Opinion
Case No. 3:16-cv-00316-AC
11-21-2019
AMY NGUYEN, Plaintiff, v. FEDERAL HOME LOAN MORTGAGE CORPORATION, also known as Freddie Mac; and NATIONSTAR MORTGAGE LLC, Defendants.
FINDINGS AND RECOMMENDATION :
In this action, Plaintiff Amy Nguyen ("Nguyen") contends that Defendants Federal Home Loan Mortgage Corporation ("Freddie Mac"), and Nationstar Mortgage LLC ("Nationstar") (collectively "Defendants") have refused to comply with a 2011 settlement agreement involving the Defendants' servicing of a loan for real property. Nguyen brings several causes of action, including the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 16181s-2(a)(1); the Federal Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692-1692o; the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. § 2605; Oregon Unlawful Debt Collection Practices Act ("OUDCPA"), OR. REV. STAT. § 646.641; breach of contract; trespass; and declaratory judgment. Presently before the court are Defendants' Motion for Summary Judgment (ECF No. 65) and Nguyen's Motion for Partial Summary Judgment on liability (ECF No. 70). Defendants seek summary judgment on all of Nguyen's claims; Nguyen seeks summary judgment and declaratory relief on her claims on liability only, with damages to be assessed at trial. For the following reasons, the court recommends that Defendants' motion be granted and that Nguyen's motion be denied.
Factual Background
I. The Property
On July 25, 2006, Nguyen took out a loan from Taylor, Bean & Whitaker Mortgage Corporation to finance the purchase of real property located at 1813 Southwest Willowview Terrace, Aloha, OR 97006 (the "Property"). (Decl. Nationstar & Freddie Mac Supp. Mot. Summ. J. ("Janati Decl.") ¶ 5, ECF No. 66.) Nguyen purchased the Property for investment purposes. The loan is evidenced by an adjustable rate promissory note (the "Note") executed by Nguyen. Under the terms of the Note, Nguyen agreed to pay $374,800 plus interest and other charges, in exchange for the loan. (Decl. Fay Janati Supp. Defs.' Mot. Summ. J. ("Second Janati Decl.") Ex. 1, ECF No. 79-1.) Nguyen also agreed to make monthly payments, and that if the full monthly payment was not paid each month, she would be in default. (Second Janati Decl. ¶6, Ex.1 ¶¶ 3&7, ECF No. 79-1.) For the first sixty months, Nguyen's payments were $2,264.42, after which her interest payments would change, and would continue to change each six months under the adjustable rate rider executed in conjunction with the Note and Deed of Trust. (Janati Decl. Ex. 1, ¶3, ECF No. 79-1; Pl.'s Ex. 12, ECF No. 91 at 43.)
For clarity, the court includes the ECF docket entry to all record citations.
The Note was secured by a Deed of Trust, executed by Nguyen on July 26, 2006, and recorded in Washington County, Oregon. (Janati Decl. ¶ 6 & Ex. 2 at 3, ECF No. 79-2.) Under the Deed of Trust, Nguyen agreed that the lender could return any payment or partial payment if the amount was insufficient to bring the loan current. (Id.) Nguyen agreed that the Note could be transferred to a new lender. (Id.) Nguyen further agreed that if she failed to cure any default, the lender could take steps to protect the Property, including securing the Property and making repairs. (Id. at ¶ 9).
The Note, adjustable rate rider, and Deed of Trust are collectively referred to by the court as "the Loan" in this Findings and Recommendation.
II. Nguyen's Default in 2009 and Agreements with Saxon
In August 2009, Saxon Mortgage Services, Inc., ("Saxon") began servicing Nguyen's Loan. (Nationstar Decl. ¶ 7.) Nguyen defaulted on the Loan, and Saxon instituted foreclosure proceedings, with a Trustee's sale set for August 7, 2009. (Decl. James P. Laurik ¶4, Ex. B at 3-4, ECF No. 67.) Nguyen filed suit against Saxon, challenging the foreclosure. See Nguyen v. Saxon Mortgage Servs., Inc., Case No. 3:10-cv-00353-HZ (the "2010 Action"). The Trustee's sale was rescinded on June 8, 2010. (Id. at 20.) Following a settlement conference conducted by U.S. District Judge Michael Simon, the parties reached an agreement to resolve the 2010 Action. (Pl.'s Ex. 1, ECF No. The terms of the agreement were put on the record, and later memorialized in a formal Settlement Agreement signed by Nguyen on September 6, 2011. (Laurik Decl. ¶ 9; Pl.'s Ex. 1, ECF No. 91 at 2.) The Settlement Agreement provided that the reinstatement balance (the amount necessary to bring the Loan current), was $88,128.96. (ECF No. 79-6; ECF No. 91, Ex. 3.) (Pl.'s Mot. Summ. J. at 5; Defs.'s Mot. Summ. J. at 9.) Under the Settlement Agreement, Nguyen agreed to make a lump sum payment of $60,000 to Saxon to be applied to the reinstatement balance. (ECF No. 79-6). Saxon agreed to credit $10,000 toward the reinstatement balance. (ECF No. 79-6.) The Settlement Agreement also provided that the remaining reinstatement balance of $17,128.96 would be distributed over a twelve-month period and added to Nguyen's regular mortgage payments. (ECF No. 79-6.) (Pl.'s Mot. Summ. J. at 5; Defs.' Mot. Summ. J. at 9.) The Settlement Agreement required Saxon to prepare a separate formal repayment plan (the "Repayment Plan"). (ECF No. 79-6) (Nationstar Decl. ¶10, Ex. 6.)
Under the Repayment Plan, the reinstatement balance was identified as $74,759.96, and that Nguyen's $60,000 lump sum payment was due by October 15, 2011. (Pl.'s Ex. 2, ECF No. 2.) According to the Repayment Plan, Nguyen's monthly payments would be $2,206.05 from November 2011 through October 2012. (ECF No. 79-7.) The $2,206.05 represented her regular monthly payment plus the remaining reinstatement balance. (ECF No. 79-7.) In the Repayment Plan, Nguyen also agreed that she is responsible for "any increase in monthly payment amounts which may accrue as the result of changes in interest rate, escrow impound for taxes and insurance," and that such amounts should be added to the payment amounts due under the Repayment Plan. (Pl.'s Ex. 2, ECF No. 91 at 10.) Nguyen signed the Repayment Plan on October 19, 2011. (ECF No. 79-7.) On December 9, 2011, the parties entered a Stipulated Judgment of Dismissal dismissing the 2010 Action. (Laurik Decl. Ex. C.) Nguyen paid the $60,000 payment on October 27, 2011. (Pl.'s Ex. 4, ECF No. 91.) Nguyen made monthly payments of $2,206.05 from November 2011 through April 2012. (Pl.'s Ex. 5, ECF No. 91 at 19.)
On January 19, 2012, Saxon sent Nguyen a letter indicating that the interest rate on her adjustable rate note had increased from 3.125 percent to 3.5 percent, thereby increasing the monthly payment on the Loan from $976.04 to $1,093.17. (Pl.'s Ex. 13, ECF No. 91.) Saxon informed Nguyen that the new interest rate and monthly payment would take effect March 1, 2012. (Id.)
According to the court's calculation, beginning March 2012, Nguyen's continued payments of $2,206.05 would result in a monthly deficit of $117.13. Defendants do not advance an argument here that Nguyen was in default for failing to include these additional amounts with her monthly payments set forth in the Repayment Plan.
III. Transfer of Loan to Ocwen
On March 27, 2012, Saxon informed Nguyen that Ocwen Loan Servicing LLC ("Ocwen") would begin servicing her loan, effective April 16, 2012. (Janati Decl. ¶ 11, Ex. 8, ECF No. 79-8.) On April 20, 2012, Ocwen sent Nguyen a letter detailing the amount of unpaid principal, interest, late charges, collection costs, escrow advances, and suspense balance, totaling $403,275.20 on the Loan as provided in its records. (Pl.'s Ex. 6, ECF No. 91 at 28.)
On May 1, 2012, Nguyen sent Ocwen a letter stating that she disputed the total amount of $403,275.20 due on her Loan, that she disputed late charges, collection costs, escrow advances, and suspense balances. (Sealed Laurik Decl. Ex. D, ECF No. 75, Pl.'s Ex. 7, ECF No. 91 at 29.) Nguyen further stated that she set up monthly repayments of $2,206.05 until October 15, 2012 with Saxon, and that as of March 1, 2012, her interest rate is 3.5 percent. (Id.) On May 14, 2012, Nguyen made a monthly payment of $2,264.43. (Pl.'s Ex. 5, ECF No. 91 at 19.)
On May 10, 2012, Nguyen's attorney, Steven C. Burke, contacted Judge Simon for assistance. (Pl.'s Ex. 6, ECF No. 91 at 20-21.) Judge Simon retained jurisdiction to handle disputes about the Settlement Agreement reached between Saxon and Nguyen. (Pl.'s Ex. 6, ECF No. 91 at 20-22, ECF No. 91.) In the May 10, 2012 letter, Mr. Burke discussed that after receiving Nguyen's initial payment of $60,000, Saxon had not received her first two payments as provided under the Repayment Plan, and that Nguyen's Loan status was incorrectly being reported as "in foreclosure." (Id. at 20-21.) Mr. Burke noted he had been in touch with Saxon's attorney, David Elkanich, and discovered that Saxon had made an error by assigning an incorrect account number to her payments. (ECF No. 91 at 21.) Mr. Burke provided that although Saxon had corrected the issue concerning the account number, Saxon not provided adequate written documentation reflecting how Nguyen's payments had been applied. Mr. Burke further indicated that when Ocwen took over servicing the Loan, Ocwen had no understanding of the settlement. (Id.)
In response, Saxon provided a letter to Judge Simon on May 22, 2012 providing some details, but indicating that Nguyen's Loan had been service-released to Ocwen, and additional details needed to be worked out with Ocwen. (Sealed Laurik Decl. Ex. E at 1, ECF No. 78.) Nguyen's attorney and Saxon's attorney traded multiple emails attempting to straighten out the Repayment Plan with Ocwen. (Pl.'s Ex. 25, ECF No. 91-1 at 22-42; Pl.'s Ex. 26, ECF No. 91-2 at 3-7.) Meanwhile, Nguyen continued to make monthly payments of $2,204.05 (just shy of the Repayment Plan amount) on June 15, 2012, July 13, 2012, and August 6, 2012. (Pl.'s Ex. 5, ECF No. 91 at 19.)
