United States District Court, D. Oregon, Eugene Division
GLENN E. HOPPER, Plaintiff,
NATIONSTAR MORTGAGE, LLC, Defendant.
OPINION AND ORDER
AnnAiken United States District Judge.
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
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.
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 §
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.
April 7, 2016, plaintiff sent defendant a second QWR. On
April 14, 2016, defendant sent plaintiff a written
acknowledgement of the second QWR. Id. at 5; Kruger
Decl. Ex. 2 (doc. 10-2).
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. 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.
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).
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.
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).
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 ...