McDermott v. Randall S. Miller & Assocs., P.C.

• Decision Date: 21 February 2012
• Docket Number: Case No. 11–11469.
• Citation: 835 F.Supp.2d 362
• Court: U.S. District Court — Eastern District of Michigan
• Parties: Robert McDERMOTT, Plaintiff, v. RANDALL S. MILLER & ASSOCIATES, P.C., Defendant.

835 F.Supp.2d 362

Robert McDERMOTT, Plaintiff,

v.RANDALL S. MILLER & ASSOCIATES, P.C., Defendant.

Case No. 11–11469.

United States District Court,

E.D. Michigan,

Southern Division.

Dec. 8, 2011.

Order Denying Reconsideration Feb. 21, 2012.

Mario K. Kasalo, The Law Office of M. Kris Kasalo, Ltd., Chicago, IL, for Plaintiff.

David C. Anderson, Collins, Einhorn, Southfield, MI, for Defendant.

OPINION & ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT RANDALL S. MILLER & ASSOCS., P.C.'S MOTION TO DISMISS AND/OR FOR SUMMARY JUDGMENT

SEAN F. COX, District Judge.

Plaintiff filed this action, asserting claims under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., against both Defendant Ocwen Loan Servicing, LLC (“Ocwen”) and Randall S. Miller & Associates, P.C. Plaintiff has since dismissed his claims against Ocwen. The matter is currently before the Court on Defendant Randall S. Miller & Associates, P.C.'s Motion to Dismiss and/or for Summary Judgment. For the reasons set forth below, the Court shall GRANT THE MOTION IN PART AND DENY THE MOTION IN PART. The Court shall GRANT the motion to the extent that it shall dismiss Plaintiff's claims under § 1692e and § 1692f of the Act. The Court shall DENY the motion in all other respects.

BACKGROUND

Plaintiff's Amended Complaint asserts the following one count against Defendant Randall S. Miller & Associates, P.C.: “Violation of the Fair Debt Collection Practices Act Randall S. Miller & Associates, P.C.” (Count I). Specifically, Plaintiff alleges that Defendant violated the following sections of the FDCPA: 1) § 1692d; 2) § 1692e; 3) § 1692f; and 4) § 1692g. ( See Pl.'s Am. Compl. at 6–7). Plaintiff made a jury demand.

The current Scheduling Order provides that: 1) witnesses were to be named by October 7, 2011; 2) discovery shall be completed by November 7, 2011; and 3) motions must be filed by December 7, 2011. (Docket Entry No. 11).

On July 25, 2011, Defendant Randall S. Miller & Associates, P.C. filed the instant “Motion to Dismiss and/or for Summary Judgment.” (Docket Entry No. 15). Although the motion was filed as a motion to dismiss and/or a motion for summary judgment, because the motion relies on matters outside the pleadings, Plaintiff agrees that the motion should be treated a motion for summary judgment under Fed. R. Civ. P. 56. ( See Pl.'s Resp. Br. at 1).

This Court's practice guidelines for motions for summary judgment provide, in pertinent part, that:

a. The moving party's papers shall include a separate document entitled Statement of Material Facts Not in Dispute. The statement shall list in separately numbered paragraphs concise statements of each undisputed material fact, supported by appropriate citations to the record ...

b. In response, the opposing party shall file a separate document entitled Counter–Statement of Disputed Facts. The counter-statement shall list in separately numbered paragraphs following the order or the movant's statement, whether each of the facts asserted by the moving party is admitted or denied and shall also be supported by appropriate citations to the record. The Counter–Statement shall also include, in a separate section, a list of each issue of material fact as to which it is contended there is a genuine issue for trial.

c. All material facts as set forth in the Statement of Material Facts Not in Dispute shall be deemed admitted unless controverted in the Counter–Statement of Disputed Facts.

Along with Defendant's Motion for Summary Judgment, Defendant filed a “Statement of Material Facts Not In Dispute” that follows this Court's practice guidelines. Along with Plaintiff's Response, Plaintiff filed its “Counter Statement of Disputed Facts.”

The following material facts are gleaned from the parties' statements and the evidence submitted by the parties, taken in the light most favorable to Plaintiff.

On August 3, 2010, Ocwen sent a letter to Plaintiff Robert McDermott in Lakeside, Michigan referencing a mortgage on property in Niles, Michigan (“the Niles Property”). The letter stated that it was a “Notice of Default” and stated that the mortgage payments were past due, and the borrower owed $3,094.31. The letter contained the account number of the loan (71187967), as well as the address of the Niles Property (2674 Terminal). (Def.'s Stmt. at ¶ 1; Pl.'s Stmt. at ¶ 1; Ex. A to Pl.'s Am. Compl.). That letter contained the following statement at the bottom of each page:

This communication is from a debt collector attempting to collect a debt; any information obtained will be used for that purpose. However, if the debt is in active bankruptcy or has been discharged through bankruptcy, this communication is not intended and does not constitute an attempt to collect a debt.

