Harrington v. Roundpoint Mortg. Servicing Corp.
| Decision Date | 10 April 2017 |
| Docket Number | Case No: 2:15-cv-322-FtM-38MRM |
| Parties | LARRY HARRINGTON, Plaintiff, v. ROUNDPOINT MORTGAGE SERVICING CORPORATION and MULTIBANK 2010-1 SFR VENTURE, LLC, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court upon review of Defendants RoundPoint Mortgage Servicing Corporation's ("RoundPoint") and Multbank 2010-1 SFR Venture, LLC's ("Multibank") Motion for Summary Judgment filed on January 9, 2017. (Doc. 111). Plaintiff Larry Harrington ("Harrington") filed his Response in Opposition on January 23, 2017. (Doc. 120). Pursuant to leave granted by the Court, Defendants then filed a Reply (Doc. 125) on February 6, 2017 and Harrington filed a Sur-Reply on February 13, 2017. (Doc. 130). This matter is ripe for review.
This case involves allegations that Defendants violated federal and state statutes by attempting to collect a debt through repeated automatically-dialed telephone calls without first obtaining consent to do so from the debtor. In September of 2003, Harrington and his wife, Lori Harrington (collectively, the "Harringtons"), executed an agreement (the "Construction Agreement") with Oyster Bay Homes, Inc. ("Oyster Bay") in anticipation of building a home at 3161 Rustic Lane, North Fort Myers, Florida 33917 (the "Property"). (Doc. 111-5). Notably, the Construction Agreement included Harrington's cell phone number (the "5307 Number").
On November 26, 2003, Harrington and Lori Harrington took out a loan ("Loan") with Riverside Bank of the Gulf Coast ("Riverside Bank") in connection with their purchase of the Property. (Doc. 111-3). In so doing, they executed a promissory note ("Promissory Note") in favor of Riverside Bank that was secured by a mortgage ("Mortgage") on the Property. (Doc. 111-3, 111-4). The Note and Mortgage were then put together in a file for the Loan.
In 2009, Riverside Bank was taken over by the Federal Deposit Insurance Company ("FDIC"), and in the process the FDIC acquired all of Riverside Bank's loans. (Doc. 111 at ¶ 6). Later, Multibank acquired the loan from the FDIC, who, as a result of the transaction, transmitted a file containing the Note and Mortgage (the "Loan File") to RoundPoint, Multibank's debt service company. (Doc. 111-2 at ¶ 8). The file that RoundPoint received also contained the Construction Agreement.2 (Doc. 111-2 at ¶ 8).
The Harringtons subsequently defaulted on their obligations vis-à-vis the Note by failing to make a payment that was due on September 1, 2010. (Doc. 111-2 at ¶ 9). RoundPoint, acting as Multibank's loan servicer, tried to contact the Harringtons telephonically to discuss their obligations. (Doc. 111-2 at ¶¶ 10, 14). But, RoundPoint alleges that from September 2010 until November 29, 2010 it was unable to do so because the telephone numbers it had for the Harringtons were disconnected. (Doc. 111-2 at 21).
That purportedly changed on November 29, 2010, when Defendants allege that Harrington called to check on the status of the loan and, in so doing, provided RoundPoint with the 5307 Number.3 (Doc. 111-2 at ¶ 20). While RoundPoint does not have a transcript of this call, an entry on an internal activity database for that day reads "BRRW CALLED RQST STATS OF ACCT." (Doc. 111-6 at 3). The next day, the 5307 Number was entered into RoundPoint's contact database for the Harringtons. (Doc. 111-6 at 3).
From November 29, 2010 until June 2, 2011, Defendants allege that only one call was placed to the 5307 number.4 (Doc. 111-2 at ¶ 22). Nevertheless, on June 2, 2011, Defendants received a telephone call from someone purporting to be Lori Harrington, who wished to inquire about hazard insurance on the Property. (Doc. 111-9 at ¶ 3). Prior to engaging in substantive conversation, the RoundPoint representative asked a series of questions that were employed as a security mechanism to verify the caller's identity. The caller then responded to these questions by providing the Loan number, the last four digits of both Harrington's and Lori Harrington's social security number, and the Property address. (Docs. 111-9 at ¶ 3-6; 111-10 at 2:19-3:18; 120-25 at 41:24-42:8). Importantly, the caller was also asked for a phone number that she could be reached at, and in response she supplied the 5307 Number as the "main number." (Doc. 111-10 at 3:19-4:1). Harrington has since claimed that the caller was not actually Lori Harrington, but Harrington's daughter, Jamie Harrington, who called at Lori Harrington's direction and with her consent. (Doc. 120-6 at ¶ 9, 120-3). In any event, RoundPoint began attempting to contact the Harringtons via the 5307 Number on that day and continued to do so in the days, months, and years that followed. (Docs. 111-2 at ¶ 27; 111-7 29-58).
