Green, Curtis v. Specialized Loan Services, Llc et al

Brief in Opposition

W.D. Wis.September 19, 2016

1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WISCONSIN Curtis W. Green Deborah J. Green Plaintiffs, v. Specialized Loan Servicing, LLC, Defendant. PLAINTIFFS’ RESPONSE BRIEF IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 15-CV-513 INTRODUCTION SLS took improper collection actions against Plaintiffs. In an attempt to evade liability, they now twist the facts and ignore the law. They use their own definition of “loan servicing,” instead of that required by the federal government, trying to shoehorn their actions into their definition of “servicing” and out of the FDCPA. They can’t agree on important dates (i.e., they provide three dates for their claimed “error” and three dates for when they received “servicing rights” to the loan). They outright ask the Court to ignore a certain section of the FDCPA (§ 1692e(8)) and instead look to the FCRA (under which there was no claim plead against SLS). Even though they are a debt collector, they argue the FDCPA wasn’t designed for them. The harder they scream and argue they are above the law, the clearer it becomes they are changing the focus from what actually happened, to what they wish would have happened. They point to policies in place before the claimed “error” occurred in an effort to misdirect the Court. The simple fact is they had no policies to catch the type of error they alleged happened. Inapplicable policies will not save them. They fail to meet their burden as a moving party at Summary Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 1 of 33 2 Judgment, and as such, their motion must be entirely denied. ARGUMENT I. SLS’s collection letter violates the FDCPA Mr. And Mrs. Green were subjected to various collection attempts by SLS. First, SLS errs in their contention that Mr. Green never received their first collection letter. As admitted by SLS, they sent the letter to Mr. and Mrs. Green. Both of the Greens have admitted to receiving the letter, as stated in the proposed material facts. As such, any dispute that Mr. Green didn’t receive the collection letter must be construed in his favor. a. The collection letter was an attempt to collect a debt. 1. This Court has already determined that the letter was a collection attempt The legal doctrine of “the law of the case” “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Pepper v. United States, 131 S. Ct. 1229, 1250 (2011) (quoting Arizona v. California, 460 U.S. 605, 618 (1983)). See also Agostini v. Felton, 521 U.S. 203, 236 (U.S. 1997) (“[A] court should not reopen issues decided in earlier stages of the same litigation. The doctrine does not apply if the court is convinced that [its prior decision] is clearly erroneous and would work a manifest injustice.”) (internal cites omitted). Here there SLS has made no argument that the Court’s prior holding was “clearly erroneous” or “would work a manifest injustice.” In fact, SLS just reiterates failed arguments from their Motion to Dismiss pleadings. Thus, no argument of SLS warrants the court to change in the prior holding that SLS engaged in debt collection attempts against Plaintiffs. To be sure, the burden of proof shifts between a Motion To Dismiss and Motion for Summary Judgment – in this case the facts as presented are not “construed as true” but are rather “construed in the light Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 2 of 33 3 most favorable” to Plaintiffs. But from a practical reality, it makes no difference. The same letter is before the court – the facts are a closed universe related to the actual language of the letter. The court has already held that the letter was a debt collection attempt and should reinforce that holding at the summary judgment stage. Order. Dkt. 38, p. 8-9. (“The court concludes that in this case, the communications themselves show that SLS’s communications were an attempt to collect a debt.”) (emphasis added). 2. RESPA servicers collect “scheduled periodic payments” Oddly enough, SLS continues to hang their hat on an argument that RESPA saves them. This argument is inapposite of a simple reading of RESPA’s definition of loan “servicing.” RESPA applies when a loan is transferred to a new company to “service” the loan. The law is clear on what is meant by loan “servicing” under RESPA and is defined as, “receiving any scheduled periodic payments from a borrower pursuant to the term of a federally regulated mortgage loan...” 12 CFR 1024.2(b).1 When SLS argues that they were “servicing” the Greens’ loan, they are, in fact, arguing that they were collecting “scheduled periodic payments” from the Greens. While SLS tries to reframe what it means to be a servicer, they do not have the authority to change the Code of Federal Regulations. SLS spends pages arguing that they are just a servicer under RESPA. The admission of being a RESPA “servicer” sufficiently triggers the debt collection requirement of the FCDPA. SLS relied on Indiana cases where the FDCPA was not applied to a loan servicing letter. However, every case should be decided upon the record before that particular court. In this case, the record includes the definition of a loan “servicer” under RESPA. This court should find the SLS servicing letter to be a collection attempt, due to the fact that it was sent to collect a 1 12 CFR 1024.2(b) governs the definitions in RESPA. 12 CFR 1024.2(a). Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 3 of 33 4 “scheduled periodic payments” from Mr. and Mrs. Green.2 3. There was no servicing relationship between the SLS and Plaintiffs There was never a “servicing relationship” between SLS and Plaintiffs; however, three “servicing duties” are claimed by SLS: 1) sending 1099s, 2) responding to requests for information, and 3) addressing any appeal on the foreclosure. In an attempt to move away from the federal definition of “servicing” under which they were operating, they claim three “duties” not contemplated for them under RESPA. If a 1099 had to be sent, RESPA contemplated that the last and final servicer, Bank of America, could send it. 12 CFR 1024.35(g)(1)(iii) and 12 CFR 1024.36(f)(1)(v). SLS also ignores the fact that any amount owed had already been discharged years prior to December 2014. If requests for information required a response, RESPA also contemplated that Bank of America would be the responding party. Id. If there was an appeal on the Order for Confirmation of Sale, that would have been between the parties in the foreclosure (the Greens and a Wells Fargo entity). SLS wasn’t a party to the foreclosure. SLS took a situation in which they didn’t belong, pushed themselves in, and now try to argue they were a necessary party. Their desperate attempts to show that they were needed to “service” under RESPA (while ignoring what RESPA actually says about “servicing) is a red herring. 4. RESPA and the FDCPA must be read in concert Even assuming for the sake of argument that RESPA did require the collection letter to be sent, it still does not negate the fact that it was a collection attempt. RESPA expressly contemplates that some servicers will also be subject to the FDCPA and provides a “safe harbor” for certain FDCPA provisions. 