Cook v. Green Tree Servicing, LLC

• Citation: 154 F.Supp.3d 742
• Decision Date: 05 January 2016
• Docket Number: Case No. 13-cv-01189-JPG-DGW
• Parties: Harmon V. Cook, Jr. and Pamela Cook, Plaintiffs, v. Green Tree Servicing, LLC, Defendant.
• Court: U.S. District Court — Southern District of Illinois

154 F.Supp.3d 742

Harmon V. Cook, Jr. and Pamela Cook, Plaintiffs,

v.Green Tree Servicing, LLC, Defendant.

Case No. 13-cv-01189-JPG-DGW

United States District Court, S.D. Illinois.

Signed January 5, 2016

Richard L. Steagall, Ryan S. McCracken, Nicoara & Steagall, Peoria, IL, for Plaintiffs.

Donald K. Schoemaker, Greensfelder, Hemker et al., Belleville, IL, Jonathan N. Ledsky, Scott J. Helfand, Whyte Hirschboeck Dudek SC, Chicago, IL, for Defendant.

MEMORANDUM and ORDER

J. PHIL GILBERT

, DISTRICT JUDGE

This matter comes before the Court on cross motions for summary judgment. Defendant Green Tree Servicing, LLC (“Green Tree”) filed its Motion (Doc. 49) for Summary Judgment followed by Plaintiffs' Motion (Doc. 51) for Summary Judgment. Both parties filed timely responses.

I. Background.

This matter was brought pursuant to the Fair Debt Collection Practices Act (“FDCPA”)(15 U.S.C. § 1692 et seq .

) and the Illinois Consumer Fraud and Deceptive Business Practices Act (“Consumer Fraud”)(815 ILCS 505/1 ) which incorporated Section 2 of the Uniform Deceptive Trade Practices Act (815 ILSC 510/2). The Plaintiffs alleged that the Defendant Green Tree violated the various acts while attempting to collect a mortgage debt on the property owned by the Plaintiffs located in Madison County, Illinois.

The property in question was subject to a first and second mortgage note through GMAC Mortgage (“GMAC”). GMAC assigned one of the mortgages to Owen Loan Servicing with a transfer date of February 16, 2013 and that mortgage was subsequently paid. The other mortgage was transferred to Green Tree with an effective date of February 1, 2013. The Plaintiffs made payments on the second note to GMAC through December of 2012, but have failed to make any payments to Green Tree alleging that they have never received proper notice of the transfer.

The Plaintiffs received notice from GMAC Mortgage¹ dated January 22, 2013² that it was transferring the servicing of their mortgage to Green Tree. They also received correspondence from Green Tree dated February 6, 2013 stating that it had assumed the serving of the GMAC Mortgage. On February 10^th, 2013, Green Tree sent Plaintiffs written correspondence informing them that their account representative was Tameka J. and provided Tameka's contact information. The Plaintiffs telephoned Tameka who indicated that the property was in foreclosure. Plaintiffs then sought counsel.

Their counsel, Richard Steagall, requested documentation from Green Tree on their right to receive the payments on the GMAC mortgage. Over the next several months, counsel attempted to obtain specific documentation with no satisfactory results.

In July of 2013, the Plaintiffs were contacted by the law firm of Johnson, Blumberg, & Associates, LLC and informed that they owed Green Tree $140,965.19. Another correspondence from Johnson, Blumberg, & Associates, LLC that month stated that the mortgage loan had been referred for foreclosure. Counsel for Plaintiffs contacted the law firm and again attempted to obtain documentation demonstrating that Green Tree had a right to receive the payments on the GMAC mortgage. When Plaintiffs were not satisfied with the responses they received, they filed suit in the Circuit Court of the Third Judicial Circuit, Madison County, Illinois and the defendant removed to the Southern District.

The Plaintiffs move for summary judgment on the following issues:

“1. Green Tree Servicing LLC sent 11 letters to Harmon Cook and/or Pamela Cook after its agents knew the Cooks were represented by Richard L. Steagall, an attorney, and has violated 15 U.S.C. § 1692(c)(2)

.

2. Green Tree Servicing LLC did not cease collection efforts and provide validation that GMAC Mortgage LLC had assigned its rights to service the first GMAC mortgage on the Cooks' home owned by Fannie Mae until it produced the assignment agreements on December 17, 2014 in compliance with this court's December 12, 2014 Order and has violated 15 U.S.C. § 1692g(b).

