Coe v. Select Portfolio Servicing Inc

Brief/Memorandum in Support

N.D. Tex.December 5, 2016

DEFENDANT’S BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Page 1 of 11 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION MORRIS COE, § § Plaintiff, § § vs. § § Civil Action No. 3:16-CV-2712 SELECT PORTFOLIO SERVICING, INC., § § § Defendant. § DEFENDANT’S BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Defendant Select Portfolio Servicing, Inc. (“Defendant” or “SPS”) files this Brief in Support of its Response to Plaintiff’s Motion for Summary Judgment, and respectfully shows the Court as follows: I. INTRODUCTION On November 14, 2016, Plaintiff Morris Coe (“Plaintiff”) filed his Motion for Summary Judgment Against Defendant and Plaintiff’s Motion Not to Dismiss My Case (Doc. 5). Thereafter, on November 18, 2016, Plaintiff filed a Brief for Plaintiff, Pro Se (Doc. 7) (together, referred to as “Plaintiff’s Motion for Summary Judgment”). These filings are inadequate to resolve this case in Plaintiff’s favor; summary judgment should not issue. The pleadings and evidence absolutely do not demonstrate that there is no genuine dispute as to any material fact and that Plaintiff is entitled to judgment as a matter of law against SPS. First, the pleadings are critically deficient. On September 30, 2016, pursuant to Federal Rule of Civil Procedure 12(b)(6), SPS filed a Motion to Dismiss and Brief in Support (Doc. 4) (“Defendant’s Motion to Dismiss”), pointing out the numerous reasons why all of Plaintiff’s Case 3:16-cv-02712-B Document 10 Filed 12/05/16 Page 1 of 11 PageID 82 DEFENDANT’S BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Page 2 of 11 claims fail as a matter of law. (See Defendant’s Motion to Dismiss.) Plaintiff did not respond to the Motion to Dismiss.1 Also, in his Motion for Summary Judgment, Plaintiff has not addressed any of the grounds requiring dismissal detailed in Defendant’s Motion to Dismiss. Plaintiff asserts only two claims in his complaint; a violation of the section 623 of the Fair Credit Reporting Act (the “FCRA”), codified at 15 U.S.C. § 1681s-2(a)(3), and a cause of action for defamation. As a matter of law there is no private right of action for Plaintiff’s FCRA claim and Plaintiff’s defamation claim is preempted by 15 U.S.C. § 1681h(e). Summary judgment should be denied and, instead, all of Plaintiff’s claims should be dismissed with prejudice due to the critically deficient complaint. Summary judgment should also be denied because Plaintiff has failed to submit any competent evidence demonstrating he is entitled to judgment as a matter of law. Plaintiff bears the burden of proof on his two claims in this case. Yet, he has not identified the elements of his claims, much less has he established such elements with competent summary judgment evidence. He has not submitted any affidavits or declarations to support his Motion. And he has not authenticated any of the exhibits or presented them in a form that would be admissible in evidence. The exhibits attached to the Motion for Summary Judgment actually appear to show that Plaintiff may have meant to sue an entirely different party - Seterus, Inc. - not SPS who is before the Court here. The letters Plaintiff relies on are addressed to Seterus, Inc. and the credit reports reflect Seterus, Inc.’s reporting, not SPS’s. For all of these reasons, as set forth herein, Plaintiff’s Motion for Summary Judgment should be denied. 1 Defendant’s Motion to Dismiss was filed on September 30, 2016. Any response should have been filed by October 21, 2016. See Local Rule 7.1(e). Case 3:16-cv-02712-B Document 10 Filed 12/05/16 Page 2 of 11 PageID 83 DEFENDANT’S BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Page 3 of 11 II. ARGUMENT & AUTHORITIES A. Legal Standards Summary judgment is proper when the pleadings and evidence demonstrate that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986). “The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact…” Lynch Props., Inc. v. Potomac Ins., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). “A party asserting that a fact cannot be … disputed … must support the assertion by … citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations.” FED. R. CIV. P. 56(c)(A). Where the moving party bears the burden of proof on an issue, it must produce evidence that would, if uncontroverted at trial, warrant a judgment as a matter of law. International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991), cert. denied, 502 U.S. 1059 (1992). The Court must “construe all facts and inferences in the light most favorable to the nonmoving party.” Citigroup Inc. v. Federal Ins. Co., 649 F.3d 367, 371 (5th Cir. 2011). Only once the movant carries his initial burden, does the burden then shift to the nonmovant to show that summary judgment is inappropriate. See Duckett v. City of Cedar Park, 950 F.2d 272, 276 (5th Cir. 1992). If the moving party fails to meet its initial burden, the summary judgment motion must be denied, regardless of the nonmovant's response. Baton Rouge Oil & Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir. 2002). Here, Plaintiff fail to meet even his initial burden of producing evidence to warrant a judgment against SPS for failing duties under the FCRA and for defamation. Moreover, his pleadings do not support any claim for relief. Summary judgment should be denied. Case 3:16-cv-02712-B Document 10 Filed 12/05/16 Page 3 of 11 PageID 84 DEFENDANT’S BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Page 4 of 11 B. Plaintiff’s Claims Fail As A Matter of Law Summary judgment should be denied because Plaintiff’s pleadings do not support any claim for relief. 