Neither party has provided the May 22, 2012 letter from Saxon to Judge Simon.
On July 5, 2012, Ocwen sent Nguyen a letter indicating that the interest rate on her Loan was set to adjust on August 1, 2012, and that the change would take effect on September 1, 2012. (ECF No. 91 at 46.) Nguyen's monthly payment would change from $1,093.17 to $1,093.18. (ECF No. 91 at 46.)
On September 5, 2012, Nguyen made a monthly payment of $1,093.18, and on October 10, 2012, Nguyen made a monthly payment of $1,094.00. (Pl.'s Ex. 5, ECF No. 91 at 19.) The September and October 2012 payments are considerably less than the $2,206.05 required monthly payments set forth in the Repayment Plan. On November 8, 2012 and December 3, 2012, Nguyen made payments of $1,094.00 each. (Pl.'s Ex. 5, ECF No. 91 at 19.)
On October 3, 2012, Mr. Elkanich sent an email to Mr. Burke explaining that Ocwen had applied Nguyen's payments to her account, waived all late fees, and that the loan was due for two payments of $2,206.05, in addition to one payment of $1,118.87 to cover a plan payment that was short. (Pl.'s Ex. 26, ECF No. 91-2 at 7.) Mr. Elkanich encouraged Mr. Burke to reach out to Ocwen's attorney, Brian Wagner. (Id.) Mr. Burke responded that he wanted a detailed accounting of Nguyen's payments and that he had not received it from Mr. Wagner or Mr. Elkanich. (Id. at 6.)
In a second letter to Judge Simon dated November 12, 2012, Saxon indicated that Ocwen had confirmed that the repayment plan had been set up in Ocwen's system and that any late fees had been waived. (Sealed Laurik Decl. Ex. E at 1, ECF No. 78.) Saxon indicated that it had relayed this information to Mr. Burke, and that it considered the matter resolved. (Id.)
Neither party has provided any information to the court indicating whether or how Judge Simon responded to their letters.
On November 26, 2012, Mr. Burke, Mr. Elkanich, and Mr. Wagner had a conference call, after which Mr. Wagner sent an email to Mr. Burke summarizing Nguyen's request for information:
To confirm our conversation yesterday, your client is seeking a copy of her 1099 from 2010 and 2011, as well as a breakdown of the application of the payments under the repayment agreement and a current itemized balance of her account. I am working on obtaining this information and will provide you with an update shortly.(Pl.'s Ex. 25, ECF No. 91-1 at 41-42.) On December 12, 2012, Mr. Elkanich sent Mr. Burke copies of Nguyen's 1098 from 2010 and 2011. (Id.at 40.)
Mr. Elkanich presumed Nguyen was seeking Form 1098, which is a form filed with the Internal Revenue Service and details the amount of interest and related expenses paid on a mortgage during the tax year.
On January 4, 2013, Ocwen sent Nguyen a letter indicating that the interest on the Loan was adjusting and that her new payment of principal and interest would be $1,015.08, with an escrow payment of $1,536.10, for a total of $2,551.18. (ECF No. 91 at 48.)
Ocwen rejected Nguyen's tendered mortgage payments of $1,094.00 each in January, February, and March of 2013 because they were insufficient to bring the Loan current. (Nationstar Decl. ¶ 12 & Ex. 8; Laurik Decl. ¶ 3 & Ex. A, attaching Dep. Amy Nguyen ("Nguyen Dep.") 155:24-156:9, 156:13-157:11, ECF No. 76-1.) On January 17, 2013, Nguyen sent an email to James Minns at Ocwen inquiring why Ocwen returned her monthly mortgage payment. (Pl.'s Ex. 25, ECF No. 91-1 at 37.) On January 24, 2013, Nguyen sent an email to Mr. Wagner indicating that she was disputing the principal loan balance of $374,800, and that she would not be making escrow payments of $1,536.10 each month. (Pl.'s Ex. 25, ECF No. 91-1 at 29.) Nguyen does not dispute that the returned payments were for $1,094.00 each. (Pl.'s Ex. 5, ECF No. 91 at 19.)
On January 22, 2013, Mr. Burke sent an email to Mr. Wagner and Mr. Elkanich demanding an accounting of how Nguyen's payments under the Repayment Plan had been applied, and insisting that Nguyen had performed fully under the Plan and Settlement Agreement. (Pl.'s Ex. 25, ECF No. 91-1 at 35.) Mr. Burke advised them that Nguyen's January 2013 payment had been returned. (Id.) Mr. Elkanich responded that he had been advised by Ocwen that Ocwen was working on finalizing the dispute. (Id. at 34.) On January 25, 2013, Mr. Burke indicated that Nguyen was getting the run-around, that he considered Ocwen in breach, that Nguyen's credit report inaccurately listed the mortgage in active foreclosure, and that he would be filing suit. (Id. at 31.)
On February 8, 2013, Mr. Wagner sent an email to Mr. Burke indicating that Ocwen was completing the necessary corrections to the Loan, and that Nguyen should send her payments directly to Mr. Wagner, who would forward them to his contact at Ocwen and ensure were being properly applied. (Pl.'s Ex. 25, ECF No. 91-1 at 26.) Nguyen did not send any payments to Mr. Wagner. (Pl.'s Ex. 25, ECF No. 91-1 at 24-25.) In an April 16, 2013 email, Mr. Burke indicated that Ocwen still had not provided an accounting of how it had applied Nguyen's payments under the Repayment Plan. (Pl.'s Ex. 25, ECF No. 91-1 at 22.)
IV. Transfer to Nationstar
On May 16, 2013, Nationstar began servicing Nguyen's Loan. (Nationstar Decl. Ex. 9.) At the time, Nguyen was several months behind in payments. (Nyugen Dep. 164:2-9, ECF No. 67-1.) Nguyen has not made any payments on her Loan since Nationstar began servicing it. (Id. 164:10-24, 169:4-11.) On April 13, 2015, Nationstar sent a letter to Nguyen indicating that it had referred her account for foreclosure. (Pl.'s Ex. 31, ECF No. 91-2 at 58.)
V. This Action
Nguyen filed a Complaint in this court on February 26, 2016, asserting claims under FCRA, FDCPA, UDPCA, RESPA, as well as common law claims for breach of contract, trespass, and declaratory judgment. (Compl., ECF No. 1.) On November 26, 2018, the parties filed cross-motions for summary judgment. (ECF Nos. 65 & 70.)
Legal Standard
Summary judgment is appropriate when "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). A party seeking summary judgment bears the burden of establishing the absence of a genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323 (1986). If the moving party demonstrates no issue of material fact exists, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. A party cannot defeat a summary judgment motion by relying on the allegations set forth in the complaint, unsupported conjecture, or conclusory statements. Hernandez v. Spacelabs Med., Inc., 343 F.3d 1107, 1112 (9th Cir. 2003). Summary judgment thus should be entered against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.
To determine whether summary judgment is proper, the court must view the evidence in the light most favorable to the nonmoving party. Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014); Hernandez, 343 F.3d at 1112. All reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976).
However, deference to the nonmoving party has limits. The nonmoving party must set forth "specific facts showing a genuine issue for trial." FED. R. CIV. P. 56(e) (emphasis added). The "mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Therefore, where "the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted).
Where, as here, the parties have each filed motions for summary judgment, "[e]ach motion must be considered on its own merits." Fair Housing Council of Riverside Cty., Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). "In fulfilling its duty to review each cross-motion separately, the court must review the evidence submitted in support of each cross-motion." Id.; Acosta v. City Nat'l Corp., 922 F.3d 880, 885 (9th Cir. 2019).
Preliminary Procedural Matter
In her response to Defendant's motion, Nguyen objects to the Declaration of James Laurik because it fails to lay a proper foundation for any of the attached exhibits. (Pl.'s Resp. at 5, ECF No. 80; Decl. James Laurik Supp. Mot. Summ. J. ("Laurik Decl.", ECF No. 67.) Nguyen also objects to the entire Declaration of Fay Janati and its exhibits on the grounds that the declaration is hearsay and fails to establish a proper foundation for any exhibits. (Pl.'s Resp. at 4 n.1, ECF No. 80; Janati Decl., ECF No. 66.)
The court may consider only admissible evidence when reviewing a motion for summary judgment. FED. R. CIV. P. 56(e). At the summary judgment stage, courts focus on the admissibility of the content of the evidence, not on its form. See Block v. City of L.A., 253 F.3d 410, 418-19 (9th Cir. 2001) ("To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rule of Civil Procedure 56."); Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003) (same); Marketquest Group, Inc. v. BIC Corp., 316 F. Supp. 3d 1234, 1253 (S.D. Cal. 2018) (same). Evidence submitted by affidavit must be made on personal knowledge, set forth facts that would be admissible in evidence, and demonstrate that the affiant is competent to testify. FED. R. CIV. P. 56(c). To give a document foundation, the proponent need only make a showing of authenticity sufficient to allow a reasonable juror to find that the matter in question is what its proponent claims. United States v. Tank, 200 F.3d 627, 630 (9th Cir. 2000) (citing FED. R. EVID. 901(a)).
I. James Laurik Declaration
Nguyen contends that the court must strike Mr. Laurik's Declaration and the attached exhibits in their entirety because Mr. Laurik fails to establish a proper foundation. Nguyen broadly argues that Mr. Laurik's statement that the exhibits are "true and correct copies" insufficiently authenticates the exhibits. (Pl.'s Resp. at 5, ECF No. 80.)
"The requirement of authentication . . . as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims." FED. R. EVID. 901(a). The Ninth Circuit has "repeatedly held that unauthenticated documents cannot be considered in a motion for summary judgment." Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002). The authentication of documentary evidence can be accomplished through a witness who "wrote it, signed it, used it or saw others do so." Id. at 774 n.8 (citation omitted).
Nguyen's blanket evidentiary objections to Mr. Laurik's Declaration are lacking in specificity. Nguyen fails to make any particularized objections to any specific exhibit attached to Mr. Laurik's Declaration. The court will not entertain what constitutes "boilerplate recitations of evidentiary principles or blanket objections without analysis applied to specific items of evidence." Stonefire Grill, Inc. v. FGF Brands, Inc., 987 F. Supp. 2d 1023, 1033 (C.D. Cal. 2013). It is not the court's duty to scrutinize each exhibit submitted by Mr. Laurik for potential authentication issues, especially where Nguyen has failed to do so. Marketquest, 316 F. Supp. 3d at 1253 (citing Stonefire Grill, 987 F. Supp. 2d at 1033).