3. Fannie Mae from Green Tree Serving LLC's May 7, 2013 letter and the Assignment Agreements produced under the December 12, 2014 Order is the owner of the Cooks' GMAC first mortgage. Green Servicing LLC through its authorized agents falsely prepared an Assignment of Mortgage from GMAC Mortgage LLC to Green Servicing LLC on July 3, 2013 and recorded the document with the Madison County Record of Deeds on July 5, 2013. The Assignment is a false statement in connection with collection of a debt in violation of 15 U.S.C. § 1692c. It is also false and deceptive conduct in trade or commerce in violation of Section 2 of the Illinois Consumer Fraud Act. 815 ILCS 510/2.”

The Defendant does not list specific issues, but moves for summary judgment on Plaintiffs' Complaint stating Plaintiffs' claims fail as a matter of law. As such, the Court will review the entire complaint to determine whether either party is entitled to summary judgment on the allegations.

II. Standard .

Summary judgment must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a)

; see

Celotex Corp. v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Spath v. Hayes Wheels Int'l-Ind., Inc. , 211 F.3d 392, 396 (7th Cir.2000). The reviewing court must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in favor of that party. See

Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Chelios v. Heavener , 520 F.3d 678, 685 (7th Cir.2008) ; Spath , 211 F.3d at 396.

The nonmoving party may not simply rest upon the allegations contained in the pleadings but must present specific facts to show that a genuine issue of material fact exists. Celotex , 477 U.S. at 322–26, 106 S.Ct. 2548

; Anderson , 477 U.S. at 256–57, 106 S.Ct. 2505 ; Modrowski

v. Pigatto , 712 F.3d 1166, 1168 (7th Cir.2013). A genuine issue of material fact is not demonstrated by the mere existence of “some alleged factual dispute between the parties,” Anderson , 477 U.S. at 247, 106 S.Ct. 2505, or by “some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Rather, a genuine issue of material fact exists only if “a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505

.

III. Analysis .

A. Correspondence in Violation of § § 1692c & 1692g of the FDCPA.

The Defendant admits that the Plaintiffs sent “multiple letters to Green Tree demanding additional information about the transfer of servicing of Borrowers' loan to Green Tree.” (Doc. 50, pg 4) However, Defendant states that they responded to the correspondence and provided the Plaintiffs with the information required by the FDCPA—yet the Plaintiffs refused to remit their mortgage payments to Green Tree.

The FDCPA § 1692g

requires that:

(a) Notice of debt; contents

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

Plaintiffs received notice from GMAC Mortgage dated January 22, 2013, that it was transferring the servicing of their mortgage to Green Tree and that the Plaintiffs, pursuant to Section 6 of the Real Estate Settlement Procedures Act (RESPA)(12 U.S.C. § 2605

), had 60 days to “make appropriate corrections to your account and must provide you with a written clarification regarding any dispute.” (Doc. 50-7, pg 4).

Plaintiffs then received a letter from Green Tree dated February 6, 2013, which appears to be the initial contact from Green Tree to the Plaintiffs. That correspondence included the information that the mortgage loan was transferred from GMAC to Green Tree, another RESPA Notice, but no other information as required by § 1692g(a) of the FDCPA. (Doc. 54-4).

The first written correspondence from the Plaintiffs to Green Tree appears to be a letter from their attorney dated March 6, 2013³ . The March 6, 2013 letter states that, “The February 10, 2013 letter does not correctly set forth the debt and does not comply with the Fair Debt Collection Act.” It went on to state that the debt was disputed pursuant to 15 U.S.C. § 1692g(b)

.

The February 10, 2013, letter from Green Tree notified the Cooks of their assigned account representative, but again failed to include any of the requirements of § 1692g(a)

. The next correspondence from Green Tree to the Plaintiffs appears to be March 7, 2013, and also failed to include the requirements of § 1692g(a).

The first correspondence that appears to have complied with the requirements of § 1692g(a) of the FDCPA for the contents of the notice of debt is the letter from Green Tree, through their counsel, to the Plaintiffs dated July 5, 2013. As the initial written communication was February 6, 2013, the...