Enis v. Bank of Am., N.A.
| Decision Date | 22 April 2013 |
| Docket Number | Civil Action No. 3:12-CV-0295-D |
| Parties | CODY ENIS, Plaintiff, v. BANK OF AMERICA, N.A., AS SUCCESSOR BY MERGER TO BAC HOME LOANS SERVICING, L.P., Defendant. |
| Court | U.S. District Court — Northern District of Texas |
Defendant Bank of America, N.A. ("BOA") moves for summary judgment dismissing the claims of plaintiff Cody Enis ("Enis") for unreasonable collection efforts and violations of the Texas Debt Collection Practices Act ("TDCPA"). For the reasons that follow, the court grants BOA's motion in part and denies it in part.
Enis purchased residential property in 2007, executing a promissory note in favor of BSM Financial, L.P. d/b/a Banksource Mortgage ("BSM").1 The deed of trust named Mortgage Electronic Registration Systems, Inc. ("MERS") as the beneficiary. Beginning in 2009, Enis struggled to make his note payments, but he avers that he entered into a modifiedpayment plan with Taylor, Bean & Whitaker Mortgage Co. ("TB&W"), the company then servicing the note. Enis maintains that he made monthly payments according to that agreement.
In August 2009 Enis learned that TB&W had gone into receivership, and he did not know where to send his monthly payments. He received notice that BAC Home Loans Servicing, L.P. ("BAC") was now servicing the note. Because BAC is now a subsidiary of BOA, the court will refer to BAC's alleged conduct as if it were BOA's for purposes of deciding this motion. See Enis v. Bank of Am., N.A., 2012 WL 4741073, at *1 n.2 (N.D. Tex. Oct. 3, 2012) (Fitzwater, C.J.) ("Enis I").
In October 2009 BOA notified Enis by letter that he was four months behind on his payments. Enis maintains that this notice was incorrect based on his arrangement with TB&W. Enis submitted bank statements showing payments to TB&W. According to Enis, BOA refused to accept this as sufficient proof of payment and still has not credited him with payments he made to TB&W. Based on its review of its records, BOA maintains that all of Enis' payments to TB&W have been fully applied to his mortgage.
In October 2009 Enis applied for loan modification, which was denied. BOA states that it was denied because Enis' income was too low. Enis asserts that BOA denied his application because he failed to submit the requested documents. He alleges that, after BOA informed him that it had not received his documents, he again submitted the requested documents and received confirmation from the shipping company that BOA had signed for the package. But when Enis called BOA to verify its receipt of the paperwork, he wasinformed that BOA had only received a single sheet of paper, and therefore that his loan modification application would be denied.
From February 2010 to November 2011, BOA attempted to collect Enis' delinquent loan. During this period, BOA placed 110 telephone calls to Enis, of which he answered 31. According to BOA, its records show that no calls were placed after 7:00 p.m, but Enis avers that he received calls as early as 8:00 a.m. and as late as 11:00 p.m.2 It is undisputed that BOA did not threaten Enis or his family with violence or bodily harm.
BOA states that Enis has paid his mortgage through May 2010. In October 2010 Enis was notified that, if he failed to bring his mortgage current by November 2010, his mortgage would be accelerated in full and foreclosure proceedings would begin.
Enis filed suit in state court to prevent foreclosure and to recover damages from BOA on various claims. BOA removed the case to this court. The court has previously addressed BOA's motions to dismiss under Fed. R. Civ. P. 12(b)(6) and for judgment on the pleadings under Rule 12(c). Enis' remaining claims are for unreasonable collection efforts, violations of the TDCPA, and violations of the Real Estate Settlement Procedures Act ("RESPA"). SeeEnis I, 2012 WL 4741073, at *5-6 (); Enis v. Bank of Am., N.A., 2013 WL 840696, at *3 (N.D. Tex. Mar. 7, 2013) (Fitzwater, C.J.) ("Enis II") (). BOA moves for summary judgment dismissing Enis' claims for unreasonable collection efforts and violations of the TDCPA.3
Because BOA is moving for summary judgment on claims for which Enis will bear the burden of proof at trial, BOA can meet its summary judgment obligation by pointing the court to the absence of admissible evidence to support Enis' claims. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Once BOA does so, Enis must go beyond his pleadings and designate specific facts showing that there is a genuine issue for trial. See id. at 324; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue is genuine if the evidence is such that a reasonable jury could return a verdict in Enis' favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Enis' failure to produce proof as to any essential element of a claim renders all other facts immaterial. See Trugreen Landcare, L.L.C. v. Scott, 512 F.Supp.2d 613, 623 (N.D. Tex. 2007) (Fitzwater, J.) (citing Edgar v. Gen. Elec. Co., 2002 WL 318331, at *4 (N.D. Tex. Feb. 27, 2002) (Fitzwater, J.)). Summary judgment is mandatory if Enis fails to meet this burden. Little, 37 F.3d at 1076.
