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Farrin v. Nationstar Mortgage, LLC

United States District Court, D. New Hampshire

October 28, 2016

Henry L. Farrin, Jr.
v.
Nationstar Mortgage LLC Opinion No. 2016 DNH 178

          Scott C. Borison, Esq.

          D. Kyle Deak, Esq.

          Peter A. Holland, Esq.

          John C. Lynch, Esq.

          Thomas J. Pappas, Esq.

          Roger B. Phillips, Esq.

          Kenneth Stout, Esq.

          ORDER

          Landya McCafferty United States District Judge.

         Henry Farrin brings suit alleging that Nationstar Mortgage LLC (“Nationstar”) violated New Hampshire's Unfair, Deceptive, or Unreasonable Collection Practices Act (RSA 358-C); the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681b; and the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692e. Farrin alleges that, while serving in Afghanistan, Nationstar sent him several letters and left him numerous voicemails in an effort to collect on his mortgage debt, which had been discharged in bankruptcy. Farrin also alleges that the efforts to collect his discharged mortgage debt continued even after he returned from Afghanistan, and that Nationstar unlawfully accessed his credit report. Nationstar moves for summary judgment on all claims. Farrin objects to the motion on the grounds that material factual disputes preclude summary judgment.

         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). “A genuine dispute is one that a reasonable fact-finder could resolve in favor of either party and a material fact is one that could affect the outcome of the case.” Flood v. Bank of Am. Corp., 780 F.3d 1, 7 (1st Cir. 2015). The court credits the evidence that supports the non-moving party and draws all reasonable inferences in his favor. Burns v. Johnson, 829 F.3d 1, 8 (1st Cir. 2016). Therefore, in reviewing a motion for summary judgment, the court'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)).

         Background

         On October 16, 2007, Henry Farrin obtained a loan of $229, 900 and signed a note with Taylor, Ben & Whitaker Mortgage Co. as lender that was secured by a mortgage on his property in Epsom, New Hampshire. A second lien was recorded on the property in 2008 by Robert and Jerelyn Hill for $143, 582.

         By 2010, Farrin had experienced personal and financial difficulties and was unable to make the mortgage payments. He unsuccessfully sought a modification of the loan from Ocwen Loan Servicing, LLC. He then vacated the property in March 2010 and surrendered the property to Ocwen in October 2010. Ocwen changed the locks on the house and put a notice in the window.[1]Ocwen did not foreclose on the mortgage.

         On February 7, 2012, Farrin filed for bankruptcy under Chapter 7. He received a discharge on June 6, 2012.[2] In December 2012, Ocwen asked Farrin to waive his rights under the Servicemembers Civil Relief Act (“SCRA”) and to consent to foreclosure.[3] In response, Farrin offered Ocwen a deed to the property in lieu of a foreclosure. Ocwen did not accept a deed in lieu of a foreclosure because of the Hills' lien on the property. Ocwen apparently made no further efforts to resolve the foreclosure issue.

         Since 2007, Farrin has served as the supply sergeant for medevac units in the New Hampshire National Guard. In April 2013, Farrin was deployed to Afghanistan; he returned in January 2014.

         On May 16, 2013, while Farrin was in Afghanistan, Nationstar became the servicer on Farrin's mortgage. Nationstar sent Farrin a letter on May 31, 2013, to inform him of the change in servicers. Thereafter and until June 2015, Nationstar sent Farrin monthly statements of his mortgage account, which included disclaimers that the statement was not intended as an attempt to collect a discharged debt. Nationstar also sent Farrin other correspondence about contact information at Nationstar, insurance on the property, foreclosure options, tax statements, and notices about the SCRA. Some of the notices included disclaimers stating that the notice was an attempt to collect a debt unless the debt had been discharged in bankruptcy and then the notice was for informational purposes only.

         In January 2014, when Farrin returned from Afghanistan, he found “tons” of messages on his cell phone from Nationstar that stated the call was an attempt to collect a debt. Nationstar's records show that the calls were for collection purposes. Nationstar made a total of ninety-nine calls to Farrin's cell phone, called his office telephone fifty times, and sent him thirty letters.[4] He told Nationstar to stop contacting him, but the communications continued. Farrin believed that Nationstar was trying to collect the outstanding balance on the loan from him, despite the bankruptcy discharge.

         On July 31, 2014, Nationstar obtained Farrin's consumer credit report. Nationstar characterizes its action as a “soft pull” of credit information, which allows it to access certain information, such as Farrin's current and former address and whether he is in the military, but does not become public or negatively impact Farrin's credit. Nationstar asserts that it obtained Farrin's credit report for “account review purposes.”

         On March 25, 2015, Farrin brought suit against Nationstar. He alleges that Nationstar's actions, including the telephone calls and written communications, violated RSA 358-C, the FDCPA, and FCRA.

         Discussion

         Nationstar moves for summary judgment on all claims. It asserts that that neither the FDCPA nor RSA 358-C prohibits its communications with Farrin and that a portion of Farrin's FDCPA claim is time barred. Nationstar further contends that, because it obtained Farrin's credit reports for a permissible purpose, it did not violate FCRA. Farrin objects on all grounds but does not address the statute of limitations argument.[5]

         A. Mays Declaration

         Nationstar submitted two declarations from O.E. “Gene” Mays, II, one in support of its motion for summary judgment, see doc. no. 20-2 (“first Mays declaration”) and one in support of its reply. See doc. no. 24-2 (“second Mays declaration”). Farrin contends that the court should disregard both declarations because they are based on “information and belief” and not on personal knowledge. He also argues that the court should disregard the first Mays declaration for the additional reason that it conflicts with Mays's deposition testimony.

         The court considers both declarations in ruling on Nationstar's motion for summary judgment. Although both declarations conclude with the statement that the declaration is true to the best of Mays's “information and belief, ” both specifically state that the information in the declarations is based on Mays's personal knowledge. Therefore, the declarations are acceptable. See HMC Assets, LLC v. Conley, No. CV 14-10321-MBB, 2016 WL 4443152, at *2 (D. Mass. Aug. 22, 2016); Rios Colon v. United States, 928 F.Supp.2d 388, 391 (D.P.R. 2012).

         Farrin also argues that the first Mays declaration conflicts with his deposition testimony and, therefore, should be disregarded as a “sham.” Specifically, Farrin notes that Mays testified at his deposition that Nationstar pulled Farrin's credit report for “skip tracing” purposes, but stated in his declaration that Nationstar pulled the report for “account review purposes.” Farrin has not explained why Mays's statement in his declaration conflicts with his deposition testimony, rather than “merely explains, or amplifies upon” the testimony. Gillen v. Fallon Ambulance Serv., 283 F.3d 11, 26 (1st Cir. 2002). Therefore, the court considers both declarations.

         B. FDCPA

         Nationstar first argues that some of its communications to Farrin, those that occurred before March 25, 2014, cannot be considered for purposes of the FDCPA claim because they are barred by the one-year statute of limitations. See 15 U.S.C § 1692k(d). Farrin failed to respond to the limitations defense except to say in his surreply that he “did not and does not waive claims for FDCPA violations prior to March 25, 2014.” Doc. no. 26 at 2. Nationstar also challenges the FDCPA claim on the merits.

         1. Statute of Limitations

         Under the FDCPA, suit must be filed “within one year from the date on which the violation occurs.” § 1692k(d); McCarthy v. WPB Partners, LLC, No. 16-cv-081-LM, 2016 WL 4014581, at *7 (D.N.H. July 26, 2016). An FDCPA claim arising from collection letters may accrue on the date when the letter was mailed or received. Simard ...


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