1. Plaintiff’s Additional Claims For Relief Made in the Motion for Summary Judgment are Improper Plaintiff asserts only two claims in this lawsuit; 1) a violation of section 623(a)(3) of the FCRA, codified at 15 U.S.C. § 1681s-2(a)(3); and 2) a claim for defamation, with no allegations of malice. (See Complaint, filed on September 6, 2016 in state court.) To the extent Plaintiff’s Motion for Summary Judgment raises or seeks judgment on additional claims, including alleged violations of the Fair Debt Collection Practices Act, negligence, identity theft, defamation with malice, challenges to the title to the property, a claim for the release of the mortgage lien, or a claim that SPS failed to notify him of negative credit reporting, SPS objects. (See generally Brief of Plaintiff, Pro Se.) Such claims should be disregarded. U.S. ex rel. DeKort v. Integrated Coast Guard Sys., 475 F. App'x 521, 522 (5th Cir. 2012); Garza v. City of La Porte, 160 F. Supp. 3d 986, 993 (S.D. Tex. 2016) (“Even under the ‘liberal pleading standard’ of Federal Rule of Civil Procedure 8(a), a party cannot use a motion for summary judgment to raise new claims.”); see also Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990). 2. Plaintiff’s Two Claims Before the Court Fail as a Matter of Law Plaintiff’s two claims that are before the Court fail as a matter of law. (See Defendant’s Motion to Dismiss.) First, there is no private right of action for a violation of section 623(a)(3) of the FCRA. 15 U.S.C. §1681s-2(d); Patterson v. Long Beach Mortg. Co., No. 3:07-cv-1602, 2009 WL 4884151, at *4 (N.D. Tex. Dec. 15, 2009) (“The language in the FCRA plainly and unambiguously states that a consumer does not have any remedies available for a claimed violation of § 1681 s-2(a). … Additionally, the FCRA gives certain federal agencies as well as Case 3:16-cv-02712-B Document 10 Filed 12/05/16 Page 4 of 11 PageID 85 DEFENDANT’S BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Page 5 of 11 federal and state officials the exclusive jurisdiction to enforce § 1681 s-2(a). … The FCRA therefore does not create a private right of action for an alleged violation of § 1681 s- 2(a).”)(internal citations omitted); see Young v. Equifax Credit Info. Servs., Inc., 294 F.3d 631, 639 (5th Cir. 2002) (“Section 1681s-2(d) provides that enforcement of Section 1681s-2(a) shall be by government officials . . . .”). Second, Plaintiff’s defamation claim is preempted by the FCRA. Section 1681h(e) of the FCRA specifically provides that the federal law preempts all non-FCRA actions involving defamation against “any person who furnishes information to a consumer reporting agency ... except as to false information furnished with malice or willful intent to injure such consumer.” 15 U.S.C. § 1681h(e); see Morris v. Equifax Information Servs., LLC, 457 F.3d 460, 471-72 (5th Cir. 2006); Young, 294 F.3d at 638; Meisel v. USA Shade and Fabric Structures Inc., 795 F. Supp. 2d 481, 486 (N.D. Tex. 2011) (“section 1681h(e) does not preempt those state law causes of action against furnishers that are premised on the furnishment of false information with malice.”). Plaintiff’s complaint contains no allegation of falsity or malice or willful intent to injure by SPS. Plaintiff’s Motion for Summary Judgment only makes these allegations in a purely conclusory way, devoid of factual support or citations to any record. See Brief for Plaintiff, Pro Se (Doc. 7) at p. 5.) Unsupported allegations in a pleading do not constituted competent summary judgment evidence. Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531, 545 n. 13 (5th Cir. 2002) (citing King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994); Johnston v. City of Houston, 14 F.3d 1056, 1060 (5th Cir. 1994)) (unsworn pleadings do not constitute proper summary judgment evidence). Plaintiff has failed to submit any competent summary judgment evidence showing SPS took any action that was false or done with malice or Case 3:16-cv-02712-B Document 10 Filed 12/05/16 Page 5 of 11 PageID 86 DEFENDANT’S BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Page 6 of 11 willful intent to injury Plaintiff. In fact, he has not submitted any competent summary judgment about SPS at all. Plaintiff’s defamation claim fails as a matter of law. C. Plaintiff Has Failed To Establish the Essential Elements of his Claims When the summary judgment movant bears the burden of proof at trial, “he must establish beyond peradventure all of the essential elements of the claim or defense to warrant judgment in his favor.