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Burton v. Nationstar Mortgage LLC

United States District Court, E.D. Pennsylvania

April 13, 2015

MARK BURTON, Plaintiff,
v.
NATIONSTAR MORTGAGE LLC et al., Defendants.

OPINION

WENDY BEETLESTONE, District Judge.

I. INTRODUCTION

This case arises from inattention to details in a pleading in a mortgage foreclosure action brought against Plaintiff Mark Burton in the Chester County Court of Common Pleas. Bank of America, which held Burton's home mortgage at the time, sent out a notice of intent to foreclosure and filed the foreclosure action. Sometime during the course of the litigation, it assigned the mortgage to Defendant Nationstar Mortgage LLC ("Nationstar") which then filed a motion for summary judgment. The misuse of the word "Plaintiff" in two paragraphs in that summary judgment motion is the only reason for this action. One stated that "Plaintiff" had sent the notice of intent to foreclose. The other, that "Plaintiff" had filed the foreclosure complaint. The statements were technically incorrect because while Nationstar was the Plaintiff at the time the motion for summary judgment was filed (not Bank of America), it was Bank of America (not Nationstar) that had sent the notice and filed the action. Burton has brought suit in this Court pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., for these two minor drafting slip-ups. Before the Court is Nationstar's motion to dismiss the Complaint and Burton's response in opposition thereto. For the reasons that follow, the motion to dismiss has been converted into a motion for summary judgment, and the now-converted motion for summary judgment shall be granted.

II. BACKGROUND

In August 2005, Mark Burton executed a mortgage in favor of Bank of America, Nationstar's predecessor, that was recorded on September 6, 2005, in the Office of the Recorder of Deeds in Chester County, Pennsylvania. Def.'s Mot. Ex. A. ¶ 1. He later defaulted on that mortgage and the secured promissory note by failing to make payments when due and owing. Id. ¶¶ 3, 5. In 2012, Bank of America sued Burton in the Chester County Court of Common Pleas seeking to foreclose on the mortgage. See Def.'s Mot. Ex. B. Before suing, Bank of America sent Burton and his wife a foreclosure notice. See Def.'s Mot. at 1. At some point after the litigation had commenced, Bank of America assigned the mortgage to Nationstar. Compl. ¶ 15; Def.'s Mot. Ex. A ¶ 1. In the course of the proceedings, Nationstar filed a motion for summary judgment (the "State Motion"). The State Motion opened with the following:

1. On August 10, 2005, the Defendants executed a mortgage in favor of Plaintiff's predecessor that was recorded on September 6, 2006, in the Office of the Record of Deeds in Chester County....

Id. ¶ 1 (emphasis added). The motion also contained the following two paragraphs:

6. As a result of Defendants' default, on September 24, 2012, Plaintiff filed the underlying complaint in mortgage foreclosure....
7. Plaintiff complied with the requirements of Act 6 of 1974, 41 P.S. § 403(a) by sending Defendants the notice of intent to foreclose under Act 6 on May 15, 2012....

Def.'s Mot. Ex. A ¶¶ 6-7 (emphases added). The statement made in paragraph 6 that Nationstar had filed the underlying foreclosure action was technically incorrect because the action had been filed by its predecessor, Bank of America. See Def.'s Mot. Ex. B. And the statement made in paragraph 7 that Nationstar had sent Burton the notice of intent to foreclose was also technically incorrect because that notice was sent by Bank of America prior to initiating the foreclosure proceeding. Def.'s Mot. at 1.

In his response to the State Motion (the "Response"), Burton took Nationstar to task for those errors. Paragraph 6 of the State Motion is wrong, he stated, because the mortgage foreclosure was filed by Bank of America, the then-plaintiff, not Nationstar. Def.'s Mot Ex. C. ¶ 6. And Paragraph 7 is wrong for the same reason: Bank of America, which was not the plaintiff at the time the summary judgment motion was filed, sent out the notice of intent. Id. ¶ 7. Both statements are, according to Burton, false and, as such, necessarily violate the FDCPA, 15 U.S.C. § 1692 et seq. See Compl. ¶ 21.

III. CONVERSION TO MOTION FOR SUMMARY JUDGMENT

Although Burton's case arises from the State Motion, he did not attach it to his Complaint here, opting instead to paraphrase its contents. See Compl. ¶¶ 20(a)-(b). Nationstar did, however, attach the State Motion as an exhibit to its motion to dismiss. See Def.'s Mot. Ex. A. The first question then in considering this motion to dismiss is whether the Court can consider the content of the State Motion. The answer is "yes."

"To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint and matters of public record." Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)) (internal quotation marks omitted). An exception to this rule, however, is that "a document integral to or explicitly relied upon in the complaint' may be considered without converting the motion [to dismiss] into one for summary judgment.'" In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (emphasis and alteration in original) (citation and internal quotation marks omitted). "[W]hat is critical is whether the claims in the complaint are based' on an extrinsic document and not merely whether the extrinsic document was explicitly cited." Schmidt, 770 F.3d at 249. Under the rule in Schmidt, ...


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