On June 28, 2011, Harrington called RoundPoint to request information regarding his account. (Doc. 111-11 at 2:6-10). After asking a series of security questions that did not include requesting a telephone number where he could be reached, RoundPoint informed him that his mortgage was in foreclosure because the account had been behind since September 2010. (Doc. 111-11 at 4:2-3). The representative then stated that the account had been stopped and that RoundPoint was intent on conducting foreclosure proceedings if it did not receive payment. (Doc. 111-11 at 5:10-15). The representative then stated that "[RoundPoint] will not be taking any payments," but offered to send a loan modification package to work out a solution. (Doc. 5 at 18-23). Harrington was then directed to an attorney that had been contracted to handle the loan and told that he could receive more information about the account by following up there. (Doc. 111-11 at 7:9-12).
Notably, the 5307 Number was part of a group of phones on a family plan paid for by Harrington. (Doc. 129-2 at 14:19-21, 17:25). Within the two years prior to the filing of this lawsuit, RoundPoint attempted to contact the Harringtons at the 5307 Number 264 times. (Docs. 111-2 at ¶ 16; 120-11 at 12; 120-17 at 1-2). Harrington testified in deposition that he only answered one of these calls, and on that occasion he hung up without speaking. (Doc.129-2 at 46:8-11, 49:18-24). He never requested that RoundPoint stop contacting him at that number. (Doc. 111 at ¶¶ 26, 28).
On March 2, 2012, Multibank filed a foreclosure action in the Circuit Court of the Twentieth Judicial Circuit in and for Lee County. Multibank 2010-11 SFR Venture, LLC v. Harrington et al., 12-CA-051326 (Fla. 20th Cir. Ct. filed March 2, 2012). On May 5, 2014, RoundPoint received a facsimile from an attorney stating that he represented Harrington and directing all future communications to his office. (Doc. 111-2 at ¶ 29, 111-6 at 31). RoundPoint then ceased calling the 5307 number. (Doc. 111-2 at ¶ 29).
On May 28, 2015, Harrington filed this action.5 (Doc. 1). In the complaint, and through two subsequent amendments, Harrington claims that RoundPoint, acting on behalf of Multibank, wrongfully utilized an automatically-dialed telephone to call him repeatedly without his prior express consent, and in such a manner as to become harassing. As a result, he alleges that the calls violated the Telephone Consumer Practices Act ("TCPA") and the Florida Consumer Collection Practices Act ("FCCPA"). Now, Defendants move for summary judgment on those claims.
Summary judgment is appropriate only when the court is satisfied that "there is no genuine issue as to any material fact" and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). An issue is genuine if there is sufficient evidence such that a reasonable jury could return a verdict for either party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Similarly, an issue is material if it may affect the outcome of the suit under governing law. Id. The moving party bears the burden of showing the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In deciding whether the moving party has met this initial burden, the court must review the record and all reasonable inferences drawn from the record in the light most favorable to the non-moving party. Whatley v. CNA Ins. Co., 189 F.3d 1310, 1313 (11th Cir. 1999). Once the court determines that the moving party has met its burden, the burden shifts to the non-moving party, who must present specific facts showing that there is a genuine issue for trial that precludes summary judgment. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The evidence presented cannot consist of conclusory allegations, legal conclusions or evidence which would be inadmissible at trial." Demyan v. Sun Life Assurance Co. of Canada, 148 F. Supp. 2d 1316, 1320 (S.D. Fla. 2001) (citing Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991)).
If there is a conflict between the parties' allegations or evidence, the non-moving party's evidence is presumed to be true and all reasonable inferences must be drawn in the non-moving party's favor. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1164 (11th Cir. 2003). Failure to show sufficient evidence of any essential element is fatal to the claim, and the court should grant the summary judgment. Celotex, 477 U.S. at 322-323. Conversely, if reasonable minds could find a genuine issue of material fact then summary judgment should be denied. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1532 (11th Cir. 1992).
While Defendants concede that they made all of the calls in question, they argue that they are entitled to summary judgment because the Harringtons consented to the calls by providing RoundPoint with the 5307 Number, and because the calls were not harassing. Moreover, the Defendants argue that if no liability can be assessed against RoundPoint, the maker of all of the calls, none can carry over to Multibank. In contrast, Harrington argues that summary...
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