The court first turns to Enis' claim of unreasonable collection efforts.
The intentional tort claim of unreasonable collection efforts "requires a showing that debt collection efforts 'amount[ed] to a course of harassment that was willful, wanton, malicious, and intended to inflict mental anguish and bodily harm.'" Enis I, 2012 WL 4741073, at *5 (); see also Hidden Forest Homeowners Ass'n v. Hern, 2011 WL 6089881, at *4 (Tex. App. Dec. 7, 2011) (mem. op.) (same).4
Although Texas courts have not clearly defined the elements of this tort and have stated that "the conduct deemed to constitute an unreasonable collection effort varies from case to case," see EMC Mortgage, 252 S.W.3d at 868, federal district courts have enforcedthe EMC Mortgage definition5 literally and have required that plaintiffs show that the willful course of harassment was intended to inflict both mental anguish and bodily harm. See, e.g., Myers v. Bank of Am., N.A., 2012 WL 1107687, at *4 (E.D. Tex. Mar. 31, 2012) (); Vanderbilt Mortg. & Fin., Inc. v. Flores, 747 F.Supp.2d 794, 818 (S.D. Tex. 2010) (); see also Moye v. Fed. Home Loan Mortg. Corp., 2012 WL 3048858, at *5 (S.D. Tex. July 25, 2012) (). Although the Fifth Circuit has not addressed the precise question whether a plaintiff must show an intent to inflict bodily harm, it has concluded that a district court did not err in adopting the EMC Mortgage standard. See De Franceschi v. BAC Home Loans Servicing, L.P., 477 Fed. Appx. 200, 204-05 (5th Cir. 2012).
Courts generally limit this tort to actual collection efforts (such as telephone calls that seek to collect on a debt) as opposed to communications or conduct concerning other aspects of the debtor's loan (such as actions concerning loan modification). See Enis I, 2012 WL 4741073, at *5 & n.7; see also Montgomery Ward & Co. v. Brewer, 416 S.W.2d 837, 844 (Tex. Civ. App. 1967, writ ref'd n.r.e.) ().
Because this tort is limited to collection efforts, much of the evidence on which Enis relies does not support his claim. He maintains that BOA undertook unreasonable collection efforts by sending a letter that incorrectly stated he was four months behind in his payments; refusing to acknowledge his payment plan with TB&W promising loan modification and to refrain from foreclosing; denying loan modification; falsely representing that it did not receive his loan modification documents; failing to provide information in response to his RESPA request; and harassing him with telephone calls. As this court noted in Enis I, only the telephone calls qualify as collection efforts. See Enis I, 2012 WL 4741073, at *5 n.7 (); see also Narvaez v. Wilshire Credit Corp., 757 F.Supp.2d 621, 636 (N.D. Tex. 2010) (Lynn, J.) (); Richardson v. Wells Fargo Bank, N.A., 873 F.Supp.2d 800, 814 (N.D. Tex. 2012) (McBryde, J.) (); Rhodes v. Wells Fargo Bank, N.A., 2012 WL 5363424, at *28 (N.D. Tex. Oct. 31, 2012) (Lindsay, J.) (collecting cases).
Making harassing telephone calls to a debtor can constitute unreasonable collection efforts. See Enis I, 2012 WL 4741073, at *5 (citing Bray v. Cadle Co., 2010 WL 4053794,at *18-19 (S.D. Tex. Oct. 14, 2010)). Such claims have succeeded when collection agents called a debtor five times in one night and once threatened personal violence. See Pioneer Fin. & Thrift Corp. v. Adams, 426 S.W.2d 317, 319 (Tex. Civ. App. 1968, writ ref'd n.r.e.). As evidence that BOA's telephone calls were a willful course of harassment intended to inflict mental anguish and bodily harm, Enis avers that ...
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