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986) (emphasis original). Here, Plaintiff has failed to identify the essential elements of his claims, much less establish all of them with competent summary judgment proof to warrant summary judgment in his favor. 1. Plaintiff Has Not Established the Essential Elements of his FCRA Claim As set forth above, there is no private right of action for a claim under 15 U.S.C. § 1681s- 2(a)(3). Regardless, Plaintiff has not established SPS violated this law. This law provides: If the completeness or accuracy of any information furnished by any person to any consumer reporting agency is disputed to such person by a consumer, the person may not furnish the information to any consumer reporting agency without notice that such information is disputed by the consumer. 15 U.S.C. § 1681s-2(a)(3). Plaintiff has provided no evidence that he disputed the completeness or accuracy of information furnished by SPS to a consumer reporting agency. He has also failed to provide any evidence that SPS furnished information to a consumer reporting agency without providing notice that such information was disputed by Plaintiff. The exhibits attached to Plaintiff’s Motion for Summary Judgment show that Plaintiff sent letters to Seterus, Inc., not SPS. They also show credit reporting by Seterus, Inc., again, not SPS. The documents are also unauthenticated and, therefore, constitute hearsay. As such, SPS objects to each of the exhibits to the Motion for Summary Judgment. Plaintiff has also failed to submit an affidavit or sworn declaration regarding any facts. Plaintiff’s support for his FCRA claim amounts only to Case 3:16-cv-02712-B Document 10 Filed 12/05/16 Page 6 of 11 PageID 87 DEFENDANT’S BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Page 7 of 11 unsupported, conclusory allegations in his Complaint and in the Motion for Summary Judgment, which are insufficient as a matter of law to justify summary judgment. See Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (“unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”) (internal citation omitted); Diamond Offshore Co., 302 F.3d at 545 n. 13. 2. Plaintiff Has Not Stated a Claim Under 15 U.S.C. § 1681s-2(b); But Even if He Had, He Fails to Establish The Essential Elements Plaintiff has not alleged any violation of section 623(b) of the FCRA codified at 15 U.S.C. § 1681s-2(b). His Complaint should not be construed to include this claim. Even if the Complaint could somehow be construed extremely broadly to include a claim under this section, this claim too would fail as a matter of law. Plaintiff has not established the essential elements of this claim to entitle him to summary judgment. Section 623(b) of the FCRA sets forth the duties of furnishers of information upon notice of a dispute. To establish a violation of 15 U.S.C. § 1681s-2(b), a consumer must show that he notified a consumer reporting agency of the dispute in accordance with specific statutory procedures. Young, 294 F.3d at 639. He must also show “that a consumer reporting agency...notified [the furnisher] pursuant to 1681i(a)(2)” of the consumer's dispute “within five business days from the time the consumer notifies the consumer reporting agency of the dispute.” Id. “Such notice [by a credit reporting agency] is necessary to trigger the furnisher's duties under Section 1681s-2(b).” Id. Absent this showing, the claim fails. Id.; King v. Equifax Info. Servs., No. Civ. A. H-05-0628, 2005 WL 1667783, at *2 (S.D. Tex. 2005). Plaintiff has not established any of the requirements for this claim. He provided no competent (or even incompetent) summary judgment evidence establishing that he notified a Case 3:16-cv-02712-B Document 10 Filed 12/05/16 Page 7 of 11 PageID 88 DEFENDANT’S BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Page 8 of 11 consumer reporting agency of his dispute pursuant to the statutory requirements. And he has failed to present any evidence that the consumer reporting agency notified SPS of the dispute, or did so within five days. He has failed entirely to show any duty to act under this law was triggered for SPS. This claim too, if made, fails. 3. Plaintiff Has Failed to Establish the Essential Elements of his Defamation Claim As set forth above, Plaintiff’s defamation claim is preempted by the FCRA. He has not alleged falsity and malice or willful intent to injure in his Complaint. Plaintiff has also failed to provide competent summary judgment evidence on these elements in his Motion for Summary Judgment. These are essential elements that must be met in order for a defamation claim to be maintained in this context. Young, 294 F.3d at 638. Thus, this claim fails. SPS also notes that Plaintiff has also failed to established the other basic elements of the tort of defamation, including proving that SPS published a statement that was defamatory concerning Plaintiff. See WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568, 571 (Tex. 1998); Grand Champion Film Prod., LLC v. Cinemark USA, Inc., 257 S.W.3d 478, 481 (Tex. App.