Opinion
Case No. 16 C 11381
12-19-2016
SEAN HARRIS, Plaintiff, v. NATIONSTAR MORTGAGE 350 Highland Dr. Lewisville, TX 75067 Defendant.
MEMORANDUM ORDER
Sean Harris ("Harris") has brought this action against Nationstar Mortgage ("Nationstar") via an Amended Complaint ("AC") that charges Nationstar with having violated the federal Fair Debt Collection Practices Act ("Act"). According to AC ¶ 5, Nationstar operates as a collection agency and is a "debt collector" as defined in the Act.
Although this Court is required to credit a plaintiff's allegations in evaluating the sufficiency of a complaint, Harris' allegations in AC ¶ 5 pose a troubling problem. Nationstar's corporate name is of the type normally used by the actual owner of a mortgage indebtedness, rather than an entity that simply acts as a collection agency serving the actual owner. In that respect AC ¶¶ 9 and 12 reflect total uncertainty on that score.
9. Specifically, Plaintiff had her mortgage transferred to Defendant at a time when Defendant was in default for her mortgage.Then AC ¶ 14 states that Nationstar's first contact with Harris was to advise him that he was in arrearage on the mortgage and the mortgage was "currently 'in foreclosure.'"
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12. At some point, the original creditor transferred this loan to Defendant, while Plaintiff was in default with original creditor.
If Nationstar's effort described in the AC has been to collect an obligation owed to it, the Complaint's characterization of its being a "debt collector" for statutory purposes is obviously inaccurate. At a minimum the allegations drafted by Harris' counsel create an ambiguity -- at worst they may plead him out of court. Accordingly Harris' counsel is ordered to provide more enlightenment on that subject on or before January 6, 2017 so that this Court can determine whether this action can go forward under the Act.
/s/_________
Milton I. Shadur
Senior United States District Judge Date: December 19, 2016