From Casetext: Smarter Legal Research

Perry v. Stewart Title Co

United States Court of Appeals, Fifth Circuit
May 28, 1985
761 F.2d 237 (5th Cir. 1985)

Summary

holding that mortgagees are not debt collectors under the FDCPA

Summary of this case from Weahunt v. California Reconveyance Co.

Opinion

No. 83-2552.

May 28, 1985.

Schleider Francis, Paul S. Francis, Houston, Tex., for plaintiffs-appellants, cross-appellees.

Delange, Hudspeth, Pitman Katz, Charles E. Fitch, Ben A. Baring, Houston, Tex., for Stewart Title Co., Stewart Guaranty D. Walters.

David C. DuBose, Houston, Tex., for Hammond Mortg. Corp.

Locke, Purnell, Boren, Laney Neely, Nathan L. Hecht, Harriet Miers, Robert M. Candee, Dallas, Tex., Morris, McCanne, Tinsley, Snowden, Ellis Wilson, Paul R. Tinsley, Houston, Tex., for Federal Nat. Mortg. Ass'n.

Crain, Caton, James Womble, Thomas B. Green, III, Houston, Tex., for Greiner, Greiner Const. Co.

G. Alan Kramer, Dale C. Scott, Houston, Tex., for Friendswood Development Co., and Exxon Co., U.S.A.

Appeals from the United States District Court for the Southern District of Texas.

(Opinion 4/8/85, 5th Cir. 1985, 756 F.2d 1197).

Before CLARK, Chief Judge, JOHNSON and WILLIAMS, Circuit Judges.


ON PETITIONS FOR REHEARING


Appellee, Federal National Mortgage Association (FNMA), has moved for a rehearing on two issues. (1) FNMA's liability for Hammond's alleged violations of the Texas Debt Collection Act (TDCA), Tex.Rev.Civ.Stat.Ann. arts. 5069-11.01 to 5069-11.11 (Vernon Supp. 1985), (2) the district court's denial of its motion for an award of attorney's fees.

On the first issue FNMA claims this Court should determine as a matter of law that Hammond was an independent contractor of FNMA, thereby insulating FNMA from liability for Hammond's conduct. Whether Hammond was an independent contractor rather than an agent of FNMA is a question reserved for the trial court upon remand. We deny the motion for rehearing insofar as it relates to FNMA's claim that it had no liability for Hammond's alleged actions.

On the second issue FNMA urges us to reconsider our opinion upholding the denial by the district court of its motion for attorney's fees. At this stage FNMA's request cannot be made the subject of a ruling since FNMA has not been exonerated of liability under the TDCA. We do grant the motion for rehearing on this issue to the extent that we modify our opinion to allow the district court to reconsider the awarding of attorney's fees to FNMA in the event it determines that FNMA is not liable under the Texas Act. Under our remand the district court will retain discretion in the awarding of fees even though attorney's fees are authorized in the contract. The court may weigh whether such an award would be inequitable or unreasonable in this case. 756 F.2d 1197, 1210; Cable Marine, Inc. v. M/V Trust Me II, 632 F.2d 1344, 1345 (5th Cir. 1980).

FNMA's motion for rehearing therefore is GRANTED to the extent that, on remand, the district court is authorized to reconsider FNMA's motion for an award of attorney's fees. In all other respects the motion for rehearing is DENIED.

The petition of Hammond Mortgage Corporation for rehearing is DENIED.


Summaries of

Perry v. Stewart Title Co

United States Court of Appeals, Fifth Circuit
May 28, 1985
761 F.2d 237 (5th Cir. 1985)

holding that mortgagees are not debt collectors under the FDCPA

Summary of this case from Weahunt v. California Reconveyance Co.

holding that a debt collector does not include creditors, mortgage servicing companies, or assignees of debt, provided the debt was not in default when it was assigned

Summary of this case from In re Price

holding that the legislative history of the FDCPA “indicates conclusively that a debt collector does not include the consumer's creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned”

Summary of this case from Aurora Loan Servs., LLC v. Kmiecik

reviewing § 1692k attorneys' fee determination for an abuse of discretion

Summary of this case from LSR Consulting, LLC ex rel. Karna v. Wells Fargo Bank, N.A.

remanding on the issue of the district court's denial of attorneys' fees and instructing the district court to weigh whether the award would be inequitable or unreasonable in this case

Summary of this case from McDonald's Corp. v. Watson

addressing attorney's fees

Summary of this case from Thornton v. Ditech Fin. LLC

stating that "a debt collector does not include the consumer's creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned"

Summary of this case from Doherty v. PNC Mortgage
Case details for

Perry v. Stewart Title Co

Case Details

Full title:ROBERT B. PERRY AND LINDA T. PERRY, PLAINTIFFS-APPELLANTS…

Court:United States Court of Appeals, Fifth Circuit

Date published: May 28, 1985

Citations

761 F.2d 237 (5th Cir. 1985)

Citing Cases

Yossa v. Countrywide Home Loans, Inc.

"[A] debt collector does not include the consumer's creditors, a mortgage servicing company, or an assignee…

Wells Fargo Bank, N.A. v. Lee

Based on this provision, the FDCPA does not apply to mortgage assignees and loan servicers unless they are…