United States District Court, M.D. Florida, Tampa Division
D. WHITTEMORE United States District Judge
THE COURT are Green Tee Servicing, LLC's Motion
for Summary Judgment (Dkt. 77), Plaintiffs' response
(Dkt. 48), and Defendant's reply (Dkt. 94). Upon
consideration, the Motion is DENIED.
Fosters bring this action, on behalf of themselves and a
class of consumers within Hillsborough County, Florida,
alleging violations of the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692c(a)(2) and the Florida Consumer
Collection Practices Act, Fla. Stat. § 559.72. The
Fosters allege that Green Tree attempted to collect a debt
while knowing they were represented by counsel (Amended
Complaint, Dkt. 25 ¶¶ 32-46), and that Green Tree
has an internal policy to continue contacting a debtor
knowing the debtor is represented by an attorney (id
¶¶ 3, 36, 44).
Tree moves for summary judgment on The Fosters'
individual claims on three grounds: (1) The Fosters failed to
provide Green Tree with notice of these alleged violations
and a reasonable opportunity to cure as required by the terms
of the mortgage; (2) the alleged communications either were
not debt collection communications or were permissible
communications; and (3) even if the communications violated
the FDCPA or the FCCPA, Green Tree is entitled to the
protections of the bonafide error defense.
2006, The Fosters executed a mortgage in favor of New Centuiy
Mortgage Corporation, the original lender, for the purchase
of property in Hillsborough County, Florida to secure a Note
in the amount of $267, 000. (Affidavit of Stewart Derrick,
Dkt. 77-1, ¶ 10, Ex. 1). In December 2008, The Fosters
defaulted on their mortgage payments and have not made any
payments since August 2008. (Amended Complaint, Dkt. 25,
¶ 26). On October 20, 2008, a foreclosure action was
initiated by the servicer of the loan, Litton Loan Servicing,
L.P. (Foreclosure Complaint, Dkt. 77-2).
January 1, 2011, Green Tree obtained the servicing rights
from Litton, and began servicing the loan. (Derrick Aff.
¶ 13). In August 2011, Green Tree was substituted as the
plaintiff in the foreclosure proceedings. (Foreclosure case
docket sheet, Dkt 48-6). On July 20, 2012, Green Tree was
assigned the mortgage, which was publicly recorded in the
Office of Public Records of Hillsborough County on August 6,
2012 at Book 21288, Page 705. (Derrick Aff. ¶¶
11-12, Exs. 2 and 3). The Fosters were represented by
attorney Christie Arkovich throughout the entire foreclosure
proceeding, which ended in 2015.
22, 2015, Mrs. Foster found a "door hanger" flier,
requesting that the Fosters contact Green Tree and providing
an 800 number, stuck in the door of the Foster's house,
which prompted her to call Green Tree. (Dkt. 77-6; Tracy
Foster Dep., Dkt. 77-3 at 73:16-76:2). During this phone
call, although she advised that she and her husband were
represented by an attorney and that Green Tree should
communicate only with their attorney, she did not provide the
name of their attorney or any contact information, and Green
Tree did not ask for it. (Deposition of Tracy Foster, Dkt.
77-3 at 49:18-50:17). Eleven days later, on June 2, 2015, a
Green Tree employee named "Vince" left a voicemail
for the Fosters, which stated in its entirety "This is
Vince with Green Tree, a debt collector. Please call Green
Tree at 1-800-352-7751." (Derrick Aff. ¶¶
32-35). The June 2, 2015 phone call was made in accordance
with Green Tree's policy at the time, which required a
ten-day waiting period before contacting a borrower after
being told they were represented to obtain their
attorney's contact information. (Derrick Aff.
4, 2015, Green Tree's foreclosure counsel provided Green
Tree the name and contact information of the Foster's
attorney, Christie Arkovich. (Derrick Aff. ¶ 37). Green
Tree's policies and procedures require employees, after
obtaining the attorney name and contact information for a
borrower represented by counsel, to change the mailing
address on the account to the borrower's attorney's
address so that future correspondence is sent to the
borrower's counsel, not to the borrower. (Derrick Aff.
¶ 36). However, this was not immediately done with the
Foster account after Green Tree received the contact
information for their attorney. (Derrick Aff. ¶ 38).
being advised that the Fosters were represented, Green Tree
sent them three monthly billing statements on June 15, July
16, and August 15, 2015, a Single Point of Contact
Notification letter that provided contact information for
their newly assigned account representative, and Loss
Mitigation letters on July 13 and July 14, 2015. (Derrick
Aff. ¶¶ 39-42, Exs. 8-10). On August 23, 2015,
after Green Tree was served with the Complaint in this
action, the address on the Foster's account was changed
to the address of their new attorneys, Centrone and Shrader,
and all subsequent communication was sent to them. (Derrick
Aff. ¶¶ 45-46).
judgment is appropriate where "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).
"A genuine factual dispute exists only if a reasonable
fact-finder 'could find by a preponderance of the
evidence that the [non-movant] is entitled to a verdict.'
" Kernel Records Oy v. Mosley, 694 F.3d 1294,
1300 (11th Cir. 2012) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986)). A fact is material if
it may affect the outcome of the suit under governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997). All facts are viewed and all reasonable
inferences are drawn in the light most favorable to the
non-moving party. See Scott v. Harris, 550 U.S. 372,
moving party bears the initial burden of showing that there
are no genuine disputes of material fact. Hickson Corp.
v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1260
(11th Cir. 2004) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). Once the moving party demonstrates
the absence of a genuine issue of material fact, the
nonmoving party must go beyond the pleadings through the use
of affidavits, depositions, answers to interrogatories, and
admissions on file to designate facts showing a genuine issue
for trial. See Celotex Corp., 477 U.S. at 324. The
Court will not weigh the evidence or make findings of fact.
Morrison v. Amway Corp., 323 F.3d 920, 924 (11th
Cir. 2003). Rather, the Court's role is limited to
deciding whether there is sufficient evidence upon which a
reasonable juror could find for the non-moving party. See
The Fosters were not required to give Green Tree notice and
an opportunity to cure
Tree contends that is entitled to summary judgment because
the Fosters failed to meet the contractual condition
precedent in their mortgage to provide Green Tree with a
reasonable opportunity to cure the alleged breach before
filing this lawsuit. Paragraph 20 of the mortgage provides:
Neither Borrower nor Lender may commence, join, or be joined
to any judicial action (as either an individual litigant or
the member of a class) that arises from the other party's
actions pursuant to this Security Instrument or that alleges
that the other party has breached any provision of, or any
duty owed by reason of, this Security Instrument, until such
Borrower or Lender has notified the other party (with such
notice given in compliance with the requirements of Section
15) of such alleged breach and afforded the other party
hereto a reasonable period after the giving of such notice to
take corrective action.
(Derrick Aff. ¶ 9, Ex. 1). While it may be that Green
Tree could invoke this provision as the assignee of the
mortgage, the notice and cure provision is inapplicable to
Plaintiffs FDCPA and FCCPA claims. The provision requires a
party to give notice to the other party "of
such alleged breach, " and an opportunity
to cure that breach, before commencing or joining any
judicial action. The Fosters' consumer protection claims
in this judicial action, albeit related to the mortgage and
Green Tree's efforts to procure mortgage payments, do no
allege a breach of the mortgage or any duty arising
therefrom. Rather, these claims arise ...