12 C.F.R. § 1024.39(d)(2) (“A servicer subject to the [FDCPA] …with respect to a borrower is exempt from the requirements of this section with regard to a 2 They can also be sent for escrow reasons, which is not applicable or argued here. Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 4 of 33 5 mortgage loan for which the borrower has sent a notification pursuant to [15 U.S.C. 1692c(c)]”). There is no similar “safe harbor” for 15 U.S.C. §§1692e-1692g. See also Hart v. FCI Lender Servs., 797 F.3d 219, 227, (2d Cir. 2015) (“Section 1692g instructs that a communication required by certain statutes, such as the Gramm-Leach-Bliley Act, 15 U.S.C. § 6801 et seq., shall ‘not be treated as an initial communication in connection with debt collection for purposes of this section.’ 15 U.S.C. § 1692g(e). RESPA is not among the enumerated statutes.”). In other words, SLS cannot hide behind RESPA as their reason for violating the FDCPA. Other courts have found a servicing letter to be subject to the FDCPA. See Hart. 5. The Letter was an Objective Collection Attempt This Court has reviewed the collection letter at issue through the framework provided by the Seventh Circuit, concluding it was a collection attempt. A letter does not have to demand payment to be a collection attempt. See Simon v. FIA Card Servs., N.A., 732 F.3d 259, 267 (3d Cir. 2013) ("The letter and notice were an attempt to collect the [plaintiffs'] debt… The absence of an explicit payment demand does not take the communication outside the FDCPA."); Gburek v. Litton Loan Servicing LP, 614 F.3d 380, 385 (7th Cir. 2010) ("[T]he absence of a demand for payment is just one of several factors that come into play in the commonsense inquiry of whether a communication from a debt collector is made in connection with the collection of any debt.").” SLS argues a demand for payment is required, which is simply not the correct standard. As briefed extensively at the dismissal stage, the letter sent from SLS to the Green’s qualifies as a collection attempt for purposes of the FDCPA. In Gburek, the Seventh Circuit synthesized three prior decisions to determine whether a letter sent was “made in connection with” any debt collection efforts. Gburek at 384-385. This Court has weighed those factors. The collection letter states SLS would “collect [the Greens] payments going forward” and would Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 5 of 33 6 “collect [the Greens] mortgage loan payments.” In bold, the Greens were told to “Send all payments due on or after 12/16/2014 to [SLS].” Id. In capital letters and bold, the letter stated “THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.” Id. This is the required language under 15 U.S.C. § 1692e(11), showing that “SLS’s attempt to comply [with the FDCPA] indicates that the purpose of its communication was in connection with the collection of the Greens’ debt.” Order. Dkt. 38, p. 7. While SLS argues that they had a bankruptcy disclaimer, “even if the bankruptcy disclaimer undermined the overarching message that the Greens should send their payments to SLS, that message was apparently in error because there was no longer a debt to service.” Id. at p. 8. Thus, “the Notice and Verification are outweighed by the other aspects of the communications that indicate an attempt to collect,” leaving the court to “conclude[] that in this case, the communications themselves [including both the letter and the fax] show that SLS’s communications were an attempt to collect a debt.” Id. at p. 8-9. b. The collection letter was sent in violation of specific sections of the FDCPA. Next, the Court must turn to the nature of the collection acts of SLS and whether those acts violate the FDCPA. Plaintiff propounded that SLS’s collection letter violates §§ 1692e, 1692f, and 1692g. 1. SLS’s collection letter was a false, deceptive, or misleading representation in violation of § 1692e. Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 6 of 33 7 Plaintiffs asserted SLS’s collection attempts violated §§ 1692e, e(2), e(5), e(8), and e(10). Noteworthy, is that SLS only moved for summary judgment as to the claims under §1692e3 and have left the balance for trial. The Seventh Circuit uses the “unsophisticated consumer” test to determine if a violation has occurred. Ruth v. Triumph P’Ships, 577 F.3d 790, 800 (7th Cir. 2009). While it’s true that an unsophisticated consumer knows his or her account history, Harrer v. RJM Acquisitions, LLC, 2012 U.S. Dist. LEXIS 5912, *10 (N.D. Ill. Jan. 19, 2012), the Seventh Circuit has explicitly held that a reasonable jury could find a collection letters on debts included in bankruptcy could be misleading to the unsophisticated consumer. Turner v. J.V.D.B. & Assocs., Inc, 330 F.3d 991, 995 (7th Cir. 2003). This case mirrors the holding of Turner, in that a reasonable jury could certainly find that sending collection letters on a debt included in a bankruptcy (and extinguished in a completed foreclosure) could be misleading. This fact analysis, construed in the light most favorable of the Plaintiffs, requires denial of SLS’s motion. SLS has an aberrant analysis that their letter wasn’t “confusing” to an unsophisticated consumer. They argue that the “unsophisticated consumer” would read whole letter and understand it, but offer no legal or factual analysis in favor of the letters not being misleading on their face. SLS also errs as they avoid analyzing the actual language of the statutorily prohibited actions under 1692e: false, deceptive, or misleading conduct. In addition to missing the language of the statue, SLS misses the mark on the burden of proof for an FDCPA plaintiff. SLS leads this errant argument with the assertion that Plaintiffs need a “consumer survey” or “expert opinion” to prove their prima facie case. Plaintiffs assert 3 Plaintiffs point this out, because regardless of this decision on summary judgment, the remaining “e claims” will continue to trial. Should SLS attempt to incorporate some of the remaining claims on their reply brief, Plaintiffs ask they be struck, or they reserve leave to file a sur-reply as to those arguments. Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 7 of 33 8 that because Defendant’s letter is “plainly deceptive or misleading… extrinsic evidence [is not required] in order for the plaintiff to be successful.” Lox v. CDA, Ltd., 689 F.3d 818, 822 (7th Cir. 2012). See also Ruth at 801 (“Not every meritorious FDCPA claim requires such extrinsic evidence, however; some collection notices are clearly misleading on their face.”). So, we return to the oft-quoted and reviewed collection letter to determine if it violates the FDCPA. The analysis of a collection letter under § 1692e can run from statements that are inconsistent and contradictory to statements that are literally false. See Avila v. Rubin, 84 F.3d 222 (7th Cir. 1996). Another way to view letters is on a truthfulness spectrum ranging from literally-true to literally-false (and various degrees between). Literally false letters would obviously be misleading on their face, thus violating the FDCPA. Here, the collection letter was false on its face. Accordingly, there is no need for consumer surveys or expert opinions. All the court must do is look at the letter and ascertain (construed in light most favorable to Plaintiffs) if a jury could find it to be false, deceptive, or misleading on its face to an unsophisticated consumer. As specifically discussed below, this is a case where the court can look at the letter and rule without any extrinsic evidence. The SLS collection letter contains the following false statements: • “The servicing of your Mortgage Loan has been transferred, effective 12/16/2014. This means that after this date, a new servicer, will be collecting your mortgage loan payments from you.” As of December 3, 2014 the Greens had no in personam obligations to SLS, nor was there any possible in rem rights against the alleged property. Accordingly, their statement about a right to collect mortgage loan payments from the Greens was facially false. Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 8 of 33 9 • “Specialized Loan Servicing LLC (‘SLS’) will collect your payments going forward. SLS will start accepting payments received from you on 12/16/2014.” As of the date of the letter, there were no possible payments to be collected from the Greens. However, this letter clear asserts a right to collect payments, along with a date by which they expected to receive and collect the payments. Again, this is a statement that is false on its face. • “Send all payments due on or after 12/16/2014 to Specialized Loan Servicing LLC at this address: P.O. Box 105219, Atlanta, GA 30348-5219.” At the risk of making the same argument, ad naseum, there were no payments due on or after December 16, 2014. Accordingly, a demand that all payments due after a certain date be sent to a specific address, is a false statement. Next, SLS states: • “THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.” • “IF YOU ARE A CONSUMER IN BANKRUPTCY OR A CONSUMER WHO HAS RECEIVED A BANKRUPTCY DISCHARGE OF THIS DEBT: PLEASE BE ADVISED THAT THIS NOTICE IS TO ADVISE YOU OF THE STATUS OF YOUR MORTGAGE LOAN.” Missing from these “disclaimers” is SLS’s current argument that they were merely “servicing” (as defined by SLS, not by RESPA) the loan and not collecting or accepting payments. After all, if SLS was really only there to answer questions and send a 1099, couldn’t they have merely said that to the Greens in their letter? SLS is taking the position that the collection letter was sent for the sole purpose to comply with RESPA. But RESPA is all about collecting monthly payments. The letter states that it is an attempt to collect a debt and directs where the Greens are to send Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 9 of 33 10 their monthly payments,. All this happens while SLS never had a right to collect monthly payments from them. Also missing from SLS’s arguments is the fact that the Greens didn’t own this home anymore. In fact, SLS sold the former house. If SLS actually thought the Greens had an interest in the home, they certainly wouldn’t have sold it. The Greens’ foreclosure was done, over, kaput. As such, why the constant badgering in the collection letters that they were there to collect monthly payments on a mortgage? If SLS was some form of “informational source” as they’ve argued post-lawsuit, why not just say that? Instead SLS turned to RESPA, which provides no excuse for their behavior. In viewing the facts in the light most favorable to Plaintiffs, the court should find the letter to be facially false in violation of the FDCPA. As such, Summary Judgment should be denied. 2. SLS’s collection letter was unfair and unconscionable in violation of § 1692f. SLS focuses on a single word in § 1692f, but misses the rest of the statute. They speak of the proverbial tree, but miss the forest. The statute speaks to “the collection of any amount” and then specifically includes fees and charges with the scope of “any amount.” SLS focuses on whether they collected fees, without a discussion of how their conduct violated the attempted collection of “any amount” not authorized under law or contract. In Turner, 330 F.3d at 997-998, the Seventh Circuit found that a collection letter on a discharged debt may not necessarily violate § 1692f. However in Turner the question before the court was if including the language of 1692g(a) in a collection letter on a discharged debt was violative of § 1692f.4 The Seventh Circuit found that including sufficient 1692g notice in a 4 The Turner court did state that including such collection language on a discharged debt was a potential violation of 1692e that should proceed to a jury. Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 10 of 33 11 collection letter wasn’t an ispo facto violation of 1692f. However, that is not the record or argument that Plaintiff is making in this case. “It is a well-settled rule that a party opposing a summary judgment motion must inform the trial judge of the reasons, legal or factual, why summary judgment should not be entered. If it does not do so, and loses the motion, it cannot raise such reasons on appeal.” Liberles v. County of Cook, 709 F.2d 1122, 1125-26 (7th Cir. 1983). Plaintiffs’ argument is this: they received a letter on a discharged debt that attempted to collect all future payments from them on a debt that had been both discharged and then waived under state law. This attempt to collect after foreclosure-wavier and bankruptcy is impermissible as “a debt collector may not collect any amount if either: ‘(A) state law expressly prohibits collection of the amount or (B) the contract does not provide for collection of the amount and state law is silent.’” Acosta v. Credit Bureau, 2015 U.S. Dist. LEXIS 55870, *8 (N.D. Ill. Apr. 29, 2015) (quoting FTC Staff Commentary on the FDCPA, 53 Fed. Reg. 50,097, 50,108 (Dec. 13, 1988)). Here the law is clear that there was nothing to collect. Combined with the attempts to collect amounts discharged in bankruptcy and waived in foreclosure, were threats to falsely report the information to their credit reports and to share their financial information with other people. These actions - in this context - are the ones that were unfair and unconscionable attempts to collect debts not authorized under law from the Greens. This case is also distinguishable from Turner5 in that the letter (and the language in it) does not at all track the language of § 1692g and contain more violations than mere post- bankruptcy collection attempts. See also Snyder v. Ocwen Loan Servicing, LLC, 2015 U.S. Dist. 5 In fact, one of Plaintiffs’ claims is that the letter doesn’t contain the required language under § 1692g. Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 11 of 33 12 LEXIS 54473, *10 (N.D. Ill. Apr. 27, 2015) (letter sought improper interest on a legally unenforceable debt, stating a claim under §1692f). In Transamerica Fin. Servs., Inc. v. Sykes, 171 F.3d 553, 556 (7th Cir. 1999), the Seventh Circuit found that a debt collector did not violate § 1692f, because the debt collector did not have knowledge that the underlying debt might have been a forgery. Section 1692f “addresses the conduct of the debt collector, not the validity of the underlying debt.” Id. Thus, if the documents in SLS’s possession facially prohibit the collection of the debt, the collection act could violate § 1692f. This approach has been supported in other districts. See Reynolds v. EOS CCA, 2016 U.S. Dist. LEXIS 55252, *19-20 (S.D. Ind. Apr. 26, 2016) (attempts to collect amount without presence of enforceable contract is prohibited under 1692f), Kimber v. Federal Financial Corp., 668 F. Supp. 1480, 1488 (M.D. Ala. 1987) (documents that show on their face the inability to collect the amount sought, violates 1692f). SLS freely agrees that Plaintiffs’ loan was discharged in bankruptcy and waived in foreclosure. They have even provided copies of the finalized foreclosure records and bankruptcy discharge that were in their possession at the time they sent the collection letter to the Greens. They also could have done a bankruptcy scrub to verify the discharge of debts, but they choose not to. The analysis must turn on the contractual or legal right of SLS to seek certain payments from Plaintiffs, and if the invalidity of that contractual/legal right was evident on the face of those documents. Here, SLS knew there was no obligation owed. To be sure, the analysis of a violation of § 1692f is more complicated that just determining if a “fee” was being charged by SLS. Plaintiffs are not alleging a de facto violation as found in Turner. Here, SLS sent a letter to collect a discharged and waived debt (with threats of credit reporting and sharing their financial information with others) when SLS had facially Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 12 of 33 13 tangible proof that the debt was not owed. SLS has failed to meet their burden of proof (or an accurate statement of the law surrounding this type of claim), and as such this motion should be denied. 3. SLS’s collection letter did not contain the mandatory disclosures in violation of § 1692g. SLS argues that compliance with §1692g “would not make logical sense,” because they would have “to send a follow-up letter.” They simply ignore the option of placing the disclosure information required by §1692g in their first letter. Once more, Plaintiffs point out that the letter was a collection attempt and that the letter assumed there was a debt to be paid (both on the face of the document and under the RESPA “servicing” definition). Thus, compliance with the notice provisions of 1692g weren’t optional. The Seventh Circuit is clear that this type of violation is open and shut: Section 1692g(a) requires debt collectors to disclose specific information… in certain written notices they send to consumers. If a letter fails to disclose the required information clearly, it violates the Act, without further proof of confusion. Section 1692g(a) also does not have an additional materiality requirement, express or implied. Congress instructed debt collectors to disclose this information to consumers, period, so these validation notices violated § 1692g(a). Janetos v. Fulton Friedman & Gullace, LLP, 2016 U.S. App. LEXIS 6361, *3 (7th Cir. Apr. 7, 2016). The required disclosures were not given. This ends the discussion. SLS’s Motion for Summary Judgment on this point must be denied. II. SLS’s collection fax violates the FDCPA SLS again fails to actually state the plain-English facts of their communications via fax to Plaintiffs. This communication, as already determined by this court, was a collection attempt. Order. Dkt. 38, p. 8-9. This fax was directed to Mrs. Green. This couldn’t be more clear: Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 13 of 33 14 Clearly, SLS intended this to be viewed by Mrs. Green only, because they included a warning for accidental recipients: Undaunted, SLS opens their collection attempt with a clear warning of their “attempt to collect a debt” and that they are a debt collector: The next aspect missing from SLS’s hit-or-miss review of the fax is the actual letter wasn’t addressed to a company named CBCInnovis, but was addressed specifically to the Greens: Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 14 of 33 Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 15 of 33 16 There is a next payment date (that clearly point out that the Greens are deemed delinquent, but more on that later) and there is a minimum payment due of $608.23. How else is could this be interpreted, other than the Greens owing a minimum payment of $608.23 to SLS? 2. The relationship between the parties show that this was a collection attempt In 2009 the Greens were forced by the economic meltdown to file for bankruptcy, and later lost their home in foreclosure. As of December 3, 2014, no in rem or in personam aspect of their relationship existed with their former loan servicer or the actual home. SLS repeatedly insists they had a “servicing” relationship (and while they argue the servicing relationship arose under RESPA, they don’t agree with RESPA’s definition of loan “servicing”) with the Greens. Nothing could be further from the truth. SLS was sending collection letters, faxes, and putting information on the Greens’ credit reports for Zombie Debt.6 The fax, on its face and in the context of their non-existent relationship, is a collection attempt. The warning on the top of the letter drives that point home - “THIS COMMUNICATION IS FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.” This is exactly the type of language that would induce an unsophisticated consumer to believe they owe a debt. 3. The context and content of collection fax show it was an attempt to collect Mr. Green and CBCInnovis were seeking information that the account was included in bankruptcy and therefore nothing was due and owing. In response, SLS provided a collection fax that said nothing about whether the loan was included in bankruptcy, but asserted a minimum payment amount of $608.23 due. SLS’s arguments that they were attempting to help the Greens 6 http://www.forbes.com/2008/10/31/debt-creditors-default-pf-education- in af 1031investopedia inl.html (last visited on September 10, 2016). Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 16 of 33 17 sort out the credit reporting issue is laughable, because they only added more incorrect information than was already on the table. They also stated: The time frame between October 1, 2009 (the alleged date the next payment was due) and June 1, 2015 (the date the fax was prepared) is 2069 days. This is indeed the number of “days delinquent” SLS is claiming the Greens were currently delinquent in payments. Additionally, SLS included a threat to report to the credit reporting agencies in March 2015.7 Indeed, this was a threat that they actually followed through on, as SLS argues they started reporting of this loan on March 1, 2015. All these statements, in the context of a request from Mr. Green to show that the debt was discharged, can clearly be construed in favor of the Greens as collection attempts. b. The collection fax was sent in violation of specific sections of the FDCPA. 1. SLS’s collection fax violates 1692e because it is facially false and misleading. The fax sent from SLS to the Greens does not require any form of a consumer survey or expert report, as argued supra regarding the collection letter. The fax contains facially false information that would mislead any unsophisticated consumer. As shown above, it falsely asserts that the Greens were 2069 days delinquent in payments, that a minimum payment of $608.23 was past-due, and that SLS would be placing information on their credit reports from March 2015 to the present. This threat of reporting (and the fact, discussed later, that they did actually report) is a threat of false credit information under § 1692e(8). 