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Foster v. Green Tree Servicing, LLC

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

November 2, 2017



          JAMES D. WHITTEMORE United States District Judge

         BEFORE 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.

         I. BACKGROUND

         The 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).

         Green 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.


         The Debt

         In May 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).

         On 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.

         The Communications

         On May 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. ¶¶ 34-35).

         On June 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).

         After 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).

         III. STANDARD

         Summary 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, 380 (2007).

         The 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 id.


         A. The Fosters were not required to give Green Tree notice and an opportunity to cure

         Green 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 ...

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