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Warren v. Wells Fargo Bank, N.A.

United States District Court, W.D. Pennsylvania

March 9, 2017

WILLIAM J. WARREN and SINDORA M. WARREN, Plaintiffs,
v.
WELLS FARGO BANK, N.A., as successor by merger to Wells Fargo Bank Minnesota, N.A., as trustee for Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2003-WMC2, Defendants.

          REPORT AND RECOMMENDATION

          ROBERT C. MITCHELL, United States Magistrate Judge.

         I. Recommendation

         Now pending before the Court is a motion for summary judgment filed by Wells Fargo Bank, N.A., as successor by merger to Wells Fargo Bank Minnesota, N.A., as trustee for Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2003-WMC2 (“Wells Fargo”) and a motion to strike declaration of Crystal Kearse filed by William J. Warren and Sindora M. Warren (“Plaintiffs”). ECF Nos. 52, 62. Wells Fargo filed a brief, concise statement of material facts (“CSMF”), and supplemental CSMF in support of its motion. ECF Nos. 53-54, 58. Plaintiffs filed a response in opposition to the motion but did not file a responsive CSMF. ECF No. 60. Wells Fargo filed a reply. ECF No. 61. Plaintiffs' motion to strike has also been fully briefed. ECF Nos. 63, 66-67.

         For the reasons that follow, it is respectfully recommended that the motion for summary judgment filed by Wells Fargo be granted, and the motion to strike declaration of Crystal Kearse Plaintiffs be denied.

         II. Report

         Plaintiffs commenced this action on August 12, 2015, by filing a four-count complaint alleging violations of the Telephone Consumer Protection Act of 1991 (“TCPA”), the Fair Debt Collection Practices Act (“FDCPA”), and the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPACP”), as well as a “violation of discharge” claim. Plaintiffs' UTPACP and “violation of discharge” claims were dismissed at the motion-to-dismiss stage. They have since agreed to withdraw their TCPA claim, leaving only their FDCPA claim for disposition in the pending motion.

         The facts are simple and straightforward.[1] Plaintiffs executed a note in favor of WMC Mortgage Corp. for $114, 300.00 on December 12, 2002. The note was secured by a mortgage on Plaintiffs' home and designated Mortgage Electronic Registration Systems, Inc. (“MERS”) as nominee for WMC Mortgage and its successors and assigns. The mortgage was recorded on December 20, 2002.

         On October 6, 2009, Plaintiffs filed for Chapter 7 bankruptcy, at which point, Plaintiffs allege, Wells Fargo “held a secured claim against them[.]” Sec. Am. Compl. ¶ 12, ECF No. 22. Sometime thereafter, they allegedly notified Wells Fargo that they would not retain their home. Id. ¶ 14. On January 12, 2010, Plaintiffs were discharged from the bankruptcy. The discharge order prohibited any attempt to collect a debt that had been discharged. Id. ¶ 15.

         On May 5, 2010, Wells Fargo filed foreclosure complaint in the Court of Common Pleas of Allegheny County, claiming that Plaintiff's mortgage loan had been in default since June 1, 2009. According to Plaintiffs, Wells Fargo alleged in the foreclosure complaint that it held the mortgage by “assignment of mortgage” recorded on January 20, 2010. Id. ¶ 18. Pointing to the allegations in Wells Fargo's foreclosure complaint with respect to the timing of the assignment, Plaintiffs allege that “the mortgage was in default prior to the assignment to [Wells Fargo], ” which, in their view, renders Wells Fargo a “debt collector” under the FDCPA. Id. ¶ 20.

         Wells Fargo takes a different view. In support of its motion for summary judgment, Wells Fargo submitted a declaration signed by Crystal Kearse, a Senior Loan Analysist for Ocwen Financial Corp., whose indirect subsidiary is Ocwen Loan Servicing, LLC (“OLS”). Kearse Decl. ¶ 1, ECF No. 58-1 at 1. OLS acts as attorney-in-fact for Wells Fargo through a limited power of attorney executed on August 20, 2012. Id. ¶ 2. Wells Fargo attached the following documents to the declaration: (1) a copy of the limited power of attorney between Wells Fargo and OLS; (2) a copy of the note, which purports to contain an undated indorsement in favor of Wells Fargo Bank Minnesota, N.A.; (3) a copy of the mortgage; (4) a copy of the pooling and servicing agreement for the trust, dated as of March 1, 2003; (5) an “assignment of mortgage” dated December 19, 2002, from MERS, as nominee for WMC Mortgage, purportedly to Wells Fargo Bank Minnesota, N.A.; and an “assignment of mortgage” dated January 4, 2010, from MERS, as nominee for WMC Mortgage, to Wells Fargo Bank, N.A., as successor by merger to Wells Fargo Bank, Minnesota, as Trustee for the Merrill Lynch Mortgage Investors Trust, Mortgage Loan Asset-Backed Certificates, Series 2003-WMC2. ECF No. 58-1. Through these documents, Kearse purports to trace the chain of assignments from WMC Mortgage to Wells Fargo, thereby establishing that Wells Fargo held the “debt” before Plaintiffs went into default. Kearse Decl. ¶¶ 9-17.

         C. Standard of Review

         “The court shall grant 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). The moving party has the initial burden of proving to the district court the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Fed.R.Civ.P. 56(e). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322. When considering a motion for summary judgment, the court is not permitted to weigh the evidence or to make credibility determinations, but is limited to deciding whether there are any disputed issues of fact and, if there are, whether they are both genuine and material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A material fact is a fact whose resolution will affect the outcome of the case under applicable law. Id. at 248. Furthermore, summary judgment is only precluded if the dispute about a material fact is “genuine, ” i.e., if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 247-249. The court must consider the evidence, and all reasonable inferences which may be drawn from it, in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

         D. Discussion

         As already noted, Plaintiffs have agreed to voluntarily dismiss their TCPA claim, so their only remaining claim arises under the FDCPA. Wells Fargo argues that it is entitled to summary judgment as to this ...


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