Opinion
No. 1:03-cv-01062-JDT-TAB.
January 25, 2005
ENTRY DISCUSSING AMENDED COMPLAINT, DISCUSSING MOTION FOR SUMMARY JUDGMENT (DKT. NO. 39) AND ORDER DIRECTING FURTHER PROCEEDINGS
This Entry is a matter of public record and may be made available to the public on the court's web site, but it is not intended for commercial publication either electronically or in paper form. Although the ruling or rulings in this Entry will govern the case presently before this court, this court does not consider the discussion in this Entry to be sufficiently novel or instructive to justify commercial publication or the subsequent citation of it in other proceedings.
Kandance-Kay Monsewicz's original complaint alleges, inter alia, that the Defendants, Tucker and Tucker, P.C., and James C. Tucker, violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"). The Plaintiff has filed an amended complaint against these Defendants and others.
I.
As the Plaintiff previously has been advised, the court need not allow a futile amendment, see, e.g., Duda v. Board of Education of Franklin Park Public School District No. 84, 133 F.3d 1054, 1057 n. 4 (7th Cir. 1998), and any palpably insufficient claim in the Amended Complaint will be summarily dismissed.
The court has examined and considered the amended complaint, and finds from that examination that leave to proceed on the basis of the amended complaint must be denied as to claims which are legally insufficient or incomprehensible, Davis v. Ruby Foods, Inc., 269 F.3d 818, 820 (7th Cir. 2001) ("The dismissal of a complaint on the ground that it is unintelligible is unexceptional."); Moore v. Indiana, 999 F.2d 1125, 1128 (7th Cir. 1993) ("the court should not allow the plaintiff to amend his complaint when to do so would be futile"), and will be granted as to claims which are not within the former categories. The claim which survives this process is the claim asserted pursuant to the FDCPA against James Tucker, against Tucker Tucker, P.C., against Unterberg and Associates, P.C., against Brian Berger, and against Robert Kruszynski. All other claims asserted in the amended complaint are dismissed as legally insufficient, or in the alternative, the Plaintiff is denied leave to proceed as to such claims.
For example, the Plaintiff lacks standing to assert a claim based on alleged violation of criminal statutes, the Plaintiff's claim of damages from the state foreclosure action is barred by various doctrines, including the Rooker-Feldman doctrine and the requirement that certain claims have been presented as counterclaims to the foreclosure action, there is no viable claim asserted against Defendants to whom no wrongdoing is attributed, RICO and fraud claims must be pled with specificity, Judge Blanton is entitled to absolute judicial immunity, and claims which are unintelligible do not invoke the court's jurisdiction.
II.
James C. Tucker and Tucker and Tucker, P.C., (the "Tucker Defendants"), filed a motion for summary judgment on March 8, 2004, relating to the claims against them in the original complaint. They filed their motion, supporting brief, an appendix, and an appropriate notice to the pro se Plaintiff as required by Local Rule 56.1(h). On March 12, 2004, the Plaintiff filed her Response to the Tucker Defendants' motion with a demand to quash same. These Defendants filed their reply. The motion is ripe for resolution, and the claims against these Defendants in the original complaint are no different than the claims in the amended complaint which are not legally insufficient. Accordingly, the court addresses the Tucker Defendants' motion for summary judgment.These Defendants contend they are entitled to summary judgment because: 1) James Tucker fully complied with the FDCPA in his dealings with Plaintiff; 2) Plaintiff is attempting to attack the mortgage foreclosure action, and 3) Plaintiff is barred from pursuing any claim against them in which she seeks appeal or review of the issues presented in the state foreclosure action.
The Tucker Defendants' brief includes a section titled "Statement of Material Facts Not in Dispute" which contains the following facts supported by appropriate citations to admissible evidence in the record, set forth below in subsection "A.":
A.
On or about June 11, 1998, Fredric A. Monsewicz and Kandance K. Monsewicz mortgaged and conveyed to Alliance Mortgage Company certain real estate, commonly known as 9096 North Street, French Lick, IN 47432 ("9096 North Street"). The mortgage was executed and then recorded. The mortgage was later assigned to BA Mortgage, LLC. The mortgage was given to secure a Promissory Note executed by Fredric and Kandance Monsewicz to Alliance Mortgage Company in the principal amount of $57,260 at seven and one-half percent interest with monthly principal and interest payments of $400.37 to be paid monthly until the note was fully satisfied. The Monsewiczes did not make the required payments due and owing, with the initial default occurring for the month of November 2001. BA Mortgage filed a Complaint to Foreclose the Mortgage on April 8, 2002, by its attorneys, the Unterberg Defendants.