Nevertheless, the court has reviewed the documents submitted by Mr. Laurik. The court observes that Exhibits B and C are documents filed in the prior court action between Nguyen and Saxon, and that Exhibits F through I are documents produced by Nguyen in this action. Accordingly, the court is satisfied Defendants could establish at trial that the documents are what its proponent claims. Tank, 200 F.3d at 630 (citing Fed. R. Evid. 901(a)). Thus, the court is generally satisfied that Mr. Laurik's exhibits meet this standard and overrules Nguyen's objection to Mr. Laurik's Declaration and Exhibits B through I.
The court observes that Mr. Laurik's Exhibit A contains portions of Nguyen's deposition taken on May 1, 2018. (Laurik Decl. Ex. A, ECF No. 67-1.) While Exhibit A properly identifies the deponent and action, it fails to include the reporter's certification. At oral argument, Mr. Burke conceded that Nguyen's deposition transcript is accurate. Thus, the court is satisfied that Nguyen's deposition excerpts are authentic. Similarly, Nguyen has attached an excerpt of Aaryn Richardson's deposition taken on December 20, 2018. (Pl.'s Ex. 28, ECF No. 91-2 at 11-22.) That excerpt contains the court reporter's certification and identifies the deponent, yet it fails to properly identify the action with a court and case number. Mr. Laurik, however, has included portions of Richardson's deposition in a separate declaration that identifies the court action and case number. (Laurik Decl. Supp. Defs.' Reply Ex. 1 at 8, ECF No. 85-1.) Thus, the court finds Richardson's deposition properly authenticated. Orr, 285 F.3d at 776. Accordingly, the court overrules Nguyen's objections to Exhibit A of Mr. Laurik's Declaration.
II. Fay Janati Declaration
Nguyen objects to Ms. Janati's Declaration on the grounds that there appears to be several missing paragraphs, as it begins at paragraph 1 on page one, then continues with paragraph 5 on page two. (Janati Decl. at 1-2, ECF No. 66 at 1-2.) Nguyen contends that Ms. Janati is not competent to provide testimony for Defendants, fails to describe whether she reviewed company records, how they were maintained, and thus, fails to provide a proper foundation. (Pl.'s Resp. at 4 n.1, ECF No. 80.) The court disagrees.
On December 17, 2018, Ms. Janati filed a second Declaration, this time in Support of Defendant's Opposition to Nguyen's Motion for Summary Judgment, in which Ms. Janati describes that she is a Senior Assistant Secretary for Litigation Support. (Second Janati Decl. at 1, ECF No. 79 at 1.) Additionally, Ms. Janati provides that as part of her job duties, she has full access to loan records for Nationstar, that Nationstar maintains such records, and that she reviewed the records pertaining to Nguyen's Loan. (Id. ¶¶ 2-4.) Notably, Nguyen does not object to Ms. Janati's Second Declaration on foundation grounds. And, again, Nguyen fails to make any particularized objections to any specific exhibit attached to Ms. Janati's Declaration. The court declines to undertake a searching evidentiary inquiry where Nguyen has failed to do so in the first instance.
Nevertheless, the court has examined the exhibits submitted in support of Ms. Janati's Declarations. The court observes that many of the exhibits attached to Ms. Janati's Declarations also have been submitted by Nguyen in support of her motion (i.e., the Settlement Agreement, the Repayment Plan, and various correspondence). See Orr, 285 F.3d at 776 (holding that after one party has authenticated a document, its authenticity is satisfied for all parties). Accordingly, the court is satisfied that the documents are what its proponent claims. Tank, 200 F.3d at 630 (citing FED. R. EVID. 901(a)). Thus, the court is generally satisfied that Ms. Janati's Declarations and exhibits meet this standard and overrules Nguyen's objection.
Discussion
Defendants move for summary judgment on all of Nguyen's claims. Defendants contend that Nguyen has breached the Repayment Plan because she failed to make payments of $2,206.05 in September and October 2012 as required. Defendants also argue that under the Deed of Trust, it was not required to accept her partial payments in January, February, and March 2013 because the amounts were insufficient to bring the loan current. Defendants argue that there are no disputed facts showing that Nguyen is not in default under the Repayment Plan, and therefore, their subsequent actions are permitted under the Loan.
In her motion for partial summary judgment, Nguyen alleges that Defendants materially breached the Settlement Agreement, and she seeks a judgment declaring that she fully performed under the Settlement Agreement and that her Loan should be reinstated. Nguyen argues that Defendants have not honored the terms of the Settlement Agreement, have erroneously held her in default, and improperly locked her out of the Property. Nguyen contends there are no material issues of fact as to liability, and that the case should proceed to trial on the amount of damages only. ////
I. Declaratory Relief and Breach of Contract
In her Fourth Claim for Relief, Nguyen seeks declaratory relief alleging that Defendants deny the existence of the Settlement Agreement, that she has complied with all terms of the Settlement Agreement, and that despite making all the required payments, Defendants have erroneously held her in default and have refused to reinstate the Loan. (Compl. ¶¶ 35-37.) In her Fifth Claim for Relief, Nguyen alleges that Defendants' actions constitute a material breach of the Settlement Agreement. (Compl. ¶¶ 42-43.) Defendants move for summary judgment contending that Nguyen cannot establish that she fully performed under the Repayment Plan. Nguyen moves for summary judgment asserting she has fully performed, and that Defendants have materially breached the Settlement Agreement.
A. Standards
To prevail on a breach of contract claim, a plaintiff must allege the existence of a contract, its relevant terms, plaintiff's full performance and lack of breach, and defendant's breach resulting in damages to plaintiff. Matchniff v. Great Northwest Ins. Co., 224 F. Supp. 3d 1119, 1124 (D. Or. 2016); Bromfield v. HSBC Bank Nevada, Case No. 3:13-cv-00462-SI, 2014 WL 183895, at *6 (D. Or. Jan. 13, 2014); Olmstead v. ReconTrust Co., Case No. 3:11-cv-00964-HA, 2012 WL 442225, at *3 (D. Or. Feb. 9, 2012); Slover v. Or. State Bd. of Clinical Soc. Workers, 144 Or. App. 565, 570 (1996). "Under Oregon law, '[a] breach is material if it goes to the very substance of the contract and defeats the object of the parties entering into the contract.'" Woods v. Wells Fargo Bank, N.A., Civ. No. 6:13-00457-AA, 2014 WL 334253, at *4 (D. Or. Jan. 28, 2014) (quoting Bisio v. Madenwald, 33 Or. App. 325, 331 (1978)). Also, under Oregon law, a plaintiff must plead and prove her own substantial performance of the contract's terms. Strasser v. BAC Home Loan Serv., No. 3:11-cv-01432-JE, 2014 WL 6686717, at *6 (D. Or. Nov. 24, 2014).
B. Analysis - Defendants' Motion
Defendants move for summary judgment on Nguyen's breach of contract claim, contending that Nguyen materially breached the terms of the Repayment Plan by failing to pay the agreed upon amount of $2,206.05 in September and October 2012. According to Defendants, the undisputed evidence shows that Nguyen made a payment of $1,093.18 on September 5, 2012, and a payment of $1,094.00 on October 10, 2012. Therefore, Nguyen failed to fully perform under the Repayment Plan, and they are entitled to summary judgment on Nguyen's breach of contract claim.
1. material terms
The Settlement Agreement provides that Nguyen would make a lump sum payment of $60,000 toward the reinstatement figure of $88,128.96; Saxon agreed to apply a credit of $10,000 toward the reinstatement figure; and the remaining balance of $17,128.96 would be paid by Nguyen over the course of twelve months by adding it to her monthly payment. (Pl.'s Ex. 3, ECF No. 91 at 12.) The Settlement Agreement provides that "a separate Repayment Plan will be prepared by Saxon and provided to counsel for plaintiff." (Id. at 13.) Additionally, the Settlement Agreement provides that "[t]he terms of the repayment plan are incorporated into this Agreement and are material and necessary to effect this Agreement." (Id.)
The Repayment Plan contains the following material terms: Nguyen had an outstanding unpaid principal balance of $374,800, a reinstatement figure of $74,759.96; Nguyen was to make a payment of $60,000 in October 2011; and Nguyen was to make twelve monthly payments of $2,206.05, beginning in November 2011, continuing through October 2012. (Pl.'s Ex. 2, ECF No. 91 at 10.) Additionally, the Repayment Plan also provided for modifying Nguyen's monthly payment amount based on the variable interest rate on the Loan:
In addition to the payment amounts set forth above, Mortgagor [Nguyen] shall be responsible for any increase in monthly payment amounts which may accrue as the result of changes in interest rate, escrow Impound for taxes and insurance or scheduled principal and interest payment changes and those amounts shall be added to the payment amounts due under this Agreement.(Id.)
2. Nguyen did not perform fully under the Settlement Agreement and Repayment Plan
The parties agree that at the time the Repayment Plan was signed on October 2011, Nguyen's monthly payments on the Loan were $976.04. (Janati Decl. Ex. 5, ECF No. 79-5; Pl.'s Ex. 13, ECF No. 91-45.) Thus, dividing the balance of $14,759.96 ($74,759.96 less $60,000) by twelve and adding it to Nguyen's monthly mortgage payment results in a monthly payment of roughly $2,206.05 - the figure provided in the Repayment Plan. Contrary to Nguyen's suggestion, there is no ambiguity in the amount of the reinstatement balance or Nguyen's monthly payment amount as provided in the Repayment Plan. Although Nguyen now alleges that the amount of the reinstatement balance and monthly repayments amounts were incorrectly calculated and are ambiguous, Nguyen did not present such arguments at the time, and it is undisputed that she agreed to the terms of Repayment Plan by signing the agreement and making several monthly payments in the amount specified in the Repayment Plan. (See Pl.'s Ex. 5, ECF No. 91 at 19.) Moreover, Nguyen acknowledged the validity of the contract and its terms when she sent a May 1, 2012 letter to Ocwen indicating that she had a Repayment agreement worked out with Saxon that required her to make monthly payments of $2,206.05 through October 2012. (Sealed Laurik Decl. Ex. D, ECF No. 83; Pl.'s Ex. 7, ECF No. 91 at 29.) Therefore, the court finds that Nguyen agreed to be bound by the terms of the Repayment Plan, and that the terms of the Repayment Plan are unambiguous.
