United States District Court, W.D. Texas, San Antonio Division
NANCY K. ALANIS, Plaintiff,
NATIONSTAR MORTGAGE LLC, d/b/a MR. COOPER, and KELLY HARVEY, P.C., d/b/a HARVEY LAW GROUP, Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES
Honorable Chief United States District Judge Orlando L.
Report and Recommendation concerns Defendant Nationstar
Mortgage LLC, doing business as Mr. Cooper's
(“Nationstar”), Motion for Summary Judgment
[#71]. Also before the Court is Plaintiff Nancy K.
Alanis's (“Alanis”) Response to
Nationstar's Motion for Summary Judgment [#77] and
Nationstar's Reply in Support of Its Motion for Summary
Judgment [#78]. On May 11, 2018, the Honorable Orlando L.
Garcia referred all pre-trial proceedings in this case to the
undersigned for disposition pursuant to Rule 72 of the
Federal Rules of Civil Procedure and Rules CV-72 and 1(c) of
Appendix C of the Local Rules of the United States District
Court for the Western District of Texas [#14]. The
undersigned has authority to enter this Report and
Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For
the reasons set forth below, it is recommended that
Nationstar's Motion for Summary Judgment be GRANTED IN
PART AND DENIED IN PART.
February 9, 2018, Alanis, on behalf of herself and all others
similarly situated, filed a complaint against Nationstar and
Defendant Kelly Harvey, P.C., doing business as Harvey Law
Group (“Harvey”) (collectively,
“Defendants”) [#1], alleging claims under the
Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. §§ 1692-1692p, and the Texas Debt Collection
Act (“TDCA”), Tex. Fin. Code Ann. §§
392.001-392.404 (West 2019). Specifically, Alanis claims that
Defendants violated these statutes by using false, deceptive,
or misleading representations or means in their attempts to
collect an alleged, but non-existent, debt from her.
4, 2018, Harvey filed a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) [#12]. On September 4, 2018,
the undersigned recommended that Harvey's motion to
dismiss be denied [#29]. The District Court accepted the
undersigned's recommendation on November 20, 2018 [#39].
On February 14, 2019, Alanis filed an amended complaint
[#59], which dropped all class-action allegations and is the
live pleading in this case. On June 28, 2019, Nationstar
filed a motion for summary judgment [#71], which is ripe and
the subject of this Report and Recommendation. Harvey has not
moved for summary judgment.
judgment is appropriate under Rule 56 of the Federal Rules of
Civil Procedure only “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also
Fed.R.Civ.P. 56(c). A dispute is genuine only if the evidence
is such that a reasonable jury could return a verdict for the
non-moving party. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
party moving for summary judgment bears the initial burden of
informing the district court of the basis for its motion and
identifying those portions of the record that it believes
demonstrate the absence of a genuine issue of material fact.
See Celotex Corp., 477 U.S. at 323. Once the movant carries
its burden, the burden shifts to the non-moving party to
establish the existence of a genuine issue for trial. See
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Wise v. E.I. Dupont de Nemours
& Co., 58 F.3d 193, 195 (5th Cir. 1995). The
non-movant must respond to the motion by setting forth
particular facts indicating that there is a genuine issue for
trial. See Miss. River Basin Alliance v. Westphal,
230 F.3d 170, 174 (5th Cir. 2000). The parties may satisfy
their respective burdens by tendering depositions,
affidavits, and other competent evidence. See Topalian v.
Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The Court
will view the summary-judgment evidence in the light most
favorable to the non-movant. See Rosado v. Deters, 5
F.3d 119, 123 (5th Cir. 1993).
the non-movant has been given the opportunity to raise a
genuine factual issue, if no reasonable juror could find for
the non-movant, summary judgment will be granted.”
Westphal, 230 F.3d at 174. However, if the party moving for
summary judgment fails to satisfy its initial burden of
demonstrating the absence of a genuine issue of material
fact, the motion must be denied, regardless of the
non-movant's response. See Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).
Facts Established by the Summary-Judgment Record
relevant facts, viewed in the light most favorable to Alanis,
are as follows. Alanis owned property located at 1040 Blanco
Road, San Antonio, Texas 78212 (“the Property”).
(Decl. of Nancy K. Alanis (“Alanis Decl.”)
[#77-1] ¶ 6 & Ex. A-3, at 1.) In July 2016, Alanis
obtained a $96, 000 home-equity loan from CIT Group/Consumer
Finance, Inc., which was secured by a deed of trust on the
Property. (Alanis Decl. ¶ 3 & Ex. A-1, at 1.) The
loan was subsequently transferred to U.S. Bank National
Association (“U.S. Bank.”). (Id.) U.S.
Bank initiated foreclosure proceedings on the Property, and
it was sold at a foreclosure sale in January 2010. (Alanis
Decl. ¶ 4 & Ex. A-1, at 1-2.) Alanis unsuccessfully
challenged the foreclosure proceedings in state court.
(Alanis Decl. ¶ 5.) The parties do not dispute that this
foreclosure sale extinguished Alanis's obligations on the
the 2010 foreclosure sale, on August 5, 2013, U.S. Bank sent
Alanis a letter stating that Nationstar was the new servicer
of her loan and that Nationstar, rather than U.S. Bank, has
the authority and responsibility to make decisions regarding
her loan. (Alanis Decl. ¶ 6 & Ex. A-2, at 1.) On
August 23, 2013, the deed of trust executed by Alanis in
favor of the original lender was assigned to Nationstar.
(Alanis Decl. ¶ 6 & Ex. A-3, at 1.) Alanis sent
three letters to Nationstar on September 3, 2013, April 10,
2014, and May 15, 2015. (Alanis Decl. ¶ 7 & Exs.
A-4, A-5, A-6.) Each letter requested, among other things, a
coupon book (a set of preprinted payment stubs that a
mortgage broker provides to the borrower) to ensure timely
monthly payments on her mortgage. (Alanis Decl. ¶ 7
& Exs. A-4, A-5, A-6.) Alanis did not receive a coupon
book from Nationstar. (Alanis Decl. ¶ 7.) Alanis called
Nationstar on at least ten separate occasions in an attempt
to “straighten this situation out.” (Id.
at ¶ 9.)
February 9, 2017, Harvey, on behalf of U.S. Bank and
Nationstar, sent two letters to Alanis. (Compl. [#1] Exs. B
& C.) One letter was titled “Fair Debt Collection
Practices Act Notice, ” and advised that “[o]ur
clients have requested that we institute foreclosure
proceedings in regard to the above referenced Note. This
communication is from a debt collector and any information we
obtain will be used for that purpose.” (Compl. Ex. B at
1.) The letter also represented that, “[a]s of February
26, 2017, the total amount due to pay off the above
referenced loan is $213, 106.96, ” and that:
The law does not require us to wait under the end of the
thirty (30) day period before beginning the foreclosure
proceeding. If however you request proof of the validity of
the debt or the name and address of the original creditor
within the thirty (30) day period that begins with receipt of
this letter, the law requires us to suspend our efforts to
foreclose and collect the debt until we mail the requested
information to you.
(Id.) The other letter was titled “Notice of
Acceleration, ” and stated that “[t]his
communication is from a debt collector and this is an attempt
to collect a debt and any information obtained will be used
for that purpose.” (Compl. Ex. C at 1.) The letter also
informed Alanis that, “[s]ince the default was not
cured, the Note has been ...