United States District Court, W.D. Pennsylvania
WILLIAM J. WARREN and SINDORA M. WARREN, Plaintiffs,
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
C. MITCHELL, United States Magistrate Judge.
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.
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.
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.
facts are simple and straightforward. 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.
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.
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.
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.
Standard of Review
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
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 ...