair Debt Collection Practices Act, 15
U.S.C. § 1692, et seq. ("FDCPA"), as
well as claims for trespass, negligence, wantonness,
negligent and wanton training and supervision, and invasion
of privacy. Creditsouth answered, and Cenlar responded by
filing a motion to dismiss pursuant to Rule 12(b)(6). (Docs.
30, 31). In briefing the motion to dismiss, Plaintiffs
conceded their FDCPA, negligence, and wantonness claims
against Cenlar. (Doc. 37). As to the remaining claims against
Cenlar, the court dismissed the invasion of privacy claim but
denied the motion as to trespass. (Doc. 47).
to the court's ruling on Cenlar's motion to dismiss,
the defendants filed the instant motions for summary
judgment. Briefing on the pending motions has clarified the
sole remaining FDCPA claim is asserted against Creditsouth.
(See Doc. 40-1 at 17; see generally Doc.
41). Accordingly, Creditsouth faces all of the claims
asserted in the FAC, while Five Brothers faces only the
claims for trespass, negligence, wantonness, and invasion of
privacy. Following the court's ruling on the motion to
dismiss, trespass is the only claim surviving against Cenlar.
STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure,
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 affidavits, depositions, answers to interrogatories, or
admissions on file, designate specific facts showing 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.
theory of liability asserted in the FAC is addressed in turn.
Alabama law, "trespass to property is a wrong against
the right of possession or entry." Boyce v.
Cassese,941 So.2d 932, 945 (Ala. 2006). "If a
party enters property . . . under a legal right, entry . . .
pursuant to that right cannot constitute a trespass."
Id; see also Central Parking Sys. v. Steen,
707 So.2d 226, 228 (Ala. 1997) (defining trespass as
"any entry on the land of another without express or
implied authority"). Here, Cenlar contends it cannot be
liable for trespass because it-and its ...