By the court's calculation, Nguyen's monthly payment would be $2,206.04, a one cent difference, which is likely due to a rounding error.
Finally, viewing the evidence in the light most favorable to Nguyen, the court finds that Nguyen did not fully perform under the terms of the Repayment Plan because she failed to make all twelve of the required payments of $2,206.05. Instead, as Nguyen's payment history reflects, and by her own admission, she paid less than that amount in September 2012 and October 2012 by making payments of $1,093.18 and $1,094.00 respectively. (Pl.'s Ex. 5, ECF No. 91 at 19.) Therefore, because Nguyen cannot establish her full performance under the contract, Defendants' motion for summary judgment on the breach of contract claim and related claim for declaratory relief should be granted.
C. Analysis - Nguyen's Motion
Nguyen moves for summary judgment on several grounds. Nguyen argues that the Repayment Plan balance is incorrect, and that the Repayment Plan erroneously failed to credit Nguyen for $10,000. (Pl.'s Mot. Partial Summ. J. at 10, ECF No. 70.) Nguyen contends that the Repayment Plan failed to account for the changes in her underlying monthly payment amount, which would fluctuate periodically based on the changes to the interest rate in her adjustable rate Note. (Id. at 11.) Nguyen argues that Defendants notified her of a lower payment in September, and she paid that amount as instructed. (Id. at 12.) Nguyen further argues that Defendants erroneously have been holding $4,098.01 of Nguyen's payments in a suspense account or escrow instead of applying them to the Loan, violating the terms of the Settlement Agreement. (Id.) According to Nguyen, Defendants erroneously stopped accepting her payments in January 2013, thereby materially breaching the Settlement Agreement, and she is entitled to summary judgment on her breach of contract claim. Nguyen also requests that the court declare that she fully performed under the contract, Defendants materially breached the contract, and the damages be assessed at trial.
1. Saxon credited Nguyen $10,000
Nguyen's contention that the Repayment Plan is ambiguous because it failed to account for the $10,000 credit promised under the Settlement Agreement is not well-taken. According to Nguyen, the ambiguities between the Settlement Agreement and the Repayment Plan "have a direct impact" on Nguyen's payment obligations. Nguyen suggests that the Repayment Plan failed to account for the $10,000 credit from Saxon, and that if properly applied, her obligation under the Repayment Plan would have been considerably less. The court disagrees.
Under the express terms of the Settlement Agreement, Nguyen was to make a lump sum payment of $60,000. It is undisputed that she made the required $60,000 payment on October 27, 2011. (Pl.'s Ex. 4, ECF No. 91 at 18; Janati Decl. Ex. 4, ECF No. 79-4.) Similarly, under the express terms of the Settlement Agreement, Saxon was to credit Nguyen $10,000. This credit is reflected in the $74,759.96 reinstatement balance in the Repayment Plan. As detailed in the Repayment Plan, the reinstatement balance reflects the application of the $10,000 and waiver of associated fees prior to application of Nguyen's $60,000 lump sum payment. After applying Nguyen's $60,000 payment, a reinstatement balance of approximately $14,759.96 remained, to be spread among twelve monthly payments and added to Nguyen's regular monthly mortgage payments. Defendants have provided that any difference in the reinstatement amount between the Settlement Agreement and Repayment Plan resulted from additional discounts provided to Nguyen, and were to her benefit. (Pl.'s Ex. 91, Dep. Aaryn Richardson, 76:15-77:16, ECF No. 91-2 at 17-18.) Nguyen's contention that Saxon failed to credit her $10,000 at all is unsupported by the evidence, was not asserted at the time, and is contrary to Nguyen's performance under Repayment Plan.
2. changes to monthly payments
Nguyen contends that because her underlying mortgage payment changed due to the adjustable interest rate, and servicers sent her letters indicating that her underlying monthly payment would be changing, she was entitled to rely on that correspondence instead of the terms of the Repayment Plan. Nguyen appears to suggest that because Saxon and Ocwen sent letters indicating that her monthly payment was changing under the Note, she was entitled to disregard the Repayment Plan and pay only the amount stated in the letter. Based on the evidence before the court, a reasonable trier of fact could not conclude that Nguyen substantially performed her obligations under the contract, or that Defendants breached the contract by sending letters indicating that the interest rate on the Note was changing. Nguyen's argument fails for two reasons.
First, as discussed above, the Repayment Plan specifically contemplated that her underlying monthly payment could change based on fluctuations to the interest rate on the adjustable rate Note. The Repayment Plan specifically provides that Nguyen is "responsible for any increase in monthly payment amounts." (Pl.'s Ex. 2, ECF No. 91 at 10.) Thus, Nguyen expressly agreed that she was responsible for any increased amounts.
Second, despite receiving a letter from Saxon on January 19, 2012, indicating that her monthly payment was changing from $976.04 to $1,093.17 effective March 2012, Nguyen continued to make payments at least close to the $2,206.05 amount stated in the Repayment Plan through August 2012. (Pl.'s Ex. 5, ECF No. 91 at 19.) Moreover, in response to a notice from Ocwen that it was then servicing the Loan, on May 1, 2012, Nguyen responded that her monthly payment was $2,206.05 through October 2012. (Pl.'s Ex. 6 & 7, ECF No. 91 at 28-29.) Thus, after Ocwen began servicing the Loan, Nguyen represented that she understood her obligation under the Repayment Plan continued through October 2012. Nguyen's current assertion is flatly contradicted by her own contemporaneous representations.
Nguyen received a letter from Ocwen on July 5, 2012, indicating that her interest rate was adjusting on August 1, 2012, and that a change to her monthly payment from $1,093.17 to $1,093.18 would begin September 2012. Despite insisting on May 1, 2012 that she was bound by the Repayment Plan to make payments of $2,206.05 through October 2012, it is undisputed that Nguyen made payments of $1,093.18 and $1,094.00 in September and October 2012, respectively. As discussed above, under the terms of the Repayment Plan, Nguyen was required to account for any increase in her monthly payment as a result of changes to her adjustable rate Note. Based on Nguyen's own representation of her payment history, she failed to fully perform under the Repayment Plan by making payments of less than $2,206.05 in September and October 2012. No reasonable juror could conclude that Nguyen fully performed under the Repayment Plan. Strasser, 2014 WL 6686717, at *7 (holding plaintiff did not make all mortgage payments and bank was entitled to apply or return partial payments under deed of trust). And, viewing the evidence in the light most favorable to Defendants, no reasonable juror could conclude that Defendants breached the Settlement Agreement or the Repayment Plan by sending Nguyen letters indicating that her underlying monthly payment was changing.
3. the evidence does not establish missing credits or payments
Nguyen insists that there are issues of fact that defeat summary judgment in Defendant's favor on her breach of contract claim. Nguyen insists that Defendants have lost or misapplied at least two and as many as four payments, and that she is not delinquent on the Loan. Nguyen also insists that Defendants failed to credit her with $2,067.40 in payments at the start of the settlement process, and that summary judgment must be denied because Defendants breached the Settlement Agreement. The court disagrees.
Nguyen insists that Defendants failed to apply the full $10,000 credit as promised under the Settlement Agreement. (Pl.'s Resp. Mot. Summ. J. at 6, ECF No. 80.) As Saxon's transaction history reveals, Saxon credited Nguyen's account a total of $10,000 by applying four payments of $2,264.42 ($9,057.68) for interest, plus four one cent payments toward escrow ($.04), plus $942.28 as "other," for a total of $10,001. (Pl.'s Ex. 22, ECF No. 91-1 at 2.) Contrary to Nguyen's insistence, there is no portion of Saxon's agreed upon $10,000 credit that is unaccounted for, and Saxon did not breach the Settlement Agreement.
Likewise, Nguyen has failed to demonstrate that Saxon misapplied her $60,000 payment under the Settlement Agreement. (Pl.'s Resp. Mot. Summ. J. at 6.) Again, Saxon's transaction history reveals it applied twenty-six payments of $2,264.42 ($58,874.92) for interest, plus twenty-six one-cent payments toward escrow ($.26), plus $2,000 as "other" for a total of $60,875.18. (Pl.'s Ex. 22, ECF No. 91-1 at 2.) Again, Nguyen was fully credited by Saxon for her $60,000 payment, and Defendants did not breach the Settlement Agreement. Nguyen's alternative interpretation of Saxon's transaction history is not supported by the documentary evidence.
Admittedly, there appeared to be confusion at Saxon about receiving Nguyen's payments under the Repayment Plan initially. And, at the time Saxon service-released the Loan to Ocwen, Ocwen was unaware of the Settlement Agreement and Repayment Plan. However, there is no question that Saxon applied the full $10,000 credit to Nguyen's account, and that Saxon fully applied Nguyen's $60,000 payment to her account.
Turning to Nguyen's allegations of missing payments, Nguyen fails to show that she has not been credited for all payments made to Defendants. As reflected in Saxon's payment history, Nguyen made six payments of $2,206.05 to Saxon (November 2011 through April 2012). Three of Nguyen's payments were credited in February 2012, and the fourth payment in March 2012. (Pl.'s Ex. 22, ECF No. 91-1 at 13-14) (showing payments of $2,206.05 each). Nguyen's two remaining Saxon payments are reflected in Ocwen's transaction history as a result of the service release of the Loan. Nguyen's $2,206.05 March 2012 and April 2012 payments were credited in April and May 2012 respectively, in amounts of $2,264.43 each. (Pl.'s Ex. 23, ECF No. 91-1 at 18 (showing payments of $2,264.43 on April 19, 2012 and May 14, 2012). (Pl.'s Ex. 28, Richardson Dep.46:13-25, ECF No. 91-2 at 11.) Additionally, Nguyen's $2,264.43 May 2012 payment was credited on May 18, 2012, and is reflected in Ocwen's payment history as four payments of $976.05. (Id.; Pl.'s Ex. 28, Richardson Dep.47:2-10, ECF No. 91-2 at 11.) Nguyen's remaining payments occurring June 2012 through December 2012 are all reflected in Ocwen's payment history as occurring on the dates corresponding to the dates in Nguyen's own payment history. (Compare Id. at 18-19 with Pl.'s Ex. 5, ECF No. 91 at 5; Pl.'s Ex. 28, Richardson Dep. 51:1-14, ECF No. 91-2 at 12.) Additionally, Ocwen's payment history reflects the two returned payments in January 2013, consistent with Nguyen's own payment history. (Pl.'s Ex. 28, Richardson Dep. 51:15-19, ECF No. 91-2 at 12.) Thus, contrary to Nguyen's assertion, there are no unaccounted-for payments. Again, Nguyen's alternative interpretation is not supported by the evidence and does not create an issue of fact. No reasonable juror could conclude that Defendants failed to credit Nguyen for the payments she sent under the Repayment Plan, failed to apply her $60,000 payment, or that she failed to receive a $10,000 credit from Saxon.
