Opinion
Case No. 02-70054
June 19, 2002
OPINION AND ORDER
I. INTRODUCTION
This matter is before the Court on Plaintiff's Motion for Summary Judgment on the Merits of Count-II, and Count-III, of the Amended-Complaint, Pursuant to FED. R. Civ. P. 56(a). Defendants Trott Trott, P.C., namely David A. Trott, and Kathleen H. Trott, et al., filed a timely response. Plaintiff did not file a reply. In addition, Plaintiff filed a Motion to Consolidate Civil Actions Case No. 02-70054 /and/ Case No. 00-74811, and a Motion to/ Vacate Order Dismissing Plaintiff's State Law Claims, Pursuant to FED. R. Civ. P. 60(b). Defendants Trott Trott, P.C., namely David A. Trott, and Kathleen H. Trott, et al., filed a timely response, and Plaintiff filed a timely reply. The Court finds that the parties have adequately set forth the relevant law and facts, and that oral argument would not aid in the disposition of the instant motions. See E.D. MICH. L.R. 7.1(e)(2). Accordingly, the Court ORDERS that the motion be decided on the briefs submitted. For the reasons stated below, Plaintiff's Motion for Summary Judgment on the Merits of Count-II, and Count-III, of the Amended-Complaint, Pursuant to FED. R. Civ. P. 56(a). is DENIED. Pursuant to Fed.R.Civ.P. 12, the Court shall DISMISS Count II and Count III of Plaintiff's complaint. Plaintiff's Motion to Consolidate Civil Actions Case No. 02-70054 /and/ Case No. 00-74811 is DENIED, and Plaintiff's Motion to/ Vacate Order Dismissing Plaintiff's State Law Claims, Pursuant to FED. R. Civ. P. 60(b) is DENIED.
II. BACKGROUND
Plaintiff filed an amended complaint on January 14, 2002, and alleged the following four counts: Intentional Breach of Contract Under Covenant 14. "Notice" Covenant 21. "Acceleration" (Count I); Intentional Violation of Plaintiff's Right to Fair Credit Reporting, Under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (Count II); Intentional Harassment, Deceptive Practices Violating the Fair Debt Collection Act, 15 U.S.C. § 1692(e) (Count III); and Intent to Cause Injury to Plaintiff Interference with Rights to Contract (Count IV). On April 4, 2002, the Court dismissed Count I and Count IV without prejudice because they arise under state law, and the Court declined to exercise supplemental jurisdiction. On April 16, 2002, the Court granted Defendant Standard Federal Bank's motion to dismiss, and dismissed Standard Federal Bank from this action. This matter is currently before the Court on Plaintiff's Motion for Summary Judgment on the Merits of Count-II, and Count-III, of the Amended-Complaint, Pursuant to FED. R. Civ. P. 56(a).
In 1998, Plaintiff bought a condominium in Farmington Hills, and financed the purchase through a mortgage (hereinafter "first mortgage"), which was granted to her by ABN AMRO Mortgage Groups, Inc., (hereinafter "ABN AMRO") a wholly owned subsidiary of Standard Federal Bank. A second mortgage, called an equity-line mortgage, was granted by Standard Federal Bank, which was the subject of an earlier action filed by Plaintiff. See Russell v. Standard Federal Bank et al., No. 00-CV-74811-DT. ABN AMRO foreclosed upon the first mortgage.
This mortgage was assigned to ABN AMRO.
This action was dismissed for lack of subject matter jurisdiction.
Plaintiff alleges in her complaint that the foreclosure was wrongful because she is current on her payments. In particular, Plaintiff alleges: "From November 29, 2000 to date, Russell paid both her first and second mortgage (Equity Line) payments 1-year in advance, including payments to the principal amount of the first mortgage reducing her first mortgage balance from $143,207.02, as of April 1, 2001, to $132,808.35 with the next payment due date as of April 1, 2002." See Plaintiff's Amended Complaint, ¶ 6. She alleges that despite this, Standard Federal Bank retained Defendants Trott Trott, P.C., namely David A. Trott, and Kathleen H. Trott, et al. (hereinafter "Defendant Trott Trott") to execute the foreclosure.
Plaintiff alleges that ABN AMRO reassigned the mortgage to Standard Federal Bank.