BA Mortgage, successor by merger to NationsBanc Mortgage Corporated, requested that James C. Tucker of the Tucker and Tucker, P.C. law firm act as its attorney in the mortgage foreclosure action then pending in the Orange Circuit Court under Cause Number 59C01-0204-MF-114. By letter dated January 13, 2003, Kevin P. Roy, Assistant Vice President in the foreclosure department of Bank of America Mortgage (BA Mortgage) sent to James C. Tucker the entire foreclosure file of Plaintiff. Included in the package was all correspondence and documentation relating to the foreclosure. The documentation and correspondence was sufficient for Tucker to verify that the debtors were in fact Fredric A. Monsewicz and Kandance K. Monsewicz. The foreclosure file sent was sufficient to determine the validity of the debt including the then current payoff quote and reinstatement quote.
Based on the information received, Tucker entered his appearance on behalf of BA Mortgage in the state foreclosure action. On January 28, 2003, BA Mortgage by Tucker filed a pleading entitled "Response of Plaintiff to Petition for Dismissal of Mortgage Foreclosure Filed by Defendants, Fredric A. Monsewicz and Kandance K. Monsewicz," ("Response to Petition" or "Response"). The Response included a copy of the March 21, 2002 letter of Brian C. Berger of Unterberg Associates, P.C., as well as the computer generated printouts and the mortgage loan payment history which had been enclosed with that letter. The mortgage loan payment history showed the beginning principal, the dates on which payments were made, the amounts received, and the ending principal balance. A copy of the July 11, 2002, correspondence from Kevin P. Roy of BA Mortgage to the Monsewiczes was forwarded by Tucker to the Monsewiczes with the Response. Included as part of that correspondence was a copy of the mortgage, the note and an assignment of security instrument. The Response included the letter from Roy to the Monsewiczes dated August 15, 2002, which letter stated again that their account was in foreclosure and included a payoff statement dated August 15, 2002. Also included with the Response to Petition was a payoff statement dated January 10, 2003. The Response expressly notified the Monsewiczes that
Tucker was attempting to collect the debt which he claimed they owed to the creditor, BA Mortgage, LLC, successor by merger to Nations Banc Mortgage Corporation. The Response disclosed the amount of the debt ($62,737.95), exclusive of fees and costs, that the original creditor was Alliance Mortgage Company, which had assigned its interest, and indicated that the Response was again providing verification and validation of the debt.
The Monsewiczes received the Response to Petition and filed a reply thereto. Subsequent filings were made by the Monsewiczes and BA Mortgage. On April 1, 2003, the Orange Circuit Court held a hearing on all pending motions. The court denied the Defendants' motions and granted the Plaintiff's Motion for Foreclosure and issued an entry titled "Judgment Foreclosing Mortgage and Denying Each of the Motions of Defendants Monsewicz" on April 16, 2003.
Subsequently, James Tucker on behalf of BA Mortgage began execution of the judgment against the real estate located at 9096 North Street. This real estate was sold by Sheriff's Deed on July 22, 2003. The Sheriff entered a Return of Sheriff showing that BA Mortgage was the successful bidder of the real estate. No appeal has been taken from the Orange Circuit Court's judgment in the mortgage foreclosure action against the Monsewiczes.
B.
The Plaintiff's response to the summary judgment motion does not cite specific admissible evidence contradicting the statements of fact contained in the Tucker Defendants' Statement of Material Facts Not in Dispute. The Plaintiff does not attempt to refute the facts asserted by the Defendants. Instead, she argues that James Tucker states in his affidavit that his affidavit is based on information and belief. Review of the affidavit in the Defendants' Appendix reveals no such language, however. The Plaintiff also argues that the affidavit is not based on firsthand personal knowledge since neither Tucker nor any other defendant was physically present when the Plaintiff allegedly signed the Note. The Plaintiff cites nothing which establishes that the FDCPA requires the debt collector to be present when and where the underlying debt is incurred. Further, the matters to which James Tucker attests in his affidavit have been shown to come within his personal knowledge. The Plaintiff accuses James Tucker of bad faith, deceitful tactics, fraud and concealment of the facts of the state foreclosure action. But these accusations are conclusory and unsupported by any assertion of fact or citation to admissible evidence. The Plaintiff has not called into question the accuracy or authenticity of any of the documents in the Tucker Defendants' appendix. Thus, for purposes of summary judgment, the facts asserted in the Statement of Material Facts Not in Dispute are accepted as true.