7 SLS’s story as to what happen continues to change, and now they claim it first reported on April 10, 2015. Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 17 of 33 18 Plaintiffs assert that it is false and misleading to any unsophisticated consumer when SLS made these statements to the Greens. These statements were facially false and would not be mitigated with the alleged “non-dimwit” status that SLS argues. The Greens knew they should not owe SLS any money and when SLS was asked to confirm this position, SLS merely doubled down and told the Greens they were delinquent, that they owed a minimum past-due (from October 1, 2009) payment of $608.23, and that the delinquency would be reported to their credit. This fax and collection attempt disrupted Plaintiffs’ lives and is expressly the type of behavior the FDCPA seeks to curb. See Mace v. Van Ru Credit Corp., 109 F.3d 338, 343 (7th Cir. 1997) (purpose of FDCPA is “curbing abusive debt collection practices”). See also 15 U.S.C. §§ 1692(a) and 1692(e). For these reasons, SLS’s motion for summary judgment should be denied as to Plaintiffs’ claims related to the fax. 2. SLC’s collection fax was unconscionable under § 1692f as it threatened negative credit reporting and demanded the next payment due. Plaintiff won’t repeat SLS’s failure to read § 1692f as related to “any amount” of money, versus their proposition that only “fees” are covered by the FDCPA. The focus of the analysis is on SLS’s attempt to collet money not allowed under law or statute. Again, the letter speaks for itself. It clearly states there is a next payment due, that the minimum payment is $608.23, that the Greens were 2069 days delinquent in their payments, and that SLS would report this information to their credit reports from March 2015 to the present. This is not the argument addressed in Turner, because Plaintiffs’ argument is not that receipt of “g notice” on a discharged debt is a violation of § 1692f. Plaintiffs’ contention is that SLS has engaged in the more insidious behavior (in addition to badgering them on zombie debt) of threatening to place the false information on their credit report. This is the unfair and Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 18 of 33 Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 19 of 33 20 is no safe harbor for a “single inaccurate report.” SLS points to no authority to their notion that that is the case. SLS’s argument on the credit report is as follows: 1) the FCRA governs credit reporting, 2) the FCRA allows the furnisher to receive notice of any error before liability ensues, 3) Plaintiffs do not have a claim against SLS under the FCRA, and 4) since there cannot be a claim under the FCRA, there can be no claim under the FDCPA. Plaintiffs agrees with the first three points of SLS’s analysis, but these points would actually only matter if there was a claim against SLS under the FCRA. There, however, is no claim against SLS under the FCRA. This brings us to SLS’s final point, that somehow the FDCPA “undermine[s] the elaborate framework for correcting reporting mistakes.” Defendant’s Brief. Dkt. 41, p. 38. SLS is asking this Court to ignore federal law, because they are willing to say anything at this point to avoid liability for their actions. Daley v. A & S Collection Assocs., Inc., 717 F. Supp. 2d 1150, 1155, (D. Or. 2010) (“This line of reasoning is flawed for a number of reasons. First, the FCRA does not provide that it is the exclusive remedy when a debt collector furnishes false information to a credit bureau.”). The FDCPA only applies to debt collectors. 15 U.S.C. § 1692a(6). It is a strict liability statute. Ruth at 800. It’s the applicable law in this case. It doesn’t matter that almost a month later SLS deleted the false information—the presence of the false information was the violation of the FDCPA. SLS may have mitigated damage by removing the information, but they did not evade liability. SLS argues ruling for Plaintiffs would mean that every reporting mistake would be an FDCPA violation. This is flies in the face of the actual text of the FDCPA, which states that when debt collectors report false information they know or should have known to be incorrect, the debt collector is liable. See § 1692e(8). SLS is a debt collector. They knew the Greens didn’t own the house. In fact, 1) they contacted a realtor on December 31, 2014 to sell Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 20 of 33 21 the property, 2) they did a physical inspection of the property on January 1, 2015, 3) they listed the house on February 3, 2015, 4) they signed an offer to purchase on February 13, 12015, and 5) they signed the deed on February 26, 2015. In other words, they knew the Greens didn’t own the house. They had the bankruptcy documents so show that nothing was owed. All of these events happened before SLS said they would start reporting the debt on March 1, 2015. SLS grossly mischaracterizes the FDCPA in an attempt to hide from the responsibility of their actions. b. SLS’s reporting was done in violation of the FDCPA. Credit reporting is a “powerful tool designed, in part, to wrench compliance with payment terms.” Rivera v. Bank One, 145 F.R.D. 614, 623 (D.P.R. 1993). See also Sullivan v. Equifax, Inc., 2002 U.S. Dist. LEXIS 7884, *15 (E.D. Pa. Apr. 19, 2002) (“Because reporting a debt to a credit reporting agency can be seen as a communication in connection with the collection of a debt, the reporting of such a debt in violation of the provisions of § 1692e(8) can subject a debt collector to liability under the FDCPA.”). The Sixth Circuit “assume[d] without deciding that the reporting of the debt … constitutes a ‘collection activity.’” Purnell v. Arrow Fin. Servs., LLC, 2008 U.S. App. LEXIS 25488, *17 n. 5 (6th Cir. 2008). See also Grace v. LVNV Funding, Inc., 22 F. Supp. 3d 700, 707-708 (W.D. Ky. 2014) (Defendant’s “act of reporting an amount owing that included an unlawful amount of disguised interest apparently violates three separate provisions of the FDCPA: attempting to collect an amount not permitted by law (15 U.S.C. § 1692f(1)), falsely representing the character, amount, or legal status of a debt (15 U.S.C. § 1692e(2)(A), and communicating credit information which is known or should be known to be false (15 U.S.C. § 1692e(8))”) Without any monetary obligation due and owing to SLS, they could not report any information to the Greens’ credit files. When SLS placed information on the Greens’ credit, they Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 21 of 33 22 either knew or should have known (with the documents they possessed or the fact that they sold the house) that they had no right to place any information on the Greens’ credit report, much less the false information they actually placed. With no in personam or contractual obligation, there was no right to report a correct tradeline, much less an incorrect one that did not speak of the bankruptcy or reported a false, late payment status to the Green’s credit