Therefore, as discussed above, the undisputed evidence shows that Nguyen failed to make all the required payments in the full amounts in conjunction with the Repayment Plan. Nguyen admitted that she did not tender additional payments on the Loan after Ocwen rejected her payments, and she further admitted that at the time Nationstar began servicing her Loan in May 2013, she was several months behind in payments and has not made a single payment to Nationstar since that time. (Laurik Decl. Ex. A, Pl.'s Dep. 164:2-11, 169:4-11, ECF No. 67-1 at 11-12.) Accordingly, no reasonable juror could conclude that Nguyen performed fully under the Repayment Plan.
D. Breach of Contract and Declaratory Judgment Conclusion
In summary, there are no genuine issues of material fact that Defendants fully credited Nguyen for the agreed-upon amounts in the Settlement Agreement, and Nguyen was credited for all payments made under the Repayment Plan; therefore, Nguyen's motion for summary judgment should be denied. Additionally, there is no genuine issue of material fact that Nguyen failed to fully perform under the Repayment Plan by making payments less than $2,206.05 in September and October 2012, Defendant's motion for summary judgment should be granted on Nguyen's claims for breach of contract claim and declaratory judgment. ////
II. Fair Credit Reporting Act
In Nguyen's First Claim for Relief, Nguyen alleges that Defendants have violated the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681s-2(a)(1), by falsely reporting the Loan as delinquent, and failing to perform an adequate investigation. Defendants contend that they are entitled to summary judgment on Nguyen's FCRA claim because they accurately reported to credit reporting agencies ("CRAs") that Nguyen's Loan was past due. According to Defendants, it is undisputed that Nguyen paid less than the full amount due on the Repayment Plan and failed to bring her Loan current in late 2012, therefore Ocwen returned Nguyen's tendered amounts in January, February, and March 2013 as insufficient payments under the Deed of Trust. (Laurik Decl. Ex. A; Nationstar Decl. Ex. 8.) Additionally, Defendants maintain that Nguyen has not made any payments on the Loan since Nationstar began servicing the Loan in May 2013, and their reporting to CRAs has been accurate.
Nguyen moves for summary judgment contending that Defendants inaccurately reported her Loan as delinquent and failed to respond within thirty days of receiving her dispute of the credit reporting. Nguyen argues that she sent letters on June 1, 2014, and October 23, 2014, and that Nationstar failed to respond within 30 days are required under 15 U.S.C. § 1681i(a)(1)(A).
A. Standards
Congress enacted the FCRA to "ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy." Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). FCRA governs the collection, dissemination and use of consumer credit information. "[T]o ensure that credit reports are accurate, the FCRA imposes some duties on the sources that provide credit information to [Credit Reporting Agencies ("CRAs")]." Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1153 (9th Cir. 2009); Shaw v. Experian Info. Sols., Inc., 891 F.3d 749, 755-56 (9th Cir. 2018). Section 1681s-2 sets forth the duties of those who provide information to CRAs. Id. at 1154; Williams v. Equifax Info. Servs., Case No. ED CV18-02457 JAK (SHKx), 2019 WL 3243737, at *2-3 (C.D. Cal. May 6, 2019). To ensure accuracy of credit reports, FCRA imposes some duties on those who provide or "furnish" information to CRAs. Such a party is referred to as a "furnisher." 15 U.S.C. § 1681s-2(b). Section 1681s-2 sets out two categories of responsibilities for furnishers. Gorman, 584 F.3d at 1154. The first, in § 1681s-2(a), requires furnishers "to provide accurate information," and includes the duty to report to the CRA the information is "disputed by the consumer" when furnishing disputed information. 15 U.S.C. § 1681s-2(a)(3); Gorman, 584 F.3d at 1154.
The second category of responsibilities is triggered when a furnisher is notified by a CRA that a consumer disputes any reported information. 15 U.S.C. § 1681s-2(b). Subsection (b) requires the furnisher to conduct an investigation; review all relevant information provided by the CRA; report the results of its investigation to the CRA; if its investigation reveals incomplete or inaccurate information, it must notify all other CRAs to whom it furnished the information; and if the incomplete or inaccurate information cannot be verified, it must modify, delete, or block the information permanently. 15 U.S.C. § 1681s-2(b)(1). These duties are triggered "after the furnisher received notice of a dispute from a CRA; notice of a dispute received directly from the consumer does not trigger the furnisher's duties under subsection (b)." Gorman, 584 F.3d at 1154.
FCRA creates a private right of action for willful or negligent noncompliance with its requirements. Gorman, 584 F.3d at 1154 (citing 15 U.S.C. §§ 1681n & o); see also Nelson v. Chase Manhattan Mortgage Corp., 282 F.3d 1057, 1059 (9th Cir. 2002)). A private right of action can be based on an alleged violation of 15 U.S.C. § 1681s-2(b), but not on a violation of 15 U.S.C. § 1681s-2(a). See Nelson, 282 F.3d at 1060; Gorman, 584 F.3d at 1154; 15 U.S.C. § 1681s-2(d).
B. Analysis - Defendants' Motion
Defendants move for summary judgment contending that Nguyen cannot establish liability under § 1681s-2(b) because the letters indicating a dispute came from Nguyen, not a CRA. Defendants also seek summary judgment under § 1681s-2(a) because the information they provided to CRAs was accurate. Nguyen responds that Defendants have failed to apply all payments Nguyen made under the Repayment Plan, failed to fully apply Nguyen's $60,000 payment in October 2011, failed to fully apply Saxon's $10,000 credit, and therefore have incorrectly reported to CRAs that Nguyen has not made any payments since December 2012.
Defendants correctly highlight that Nguyen cannot establish a § 1681s-2(b) violation premised on the June 2014 and October 2014 letters she sent to Nationstar. Gorman, 584 F.3d at 1154 (holding no § 1681s-2(b) violation where notice received directly from consumer); Chang v. Citimortgage, Inc., No. 3:12-cv-01884-HU, 2013 WL 5939985, at *10 (D. Or. Nov. 2, 2013) (holding there is no private right of action under § 1681s-2(a) and that furnisher's receipt of notice directly from consumer does not trigger duties under subsection (b)). Thus, because Nguyen has not demonstrated that Defendants received a notice from a CRA that Nguyen was disputing the information, Nguyen's claim under § 1681s-2(b) fails, and Defendants' motion on this basis should be granted.
Additionally, as Defendants accurately highlight, there is no private cause of action under § 1681s-2(a), and therefore, to the extent Nguyen is asserting such a claim, it likewise fails. Nelson, 282 F.3d at 1060; Gorman, 584 F.3d at 1154. Finally, even assuming arguendo that Nguyen could bring a claim under § 1681s-2(a), she has failed to create a genuine issue of material fact that the information provided to the CRAs was false. As discussed above, viewing the evidence in the light most favorable to Nguyen, it establishes that Saxon fully applied Nguyen's $60,000 payment and Saxon fully credited $10,000 toward Nguyen's account. Additionally, the evidence shows that Nguyen's account was credited for all payments she made under the Repayment Plan. And, it is undisputed that Nguyen did not make all the full payments as required under the Repayment Plan in September and October 2012. (Pl.'s Ex. 5, ECF No. 91 at 19.) Thus, contrary to Nguyen's insistence, there are no unaccounted-for payments. Additionally, at the time the Loan was transferred to Nationstar in May 2013, Nguyen admitted it had been several months since she made a payment, and Nationstar accurately reported to CRAs that the Loan was in past due status. See Gorman, 584 F.3d at 1163 (holding that inaccurate under § 1681s-2(b) means "patently incorrect" or "misleading"). Because Nguyen has not established that Nationstar inaccurately reported her Loan as delinquent to a CRA, her FRCA claim fails as a matter of law. For all these reasons, the court recommends that Defendants' motion for summary judgment be granted.
C. Analysis - Nguyen's Motion
Nguyen asserts that Defendants were required to respond to her July and October 2014 letters disputing the accuracy of her default status within thirty days, violating 15 U.S.C. §§ 1681s-2(b) and 1681i(a)(1)(A). Nguyen's motion fails for several reasons.
First, "a furnisher's statutory obligations are triggered 'only after the furnisher receives notice of a dispute from a CRA; notice of a dispute received directly from the consumer' is insufficient." Bondi v. Nationstar Mortgage LLC, 752 F. App'x 431, 432 (9th Cir. 2018) (citing Gorman, 584 F.3d at 1154). In her motion and information submitted to the court, Nguyen cites only her direct correspondence with Nationstar, and provides no evidence that Nationstar received notice from a CRA. Accordingly, her allegation under § 1681s-2(b) fails. Bondi, 752 F. App'x at 433 (granting summary judgment to Nationstar on FRCA claim where no evidence presented that Nationstar received notice of dispute from CRA); see also Chang, 2013 WL 5939985, at *10 (holding there is no private right of action under § 1681s-2(a) and that furnisher's receipt of notice directly from consumer does not trigger duties under subsection (b)).
Second, §1681i(a)(1)(A) does not require Defendants to provide Nguyen with a response to her letters within thirty days. Section 1681i's reinvestigation provision expressly applies to CRAs, not furnishers. 15 U.S.C. § 1681i. Nguyen did not indicate in her Complaint that she is pursuing a claim under § 1681i. Even assuming arguendo Nguyen's Complaint could be construed to assert such a claim, she has not made a prima facie showing of inaccurate reporting, as discussed above. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 879, 890 (9th Cir. 2010) (holding plaintiff must make prima facie showing of inaccurate reporting to state claim under § 1681i). It is undisputed that Nguyen has not made a payment on the Loan since Nationstar began servicing it in May 2013.
