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In re Fields

United States District Court, M.D. Florida, Tampa Division

May 9, 2017

CHRISTINE L. HERENDEEN, Appellee. SPECIALIZED LOAN SERVICING LLC, Appellant, Bankr. No. 8:14-bk-9347-MGW Adv. Pro. No. 8:15-ap-446-MGW



         In the context of a Chapter 7 bankruptcy proceeding, Appellant Specialized Loan Servicing LLC (SLS) filed a motion requesting reconsideration of the Bankruptcy Judge's order granting summary judgment in favor of Appellee Trustee Christine L. Herendeen in an adversary proceeding. The Bankruptcy Judge denied that motion. SLS appeals the denial of the motion for reconsideration and the grant of summary judgment in favor of the Trustee in the adversary proceeding. The appeal is fully briefed and, as discussed below, the Court dismisses the appeal for lack of jurisdiction.

         I. Background

         A. Bankruptcy Case and Adversary Proceeding

         In August of 2014, the consumer debtors, Nicholas Sinclair Fields and Yhotzmine Elizabeth Fields, filed a bankruptcy petition in the United States Bankruptcy Court for the Middle District of Florida. (Doc. # 3-8 at 2). Thereafter, on May 7, 2015, the Trustee filed an adversary proceeding on behalf of the bankruptcy estate, alleging SLS, the debtors' mortgage servicer, violated the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §§ 227, et seq., and the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. §§ 559.55, et seq. (Doc. # 3-8). SLS filed its answer and affirmative defenses on June 10, 2015. (Doc. # 3-20).

         On February 26, 2016, then-counsel for SLS filed a motion to withdraw as counsel. (Doc. # 3-35). That motion was granted on March 1, 2016, in an Order directing all service be sent by mail to SLS's address in Highlands Ranch, Colorado and advising: “Defendant shall have 21 days from the date of this order to retain substitute counsel; otherwise, Defendant shall be deemed to be proceeding in a pro-se capacity.” (Doc. # 3-36). The order also directed SLS to “attend the pre-trial conference, . . . scheduled for April 26, 2016.” (Id.). SLS's then-counsel filed a proof of service, indicating SLS was served with the withdrawal order. (Doc. # 3-37; Doc. # 3-38).

         Yet no one appeared on behalf of SLS at the third continued pretrial conference on April 26, 2016, so the conference was postponed until June 21, 2016. (Doc. # 3-40; Doc. # 3-41). Although the Trustee mailed a notice of the rescheduled hearing to SLS's registered agent, (Doc. # 3-42), only counsel for the Trustee appeared at the fourth continued pretrial conference held on June 21, 2016, (Doc. # 3-43). The Bankruptcy Court directed the Trustee to file a motion for summary judgment within fourteen days and set a hearing on the motion for September 27, 2016. (Id.). On July 18, 2016, the Trustee filed a notice of hearing, which included a certificate of service stating that a copy of the notice was sent by mail to SLS at the Highlands Ranch address. (Doc. # 3-50).

         B. Motion for Summary Judgment

         On June 27, 2016, the Trustee moved for summary judgment on the debtors' TCPA and FCCPA claims against SLS. (Doc. # 3-44). In support of the motion, the Trustee presented the sworn testimony of the debtors and requests for admission deemed admitted because of SLS's failure to respond. (Id. at 2-4). The motion asserts the debtors are entitled to $76, 000 in statutory damages based on the fifty calls SLS admitted making, as well as the Trustee's fees and costs. (Id. at 7). The motion's certificate of service states a copy of the motion was provided “to counsel for Defendant via email.” (Id. at 12).

         On July 18, 2016, the Trustee sent a notice of hearing for the September 27, 2016, hearing to SLS at its Highlands Ranch address, but did not identify a specific person to whom service was directed. (Doc. # 30-50). Then, on September 20, 2016, the Trustee served SLS with an additional proof of service document for the motion for summary judgment, stating that “on June 27, 2016, a true and correct copy of Plaintiff's Motion for Summary Judgment and all Exhibits (Doc. Nos. 37 & 37-1 through 37-5) were served on Defendant Specialized Loan Servicing LLC, pro se, via mail” to SLS's Highlands Ranch address. (Doc. # 3-51). Although this additional proof of service was filed approximately three months after the motion for summary judgment was filed, counsel for Trustee remembered serving the motion by mail because he “specifically recall[ed] having a discussion with [his] paralegal and assistant about the pleadings, service, and extra physical address and recall[ed] observing her preparing the pleadings and mailing.” (Id.).

         At the hearing on September 27, 2016, no one appeared on behalf of SLS and the Bankruptcy Judge granted the motion for summary judgment. (Doc. # 3-52). The Order granting the motion, which was subsequently entered on the docket on October 28, 2016, reads in its entirety:

This cause came before the Court for hearing on September 27, 2016 at 9:30 a.m. on Plaintiff's Motion for Summary Judgment (the “Motion”) (Doc. 37). The Court, having reviewed the Pleadings and being otherwise fully advised in the premises, finds that Plaintiff's Motion should be granted. Accordingly, it is hereby:

(Doc. # 3-2). Judgment was never entered following the grant of the summary judgment motion, and the amount of damages and fees has not yet ...

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