Rosado v. Taylor, 302-CV-876 RM.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Citation324 F.Supp.2d 917
Docket NumberNo. 302-CV-876 RM.,302-CV-876 RM.
PartiesSusanne A. ROSADO, Plaintiff v. Septtimous TAYLOR, Defendant
Decision Date22 June 2004

Clifford W. Shepard, Attorney at Law, Indianapolis, IN, Michael P. McIlree, McIlree and McIlree, Valparaiso, IN, for Plaintiff.

Matthew S. Effland, Todd J. Kaiser, Ogletree Deakins Nash Smoak & Stewart PC, Indianapolis, IN, for Defendant.


MILLER, Chief Judge.

The Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692o, protects debtors from certain debt collection practices. Susanne Rosado filed a complaint charging attorney Septtimous Taylor with violating several provisions of the FDCPA. Mr. Taylor moved for summary judgment, raising both procedural and substantive arguments. In Ms. Rosado's response, she asked for summary judgment in her favor, though she filed no formal motion. For the reasons stated below, the court grants Mr. Taylor summary judgment in part, denies him summary judgment in part, grants Ms. Rosado summary judgment in part, and denies her summary judgment in part.


The facts recited below are largely undisputed. To the extent there is a dispute about a fact, in light of the cross motions for summary judgment, the court provides it as both Mr. Taylor and Ms. Rosado claim it to be.1

Ms. Rosado borrowed $30,000 from Trinity Mortgage Company of Dallas to purchase a house in Hannah, Indiana. Trinity transferred the mortgage to Calumet Securities, which sold it to Firstar Home Mortgage. Two contracts established the parameters of the transaction: a mortgage and a borrower's note. The borrower's note contains Ms. Rosado's promise to repay the $30,000 along with related terms and conditions. The mortgage made the house in Hannah security for the loan. The note obligated Ms. Rosado to make a certain monthly payment each month for 30 years, and established that failure to make a payment would result in default. The mortgage proclaims that, upon default, the note and mortgage holder can accelerate the debt (i.e., deem the whole amount of the loan to be due), foreclose on the house, and sell the same at public auction, provided it sends Ms. Rosado written notification and affords her 30 days to cure the default.

Ms. Rosado defaulted. Firstar sent Ms. Rosado a written notice warning her that the debt would be accelerated if she didn't pay the overdue amount in 30 days, and the bank would foreclose and sell the house at a public auction. She didn't respond to that letter or the two that followed, each of which informed her that Firstar was initiating foreclosure proceedings.

Firstar hired attorney Septtimous Taylor to prosecute the foreclosure. On December 3 or 4, 2001the parties disagree about which day — Mr. Taylor packaged a foreclosure complaint with a summons and a document entitled, "Notice Under the Fair Debt Collection Practices Act," and shipped them all to the LaPorte Superior Court for filing and service on Ms. Rosado. The LaPorte Superior Court filed the documents on December 6. To effect service, the Court sent a copy of the packet to Ms. Rosado via certified mail on December 14. Ms. Rosado received the packet sometime after that (the record doesn't reflect the exact date of receipt).

The summons informs the recipient — here Ms. Rosado — that she is being sued and that she must meet certain deadlines and follow certain procedures to preserve her rights. Most importantly for today's purposes, it announces, "[y]ou must answer the complaint in writing ... within twenty (20) days, commencing the day after you receive this summons (you have twenty-three (23) days to answer if this summons was received by mail), or judgment will be entered against you for what the plaintiff has demanded."

In form, the foreclosure complaint is a standard state court complaint. It contains three salient points. The first is its statement of the debt. The statement reads, in relevant part:

[Defendant] is in default and is indebted to the Plaintiff.... [Plaintiff] is entitled to judgment against the Defendant, Susanne A. Rosado, for the principal sum of said indebtedness, plus accrued interest though June 1, 2001, plus advances through June 1, 2001, used to pay ad valorem taxes, insurance, special assessments and escrow fees, which sums total THIRTY-ONE THOUSAND EIGHT HUNDRED SIXTY-ONE & 44/100 DOLLARS ($31,861.44), plus interest thereon at the rate of 8.50% per annum until paid in full, along with late penalties thereon at the rate of TWENTY-FOUR & 60/100 DOLLARS ($24.60) per month beginning with June 1, 2001 until date of Complaint, plus advances that are made during the pendency of this action.

