Macris v. Specialized loan Servicing, LLC
| Decision Date | 20 July 2021 |
| Docket Number | 17-CV-361S |
| Parties | MARK K. MACRIS, Plaintiff, v. SPECIALIZED LOAN SERVICING, LLC, Defendant. |
| Court | U.S. District Court — Western District of New York |
DECISION AND ORDER
This is a Fair Credit Reporting Act, 15 U.S.C. ch. 41, subch. III §§ 1681 to 1681x, 1681s-2(b) (“FCRA”), Fair Debt Collection Practices Act, 15 U.S.C. ch. 41, subch. V, §§ 1692 to 1692p (“FDCPA”), and New York Fair Credit Reporting Act, N.Y. Gen. Bus. Law ch. 25, §§ 380 to 380-v, action. Remaining Defendant, Specialized Loan Servicing, LLC (“SLS” or “Defendant”), allegedly is a debt collector (Docket No. 1, Compl. ¶ 17; cf. Docket No. 18, SLS Ans. ¶ 17). Plaintiff claims that SLS inaccurately reported to a credit reporting agency (or a “CRA”), Experian Information Solutions (“Experian”), a mortgage debt that Plaintiff argues he no longer owed. (Docket No. 1, Compl.)
Before this Court are (a) the Motion of SLS for Summary Judgment (Docket No. 40) and (b) Plaintiff's Motion for Summary Judgment (Docket No. 41). In support of SLS's Motion, it submitted the Affidavit of Cynthia Wallace, second assistant vice president for SLS (Docket No. 40, Wallace Aff. ¶ 1), with exhibits (id. Exs. A-N). Plaintiff moved to strike this Affidavit and exhibits (Docket No. 46). This Court denied that Motion (Docket No. 51, Decision and Order of July 8, 2021, 2021 WL 2873930); familiarity with that Decision is presumed.
For reasons that follow, Defendant SLS's Motion for Summary Judgment (Docket No. 40) is granted and Plaintiff's countering Motion for Summary Judgment (Docket No. 41) is denied.
Plaintiff, with his then spouse Catherine Macris Schaefer (“Ms. Macris”), entered into a mortgage and note on a house on Teakwood Terrace, Amherst, New York (the “Property”) (Docket No. 40, Wallace Aff. ¶ 6). As alleged in the Complaint, on or about June 10, 2009, he entered into a matrimonial settlement agreement with his wife with Ms. Macris agreeing to secure Plaintiff's release from the mortgage on the Property . Under that marital agreement, Ms. Macris got exclusive use of the property for twelve months after execution of the agreement; she exclusively was obliged to make mortgage payments and to secure a release or discharge of Plaintiff from the mortgage (Docket No. 41, Pl. Aff. ¶ 4, Ex. B at 38-40). If Ms. Macris became tardy in paying the mortgage, she would lose exclusive use and occupancy of the Property and the Property would be put up for sale (id., Ex. B at 39). Once the release or discharge is obtained, Plaintiff conveys his interest in a quit claim deed (id. at 40).
Over three years later, on or about August 14, 2012, a deed and Real Property Transfer Report was filed with the Erie County Clerk removing Plaintiff from the deed to the Property . Ms. Macris was the sole owner on this deed.
Then, on or about March 6, 2015, mortgagee U.S. Bank as trustee for the SROF 2013-S3 Remic Trust I sued Plaintiff and his now ex-wife to foreclose on the mortgage for the Property . On or about November 20, 2015, an Order of Reference was filed removing Plaintiff from the action because he was deemed to be no longer a necessary party for that foreclosure . This Order, however, did not release Plaintiff from the mortgage and note.
Plaintiff claimed he later obtained his credit report from Experian in May 2016 that showed Plaintiff still owing the mortgage and that it was past due (Docket No. 1, Compl. ¶ 27; see Docket No. 41, Pl. Aff. Ex. I). Plaintiff disputed that account ¶ 28 ); Docket No. 41. If Plaintiff owed on the note, he would be in default and SLS is the servicer of the mortgage loan (Docket No. 1 Compl. ¶¶ 32, 33; Docket No. 18, SLS Ans. ¶¶ 32, 33). In May 2016, SLS called Plaintiff seeking financial information to collect the mortgage debt but Plaintiff denied having any obligation to pay the subject debt . Nevertheless, SLS continued to call Plaintiff seeking to recover on that loan . In July 2016, Experian sent Plaintiff a reinvestigation report which verified the disputed subject debt . On August 2016, Plaintiff applied unsuccessfully for a Visa card and the denial was due to the subject debt on his credit report . In August and September 2016, SLS's representatives contacted Plaintiff and stated that the mortgage would be foreclosed, and that Plaintiff would be responsible for the subject debt (id. ¶¶ 38-39).
