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Foster v. Green Tree Servicing, LLC

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

November 15, 2017

TRACY FOSTER and CORNELL FOSTER, Plaintiffs,
v.
GREEN TREE SERVICING, LLC, Defendant.

          ORDER

          James D. Whittemore, United States District Judge

         BEFORE THE COURT are Plaintiffs' Motion for Class Certification (Dkt. 75), Defendant's response (Dkt. 87), and Plaintiffs' reply (Dkt. 93).Upon consideration, Plaintiffs' Motion is DENIED.

          I. INTRODUCTION

         The Fosters bring this action on behalf of themselves and a class of consumers in 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. They 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 although it knows the debtor to be represented by an attorney (id ¶¶ 3, 36, 44).

         In May 2006, The Fosters executed a mortgage in favor of New Century Mortgage Corporation, for the purchase of real property in Hillsborough County, Florida, secured by 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 filed by the servicer of the loan, Litton Loan Servicing, L.P. (Foreclosure Complaint, Dkt. 77-2). The Fosters were represented by attorney Christie Arkovich throughout the foreclosure proceeding, which concluded in 2015.

         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 action. (Foreclosure case docket sheet, Dkt 48-6). On July 20, 2012, Green Tree was assigned the mortgage, which was 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).

         On May 22, 2015, Mrs. Foster found a "door hanger" flier stuck in the door of their house, which requested that the Fosters contact Green Tree, and providing an 800 number. The flier prompted her to call Green Tree. (Dkt. 77-6; Tracy Foster Dep., Dkt. 77-3 at 73:16-76:2). During this call, Mrs. Foster stated 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 the attorney or contact information, and Green Tree did not ask for it. (Deposition of Tracy Foster, Dkt. 77-3 at 49:18-50:17). On June 2, 2015, "Vince, " a Green Tree employee, left a voicemail for the Fosters, which stated: "This is Vince with Green Tree, a debt collector. Please call Green Tree at 1-800-352-7751." (Derrick Aff. ¶¶ 32-35). This call was made in accordance with Green Tree's policy, which required a ten-day waiting period after being told the borrower was represented, before contacting the borrower to obtain the 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. (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 attorney's address so that future correspondence is sent to the attorney, not the borrower. (Derrick Aff. ¶ 36). This was not immediately done with the Foster's account after Green Tree received the contact information for their attorney. (Derrick Aff. ¶ 38).

         Notwithstanding having been advised that the Fosters were represented by counsel, 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).

         Plaintiffs request certification of the following FCCPA class and FDCPA subclass:

FCCPA Class: All individuals in Hillsborough County, Florida: (1) who had a mortgage loan serviced by Green Tree that was incurred primarily for personal, family, or household purposes, (2) who were represented by counsel regarding the mortgage debt, (3) and whom Green Tree contacted directly in an attempt to collect the mortgage debt after it was notified they were represented by counsel, (4) on or after August 12, 2013.
FDCPA Subclass: All individuals in Hillsborough County, Florida: (1) who had a mortgage loan serviced by Green Tree that was incurred primarily for personal, family, or household purposes, (2) that Green Tree acquired after it was in default, (3) who were represented by counsel regarding the mortgage debt, (4) and whom Green Tree contacted directly in an attempt to collect the mortgage debt after it was notified they were represented by counsel, (5) on or after August 12, 2014.

         II. CLASS CERTIFICATION STANDARD

         "The class action is 'an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.'" Wal-Mart Stores, Inc. v. Dukes, __ U.S.__, __, 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). Accordingly, the burden of establishing the propriety of class certification rests with the advocate of the class. Valley Drug Co. ...


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