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Saumweber v. Green Tree Servicing, LLC

United States District Court, D. Minnesota

May 19, 2015

Matthew Saumweber and Amy Saumweber, Plaintiffs,
Green Tree Servicing, LLC, Defendant.

Patrick L. Hayes and William C. Michelson, Marso and Michelson, P.A., 3101 Irving Avenue South, Minneapolis, MN 55408, for Plaintiffs.

Matthew R. Brodin, Briggs and Morgan, P.A., 2200 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402, for Defendant.




This matter is before the Court on Defendant Green Tree Servicing, LLC's Motion for Summary Judgment [Doc. No. 22]. For the reasons stated below, the Court grants Defendant's Motion.


Plaintiffs Matthew and Amy Saumweber took out a mortgage loan with America's Wholesale Lender ("AWL")[1] on March 4, 2005, for the purchase of residential property. (See Hajost Aff. [Doc. No. 26], Exs. 1 & 2.) Mortgage Electronic Registration Systems, Inc. ("MERS") was AWL's nominee and the legal mortgagee in the transaction, while AWL held the note. (See id., Exs. 1 & 2.) On May 21, 2008, Plaintiffs' personal obligations on the note were discharged in Chapter 7 bankruptcy proceedings. (Compl. [Doc. No. 1] ¶¶ 11, 14.) Plaintiffs claim that AWL received notice of the discharge on May 22, 2008. (Id. ¶ 15.) Although Plaintiffs did not reaffirm their debt to AWL after the debt was discharged, (id. ¶ 16), they did voluntarily continue to make monthly payments on the mortgage, (see Hajost Aff., Ex. 3).

On November 1, 2011, Defendant took over the servicing of Plaintiffs' mortgage. (Id., Ex. 4.)[2] When Plaintiffs failed to make timely mortgage payments in August and September 2012, (see id., Ex. 3), Defendant sent them a letter notifying them of their default on the mortgage, their right to cure the default, and the effect of failing to cure the default, (id., Ex. 5). Plaintiffs assert that they also received numerous phone calls from Defendant during August and September 2012, that they repeatedly informed the callers that the debt had been discharged, and that they asked that Defendant stop calling. (Compl. ¶¶ 20-22.) On October 1, 2012, Defendant sent an additional letter to Plaintiffs that explained various credit counseling options, including the possibility of participating in the Home Affordable Modification Program ("HAMP"). (Hajost Aff., Ex. 6.) The letter stated, "TO RECEIVE HELP WITH YOUR MORTGAGE, YOU MUST ACT BY: 10/31/2012." (Id.)

On October 16, 2012, MERS assigned the mortgage to Defendant. (Id., Ex. 7.) On January 4, 2013, Defendant requested a "soft pull" of Plaintiffs' credit reports for purposes of evaluating their eligibility for the Fannie Mae loan modification program. (Id. ¶ 6; Brodin Aff. [Doc. No. 25], Exs. A & B.) The credit reports explain that this type of account review inquiry is not seen by anyone and is not used in calculating an individual's credit score. (Brodin Aff. [Doc. No. 25], Exs. A & B.) That same day, Defendant sent Plaintiffs a letter notifying them that, while they did not qualify for the HAMP, they were eligible for the Fannie Mae loan modification program. (Hajost Aff., Ex. 8.) The letter informed Plaintiffs that they had to make three trial period payments-the first was due on February 1, 2013; the second on March 1, 2013; and the third on April 1, 2013. (Id.)

Plaintiffs did not respond to the loan modification offer, and, around January 22, 2013, Defendant commenced a foreclosure by advertisement with a sale date of March 14, 2013. (See id., Ex. 9.) Plaintiffs elected to postpone the foreclosure sale for five months in exchange for a shortened redemption period, pursuant to Minnesota Statutes § 580.07. (Id., Ex. 10.) They notified Defendant on February 19 that they wanted to negotiate a short sale and, by June 28, 2013 had sold their home at a price that allowed them to pay off the mortgage in full. (See id., Exs. 11 & 12.)

Plaintiffs filed this lawsuit against Defendant on December 26, 2013, alleging that Defendant violated the Fair Debt Collection Practices Act, the Fair Credit Reporting Act, and Plaintiffs' right to privacy by accessing Plaintiffs' credit reports without a permissible purpose. (Compl. ¶¶ 1, 25, 30, 37, 45.) Plaintiffs claim that, as a result of Defendant's conduct, they suffered "humiliation, anger, anxiety, emotional distress, fear, frustration, and embarrassment, " as well as "stress and loss of sleep." (Id. ¶¶ 31, 39.) They also claim to have incurred out-of-pocket expenses. (Id. ¶ 32.) Plaintiffs further assert that Defendant's conduct was willful and malicious and, therefore, Plaintiffs seek punitive damages in addition to actual, compensatory, and statutory damages, and attorneys' fees and costs. (Id. ¶¶ 31-33, 38-40, 46; id. at 9.) Defendant filed its Motion for Summary Judgment on February 20, 2015, and the matter was heard on April 3.


"Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed.R.Civ.P. 1). Summary judgment is proper if, drawing all reasonable inferences in favor of the non-moving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp., 477 U.S. at 322-23; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986). A dispute over a fact is "material" only if its resolution might affect the outcome of the lawsuit under the substantive law. Anderson, 477 U.S. at 248. A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id.

Although the party moving for summary judgment bears the burden of showing that the material facts in the case are undisputed, Celotex Corp., 477 U.S. at 323, "a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial, " Anderson, 477 U.S. at 256. Thus, the movant is entitled to summary judgment where the nonmoving party has failed "to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. No genuine issue of material fact exists in such a case because "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323.

Defendant argues that summary judgment is appropriate on each of Plaintiffs' claims because, due to the "continuing credit relationship" between the parties, Defendant was within its rights in requesting Plaintiffs' credit reports. (Mem. in Supp. of Def.'s ...

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