Defendant Trott Trott sent a letter (exhibit 4) to Plaintiff which states that Defendant Trott Trott was retained to represent Standard Federal Bank during the foreclosure. See Defendant's Response to Plaintiff's Motion for Summary Judgment Ex. 4. The letter (exhibit 4) informed Plaintiff of her total indebtedness, informed her that it may be possible to reinstate the mortgage, and instructed Plaintiff to contact Defendant Trott Trott if she wanted to do so. See id. The letter (exhibit 4) stated that the debt described was assumed to be true, and that if it is not, the letter provided information as to how to contact Defendant Trott Trott to challenge the described debt. See id. In the last sentence, the letter (exhibit 4) stated that it was not sent as an attempt to collect a debt, but rather, it is to enforce a lien against the property. See id.
In response to this letter (exhibit 4), on December 7, 2001, Plaintiff sent Defendant Trott Trott a letter (exhibit 6) with the heading "Cease Desist." See Defendant's Response to Plaintiff's Motion for Summary Judgment Ex. 6. The letter (exhibit 6) essentially states that her condominium is actually owned by the City of Farmington Hills as a result of a tax lien, and is the subject of an action that is currently before the Sixth Circuit; the letter (exhibit 6) further commands Defendant to "cease desist any attempt to foreclose. . . ." See id. Defendant Trott Trott responded by requesting that Plaintiff provide Defendant with documents relating to that action, as well as the first action regarding Standard Federal Bank. See Defendant's Response to Plaintiff's Motion for Summary Judgment Ex. 7. After Plaintiff provided the requested documents, see Defendant's Response to Plaintiff's Motion for Summary Judgment Ex. 8, Defendant Trott Trott determined that the action pending before the Sixth Circuit is not relevant to the foreclosure proceedings, and proceeded with the foreclosure. See Defendant's Response to Plaintiff's Motion for Summary Judgment Ex. 11.
Defendant Trott Trott's failure to heed Plaintiff's "Cease Desist" letter is the basis for Plaintiff's Count III and Count IV. She alleges that Defendant Trott Trott's request that she provide documentation regarding the other actions involving the condominium was improper. She further alleges that Defendant Trott Trott violated the Fair Debt Collection Act by proceeding with the foreclosure, despite the fact that she was current on her payments.
The bulk of Plaintiff's complaint constitutes the latter allegation; as mentioned above, Plaintiff alleges that she is current on her payment through April 2002, and that Standard Federal Bank and Defendant Trott Trott have wrongfully instituted foreclosure proceedings. Plaintiff filed a motion for summary judgment, and attempts to bolster her claim by attaching a copy of her payment records dated May 25, 2001. See Plaintiff's Motion for Summary Judgment Ex. B. The Court reviewed the records. According to the May 25, 2001, records (exhibit B), Plaintiff was sixty days past due, and had a principal balance of $143,063 on her first mortgage; she was also one hundred twenty days past due on her equity-line mortgage, with a principal balance of $12,758. Plaintiff additionally provided the Court with a document entitled "Plaintiff's Exhibit-C in Support of Motion for Summary Judgment on the Merits of Count-II, and Count-III, of the the [sic] Amended-Complaint, Pursuant to [FED. R. Civ. P. 56(a)]," which contains more copies of Plaintiff's payment records. One report, dated April 19, 2002 (exhibit C), states that as of November 2001, Plaintiff was one hundred eighty days past due on her first mortgage payments, and — also as of November 2001 — she was one hundred twenty days past due on her equity-line mortgage. The report of April 19, 2001 (exhibit C), also states that the principal balance on her equity-line mortgage has been $12,758 since March 2001.
Since this action was filed, Plaintiff's condominium has been sold at a sheriffs sale.
Defendant Trott Trott also includes Plaintiff's payment records in its response to Plaintiff's motion for summary judgment. See Defendant's Response to Plaintiff's Motion for Summary Judgment Ex. 12. The Court reviewed the documents submitted, and concludes that there is nothing inconsistent with the payment records Plaintiff provides. According to the records Defendant submits (exhibit 12), which are dated January 2, 2002, Plaintiff's last payment on her first mortgage was made on January 22, 2001, in the amount of $978.99. The Court cannot find the payment Plaintiff described in her complaint, which allegedly satisfied her payment obligation through April 2002. The Court finds that the largest single payment Plaintiff made was for $3,034.87, which she made on October 10, 2000. This payment cannot be the payment she described in her complaint, because she also alleged in her complaint that her payment reduced her principal balance from $143,207.02 to $132,808.35, which is over $10,000. Plaintiff did have a principal balance of $143,207.01 as of December 26, 2000, but her next — and final — payment was the aforementioned payment of $978.99 that was made on January 22, 2001.
