United States District Court, M.D. Tennessee, Nashville Division
Honorable Waverly D. Crenshaw, Jr., Chief District Judge
REPORT AND RECOMMENDATION
BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE.
Order entered December 1, 2016 (Docket Entry No. 3), this
pro se action was referred to the Magistrate Judge
for pretrial proceedings under 28 U.S.C. § §
636(b)(1)(A) and (B), Rule 72(b) of the Federal Rules of
Civil Procedure, and the Local Rules of Court.
pending before the Court is the motion for summary judgment
filed by Defendant Ocwen Loan Servicing, LLC. See
Docket Entry No. 23. Plaintiff has not responded to the
motion. For the reasons set out below, the undersigned
Magistrate Judge respectfully recommends that the motion be
granted and this action be dismissed.
FACTUAL AND PROCEDURAL BACKGROUND
Knott (“Plaintiff”) is a resident of Davidson
County, Tennessee. She filed this pro se lawsuit on
November 23, 2016, against Ocwen Loan Servicing, LLC
(“Ocwen”), asserting a claim under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692, et seq. Specifically, Plaintiff alleges
that Ocwen communicated with her on July 17, 2016, about
notice of a debt by sending her a mortgage account statement.
See Amended Complaint (Docket Entry No. 16) at
¶ 4.She alleges that she then sent Ocwen a
qualified written request for validation of the debt on
August 3, 2016,  but that Ocwen failed to validate the debt
and continued to send her mortgage account statements in an
attempt to collect on the debt. Id. at ¶¶
5-8. Plaintiff contends that Ocwen is a debt collector under
the FDCPA and that its actions violated the requirements set
out in 15 U.S.C. § 1692g(b), which required Ocwen to
cease its debt collection efforts until it validated the
debt. Id. at ¶¶ 10-13. Plaintiff seeks
actual damages pursuant to 15 U.S.C. § 1692k.
initially filed a motion to dismiss, which was denied as moot
when Plaintiff was granted leave to amend her complaint.
See Order entered February 24, 2017 (Docket Entry
No. 15). Upon the filing of an answer by Ocwen, a scheduling
order was entered providing for a period of pretrial
activity. See Docket Entry Nos. 19 and 20. Ocwen
filed the instant motion for summary judgment on July 6,
2017. Docket Entry No. 23. Subsequently, Ocwen requested to
file a reply to its own motion for summary judgment, which
the Court permitted it to do. See Docket Entry Nos.
27-29. As noted, Plaintiff has not responded to Ocwen's
motion for summary judgment.
MOTION FOR SUMMARY JUDGMENT
asserts that it is the owner or servicer of a home loan and
mortgage for which Plaintiff is the debtor. See
Memorandum in Support (Docket Entry No. 24) at 2. Ocwen
contends that it sent a notice of default letter to Plaintiff
about the debt on September 9, 2015, which informed Plaintiff
of her right to dispute the debt, but that Plaintiff did not
send Ocwen a written request for verification of the debt
until nearly a year later, well beyond the thirty-day window
for making a timely written request. Id. Ocwen
contends that it complied with the provisions of 15 U.S.C.
§ 1692g, that Plaintiff's failure to send a timely
written request foreclosed her opportunity to request
verification of the debt from Ocwen, and that Ocwen's
subsequent communications with Plaintiff neither violated the
FDCPA nor constituted a “new” notice of debt
letter that entitled Plaintiff to seek debt verification.
Id. at 4-7. In support of its motion, Ocwen filed
the underlying promissory note, deed of trust and assignment
of the deed of trust (Docket Entry No. 23-1, 23-2, and 23-3),
the September 9, 2015, Notice of Default letter (Docket Entry
No. 23-4), a July 18, 2016, Delinquency letter (Docket Entry
No. 23-5), and a Statement of Undisputed Material Facts
(Docket Entry No. 25).
Order entered July 10, 2017, Plaintiff was notified of the
motion for summary judgment, given a deadline of August 18,
2017, to file a response, and warned that her failure to
respond could result in the dismissal of the action.
See Docket Entry No. 26. To-date, Plaintiff has not
filed a response of any type.
STANDARD OF REVIEW
judgment is appropriate if “the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Rule 56(a)
of the Federal Rules of Civil Procedure. See also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986). In considering whether summary
judgment is appropriate, the Court must “look beyond
the pleadings and assess the proof to determine whether there
is a genuine need for trial.” Sowards v. Loudon
Cnty., 203 F.3d 426, 431 (6th Cir.), cert.
denied, 531 U.S. 875, 121 S.Ct. 179, 148 L.Ed.2d 123
(2000). The Court must view the evidence and all inferences
drawn from underlying facts “in the light most
favorable to the party opposing the motion.” See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., Ltd.,
475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986);
Gribcheck v. Runyon, 245 F.3d 547, 550 (6th Cir.),
cert. denied, 534 U.S. 896, 122 S.Ct. 217, 151
L.Ed.2d 155 (2001).
moving party has the burden of showing the absence of genuine
factual disputes from which a reasonable jury could return a
verdict for the non-moving party. Anderson, at
249-50. “Once the moving party has presented evidence
sufficient to support a motion for summary judgment, the
nonmoving party is not entitled to trial merely on the basis
of allegations; significant probative evidence must be
presented to support the complaint.” Goins v.
Clorox Co., 926 F.2d 559, 561 (6th Cir. 1991). The party
opposing the motion for summary judgment may not rely solely
on the pleadings but must present affirmative evidence
supporting the claims asserted by the party. See Bell v.
Ohio State Univ., 351 F.3d 240, 247 (6th Cir. 2003);
Banks v. Wolfe Cnty. Bd. of Educ., 330 F.3d 888, 892
(6th Cir. 2003).