A motion for summary judgment is to be granted pursuant to Rule 56(c) of the Federal Rules of Civil Procedure "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A "material fact" is one that "might affect the outcome of the suit." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine only if a reasonable jury could find for the non-moving party. Id. To survive summary judgment, the non-movant must set forth "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
The Plaintiff's FDCPA claim is that the Tucker Defendants failed to verify the debt. The FDCPA requires debt collectors to send a written notice containing certain information to a consumer debtor within five days after initial communication unless the information is contained in the initial communication or the consumer has paid the debt. 15 U.S.C. § 1692g. The notice must include the amount of the debt, 15 U.S.C. § 1692g(a)(1), the name of the creditor, 15 U.S.C. § 1692g(a)(2), and a statement that, unless the debtor "disputes the validity of the debt . . . the debt will be assumed to be valid by the debt collector." 15 U.S.C. § 1692g(a)(3). In addition, the notice must disclose that if the debtor disputes in writing the debt or a portion thereof, the debt collector will provide verification of the debt or a copy of the judgment against the debtor. 15 U.S.C. § 1692g(a)(4). If the debtor disputes the debt, then the debt collector shall cease collection of the debt until the debt collector obtains verification of the debt or a copy of a judgment and mails it to the debtor. 15 U.S.C. § 1692g(b). "Section 1692g(b) thus gives debt collectors two options when they receive requests for validation. They may provide the requested validations and continue their debt collecting activities, or they may cease all collection activities." Jang v. A.M. Miller Assocs., 122 F.3d 480, 483 (7th Cir. 1997).
The Plaintiff contends that the documents offered in the Defendants' appendix are irrelevant because they are uncertified and unattested computer readouts and unverified copies of documents sent out by the Defendants. The FDCPA does not require a debt collector to provide the original, a certified, or an attested copy of the document creating the debt as part of the verification. See 15 U.S.C. § 1692g. The Plaintiff cites to McKay v. Capital Resources Company, Ltd., 940 S.W.2d 869 (Ark. 1997), for the proposition that the original note is required to validate the debt, but the case did not involve any FDCPA claims and is thus inapposite. The FDCPA does not contain a requirement that the verification of the debt be under oath, in an affidavit or a deposition. See 15 U.S.C. § 1692g. The question whether the documents provided as verification satisfy any rule of evidence is not relevant to whether there was an FDCPA violation.
Other courts have concluded that computer printouts constitute sufficient verification. In Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999), cert. denied, (1999), the plaintiffs alleged that the defendant violated § 1692g(b) by failing to verify the fee portions of a debt. The debt collector had received assurances from the creditor that the sums were owed, verified the debt amounts in a letter to plaintiffs' counsel and forwarded a copy of the bank's computerized summary of the plaintiffs' loan transactions. The summary included a running account of the debt amount, a description of each transaction, and the date on which the transaction occurred. The Fourth Circuit held that the debt collector did not violate the FDCPA's verification requirement. Id. at 406. The court said:
[V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt. See Azar v. Hayter, 874 F. Supp. 1314, 1317 (N.D. Fla.), aff'd, 66 F.3d 342 (11th Cir. 1995), cert. denied, 516 U.S. 1048 (1996). Consistent with the legislative history, verification is only intended to "eliminate the . . . problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid." S. Rep. No. 95-382, at 4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699. There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt.Id.
The Chaudhry court relied on Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991), which held that computer printouts confirming the amounts of the debts, the services provided, and the dates on which the debts were incurred constituted sufficient verification under the FDCPA. 950 F.2d at 113. Other courts have found that similar information provided by the debt collector such as itemized statements of account and copies of a check and a lease, constituted sufficient verification of the debt. See, e.g., Mahon v. Credit Bureau of Placer County Inc., 171 F.3d 1197, 1203 (9th Cir. 1999) (credit bureau properly verified debt by contacting doctor's office, verifying nature and balance of the outstanding bill, learning that the balance was still unpaid, and then conveying this information to the debtors along with an itemized statement of account); Johnson v. Equifax Risk Mgmt. Servs., No. 00 Civ. 7836(HB), 2004 WL 540459, at *8 (S.D.N.Y. May 17, 2004) (concluding copy of check was proper verification of debt); Clark v. Capital Credit Collection Servs., Inc., No. Civ. 03-340-JE, 2004 WL 1305326, at *8 (D. Or. Jan. 23, 2004) (itemization of debt proper verification of debt under § 1692g(b). This court agrees with these authorities that documents such as computer printouts of itemized statements of account may be sufficient upon which to verify the debt under § 1692g. The Plaintiff has cited nothing to support her claim that a debt collector must provide certified or attested copies of documents to sufficiently verify the debt.