reports. SLS knowingly reported false credit information, and they are liable to Plaintiffs under § 1692e(8). Section e(8) has two parts. The first part is discussed above and addresses the placement of false information on a credit report. The second part involves marking accounts as disputed when a consumer disputes the validity of a debt. Here, there is no claim that the account should have been marked as disputed. As such, SLS’s quoting of cases involving whether or not an account should be marked as disputed is similar to their argument that they didn’t violate the FCRA – it’s just not applicable. Defendant’s Summary Judgment motion on this matter must be denied, and Plaintiff’s motion should be granted. IV. SLS contacted Mrs. Green on the phone. SLS served a contention interrogatory, with answers due days before the dispositive motion deadline. While they were aware of Mrs. Green’s claim earlier, they now don’t like the claim. As Mrs. Green is providing a declaration stating that she was called, the fact is seen in the light most favorable to Plaintiffs and SLS’s Motion for Summary Judgment must be denied. V. The FDCPA violations were not the result of a bona fide error. SLS only claims the credit reporting of the Greens’ former loan was the result of a bona fide error, invoking the protection of 15 U.S.S. § 1692k(c). They plead that “[a]n SLS employee mistakenly and unintentionally miscoded the Greens' loan after the transfer of the loan to SLS occurred. The Greens' loan was miscoded as active rather than as a Real Estate Owned (REO) Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 22 of 33 23 property, which includes properties in the possession of the lender as a result of foreclosure.” Answer, Dkt 39, p. 6. Accordingly, the focus of the bona fide error is on when the error occurred (the alleged miscoding of the loan), and what procedures existed to prevent the type of error (the miscoding) that occurred. A review, at a broad level, of the “loan boarding” process is helpful before delving into the details regarding the alleged miscoding and prevention-procedures. These are the steps the data went through, after being transferred from Bank of America to SLS: • STEP ONE: Receiving information from Bank of America (“BoA”). SLS received information from BoA and began to process the information for eventual entry in their “LoanServ” software platform. • STEP TWO: Manual Employee Intervention. After receiving the data an employee, James DeJong, processed the incoming data. This involved the manual recoding of columns of data. • STEP THREE: Loan files are loaded into the PBS System – then testing occurs. The manually recoded data is then loaded into a computer system known as the Pre-Boarding System (PBS) where hundreds of tests, data studies, and quality assurance checks occur. If a data error is triggered, the individual loan is reviewed. • STEP FOUR: Loans are "scripted" from the PBS into LoanServ. Once the data has received an adequate review, something called a "script" moves the data from the PBS into the LoanServ (aka "Fiserv") platform. LoanServ/Fiserv is the software platform that provided information to the credit bureaus about the Greens. • STEP FIVE: Manual Employee Intervention. After the first manual employee intervention (Step Two), the PBS runs hundreds of quality assurance checks on the data Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 23 of 33 24 (Step 3). After the data is loaded from the PBS into LoanServ, Mr. DeJong was required to again manually code columns of data again. This is where the alleged miscoding occurred. No quality assurance checks or reviews were run after this second manual coding of data fields. • STEP SIX: Credit reporting occurred based on data in the LoanServ/Fiserv system. These steps will be referenced below to aid the court in analyzing the bona fide error alleged by SLS. In order to have a bona fide error, SLS must show “the violation: (1) was unintentional, (2) resulted from a bona fide error, and (3) occurred despite the debt collector’s maintenance of procedures reasonably adopted to avoid such error.” Ruth at 803. Viewing the facts in the light most favorable to Plaintiffs, SLS cannot establish that their violation occurred as a result of a bona fide error. As such, summary judgment must be denied. When the facts are viewed in the light most favorable to SLS, no reasonable jury could conclude that the credit reporting violation was the result of a bona fide error. As such, Plaintiffs ask that the court grant them summary judgment on this defense, holding that SLS’s act of reporting false information to the Greens’ credit was not the result of a bona fide error. This will provide for judicial economy at trial, as argued more fully in Plaintiffs motion for an extension on this issue. Dkt. 56. Under the three- part analysis of 1692k(c) and Ruth, SLS’s bona fide error defense fails: a. SLS cannot show that this “error” was unintentional. As the moving party, SLS must show that it is more likely than not that the alleged data coding error of Mr. DeJong was unintentional. Assuming for a moment that the loan was miscoded incorrectly, SLS would have to show some form of extrinsic evidence that the alleged miscoding was unintentional. Missing from their facts is evidence that it was an unintentional Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 24 of 33 25 mistake. SLS has testified that the error occurred after the loan was placed into LoanServ – while all of their training, policies, and procedures govern the actions that occurred before it was placed into LoanServ. The facts show that Mr. DeJong was working in an understaffed department, while working bizarre and unusual hours – including holidays and until 1am. This prong of the test fails for SLS because they have not alleged how their actions were unintentional. Additionally, SLS doesn’t know why the error actually happened. b. SLS cannot show the violation was the results of a bona fide error. SLS claims a bona fide error occurred, but they make this statement wearing a blindfold. Specifically, SLS claimed the error occurred when Mr. DeJong manually coded groups of loans after their final scripting into LoanServ (Step 5). Accordingly, Plaintiffs explored these facts during the deposition of SLS. What it revealed was the following: - SLS does not know the name of the data field Mr. DeJong allegedly miscoded - SLS did not actually look at the data field that was allegedly miscoded - SLS did not actually verify that a data field that should have been coded “6” was instead miscoded “1” In short, SLS has turned a blind-eye to any potential evidence in this case. With the burden of proof resting on them for this affirmative defense, they decided to not actually verify when and where Mr. DeJong allegedly made a mistake during Step 5 of the process. Instead, SLS looked through various databases to see if Steps 1-4 were followed. And rather than test their hypothesis that Mr. DeJong miscoded a data field in Step 5, SLS has propagated this hypothesis as the factual truth. But the truth is SLS has provided no evidence that the loan was miscoded by Mr. DeJong in Step 5; worse, they’ve refused to check the relevant database to Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 