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Knott v. Ocwen Loan Services, LLC

United States District Court, M.D. Tennessee, Nashville Division

September 19, 2017

GAYLE KNOTT
v.
OCWEN LOAN SERVICES, LLC

          Honorable Waverly D. Crenshaw, Jr., Chief District Judge

          REPORT AND RECOMMENDATION

          BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE.

         By 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.

         Presently 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Gayle 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.[1]She alleges that she then sent Ocwen a qualified written request for validation of the debt on August 3, 2016, [2] 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.

         Ocwen 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.

         II. MOTION FOR SUMMARY JUDGMENT

         Ocwen 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).

         By 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.

         III. STANDARD OF REVIEW

         Summary 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).

         The 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).

         IV. ...


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