United States District Court, M.D. Tennessee, Nashville Division
FRANK EMIL AMODIO JR. and ARYANA OLSON AMODIO, Plaintiffs,
OCWEN LOAN SERVICING, LLC, WILSON & ASSOCIATES, PLLC, Defendants.
MEMORANDUM & ORDER
A. TRAUGER UNITED STATES DISTRICT JUDGE.
& 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.
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.)
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. ¶¶
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.).
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.)
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.)
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,
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).
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.
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). ...