25 of 33 26 verify their hunch.8 If they have not actually identified where or when the error occurred (let alone even looked for the error) SLS is estopped from speculating that Mr. DeJong made an error (called a “fat-finger” typo by SLS) during data coding after the loan information was loaded into LoanServ (Step 5). If this was indeed a “fat-finger” typo, “1” is certainly not next to “6” on a keyboard. SLS admit that all the evidence in their possession shows the loan was “coded” as “REO” all along. They admit, but for the wrongful credit reporting, they treated the loan as an REO under their procedures.9 They sent the loan file to a sister corporation to sell the home, with the sale occurring in March 2015. If SLS was really treating the loan as active, it stands to reason that they wouldn’t have sold the home. After all, mortgage servicers shouldn’t sell a house out from under a homeowner. A “contrived mistake” is not a “genuine mistake.” Kort v. Diversified Collection Servs., Inc., 394 F.3d 530, 538 (7th Cir. 2005). SLS has postulated a theory that a manual coding error occurred in Step 5 – but they never even tried to check if this hypothesis was correct. In fact, they turned a blind eye to the evidence in their possession in an effort to evade liability. As such, their motion should be denied and Summary Judgment should be granted to Plaintiffs on the bona fide error. c. SLS does not have policies in place to avoid the violation that occurred. To prevail on a bona fide error defense, SLS must prove they maintain policies to avoid the specific violation that occurred. 15 U.S.C. § 1692k(c) and Ruth v. Triumph P'Ships at 803. Because SLS claims the error was a miscoding of the loan as a “1” instead of a “6” after the final 8 In furtherance of their sham-defense, SLS has admitted they do not even know the name of the data field that Mr. DeJong allegedly miscoded. 9 Plaintiff still alleges that SLS’s procedures are wrong, because despite the fact that the loan was coded and treated as an REO, SLS still sent collection letters and made collection calls. Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 26 of 33 27 boarding of the loan (Step 5), we look to the policies designed to prevent an error in Step 5. In short, SLS has no policies designed to stop this particular violation. Literally none. In support of their defense, SLS has posed four fallacious policies to act as red herrings. i. SLS’s Pre-Boarding and Boarding Data Testing Policies do not apply. SLS has policies regarding data testing during the pre-boarding to final boarding stage (Steps 3 and 4). Here’s the problem: these tests and data analytics occurred before the alledged coding error occurred. There is no way that these tests, even if they could catch the coding error (more on that later), would have actually caught the data coding error. The data testing simply occurred chronologically prior to the coding error. The arguments of SLS regarding their data analytics are nothing more than a machination to avoid the stark reality that their analytics could not have caught this error. They simply didn’t run analytics after the manual coding in Step 5. But what’s worth noting is that they do run the data analytics after Step 2 – the first event wherein human coding could make a “fat fingered” mistake. SLS goes to great lengths to make sure they run data quality checks after the first human coding of the data (Step 2), but literally does nothing to assure the quality of the data after the second human coding (Step 5). This presence and later absence, of data quality checks is instructive. It shows SLS wants to check for human errors after Step 2, but have zero compliance procedures and data checks after Step 5. SLS fails to show any evidence that a reasonable juror could construe in their favor on this issue. As such, Summary Judgment should be granted for Plaintiffs. ii. SLS policies were not designed to catch the “error” that occurred. None of the data testing or checks (i.e., polices) actually produced in this case was designed to catch the error that allegedly occurred. The policies and procedures followed during Steps 3 and 4 were not designed to catch the type of error that occurred during Step 5. While Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 27 of 33 28 SLS has propounded numerous proposed facts about various data review policies, not one of the policies they referenced were looking for the type of data error that allegedly occurred. Any data check that occurred at Steps 3 and 4 were to make sure there are no blank data fields.10 SLS isn’t looking to make sure a “loan code” entered is correct. Rather, these “data checks” ensure there is something in the column; the actual accuracy of the data in the column doesn’t matter. SLS’s contention that their policies were designed to catch the error that occurred is just plain rubbish. SLS also doesn’t have FDCPA policies (at least that they have produced). iii. Written policies and training do not Address the data coding error Additionally, SLS does not have written policies regarding how Mr. DeJong should have coded the loan. SLS has produced policies manuals that govern their policies for Steps 1-4, but nothing that governs how their employees are to conduct Step 5 of the process. The training materials produced also only relate to Steps 1-4, not to Step 5. In short, their training and policy manuals fall short of showing how they were designed to prevent the data coding error that allegedly occurred.11 Since the training must be tailored to prevent the error, SLS’s policies are akin to the fabled “emperor’s new clothes” – they are nonexistent. SLS cannot rely on their training for their bona fide error defense.12 iv. SLS ignored various opportunities to prevent the “error” In 2014, SLS made no attempt to “scrub” their data to see if an account had been 10 SLS deems that when data is missing from a field (or there isn’t a data field in a file that should otherwise be there) that it is an “illogical or inconsistent” situation. 11 SLS makes a passing reference to “FDCPA policies” in their brief. There is no proposed fact (nor any discovery that has been produced) to support this factual assertion. As such, Plaintiffs are unable to further respond. 12 SLS produced approximately 3,000 pages of fake/test databases that Mr. DeJong used for training purposes in 2012. All of these databases related to how information was handled in SLS’s process, on Steps 1-4. None of the training databases relate to Step 5, when his error allegedly occurred. Any attempt by SLS to argue about their voluminous training materials is nothing more than a farce. Quality of training and process, cannot be replaced by quantities of fake excel files. Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 28 of 33 29 discharged in a prior bankruptcy.13 If they had done such a bankruptcy scrub, they would have been alerted there should be no credit reporting as the loan had already been discharged in bankruptcy. Furthermore, contained within SLS’s records was evidence that the loan had previously been discharged in bankruptcy. After Mr. Green again provided them evidence that the loan had been discharged in bankruptcy, SLS concurred that it should never have been on the credit reports and stated: This is clear proof that when the bankruptcy discharge was finally recognized by SLS, they agreed the credit reporting was improper. Had SLS looked at the information they received from Bank of America in December 2014, they would have marked the entire loan (regardless of “Active, Code 1” or “REO, Code 6”) as in bankruptcy and blocked it from credit reporting. The Bank of America tradeline included in Plaintiffs’ moving brief on summary judgment shows that the account was marked by Bank of America as included in bankruptcy. Dkt. 49, p. 5. SLS’s claim of an “active” coding instead of an “REO” coding is simply a red herring, as a bankruptcy notation would have blocked the reporting regardless of Mr. DeJong’s alleged error. Looking at the “error” in the light most favorable to the Plaintiffs leaves no question that this was not a bona fide error. SLS’s arguments are riddled with speculation and polices that don’t apply. This is nothing more than an effort at misdirection with the court. When viewed in the light most favorable to SLS, this Court should find that no reasonable jury would find their speculation and inapplicable polices rise to the level of a bona fide error. A creative argument by 13 SLS now conducts a “scrub” for prior bankruptcies, to ascertain if the loans have been previously discharged. Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 29 of 33 30 SLS? Yes. An attempt to evade liability? Most certainly. But can SLS show that it was more likely than not that this was an unintentional, good faith mistake that somehow slipped through policies that were set up to catch such a mistake? No. VI. Plaintiffs suffered emotional distress as a result of SLS’s actions In the Seventh Circuit certain standards apply to emotional damages because they are “so easy to manufacture.” Aiello v. Providian Fin. Corp., 239 F.3d 876, 880 (7th Cir. 2001). If the consumer's own testimony is the only proof of emotional damages, the consumer must explain the circumstances of their injury in reasonable detail; conclusory statements are insufficient. Ruffin-Thompkins v. Experian Info Solutions, 422 F.3d 603, 610 (Fed. 7th Cir., 2005). However, third party statements are helpful in establishing that the consumer has indeed suffered from compensable emotional distress. McKeown v. Sears Roebuck & Co., 335 F.Supp.2d 917, 932 (W.D. Wis., 2004). In this case, Plaintiffs are able to show their emotional distress through their own testimony and the testimony of those who witnessed their distress. As such, they are providing more than sufficient explanation of their emotional distress to create a material issue of fact. In a bold move, SLS has moved for summary judgment on Plaintiffs’ emotional distress claims without ever having deposed the Plaintiffs or any of the third-party witnesses they disclosed. Accordingly, their position at this juncture is that they do not believe Plaintiffs can prove the issue of damages. SLS focuses not on their violation of the statute under this section, but rather that Plaintiffs have suffered no emotional distress as a result of their violations.14 In this case, the Plaintiffs have described with demonstrable particularity their emotional distress by their statements and provide a corroborating witness. These declarations, filed in 14 Plaintiff notes that Defendant has not attacked their other requests for relief in the amended complaint related to their actual damages, but merely the damages related to emotional distress. Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 30 of 33 31 opposition to Defendants proposed facts, show that Plaintiffs indeed have demonstrated with particularity some of the following: • Mrs. Green, because of SLS’s actions become so upset that she began to throw things in frustration at work, feel like a loser, worry that her ex-husband (whom she cared for and respected) would commit suicide, became nervous, and suffered from a breakout of skin rashes. • Mr. Green, because of SLS’s actions had thoughts of suicide, barricaded himself in his home with firearms with thoughts of killing himself or anyone who may have come to his door, felt bullied, became physically and emotionally enraged, experienced suicidal emotions, experienced homicidal emotions, lost weight worrying, and eventually felt depressed. Again, this is just a summary of the demonstrable emotional distress given in dispute of SLS’s contention that damages cannot be proven. Other courts have found compensable emotional distress claims existed when a “[p]laintiff ha[d] submitted an affidavit from his wife, chronicling a change in plaintiff's behavior (subdued, stunned and distracted behavior), physical manifestations (flushing), restless sleeping between the time he learned of the notation of deceased until the mortgage closed and anxiety about the possibility of other credit errors, such as having a credit card denied in front of a business associate.” McKeown at 932. Here, Plaintiffs have established this level of particularity – and more. Like McKeown, there is evidence from at least one third party chronicling the symptoms of emotional distress of Mr. Green – a change in his behavior (yelling, angry, and depressed), physical manifestations (lost weight), suicidal thoughts, and anxiety that resulted from the actions of SLS. Mrs. Green has submitted evidence in far greater demonstrable detail than the Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 31 of 33 32 plaintiff in Ruffin-Thompkins. In the current case, Mrs. Green has chronicled a change in her behavior (yelling, throwing things, and extreme worry for her ex-husband), physical manifestations (increased weight and skin rashes), and anxiety about the possibility of not being rid of a mortgage discharged in bankruptcy. Plaintiffs have more than met their burden to establish sufficient evidence of emotional distress. As such, SLS’s motion should be denied on this issue. CONCLUSION This Court has already concluded that the letter and fax were attempts to collect a debt under the FDCPA. While SLS has tried to escape liability, there are sufficient facts in dispute to warrant denial of summary judgment on all grounds. SLS’s claim for a bona fide error fails as a faux defense, particularly as they did not even have policies that were designed to prevent this type of violation. As such, there summary judgment request on this ground fails, and the court should grant summary judgment in favor of Plaintiffs as to the bona fide error. Finally, Plaintiffs have provided sufficient evidence to substantiate their claims of emotional distress. Respectfully submitted this 19th day of September, 2016. s/ Heidi N. Miller Nathan E. DeLadurantey, 1063937 Heidi N. Miller, 1087696 DeLadurantey Law Office, LLC 735 W. Wisconsin Ave, Suite 720 Milwaukee, WI 53233 Telephone: (414) 377-0515, Fax: (414) 755-0860 Email: nathan@dela-law.com Email: heidi@dela-law.com Matthew C. Lein, 1084028 15692 Hwy 63 North PO Box 761 Hayward, Wisconsin 54843 Telephone: (715) 634-4273; Fax: (715) 634-5051 Email: mlein@leinlawoffices.com Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 32 of 33 33 ATTORNEYS FOR PLAINTIFFS Case: 3:15-cv-00513-jdp Document #: 63 Filed: 09/19/16 Page 33 of 33