The undisputed evidence establishes that the Tucker Defendants provided sufficient verification of the debt to the Plaintiff as required by the FDCPA. On January 28, 2003, James Tucker of Tucker and Tucker on behalf of BA Mortgage filed and sent to Plaintiff BA Mortgage's Response to Petition, which was the initial communication under the FDCPA from the Tucker Defendants to the Plaintiff. The Response included: (1) a copy of the July 11, 2002, correspondence from Kevin Roy of BA Mortgage to the Monsewiczes; (2) a copy of Roy's letter to the Monsewiczes dated August 15, 2002, again indicating that their account was in foreclosure and including a payoff statement; and (3) a payoff statement dated January 10, 2003. Thus, Tucker had confirmed in writing that the amount being sought was the amount BA Mortgage claimed was owed. Moreover, Tucker sent the Plaintiff detailed evidence of the debt, namely, a printout of the mortgage loan history reflecting the beginning principal, the dates on which payments were made, the amounts received, and the ending principal balance, as well as copies of the mortgage, the note, and the assignment of security instrument. This verification was proper under the FDCPA and was sent with Tucker's initial communication to the Plaintiff. Having already mailed the verification of the debt to the Plaintiff with their initial communication, the Tucker Defendants were not required by § 1692g(b) to cease collection of the debt. Nor were they obligated under the FDCPA to answer the Plaintiff's letters, Affidavits of Good Faith and Full Disclosure, Affidavits of Firsthand Personal Knowledge, or otherwise provide further verification of the debt. Though Plaintiff alleges the failure to answer her letters and affidavits was intentionally misleading in violation of the FDCPA, she cites no supporting authority. The court has found none which would support the conclusion that such failure constituted a FDCPA violation in this context.
Furthermore, the Response contained a "Notice Pursuant to Fair Debt Collection Practices Act," which expressly notified the Plaintiff that Tucker was attempting to collect the debt owed to the creditor, BA Mortgage, that the original creditor was Alliance Mortgage Company, disclosed the amount of the debt ($62,737.95), exclusive of fees and costs, and acknowledged that the Plaintiff had previously disputed the debt's validity and stated that verification and validation of the debt was being provided with the Notice. Thus, the Response to Petition, the Tucker's initial communication to Plaintiff, complied with § 1692g. Therefore, the court finds that th Tucker Defendants have shown no genuine issue of material fact and that they are entitled to summary judgment as a matter of law on the FDCPA claim.
The remainder of Plaintiff's claims against the Tucker Defendants are claims by which she seeks appeal or other review of issues presented in the state foreclosure action filed in the Orange Circuit Court as No. 59C01-0204-MF-115. These claims have heretofore been dismissed for lack of subject matter jurisdiction as barred by the Rooker-Feldman doctrine. See Lewis v. Anderson, 308 F.3d 768, 772 (7th Cir. 2002); Edwards v. Ill. Bd. of Admissions to the Bar, 261 F.3d 723, 729 (7th Cir. 2001). Most of the Plaintiff's response to the summary judgment motion attempts to reargue these claims. For example, the Plaintiff argues that the Defendants lacked standing to sue in the foreclosure action and that evidentiary rules were not followed. The Plaintiff, however, has brought nothing to the court's attention which would warrant reconsideration of the dismissal.
Therefore, the Motion for Summary Judgment of the Tucker Defendants (Dkt. No. 39) is GRANTED. Ms. Monsewicz requested the court to quash and strike their motion, which the court interprets as a request to deny the same. This request is therefore DENIED. The Plaintiff's request for sanctions against the Tucker Defendants for filing a bad faith affidavit and vexatious and fraudulent motion for summary judgment is DENIED. Neither the affidavit of James C. Tucker nor the motion or other supporting documents have been shown to be improper or sanctionable.
III.
Defendants Unterberg and Associates, P.C., Brian Berger, and Robert Kruszynski (the "Unterberg Defendants") shall have through February 22, 2005, in which to file their answer or other responsive pleading to the amended complaint.
IV.
The factual basis for FDCPA claim against the Tucker Defendants is separate from the factual basis for the FDCPA claim against the Unterberg Defendants. Thus, the court finds no just reason for delaying entry of judgment in favor of the Tucker Defendants, and against the Plaintiff. Therefore, the court pursuant to Rule 54(b) DIRECTS the entry of judgment in favor of the Tucker Defendants and against the Plaintiff.
ALL OF WHICH IS ORDERED.