- Dallas 2008, no pet.). Plaintiff has failed to demonstrate with competent summary judgment evidence that SPS even published a statement concerning him. As noted, the unauthenticated exhibits to Plaintiff’s Motion for Summary Judgment show a non-party, Seterus, Inc., may have published statements about Plaintiff-but not SPS. Plaintiff has only made bare unsupported allegations concerning SPS’s conduct in his Complaint and Motion for Summary Judgment, which are insufficient to warrant summary judgment. See Galindo, 754 F.2d at 1216; Diamond Offshore Co., 302 F.3d at 545 n. 13. Case 3:16-cv-02712-B Document 10 Filed 12/05/16 Page 8 of 11 PageID 89 DEFENDANT’S BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Page 9 of 11 III. CONCLUSION AND PRAYER FOR RELIEF, INCLUDING ALTERNATIVE RELIEF Based on the foregoing, and the inadequate materials submitted by Plaintiff, no reasonable jury could return a verdict for Plaintiff and against SPS. Summary judgment should be denied. Thomas v. Napolitano, 449 F. App'x 373, 374 (5th Cir. 2011) (“Where ‘the moving party’s evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party’ summary judgment [must] be defeated.”) (citing International Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1265 (5th Cir. 1991)). In the alternative, if the Court is not inclined to decide Plaintiff’s Motion for Summary Judgment on the legal and procedural grounds presented herein, SPS requests a continuance of summary judgment proceedings, and an opportunity, after an adequate time for discovery has passed, to present its factual defenses through affidavit(s) and authenticated documents. Summary judgment proceedings on factual issues in this case are premature. This case was removed to this Court on September 23, 2016. Thereafter, SPS filed its Motion to Dismiss on September 30, 2016. Plaintiff failed to respond to the Motion to Dismiss. Instead, he filed his Motion for Summary Judgment on November 14, 2016 and then submitted a brief on November 18, 2016. The parties only just completed their conference pursuant to Federal Rule of Civil Procedure 26(f) on December 2, 2016. (See Affidavit of Elizabeth K. Duffy (“EKD Aff.”), attached to Defendant’s Appendix in Support of Response to Plaintiff’s Motion for Summary Judgment, filed simultaneously herewith at App. 000001-3.) They have not yet submitted their joint report on scheduling recommendations and other matters. (Id.) As such, no discovery has taken place, nor has there has been sufficient time for investigation and to take discovery, especially in light of Defendant’s pending Motion to Dismiss, which was not responded to by Plaintiff. (See id.) Accordingly, in the alternative, SPS requests a continuance of summary Case 3:16-cv-02712-B Document 10 Filed 12/05/16 Page 9 of 11 PageID 90 DEFENDANT’S BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Page 10 of 11 judgment proceedings, until a scheduling order is issued and an adequate time for discovery has passed. SPS proposes a continuance until April 7, 2017 for these purposes. WHEREFORE, SPS respectfully requests that the Court deny Plaintiff’s Motion for Summary Judgment (Doc. 5 and Doc. 7), and instead, grant Defendant’s Motion to Dismiss (Doc. 4), dismissing all of Plaintiff’s claims with prejudice. In the alternative, SPS requests a continuance of summary judgment proceedings and an opportunity to present factual evidence demonstrating Plaintiff is not entitled to judgment, through and until April 7, 2017. SPS also requests such other and further relief to which it may be entitled. Respectfully submitted, /s/ Elizabeth K. Duffy Thomas G. Yoxall Texas Bar No. 00785304 tyoxall@lockelord.com Elizabeth K. Duffy Texas Bar No. 24050535 eduffy@lockelord.com Jason A. LeBoeuf Texas Bar No. 24032662 Jason.leboeuf@lockelord.com LOCKE LORD LLP 2200 Ross Avenue, Suite 2800 Dallas, Texas 75201-6776 Telephone: (214) 740-8000 Facsimile: (214) 740-8800 ATTORNEYS FOR DEFENDANT Case 3:16-cv-02712-B Document 10 Filed 12/05/16 Page 10 of 11 PageID 91 DEFENDANT’S BRIEF IN SUPPORT OF ITS RESPONSE TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Page 11 of 11 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing document was served upon the following via U.S. mail and certified mail, return receipt requested pursuant to the Federal Rules of Civil Procedure on this 5th day of December, 2016: Morris Coe 524 Saddle Head Drive DeSoto, Texas 75115 Pro Se Plaintiff /s/ Elizabeth K. Duffy Counsel for Defendant Case 3:16-cv-02712-B Document 10 Filed 12/05/16 Page 11 of 11 PageID 92