Third, pursuant to § 1681s-2(a)(7), furnishers of credit information are required to provide persons notice within thirty days of providing negative credit information to CRAs. 15 U.S.C. § 1681s-2(a)(7)(B)(i). However, that statute did not require Defendants to respond to Nguyen within thirty days. Nguyen identifies no authority supporting her contention that Defendants violated any provision of the FCRA by failing to respond to her letters within thirty days, and the court declines to interpret the existence of such an obligation.
And fourth, even if Nationstar had received notice of a dispute from a CRA, Nguyen does not articulate how Nationstar violated FCRA. Upon receiving notice of the dispute from Nguyen, Nationstar conducted an investigation and responded by letter on July 1, 2014. (Sealed Laurik Decl. Ex. H, ECF No. 83.) In that letter, Nationstar described that it investigated the dispute, and concluded that the information reported to the CRAs accurately reflected that Nguyen had not made any payments on the Loan since December 2012. (Id.) And, as discussed above, Nguyen's payments in January 2013 were returned, and she admits that she has not made any payments since Nationstar began servicing the Loan in May 2013. Nationstar was not required to accept her assertion that payments were lost or inaccurately applied. Bondi, 752 F. App'x at 433; Gorman, 584 F.3d at 1161 ("An investigation is not necessarily unreasonable because it results in a substantive conclusion unfavorable to the consumer[.]") Because no reasonable juror could conclude that Defendants violated §§ 1681s-2(b) or 1681i by failing to respond to Nguyen's letter within thirty days, Nguyen's motion should be denied.
In summary, the court recommends that Nguyen's motion for summary judgment on her FCRA claim be denied, and that Defendant's motion on this claim be granted.
III. Fair Debt Collection Practices Act
In Nguyen's Third Claim for Relief, she alleges Defendants have repeatedly contacted her directly, while having notice that she was represented by counsel, in violation of the FDCPA, 15 U.S.C. §§ 1692-1692o. (Compl. ¶¶ 29-32, ECF No. 1.) Defendants move for summary judgment on this claim on two bases: (1) they are not debt collectors under the FDCPA; and (2) Nguyen admitted in her deposition that she never intended for Defendants to communicate exclusively with her attorney and consented to their contact. Nguyen moves for summary judgment contending that Defendants are covered by the FDCPA because the Loan was not in default at time it was transferred, and because Nguyen repeatedly informed Defendants to communicate only with counsel.
A. Standards
The FDCPA prohibits debt collectors from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e; see Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1169-70 (9th Cir. 2006) (noting that FDCPA enacted to protect consumers from improper collection practices without imposing unnecessary restrictions on ethical debt collectors). The FDCPA is a strict liability statute - it makes debt collectors liable for violations that are not knowing or intentional. Reichert v. Nat'l Credit Sys., 531 F.3d 1002, 1004-05 (9th Cir. 2008). "Under the strict liability framework, proof of a single FDCPA violation is sufficient to support summary judgment for the plaintiff (emphasis added)." Isham v. Gurstel, Staloch & Chargo, P.A., 738 F. Supp. 2d 986, 992 (D. Ariz. 2010). The Ninth Circuit has continuously instructed that the FDCPA is to be construed liberally in favor of the consumer. Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1030 (9th Cir. 2010).
Nguyen argues that the FDCPA provision at issue for liability purposes is § 1692c(a)(2), which governs communication with a consumer who is represented by an attorney. (Compl. ¶¶ 29-31, ECF No. 1.) Section 1692c(a)(2) provides:
Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt -
. . . .
(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's
name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer[.]15 U.S.C. § 1692c(a)(2). Section 1692c(a)(2) applies only to the conduct of a "debt collector." Dowers v. Nationstar Mortgage, LLC, 852 F.3d 964, 969 (9th Cir. 2017) (holding that if defendants were not acting as debt collectors when interacting with plaintiffs, claims under § 1681c(a)(2) must be dismissed). The FDCPA defines a debt collector in § 1692a(6), which provides in relevant part:
The term "debt collector" means any person [1] who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or [2] who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.15 U.S.C. § 1692a(6).
B. Defendant's Motion
1. Defendants are not debt collectors
Defendants argue they are not debt collectors under the FDCA, citing Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1721 (2017). In Henson, the Supreme Court held that an entity that acquired a debt already in default and then attempted to collect that debt on its own behalf was not a "debt collector" as that term is defined under the FDCPA. Id. There, the Supreme Court determined that the defendant was not a debt collector because it sought to collect the debt on its behalf, and not on behalf of another. Id. at 1721-22; Swango v. Nationstar Sub1, LLC, 292 F. Supp. 3d 1134, 1147 (D. Or. 2018) (granting motion to dismiss on FDCPA claim because MetLife and Nationstar were not debt collectors under the FDCPA where they attempted to collect on a reverse mortgage on their own behalf); Baldin v Wells Fargo, No. 3:12-cv-648-AC, 2013 WL 794086, at *12 (D. Or. Feb. 12, 2013) (holding Wells Fargo was not debt collector under FDCPA where attempting to collect on owed mortgage payments). Defendants contend that because they are not debt collectors under the FDCPA, they are entitled to summary judgment on Nguyen's § 1692c(a)(2) claim.
Nguyen responds that Defendants are debt collectors under the FDCPA because the Loan was not in default at the time it was transferred from Ocwen to Nationstar in May 2013, citing § 1692c(a)(2) and cases decided before Henson. Nguyen argues that Defendants admit they contacted Nguyen directly despite knowing she was represented by counsel. Nguyen also contends that Defendants erroneously have required Nguyen's attorney to provide verifying information prior to discussing details relating to Nguyen's account. (Compl. ¶¶ 29-31.)
It is unclear from Nguyen's briefing whether she is asserting that Defendants are debt collectors under the first "principal purpose" definition of debt collector, or the second "regular collector of debts" definition. See McAdory v. M.N.S. & Assocs., LLC, Case No. 3:17-cv-00777-HZ, 2017 WL 5071263, at *2 & n.1 (D. Or. Nov. 3, 2017) (discussing that § 1692a(6) defines two types of debt collectors - the "principal purpose" debt collector and those who "regularly collect" debts); accord Swango, 292 F. Supp. 3d. at 1148 (recognizing two definitions of debt collectors; those who regularly collect, and those whose principal purpose is to collect debts).
To the extent that Nguyen contends Defendants are regular collectors of debt, Henson forecloses her claim. As discussed above, the Loan was in default at the time it was acquired by Defendants. Defendants' efforts to collect on the Loan were on their behalf, and not on behalf of others. Henson, 137 S. Ct. at 1721; Swango, 292 F. Supp. 3d at 1147-48. Because Defendants are not debt collectors, Nguyen's FDCPA claim fails, and Defendants' motion for summary judgment should be granted.
To the extent that Nguyen is attempting to pursue her claim under the "principal purpose" definition of § 1692a(6), recent Ninth Circuit case law forecloses her claim under § 1681c(a)(2). Defendants were not "debt collectors" because they were not trying to retrieve a money debt. Ho v. Recon Trust Co., NA, 858 F.3d 568, 572 (9th Cir. 2017); Dowers v. Nationstar Mortgage, LLC, 852 F.3d 964, 970 (9th Cir. 2017); see also Hulse v. Ocwen Federal Bank, FSB, 195 F. Supp. 2d 1188, 1204 (D. Or. 2002) ("Foreclosing on a trust deed is distinct from the collection of the obligation to pay money."); Diaz v. Nationstar Mortgage LLC, Case No. 17cv1607-MMA (BGS), 2018 WL 1071699, at *7 (S.D. Cal. Feb. 27, 2018) (holding Nationstar not a debt collector, and that FDCPA only regulates money debts, not security interests such as a non-judicial foreclosure).
In Ho, the Ninth Circuit determined that Recon Trust, acting as the trustee, was not a "debt collector" under FDCPA's general definition. The court reasoned that under the FDCPA, the word "debt" is synonymous with money, and that Recon Trust could be liable only if it attempted to collect money from Ho. Ho, 858 F.3d at 571. The Ninth Circuit held that Recon Trust was attempting to facilitate a non-judicial foreclosure, and its actions, "such as sending the notice of default and notice of sale, are not attempts to collect 'debt' as that term is defined by the FDCPA." Id. at 573.
In Dowers, the plaintiffs sued their bank and mortgage servicers alleging various FDCPA claims, including § 1681c(a)(2) and § 1681f(6). Dowers, 852 F.3d at 966-97. There, the servicer contacted the plaintiffs directly, despite knowing they were represented by counsel, and posted a notice on the property asking the plaintiffs to call the loan servicer. Id. at 967-68. The trial court dismissed all the FDCPA claims finding the servicers' actions constituted a non-judicial foreclosure attempt, not debt collection. Id. at 967. On appeal, the Ninth Circuit affirmed dismissal of the FDCPA claims brought under § 1681c(a)(2), 1692d, and 1692e because the alleged activities did not involve collection activity, but instead were attempts to enforce the deed of trust, a security interest, to which the general definition of a debt collector did not apply. Id. at 970. However, the Dowers court reversed dismissal of the plaintiff's claims under § 1692f(6) because the definition of a debt collector under that section includes a person enforcing a security interest. Id. at 971. Thus, because § 1692f(6) "regulates nonjudicial foreclosure activity" and the plaintiffs there alleged that mortgage servicer threatened nonjudicial action to dispossess the plaintiffs from their property, the court found the trial court should not have dismissed the § 1692f(6) claim. Id. at 971.
