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Alanis v. Nationstar Mortgage LLC

United States District Court, W.D. Texas, San Antonio Division

August 23, 2019

NANCY K. ALANIS, Plaintiff,
v.
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 JUDGE

          ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE.

         To the Honorable Chief United States District Judge Orlando L. Garcia:

         This 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.

         I. Procedural Background

         On 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.

         On May 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.

         II. Summary-Judgment Standard

         Summary 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).

         The 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).

         “After 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).

         III. Facts Established by the Summary-Judgment Record

         The 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 home-equity loan.

         Despite 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.)

         On 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 ...


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