Second is the request for attorney's fees, "Plaintiff is entitled to recover court costs and reasonable attorney fees in the amount of $1,500.00." The third material aspect of the complaint is the kind of relief that it requests: "the Plaintiff respectfully prays and demands that it be adjudged to hold a first, prior and superior lien on said real property [the house in Hannah] in order to secure [judgment on the amount listed in ¶ 5 plus attorney's fees]."

The notice consists of six numbered paragraphs and a one-sentence introduction. The introduction is unimportant. The first numbered paragraph incorporates the debt statement from ¶ 5 of the complaint. Paragraph two explains that the plaintiff in the suit is the creditor. Paragraphs three through five set forth various procedural protection available to Ms. Rosado if she makes certain requests in writing within 30 days. The third paragraph (the most important for today's purposes) announces that "[t]he debt described in the foregoing complaint and evidenced by the copy of the mortgage note attached hereto will be assumed to be valid by Septtimous Taylor, attorney for Plaintiff, unless, within thirty days after receipt of this notice, you dispute, in writing, the validity of the debt or some portion thereof." Finally, the sixth paragraph proclaims that the "attached correspondence is for the purpose of collecting a debt and any information obtained will be used for that purpose."

Firstar eventually moved for summary judgment in the foreclosure action. Ms. Rosado contested the motion, but the court entered summary judgment for the bank, foreclosing the mortgage, ordering the sheriff to sell the house, and finding that the Bank was entitled to $33,713.66 (including $1,500 in attorney's fees) from the sale of the house. Before the foreclosure sale, Ms. Rosado entered into a new agreement with the bank that refinanced her outstanding debt. As part of this refinancing, Ms. Rosado agreed to add to her monthly payment an amount that would reimburse the bank for the legal fees and costs it incurred in prosecuting the foreclosure. Because of this new deal, Ms. Rosado still resides in the house in Hannah.

Shortly after completing the refinancing agreement, Ms. Rosado filed this suit. Originally filed as a class action (the court denied class certification), the suit alleges that the summons, complaint, and notice drafted by Mr. Taylor violate several provisions of the FDCPA. On its face, the complaint challenges the following: the notice's statement in ¶ 3 that a dispute must be in writing to rebut the presumption that a debt is valid, the array of apparently contradictory time limitations scattered throughout the summons and notice (i.e., the 20 and 23 day deadlines mentioned in the summons and the 30 day deadlines mentioned in the notice), and the foreclosure complaint's request for $1500 in attorneys fees. Briefing on this motion has made it clear that Ms. Rosado meant for her complaint to challenge, as well, the sufficiency of the debt statement in the foreclosure complaint and the notice.

Mr. Taylor seeks summary judgment, challenging the timeliness of Ms. Rosado's suit, the FDCPA's applicability, and whether, assuming the Act applies, he violated it. Ms. Rosado filed a response, joining the battle on nearly every point raised by Mr. Taylor and asking for summary judgment in her favor. Mr. Taylor filed a reply, objecting to the court entering summary judgment in Ms. Rosado's favor.


Summary judgment is appropriate when "the pleadings, depositions, answers to the interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In deciding whether a genuine issue of material fact exists, the court construes all facts in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine issue of material fact exists when a rational trier of fact could not find for the nonmoving party even when the record as a whole is viewed in the light most favorable to the nonmoving party. Ritchie v. Glidden Company, 242 F.3d 713, 720 (7th Cir.2001). "[N]either the mere existence of some alleged factual dispute between the parties, nor the existence of some metaphysical doubt as to material facts is sufficient to defeat such a [summary judgment] motion." Holtz v. J.J.B. Hilliard W.L. Lyons, Inc., 185 F.3d 732, 738 (7th Cir.1999) (internal citations and quotations omitted).


Ms. Rosado informally moves for summary judgment in her response brief. Stripping her argument to its core, she maintains that Mr. Taylor is on notice that summary judgment against him is a possibility, and that he has had ample opportunity to address the issues before the court. Thus, she concludes, if there are no genuine issues of material fact, and the law is on her side, summary judgment is appropriate.

Mr. Taylor seeks "an additional opportunity to respond prior to an entry of summary judgment being...

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