According to Plaintiff's payment records, she did not make a payment in June 2000, or September 2000.
In short, the Court finds that the payment records submitted by both Plaintiff and Defendant Trott Trott are consistent with one another. The Court also finds that Plaintiff's last payment on her first mortgage in the amount of $978.99 was made on January 22, 2001, and that Plaintiff has been past due on her first mortgage since May 2001. Further, the Court finds that Plaintiff provides no documentation to support her claim that she satisfied her payment obligation through April 2002, and has provided the Court with no reason for it to believe that she has not been past due since May 2001.
Standard Federal Bank also included a copy of Plaintiff's payment records in its Motion to Dismiss, which the Court granted in a previous order. See Standard Federal Bank's Motion to Dismiss, Ex. A. The Court reviewed that copy of Plaintiff's payment records (exhibit A), and finds them to be consistent with the payment records submitted by Plaintiff and Defendant Trott Trott.
III. LEGAL STANDARD
Summary judgment is appropriate only if the answers to interrogatories, depositions, admissions, and pleadings combined with the affidavits in support show that no genuine issue as to any material fact remains and the moving party is entitled to a judgment as a matter of law. See FED. R. Civ. P. 56(c). A genuine issue of material fact exists when there is "sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (citations omitted). In application of this summary judgment standard, the Court must view all materials supplied, including all pleadings, in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). If however, the only evidence the non-moving party produces is merely colorable, or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50 (citations omitted).
The moving party bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record that establish the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met its burden, the nonmoving party must go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial. See FED. R. Civ. P. 56(e); Celotex, 477 U.S. at 324. The non-moving party must do more than show that there is some abstract doubt as to the material facts; rather, it must present significant probative evidence in support of its opposition to the motion for summary judgment in order to defeat the motion for summary judgment. See Moore v. Philip Morris Co., 8 F.3d 335, 339-40 (6th Cir. 1993).
IV. ANALYSIS
Count II of Plaintiff's complaint alleges a violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. This Act governs consumer reporting agencies, which are defined as:
The Court finds that there is no allegation in Count II of Plaintiff's amended complaint that Defendant Trott Trott violated the Fair Credit Reporting Act. Paragraph 20 of Plaintiff's amended complaint reads: "Standard Federal Bank and their agents intentionally violated Russell's rights to fair credit reporting, by making false reports to credit bureaus, and referring her loan to their debt-collector attorneys Trott Trott, P.C. . . ." The Court will perform an analysis, however, because Defendant Trott Trott is not prejudiced by it.
[A]ny person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part the practice of assembling or evaluating consumer credit information or other information on consumers for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.15 U.S.C. § 1681a(f). Plaintiff provides the Court with no reason to believe that Defendant Trott Trott engages in the "practice of assembling or evaluating consumer credit information . . . for the purpose of furnishing consumer reports for third parties." In addition, Defendant Trott Trott submits the affidavit of William D. Meagher, the supervising attorney of Defendant Trott Trott's litigation department. In it, he states that "Trott Trott does not assemble or evaluate consumer credit information nor does it not pay for assembling consumer credit information." See Meagher Affidavit, ¶ 7. Therefore, the Court finds that Plaintiff's claim of Intentional Violation of Plaintiff s Right to Fair Credit Reporting, Under the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (Count II) must fail with regard to Defendant Trott Trott. Plaintiff's Motion for Summary Judgment with respect to Count II is DENIED.
In Count III, Plaintiff alleges that Defendant Trott Trott violated the Fair Debt Collection Practices Act, see 15 U.S.C. § 1692 et seq. This Act prohibits debt collectors "from making false or misleading representations and from engaging in various abusive and unfair practices." See Heintz v. Jenkins, 514 U.S. 291, 292 (1995). The statute defines "debt collector" as: "[a]ny person who uses any instrumentality of interstate commerce or the mails in any business the principle of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." See 15 U.S.C. § 1692a(6). This language covers attorneys who regularly represent creditors in collection actions. See Heintz, 514 U.S. at 294.