Dowers and Ho dictate the outcome here. In support of her § 1692c(a)(2) claim, Nguyen identifies an August 1, 2014 letter, addressed to Nguyen at her attorney's address. (Second Janati Decl. Ex. 12, ECF No. 79-12.) In the letter, Nationstar indicates that the letter required by the "terms of the security interest" and that Nguyen is in default under the terms of loan. (Id. at 1.) The letter further indicates that failure to pay the default balance "may result in acceleration of the sums under the Security Instrument, foreclosure proceedings and sale of the Property." (Id. at 2.) Clearly, the August 2014 letter is an attempt to enforce a security instrument and Defendants were not acting as debt collectors. Dowers, 852 F.3d at 970; Ho, 858 F.3d at 572; Hernandez v. Ditech Fin., LLC, CV 17-4294-GW (JEMx), 2019 WL 856406, at *9 (C.D. Cal. Feb. 1, 2019) (granting summary judgment on all FDCPA claims except those under § 1692f(6) because Ditech's actions were to enforce a security instrument). Accordingly, Defendants' motion for summary judgment on Nguyen's § 1692c(a)(2) claim should be granted. Nguyen does not assert a claim under § 1692f(6), and the court will not speculate whether Defendants are debt collectors under that provision. Ho, 858 F.3d at 573 (noting Recon Trust was not accused of conduct prohibited by § 1692f(6)).
Additionally, Nguyen cites a July 14, 2014 letter from Nationstar to Mr. Burke indicating that it was responding to a June 1, 2014 inquiry it had received relating to credit reporting concerning her Loan. (Pl.'s Ex. 16, ECF No. 91 at 49.) It is unclear how either the August or July 2014 letter addressed to Mr. Burke could violate § 1692c(a)(2), even if that section could apply.
C. Nguyen's Motion
Nguyen alleges that Defendants repeatedly contacted her directly in violation of 15 U.S.C. § 1692c(a)(2). Nguyen complains that despite receiving notice that she is represented by counsel on June 15, 2015, Defendants contacted her. (Pl.'s Mot. Summ. J. at 16.) Nguyen asserts that Defendants are debt collectors under § 1692a(6)(F)(iii). In response, Defendants contend that Nguyen waived any right to not communicate with her because she repeatedly contacted Nationstar, and admitted in her deposition that she did not intend for Defendants to only contact her attorney.
In her Reply, Nguyen asserts that Defendants have violated § 1692e. (Pl.'s Reply at 16, ECF No. 86.) Nguyen's claim under § 1692e would fail for the same reasons as her claim under § 1692c(a)(2). Dowers, 852 F.3d at 971-972 (dismissing claims under §§ 1962c(a)(2), 1962d, and 1962e because defendants were not debt collectors as defined under applicable FDCPA provision).
Nguyen's motion fails for two primary reasons. First, as Defendants correctly contend, Defendants are not "debt collectors" as that term is defined under the statute. As discussed above, Nguyen's assertion that Defendants are regular collectors of debt under the general debt collector definition in § 1692a(6) fails to acknowledge controlling Supreme Court precedent. Additionally, controlling Ninth Circuit precedent has held that the FDCPA regulates only money debts, not security interests such as non-judicial foreclosure, precluding her claim under § 1692c(a)(2). Dowers, 852 F.3d at 970; Ho, 858 F.3d at 573. Instead, § 1692f(6) applies to the enforcement of security interests. Dowers, 852 F.3d at 971. Nguyen is not pursuing a § 1692f(6) claim, but instead seeks relief under § 1692c(a)(2). As a matter of law, Nguyen's claim under § 1692c(a)(2) fails, and Nguyen's motion for summary judgment should be denied.
Second, even if Nguyen's Complaint could be construed to include a § 1692f(6) claim, Defendants would be entitled to summary judgment. A debt collector may include persons whose "principal purpose" is the enforcement of security interests, which includes foreclosures. Diaz v. Nationstar, 2018 WL 1071699, at *7. Section 1692f(6) prohibits the following:
[t]aking or threatening to take any nonjudicial action to effect dispossession or disablement of property if—(A) there is no present right to possession of the property claimed as collateral through an enforceable security interest; (B) there is no present intention to take possession of the property; or (C) the property is exempt by law from such dispossession or disablement.15 U.S.C. § 1692f(6).
As detailed above, the evidence establishes that Nguyen was several months behind in payments when Nationstar began servicing the Loan, and she admits that she has not made a single payment to Nationstar since May 2013. Thus, Defendants have presented evidence establishing they had the present right to possession of the Property claimed as collateral for the Loan through an enforceable security instrument. Hernandez, 2019 WL 856406, at *13. Accordingly, even if Nguyen's Complaint could somehow be construed to assert a claim under § 1692f(6), no reasonable juror could conclude that Defendants violated the FDCPA. Accordingly, Nguyen's motion for summary judgment should be denied.
IV. RESPA
In her Sixth Claim for Relief, Nguyen alleges that on October 23, 2014, she sent a qualified written dispute letter to Nationstar via certified mail, and that they failed to respond within thirty days, violating 12 U.S.C. § 2605(e)(1)(A). (Compl. ¶¶ 44-47.) In her motion for summary judgment, Nguyen alleges that she sent two qualified written dispute letters, June 1, 2014, and October 23, 2014. (Pl.'s Exs. 8 & 9, ECF No. 91. at 32-33.) Nguyen asserts that she is entitled to statutory damages of $1,000 for each violation, plus attorney fees.
A. Standards
The Real Estate Settlement Procedures Act ("RESPA") requires the servicer of a federally regulated mortgage loan to provide borrowers with a timely written response to a "qualified written request" ("QWR"). 12 U.S.C. § 2605; Medrano v. Flagstar Bank, FSB, 704 F.3d 661, 665 (9th Cir. 2012). A QWR is a written correspondence that includes "the name and account of the borrower" and "a statement of the reasons . . . that the account is in error or provides sufficient detail to the servicer regarding other information sought by the borrower." 12 U.S.C. § 2605(e)(1)(B); Medrano, 704 F.3d at 665; Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 680 (7th Cir. 2011) (describing a QWR as written correspondence requesting information or "states reasons for the borrower's belief that the account is in error'). "RESPA does not require a QWR to include any magic words: [a]ny reasonably stated written request for account information can be a qualified written request." Rey v. OneWest Bank, FSB, No. 2:12-cv-01078-MCE-GGH, 2013 WL 1791910, at *3 (E.D. Cal. Apr. 26, 2013) (internal quotation and citation omitted); Medrano, 704 F.3d at 666; Catalan, 629 F.3d at 687.
The servicer is required to acknowledge receipt of the QWR within five days, unless the requested action is taken. 12 U.S.C. § 2605(e)(1)(A). Within thirty days of receipt of the QWR, the servicer must do one of three things: (1) make appropriate corrections; (2) investigate the borrower's account and provide a written clarification why the account is correct; or (3) investigate and provide the information, or explain by the requested information is unavailable. 12 U.S.C.§ 2605(e)(2); Catalan, 629 F.3d at 680. "Under § 2605(e)(1)(A), a servicer must respond to such a letter if it requests or challenges 'information relating to the servicing of such loan.'" Medrano, 704 F.3d at 665 (quoting 12 U.S.C. § 2605(e)(1)(A), (e)(2)).
RESPA provides for a private right of action for violations of its requirements. 12 U.S.C. § 2605(f). RESPA also provides a safe harbor provision that provides the transferee service provider will not be liable if, within sixty days after discovering an error, the service provider makes the necessary adjustments to ensure the borrower does not pay any excess amounts. 12 U.S.C. § 2605(f)(4). If the servicer fails to respond to a QWR, "the statute entitles the borrower to recover actual damages, and if there is a 'pattern or practice of noncompliance,' statutory damages of up to $1,000. Medrano, 704 F.3d at 665 (quoting 12 U.S.C. § 2605(f)).
B. Analysis - Defendants' Motion
Defendants move for summary judgment on the grounds that the June and October 2014 letters addressed to Nationstar are not QWRs, and therefore, they were not required to respond. Defendants also contend that Nguyen has not established any actual damages by their failure to respond to the alleged QWRs.
In the June 2014 letter, Nguyen states that the letter conveys negative reporting about her Experian account, and that Nationstar had reported errors on her credit report. (Pl.'s Ex. 8, ECF No. 91-32.) Nguyen indicates that there are two errors: (1) an incorrect address associated with her; and (2) incorrectly identifying her as delinquent in an amount of $23,019 on a loan opened in 2006, and that she is requesting all documentation regarding the loan, such as monthly statements. (Id.) Nguyen further indicated that if the mortgage is related to her case involving Saxon, they should contact her attorney. (Id.)
Nguyen's October 23, 2014 letter is very similar to the June 2014 letter. In the October letter, Nguyen indicates that her Experian credit report continues to reflect that she is delinquent in an amount of $23,019, that she is requesting all documentation regarding the loan, such as monthly statements, and again that they should contact her attorney to resolve the matter. (Pl.'s Ex. 9, ECF No. 91 at 33.) Nguyen's letters are lacking in detail and fail to identify her account number with Nationstar. Nevertheless, broadly viewing the letters, they can be viewed as inquiring about the delinquency amount, and she requests monthly statements. Thus, construed in the light most favorable to Nguyen, the court finds the letters are QWRs.
Defendants highlight that they responded to Nguyen's June 2014 letter on July 14, 2014. (Sealed Laurik Decl. Ex. G, ECF No. 75.) In Nationstar's response, it indicates that they examined Nguyen's payment history and determined that it was accurately reported to credit reporting agencies. (Id.) Nationstar further indicated that Nguyen's December 2012 payment was outstanding, as were all subsequent payments and applicable fees. (Id.) Nationstar also responded to October 23, 2014 letter on November 3, 2014. (Laurik Decl. Ex. H, ECF No. 75.) In the November 2014 letter, Nationstar explained that a review of its records revealed that it had accurately reported Nguyen's payment history, and that no corrections were necessary. (Id.)
The court finds Nguyen's RESPA claim fails because she has failed to establish that she has suffered any actual harm as a result of Defendants' failure to timely respond to her letters. Nguyen has not established a causal connection between Defendants' failure to respond to her request and her alleged damages. See Lettenmaier v. Fed. Home Loan Mortg. Corp., Case No. 11- cv-00156-HZ, 2011 WL 3476648, at *12 (D. Or. Aug. 8, 2011); Malifrando v. Real Time Resolutions, Inc., No. 2:16-cv-0223 TLN GGH PS, 2016 WL 6955050, at *8 (E.D. Cal. Nov. 29, 2016) (stating that RESPA requires actual damages as a result of the failure to comply with RESPA provisions); Lal v. Am. Home Servicing, Inc., 680 F. Supp. 2d 1218, 1223 (E.D. Cal. 2010) ("[T]he loss alleged must be related to the RESPA violation itself."); Torres v. Wells Fargo Home Mortg, Inc., No. C 10-04761 CW, 2011 WL 11506, at *8 (N.D. Cal. Jan. 4, 2011) ("The plaintiff must also allege a causal relationship between the alleged damages and the RESPA violation.").