( Id.).

It is undisputed that Plaintiff did not have any ownership interest in the Niles Property and did not have a mortgage debt of any kind secured by the Niles Property. (Def.'s Stmt. at ¶ 2; Pl.'s Am. Compl. at ¶¶ 8–10).

On August 21, 2010, Plaintiff sent a letter to Ocwen in response to its August 3, 2010 letter. (Pl.'s Am. Compl. at ¶ 11; Ex. B to Pl.'s Am. Compl.). That letter advised Ocwen that Plaintiff is not the debtor under loan 7118967, that Plaintiff has no ownership interest in the Niles Property and no mortgage debt of any sort secured by property in Michigan. The letter asked that Ocwen correct its records and “cease immediately your efforts to collect money from me, because I have no connection with the debt you are trying to collect.” ( Id.).

On August 31, 2010, Ocwen sent Plaintiff another letter concerning the Niles Property. (Ex. C to Pl.'s Am. Compl.). Among other things, that letter referenced repayment plans and modification programs. The letter contained the same language at the bottom of each page that the first letter from Ocwen contained.

On September 2, 2010, Ocwen sent Plaintiff another letter. That letter stated, “You stated that the above referenced loan has been fraudulently taken out using your personal information” and asked Plaintiff to provide Ocwen with various items, including a copy of his social security card and driver's license. (Ex. D to Pl.'s Am. Compl.). The letter enclosed “Instructions for Completing the ID Theft Affidavit,” which, among other things, stated that “[c]ompleting this affidavit does not guarantee that ... the debt will be cleared.” The letter contained the same language at the bottom of each page that the first letter from Ocwen contained.

On September 17, 2010, Ocwen sent Plaintiff a statement concerning the Niles Property, indicating that $2,609.22 was past due and due immediately and that total amount due was $4,919.03. (Ex. G to Pl.'s Br.). That letter also stated: “We may report information about your account to credit bureaus. Late payments, missed payments, or other defaults on your account may be reflected in your credit report.” ( Id.).

On September 28, 2010, Ocwen sent Plaintiff another letter regarding the Niles Property. That letter stated:

As your mortgage servicer, Ocwen Loan Servicing, LLC (“Ocwen”) is prepared to assist customers such as you who are experiencing a financial hardship that makes it difficult to meet your mortgage obligations. However, in order for Ocwen to recommend potential options, you must submit all required documentation listed below. If all requested documents are not submitted or not complete, your application will not be reviewed.

The review process will take up to 30 days after the receipt of the completed package. During this time, Ocwen will not delay or stop any collection or legal activity on your loan. Therefore, it is important to complete the package and fax it back to Ocwen as quickly as possible. Please ensure all items on the checklist are submitted.

• Signed and completed Request for Financial Information—Exhibit A

• 2 most recent pay stubs for all employed Borrowers and documentation of other sources of income (child support, alimony, rental income, social security, etc.)

• W–2 Statement OR Federal Income Tax Forms (SELF EMPLOYED ONLY)

• 2 most recent Bank Statements for all checking and savings accounts

Please fax the financial statement and documents to:

Ocwen Loan Servicing, LLC

(407) 737–6174

Before returning the application, please make sure to sign and date the form.

(Ex. D to Pl.'s Am. Compl.) (bolding and italics in original). The letter contained the same language at the bottom of each page that the first letter from Ocwen contained.

On October 6, 2010, Randall S. Miller & Associates (“Defendant”) sent Plaintiff and Clara McDermott a letter regarding the Niles Property. (Def.'s Stmt. at ¶ 5; Pl.'s Stmt. at ¶ 5; Ex. E to Pl.'s Am. Compl.). The subject line of that letter stated: “NOTICE PURSUANT TO SEC. 3205a via First Class Mail and Certified Mail–Return Receipt Requested.” ( Id.). The body of the letter stated:

Dear Borrower(s):

Please be advised that our office has been retained by Ocwen Loan Servicing LLC to commence foreclosure proceedings against the above described property.

The mortgage loan above is in default due to non-payment of installments starting with July 1, 2010 and all subsequent payments through today's dated.

The total amount due as of the date of this notice is $4,709.63.

This mortgage is serviced by Ocwen Loan Servicing LLC and Ocwen Loan Servicing LLC has designed Randall S. Miller & Associates, P.C., whose address is 43252 Woodward Avenue, Suite 180, Bloomfield Hills, MI 48302 and whose loan modification department's number is 313–583–3336, with the authority to make agreements under section 3205b and 3205c of 1961 PA 236. Please contact our office at this number or via email at loanmods@ millerlaw. biz to request a meeting.

Enclosed with this notice is a list of housing counselors prepared by the Michigan State Housing Development Authority. You may request a meeting with the designee named above within 14 days of the date of this notice to attempt to work out a...