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Amodio v. Ocwen Loan Servicing, LLC

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

May 17, 2019




         Wilson & Associates, PLLC (“Wilson”) has filed a Motion for Summary Judgment (Docket No. 30), to which the plaintiffs, Frank Emil Amodio Jr. and Aryana Olson Amodio, have filed a Response (Docket No. 35), and Wilson has filed a Reply (Docket No. 38). For the reasons discussed herein, Wilson's motion will be denied.


         The Amodios are residents of Rutherford County. Wilson is an entity that conducts foreclosure-related activities in Tennessee. Wilson's co-defendant, Ocwen Loan Servicing, LLC (“OLS”), is a mortgage services company. (Docket No. 1 ¶¶ 6-8.) In May 2005, Ayrana Amodio took out a second home mortgage and executed a Deed of Trust that was recorded in the Rutherford County, Tennessee Register's Office. (Docket No. 1-9.) OLS serviced the mortgage. (Docket No. 1 ¶ 14.)

         The Amodios eventually fell behind on the mortgage. On July 26, 2017, they received a letter from Wilson, stating that they were in default and that their loan was being accelerated, with a total debt of $15, 395.26 now being due and owing. (Id. ¶ 13.) The Amodios disputed this debt to Wilson and contacted OLS to “obtain the reinstatement amount required to reinstate their second mortgage.” (Id. ¶ 14.) OLS initially informed Ms. Amodio that she should send $1, 543.00 to OLS in order to have the loan reinstated. After the Amodios did so, however, they called OLS to confirm receipt and were informed that an additional $792.24 was due. (Id. ¶¶ 15-16.)

         On August 4, 2017, a Substitution of Trustee document was recorded in the Rutherford County, Tennessee Register's Office, designating Wilson as the entity empowered to enforce the Deed of Trust. (Docket No. 1-4.) The Substitution of Trustee document stated that the Deed of Trust's beneficiary had requested that foreclosure proceedings be instituted. See Tenn. Code Ann. § 47-9-607(b) (permitting nonjudicial foreclosure under Tennessee law). On August 30, 2017, individuals identified as Scott Young and Frank Russell purchased the property at a foreclosure sale for the purchase price of $58, 000.00. (Docket No. 1 ¶ 18; Docket No. 1-5.).

         On August 28, 2018, the Amodios filed suit against OLS and Wilson, bringing three types of claim against Wilson: wrongful foreclosure, violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. (“FDCPA”), and abuse of process. (Docket No. 1 ¶¶ 34-39; 57-73.) On October 8, 2018, Wilson moved to dismiss the claims against it. (Docket No. 7.) On December 21, 2018, the court granted the motion with regard to wrongful foreclosure and abuse of process but held that the Amodios had pleaded actionable violations of the FDCPA. (Docket No. 22 at 10.)

         On March 20, 2019, the Supreme Court issued an opinion in Obduskey v. McCarthy & Holthus LLP, holding that entities that “engage in only nonjudicial foreclosure proceedings are not debt collectors within the meaning of the” FDCPA other than with regard to one provision, 15 U.S.C. § 1692f(6). 139 S.Ct. 1029, 1038 (2019). On April 25, 2019, Wilson filed a Motion for Summary Judgment, arguing that the Amodios' FDCPA claim-the only claim still pending against Wilson-was barred by Obduskey. (Docket No. 30.) In its Memorandum in support of its Motion, Wilson wrote that, for the purposes of the Motion, Wilson accepts the facts in the Amodios' Complaint as true. (Docket No. 31 at 1.) As required by Local Rule 56.01(b), Wilson filed a Statement of Undisputed Facts in support of its motion. (Docket No. 32.) The Amodios filed a Response to the Motion (Docket No. 35) and a Memorandum in support of that Response (Docket No. 36), but, contrary to Local Rule 56.01(c), did not file a separate response to Wilson's Statement of Undisputed Facts. See Local R. 56.01(c). Wilson filed a Reply. (Docket No. 38.)


         Rule 56 requires the court to grant a motion for summary judgment 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.” Fed.R.Civ.P. 56(a). If a moving defendant shows that there is no genuine issue of material fact as to at least one essential element of the plaintiff's claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings, “set[ting] forth specific facts showing that there is a genuine issue for trial.” Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party.” Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

         At this stage, “the judge's function is not . . . to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial.” Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But “[t]he mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient, ” and the party's proof must be more than “merely colorable.” Anderson, 477 U.S. at 249, 252. An issue of fact is “genuine” only if a reasonable jury could find for the non-moving party. Moldowan, 578 F.3d at 374 (citing Anderson, 477 U.S. at 252).


         Under Local Rule 56.01(f), if a non-moving party fails to respond to the moving party's statement of undisputed material facts, “the asserted facts shall be deemed undisputed for purposes of summary judgment.” Although the Amodios should have filed a Response, it appears, from the parties' briefing, that the dispute between them is entirely legal, regarding whether Obduskey applies to all of the Amodios' allegations in this case.

         The FDCPA regulates interactions between consumer debtors and “debt collector[s], ” defined to include any person “in any business the principal purpose of which is the collection of any debts, or 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). The definition of “debt collector, ” however, includes an additional provision that does not, by its own terms apply throughout the FDCPA. Under that provision, which applies “[f]or the purpose of section 1692f(6) of” the FDCPA, the definition of “debt collector” “includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.” Id. In Obduskey, the Supreme Court construed the special provision involving § 1692f(6) to limit, by implication, the definition of “debt collectors” with regard to provisions other than § 1692f(6). ...

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