The Court finds that Plaintiff fails to provide the Court with sufficient information as to whether Defendant Trott Trott is a "debt collector." The Supreme Court noted that: "[T]he Act applies to attorneys who 'regularly' engage in consumer-debt-collection activity, even when that activity consists of litigation. . . ." Heintz, 514 U.S. at 299. The Supreme Court has not defined "regularly;" however, the Sixth Circuit has:
For a court to find that an attorney or law firm "regularly" collects debts for purposes of the FDCPA, a plaintiff must show that the attorney or law firm collects debts as a matter of course for its clients or for some clients, or collects debts as a substantial, but not principal, part of his or its general law practice.Schroyer v. Frankel, 197 F.3d 1170, 1176 (6th Cir. 1999). Here, Plaintiff has not demonstrated debt collection is a substantial part of Defendant Trott Trott's practice. Therefore, the Court cannot find that Defendant Trott Trott is a debt collector.
Assuming, arguendo, that Defendant Trott Trott is a debt collector, Plaintiff does not cite to any particular practice that Defendant Trott Trott engaged in that would constitute a violation of the statute. Plaintiff generally alleges that Defendant Trott Trott's notice of foreclosure "is deceptive and intended to mislead, on account of the fact that Russell has not defaulted in her mortgage obligations to Standard Federal Bank." See Plaintiff's Complaint, ¶ 24. As mentioned above, however, the Court finds that Plaintiff was past due on her mortgage obligations. Therefore, Defendant Trott Trott's notice was truthful. Further, the Court finds that Defendant Trott Trott's request for information regarding the action pending before the Sixth Circuit following Plaintiff's letter to "Cease Desist," and Defendant Trott Trott's subsequent notice stating that it was proceeding with the foreclosure does not constitute "conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d; see Pearce v. Rapid Check Collection, Inc., 738 F. Supp. 334, 339 (D.S.D. 1990) ("In this case, the only threats which defendants made were ones which legally could be taken, and in fact were taken. There was no violation of section 1692d.").
Therefore, the Court finds that Plaintiff's claim for Intentional Harassment, Deceptive Practices Violating the Fair Debt Collection Act, 15 U.S.C. § 1692(e) (Count III) with respect to Defendant Trott Trott must fail. Plaintiff's Motion for Summary Judgment with respect to Count III is DENIED.
The Court further finds that Plaintiff cannot succeed on her Count II and Count III; therefore, the Court shall DISMISS those claims. See Apple v. Glenn, 183 F.3d 477 479 (6th Cir. 1999) ("[A] district court may, at anytime, sua sponte dismiss a complaint for lack of subject matter jurisdiction pursuant to [FED. R. Civ. P. 12(b)(1)] when the allegations of a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion.").
Plaintiff makes two other motions: Motion to Vacate Order Dismissing Plaintiff's State Law Claims, Pursuant to [FED. R. Civ. P. 60(b)]; and Motion to Consolidate Civil Actions Case No. 02-70054/ and. Case No. 00-74811. As for the latter motion, the Court found all of Plaintiff's federal claims in Case No. 00-74811 to be deficient as a matter of law, and dismissed her federal claims. See Russell v. Standard Federal Bank et al., #00-CV-74811-DT, November 27, 2000 Opinion and Order. After all of Plaintiff's federal claims were dismissed, the Court lacked the ability to exercise supplemental jurisdiction over the state law claims. See id. While Plaintiff's state law claims in Case No. 00-74811 may be meritorious — a proposition this Court has no opinion on — this Court dismissed the state law claims because it lacked subject matter jurisdiction over them. Therefore, because Case No. 00-74811 was dismissed, the Court cannot consolidate these actions. Plaintiffs Motion to Consolidate Civil Actions Case No. 02-70054/ and. Case No. 00-74811 is DENIED.
Plaintiffs motion to vacate shall also be denied. The Court dismissed Plaintiff's Count II and Count III because she cannot succeed on those claims, therefore this Court will have no federal claims left before it. See 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if — (3) the district court has dismissed all claims over which it has original jurisdiction."). Plaintiff's Motion to/ Vacate Order Dismissing Plaintiff's State Law Claims, Pursuant to [FED. R. Civ. P. 60(b)] is DENIED.
V. CONCLUSION
For the reasons stated above, Plaintiff's Motion for Summary Judgment on the Merits of Count-II, and Count-III, of the Amended-Complaint, Pursuant to FED. R. Civ. P. 56(a). is DENIED. Pursuant to FED. R. Civ. P. 12, the Court shall DISMISS Count II and Count III of Plaintiff's complaint. Plaintiff's Motion to Consolidate Civil Actions Case No. 02-70054 land/ Case No. 00-74811 is DENIED, and Plaintiff's Motion to/Vacate Order Dismissing Plaintiff's State Law Claims, Pursuant to FED. R. Civ. P. 60(b) is DENIED.