Plaintiff filed his Complaint on April 28, 2017 (Docket No. 1), asserting five causes of action. The First Cause of Action alleges a violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681s(2) that after receiving notice of the disputed information given to Experian, SLS “negligently and/or willfully failed to conduct an investigation of the disputed information; review all the relevant information provided by the consumer with notice; report the results of the investigation to the consumer reporting agency [here, Experian]; and modify, delete, or permanently block the reporting of the item of information that is inaccurate” (id. ¶ 41). As a result of SLS failing to follow proper investigation requirements, SLS “negatively impacted Plaintiff's credit rating and adversely affected Plaintiff's ability to obtain credit” (id. ¶ 42), resulting in Plaintiff suffering actual damages and recovering of reasonable attorneys' fees (id. ¶ 43). The Second Cause of Action alleges violation of New York Fair Credit Reporting Act, N.Y. Gen. Bus. Law § 380-j(e) against Experian (id. ¶¶ 45-49). The Third and Fourth Causes of Action also allege violations of the federal Fair Credit Reporting Act by Experian (id. ¶¶ 51-55, 57-58). Finally, the Fifth Cause of Action alleges that SLS violated provisions of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692d, 1692e, 1692e(2), 1692e(5), 1692e(10), 1692f, 1692e(8), and 1692g, causing Plaintiff to become “nervous, upset, anxious and suffered from emotional distress” (id. ¶¶ 60, 61).
Defendants SLS and Experian eventually (Docket Nos. 6, 11, 13, Stipulations extending time to answer, 8, 12, 14, Orders adopting Stipulations) and separately answered (Docket Nos. 16 (Experian Ans.), 18 (SLS Ans.)). Plaintiff settled with Experian on August 14, 2018 (Docket No. 31; see Docket No. 34, Order dismissing Experian). With that dismissal, the remaining Causes of Action are the First (under FCRA) and Fifth (under FDCPA).
Later, the remaining parties moved for summary judgment (Docket Nos. 40, 41). In support of its Motion, SLS filed Ms. Wallace's Affidavit with exhibits (Docket No. 40, Wallace Aff.), incorporating references to her Affidavit and exhibits in its Statement of Undisputed Facts (id., Def. Statement)[1].
Plaintiff responded to SLS's motion (Docket No. 47), filed his own Motion for Summary Judgment (Docket No. 41)[2], and moved to strike Ms. Wallace's Affidavit (Docket No. 46). Plaintiff generally denied all allegations made in SLS's Statement (Docket No. 40, Def. Statement) due to the then-pending Motion to Strike (Docket No. 46) the Wallace Affidavit because she was not disclosed as a potential witness (Docket No. 47, Pl. Response to Def.'s Material Statement of Facts). Save this discovery objection and his own Statement of Facts (Docket No. 41), Plaintiff otherwise has not disputed SLS's Statement. As previously noted, this Court denied the Motion to Strike (Docket No. 51, 2021 WL 2873930), with SLS to supplement its disclosure to include information about Ms. Wallace by July 30, 2021 (id. at 15).
Defendant's Statement (Docket No. 40) concentrates on the mortgage and the foreclosure proceedings while Plaintiff's Statement (Docket No. 41) recounts the mortgage, the terms of Plaintiff's separation from Ms. Macris, and his attempts to clear up disputed statements on his credit report and SLS's efforts in purportedly investigating the dispute. Comparing the Statements of Facts for both parties' motions (Docket Nos. 40, Def. Statement; 41, Pl. Statement) and their responses thereto (Docket Nos. 47, Pl. Response to Def's Statement; 45, Def. Counterstatement), the facts regarding Plaintiff and his former wife's mortgage and its foreclosure generally are not contested. What is disputed is the effect of removing Plaintiff as a defendant in the foreclosure action, Plaintiff's conversations with SLS regarding collection of the debt, and Plaintiff's efforts to remove the debt and delinquency from credit reports. Factual disputes will be noted below.
On February 1, 2008, Plaintiff and Ms. Macris entered mortgage and note (Docket No. 40, Def. Statement ¶¶ 1, 3-4; Docket No. 41, Pl. Statement ¶ 1). This mortgage and note were transferred from the original lender Countrywide to various institutions to U.S. Bank National Association, as Trustee for SROF-2013-S3 REMIC Trust I[3] (Docket No. 40, Def. Statement ¶¶ 5-7) at the time of the foreclosure. The parties agree that the last full payment on the mortgage was made on September 1, 2009 (Docket No. 40, Def.
Statement ¶ 8; Docket No. 41, Pl. Statement ¶ 2; Docket No 45, Def. Counterstatement ¶ 2). SLS claims Plaintiff and Ms. Macris defaulted on the October 2009 payment (Docket No. 40, Def. Statement ¶ 8). On April 1, 2014, SLS began...
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