Nguyen has not provided any evidence demonstrating a causal connection between Defendants' alleged failure to respond to the June and October 2014 letters and any actual damages. The undisputed evidence shows that Nguyen sent the letters almost two years after her initial breach of the Repayment Plan, and more than two years after she admitted she stopped making payments on the Loan. Indeed, Nguyen admitted in her deposition that she had not made any payments on the Loan since Nationstar began servicing her Loan in May 2013. Thus, it is undisputed that by the time Nguyen sent the letters in 2014, she had not made any payments for over a year on the Loan and sustained delinquency fees, and that the negative credit reporting had already occurred. Rey, 2013 WL 1791910, at *4 (finding plaintiff could not establish causation on RESPA claim where QWR was sent three years after default on loan); Tamburri v. Suntrust Mortg, Inc., 875 F. Supp. 2d 1009, 1015 (N.D. Cal. 2012) (holding plaintiff could not establish RESPA claim where she sent QWR after she had missed payments and received notice of default.) Thus, Nguyen has failed to establish a genuine issue of material fact as to causation on her RESPA claim, and Defendants' motion for summary judgment on this claim should be granted. ////
C. Analysis - Nguyen's Motion
Nguyen moves for summary judgment on this claim contending that Defendants failed to acknowledge her QWRs within five days and respond within thirty days. As noted above, the court has found that the June and October 2014 letters are QWRs. Thus, Defendants were required to acknowledge receipt of QWRs within five days and respond within thirty days. However, as Defendants correctly highlight, Nguyen has not established that she suffered any actual damages as a result of the Defendants' failure to timely respond. As discussed above, Nationstar conducted an investigation of the Loan's status and confirmed that her account was past due. Therefore, because the account was in arrears many months before Nguyen sent the QWRs, she cannot establish that she incurred damages for the alleged RESPA violation. Accordingly, the court recommends that Nguyen's motion on this claim be denied.
In summary, the court recommends that Nguyen's motion for partial summary judgment on her RESPA claim be denied, and that Defendants' motion for summary judgment on the RESPA claim be granted.
V. Oregon Unfair Debt Collection Practices Act
In Claim Two of her Complaint, Nguyen asserts that Defendants have violated Oregon's Unfair Debt Collection Practices Act ("OUDPCA") by initiating a foreclosure process despite knowing she was not in default. Defendants move for summary judgment contending that this claim is time-barred, and alternatively, because it is undisputed that she has defaulted on the Loan. Nguyen moves for summary judgment arguing that Defendants stopped accepting Loan payments and initiated foreclosure proceedings, despite that she had not defaulted. ////
A. Standards
Under the OUDPCA, a debt collector is prohibited from attempting to or threatening to "enforce a right or remedy with knowledge or reason to know that the right or remedy does not exist." OR. REV. STAT. § 646.639(2)(k); Lyon v. Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir. 2011). The applicable statute of limitations for violations of the OUDCPA is one year. OR. REV. STAT. § 646.638(6) ("Actions brought under this section must be commenced within one year after the discovery of the unlawful method, act or practice.").
B. Analysis - Defendants' Motion
Defendants move for summary judgment contending that it is undisputed that Nguyen breached the Repayment Plan by failing to make all the required payments in the full amounts in September and October 2012. Defendants further argue that under the terms of the Deed of Trust, Defendants were entitled to reject her partial payments in January 2013 as insufficient. And, Defendants highlight that it is further undisputed that Nguyen has not made any payments on the Loan since Nationstar began servicing the it in May 2013. Defendants maintain that because they were entitled to institute foreclosure proceedings under the Deed of Trust and Note, Nguyen cannot establish an OUDCPA violation.
In response, Nguyen insists that the Loan is not in default, and that Defendants sent misleading information when they sent notices indicating that her underlying monthly amount was adjusting due the variable interest rate on the Note. Nguyen's arguments miss the mark.
As discussed above, the undisputed evidence shows that Nguyen did not make all the required payments under the Repayment Plan. Additionally, the court has determined that Defendants did not breach the Settlement Agreement by sending notices about Nguyen's monthly payment adjusting under the Note. And, Defendants are authorized to institute foreclosure proceedings under the Note and Deed of Trust. (Second Janati Decl. Ex. 2 at 3-4, ECF No. 79-2.) Therefore, no reasonable juror could conclude that Defendants had reason to know that their right to collect the amounts owed on the Loan did not exist or that their right to institute foreclosure proceedings did not exist. Accordingly, Defendants' motion for summary judgment should be granted. See Lyon, 656 F.3d at 881 (citing OR. REV. STAT. § 646.639(2)(k)). The court declines to address Defendants alternative statute of limitations grounds, finding Defendants' first ground dispositive.
C. Nguyen's Motion
Nguyen moves for summary judgment contending that despite her full compliance with the Repayment Plan, Defendants stopped accepting her payments and wrongfully instituted foreclosure proceedings. (Pl.'s Mot. Summ. J. at 15, ECF No. 70.) Nguyen insists that she fully complied with the Repayment Plan, and that Defendants' subsequent actions have violated the OUDCPA. Defendants respond that it is undisputed that Nguyen breached the Repayment Plan and is in default on the Loan, and therefore, their actions are authorized. Alternatively, Defendants contend that Nguyen's OUDCPA claim is barred by the statute of limitations. The court agrees with Defendants.
As discussed above, the evidence shows that Nguyen did not fully comply with the Repayment Plan, and Nguyen admitted that she has not made any payments on the Loan since May 2013. Under the Note and Deed of Trust, Defendants were not required to accept Nguyen's partial payments, and they are permitted to institute foreclosure proceedings. (Second Janati Decl. Ex. 2 at 3-4, ECF No. 79-2.) Thus, no reasonable juror would conclude that Defendants had reason to know that their right to collect the amounts on the Loan did not exist, or that they had no reason to know that they could not reject her payments, or that they could not institute foreclosure proceedings. Consequently, Nguyen's motion for summary judgment should be denied.
VII. Trespass
In her Seventh Claim for Relief, Nguyen alleges that Cyprexx, as an agent for Nationstar, entered her property without permission on May 20, 2015, changed the locks on the Property, and caused damage to the Property. (Compl. ¶¶ 48-51.) In her Eighth Claim for Relief, Nguyen alleges that Cyprexx, as an agent for Nationstar, entered her property without permission on May 31, 2015, changed the locks on the Property, posted a notice, and caused her damages. (Compl. ¶¶ 53-57.)
A Standards
Trespass to land is an unauthorized entry of land in the possession of another. Lunda v. Matthews, 46 Or. App. 701, 705 (1980). To prevail on a trespass claim under Oregon law, "a plaintiff must show an intentional, physical intrusion by the defendant on to the plaintiff's property which causes damage to the plaintiff and which has not been authorized or consented to by the plaintiff." Staton v. BAC Home Loans Serv., LP, No. 6:10-cv-01306-PA, 2014 WL 1803376, at *6 (D. Or. May 6, 2014) (citing Verizon Nw., Inc. v. Mainstreet Dev., Inc., 693 F. Supp. 2d 1265, 1278 (D. Or. 2010)). In the event an alleged trespasser had the landowner's consent to enter upon the land for a particular purpose, then the landowner cannot maintain an action for trespass." Elizabeth Retail Properties, LLC v. Keybank Nat'l Ass'n, 83 F. Supp. 3d 972, 996 (D. Or. 2015) (citing Verizon Nw., 693 F. Supp. 2d at 1278.) //// ////
B. Analysis - Nationstar's Motion
Nationstar contends that Nguyen's claim for trespass is not actionable because the Deed of Trust expressly provided consent to Nationstar to enter the Property. Nationstar argues that it is undisputed that Nguyen defaulted on the Loan, and that its actions are expressly permitted under the Deed of Trust. Nguyen responds that Cyprexx broke into the Property and that Cyprexx was Nationstar's agent. Nguyen's arguments miss the mark.
Nguyen brings her trespass claims against Nationstar and Cyprexx only. (Compl. ¶¶ 48-57.) Nguyen dismissed Cyprexx from this action on September 15, 2016. (Am. Stipulated J. of Dismissal, ECF No. 26.) --------
Here, paragraph 9 of the Deed of Trust provides:
If (a) Borrower [Nguyen] fails to perform the covenants and agreements contained in this security instrument, . . . then Lender may do and pay for whatever is reasonable to or appropriate to protect Lender's interest in the Property and rights under this Security Instrument, including protecting and/or assessing the value of the Property, and securing and/or repairing the Property. . . . Securing the Property includes, but is not limited to, entering the Property to make repairs, change locks, replace or board up windows . . . .(Second Janati Decl. Ex. 2 at 6, ECF No. 79-2 (emphasis added).)
As discussed above, the court has determined that Nguyen's account was in default. Therefore, the court finds that pursuant to the terms of the Deed of Trust, Nguyen consented to the Nationstar's entry to secure the Property and change the locks. Because no reasonable juror could conclude that Nationstar lacked permission to enter the Property, change the locks, and secure its interests, Nationstar's motion for summary judgment should be granted. Elizabeth Retail, 83 F. Supp. 3d at 996-97. //// ////
C. Analysis - Nguyen's Motion
Nguyen moves for summary judgment contending that Cyprexx broke into the Property, changed the locks, and posted a notice on May 20, 2015, and again on May 31, 2015. (Pl.'s Mot. Summ. J. at 19-20, ECF No. 70.) Nationstar responds by contending that Nguyen consented to its entry on the Property, citing paragraph 9 of the Deed of Trust. Nationstar is correct.
As detailed above, Nguyen consented to Nationstar's entry on the Property, changing the locks, and otherwise securing its interests in the Property when she signed the Deed of Trust. Nguyen's trespass claims are not actionable. Elizabeth Retail, 83 F. Supp. 3d at 996-97. Therefore, Nguyen's motion for summary judgment must be denied.
Conclusion
For the reasons stated above, the court recommends that Defendants' Motion for Summary Judgment (ECF No. 65) be GRANTED, and Nguyen's Partial Motion for Summary Judgment be DENIED (ECF No. 70). //// //// //// //// //// //// //// //// ////
Scheduling Order
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 21st day of November, 2019.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge