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Hopper v. Nationstar Mortgage, LLC

United States District Court, D. Oregon, Eugene Division

August 24, 2017

GLENN E. HOPPER, Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, Defendant.

          OPINION AND ORDER

          AnnAiken United States District Judge.

         Plaintiff filed this action alleging a single violation of the Real Estate Settlement Procedures Act ("REPSA"). 12 U.S.C. § 2601 et seq. Defendant moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below, defendant's motion is denied.

         BACKGROUND

         Plaintiff, Glenn Hopper, resides in a residential property subject to a mortgage loan to which defendant is the beneficial holder of the right to receive payments. See Compl, 2. Defendant, Nationstar Mortgage, LLC, is a mortgage loan servicer as defined by REPSA. Id. at 3; 12 U.S.C. § 2601(i)(2). Plaintiff asserts he made two $1, 500 payments to defendant on November 7, 2014, and December 12, 2014, for application to his mortgage loan. Plaintiff further asserts that defendant failed to apply these payments to his mortgage loan account. Compl. at 3. As a result, defendant charged late fees and other fees to plaintiffs loan account. Id.

         On February 18, 2016, plaintiff sent a qualified written request ("QWR") to defendant. Id. Under REPSA, a mortgage loan servicer must provide a written response of acknowledgement to any QWR for information relating to the servicing of a loan within five business days. 12 U.S.C. § 2605(e)(1). 12 U.S.C. § 2605(e)(2) further provides that within 30 days of receipt of a QWR, the mortgage loan servicer must: (1) "make appropriate corrections in the account of the borrower[.]" Id. at § 2605(e)(2)(A); (2) conduct an investigation and provide the borrower a written explanation of why the account is correct, Id. at § 2605(e)(2)(B); or (3) conduct an investigation and provide the borrower a written explanation of why the information requested is unavailable. Id. at § 2605(e)(2)(C).

         Plaintiff alleges that defendant never responded to his QWR, and instead sent him notices that his account was past due, in default, and in danger of foreclosure, causing him to suffer emotional distress. Compl. at 4. In early April 2016, plaintiff sought to refinance his property with a different mortgage loan servicer. Plaintiff alleges that the refinance of the mortgage loan would have saved him $800 monthly compared to his current mortgage loan with defendant. Id., Plaintiff avers that defendant's failure to respond to his QWR directly resulted in his inability to refinance his mortgage loan. Id.

         On April 7, 2016, plaintiff sent defendant a second QWR. On April 14, 2016, defendant sent plaintiff a written acknowledgement of the second QWR.[1] Id. at 5; Kruger Decl. Ex. 2 (doc. 10-2).

         Plaintiff filed the present action on May 20, 2017. His only claim for relief is based on defendant's failure to timely respond to his first QWR, in violation of REPSA.[2] Id. at 5-6. Plaintiff asserts damages of: (1) expenses incurred corresponding with defendant; (2) attorneys' fees related to attempting to correct defendant's errors; (3) a negatively impacted credit; and (4) emotional distress. Id. at 6. Plaintiff seeks the following judgment: (1) $3, 086.78 comprising of attorneys' fees, expenses related to correspondence, and emotional distress damages; and (2) $800 per month from May 2016, onward reflecting pecuniary damages incurred from the inability to refinance the mortgage loan.

         Defendant filed a motion to dismiss for failure to state a claim, asserting it responded to plaintiffs February 18, 2016 QWR with an acknowledgement letter dated April 4, 2016, which was denied. See Hopper v. Nationstar Mortg., LLC, 2016 WL 5339577, *1 (D. Or. Sept. 20, 2016) (doc. 17).

         Now, defendant moves for summary judgment pursuant to Federal Rule of Civil Procedure 56, alleging that there is no genuine issue of material fact. See Mot. Summ. J., 1 (doc. 25).

         STANDARDS

         Summary judgment is appropriate if "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 burden of establishing the absence of a genuine issue of material fact. Id.; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324. "Summary judgment is inappropriate if reasonable jurors, drawing all inferences in favor of the nonmoving party, could return a verdict in the nonmoving party's favor." Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th Cir. 2008).

         DISCUSSION

         Here, defendant moves for summary judgment, asserting that there is no genuine dispute of material fact because it sent plaintiff timely correspondence in response to his first QWR, in compliance with REPSA. Mot. Summ. J. at 3-4. Defendant entered three letters into the record to support this argument. See Kruger Decl. Supp. Mot. Summ. J. Ex. 3. This evidence, viewed on its own, establishes the absence of a genuine issue of material fact. Fed, R. Civ. P. 56(a). However, in response, plaintiff, the nonmoving party, goes beyond the pleadings ...


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