Fox v. America's Servicing Company, et al., No. 2:2015cv02414 - Document 29 (W.D. Tenn. 2015)

Court Description: ORDER granting 12 Motion to Dismiss for Failure to State a Claim; adopting 27 Report and Recommendations. Signed by Judge Samuel H. Mays, Jr on 11/23/2015. (Mays, Samuel)

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Fox v. America's Servicing Company, et al. Doc. 29 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE WESTERN DIVISION DRESSELS D. FOX, Plaintiff, v. AMERICA’S SERVICING COMPANY; WELLS FARGO BANK, N.A. on behalf of U.S. BANK, N.A.; U.S. BANK, N.A. individually and U.S. BANK, N.A., as TRUSTEE FOR SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2006-NC1, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2006-NC1; SECURITIZED ASSET BACKED RECEIVABLES LLC TRUST 2006-NC1, MORTGAGE PASS THROUGH CERTIFICATES, SERIES 2006-NC1; and WILSON & ASSOCIATES, PLLC, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) No. 15-02414 ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION Before the Court is the Magistrate Judge’s October 26, 2015 Report and Recommendation (the “Report”) recommending that the Court grant Defendants America’s Servicing Company (“ASC”), Wells Fargo Bank, N.A. (“Wells Fargo”), and U.S. Bank, N.A.’s (“U.S. Bank”) August 10, 2015 Motion to Dismiss for Failure to State a Claim, and grant Defendant Wilson & Associates, Dockets.Justia.com P.L.L.C.’s (“W&A”) request for dismissal. 1 Report and Rec., ECF No. 27.) (Mot., ECF No. 12; Plaintiff Dressels D. Fox (“Fox”) filed an Objection to the Report on November 10, 2015. ECF No. 28.) (Obj., For the following reasons, the Magistrate Judge’s Report is ADOPTED and the case is DISMISSED. I. Background On September 14, 2005, Fox executed a promissory note (the “Note”) payable to New Century Mortgage Corporation (“New Century”) in the principal amount of $128,720.00, along with a Deed of Trust, which granted and conveyed to New Century the residential property at 8212 Creekside Circle North in Cordova, Tennessee (“the Property”). (Deed of Trust, ECF No. 1-1.) On December 24, 2012, New Century executed a Corporate Assignment of Deed of Trust to U.S. Bank. (Corporate Assignment, ECF No. 14.) On December 9, 2012, Fox received a letter stating that his mortgage payments were past due. (Letter, ECF No. 1-6.) On March 16, 2015, Fox received a letter from W&A stating that: (1) Fox was in default and the debt had been accelerated; (2) he had the right to reinstate the loan after acceleration and a right to assert in any foreclosure proceeding that no default existed; and (3) he had the right to dispute the validity of the debt 1 W&A did not file a Motion to Dismiss. In its Verified Denial and Answer to the Complaint, W&A asked that it be “dismissed from this matter,” because “Plaintiff has failed to state a claim upon which relief can be granted against W&A.” (Answer, ECF No. 17 at 9.) 2 within thirty days of receipt of the letter. (Letter, ECF No. 1-2.) letter On April 16, 2015, Fox received a from W&A notifying him that a foreclosure sale was scheduled for May 15, 2015. (Letter, ECF No. 1-3.) On April 23, 2015, Fox sent a letter to ASC, requesting validation of the debt. (Letter, ECF No. 1-7.) On May 12, 2015, ASC sent a letter to Fox validating the debt. ECF No. 1-8.) (Letter, Enclosed with the letter were the Deed of Trust and Assignments, the Note, a Loan Information Report, the recent correspondence between the parties, the name and address of the loan owner, years. and (Id.) the payment history for the previous three The foreclosure sale occurred as scheduled on May (Trustee’s Deed, ECF No. 12-2 at 2.) 2 15, 2015. Based on these transactions, Fox’s Complaint alleges five causes of action: (1) “accounting”; (2) violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692; (3) violation Tenn. of Code the Ann. Tennessee §§ Collection 62-20-101, 2 et Service seq., and Act the (“TSCA”), 3 Tennessee The court may consider “‘matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint,’” without converting the motion to one for summary judgment. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001)(quoting Nieman v. NLO, Inc., 108 F.3d 1546, 1554 (6th Cir. 1997)); see also Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680-81 (6th Cir. 2011) (quoting Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008)). The court may also consider “documents that a defendant attaches to a motion to dismiss . . . if they are referred to in the plaintiff’s complaint and are central to her claim.” Amini, 259 F.3d at 502 (internal quotations and citations omitted). 3 Fox refers to the TSCA as the “Tennessee Fair Debt Collection Practices Act.” (Compl., ECF No. 1 at 17.) 3 Consumer Protection Act (“TCPA”), Tenn. Code Ann. §§ 47-18-101, et seq.; (4) (“FCRA”), violation 15 U.S.C. § of the 1681; Fair and (5) Credit Reporting invasion of Act privacy. (Compl., ECF No. 1 at 13-20.) II. Standard of Review Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by permitting the assignment of district court duties to magistrate judges. 237 F.3d States, 598, 490 602 U.S. (6th 858, Cir. See United States v. Curtis, 2001) 869-70 (citing (1989)); Gomez see v. also Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). United Baker v. “A district judge must determine de novo any part of a magistrate judge’s disposition that has been properly objected to.” P. 72(b); 28 U.S.C. § 636(b)(1)(C). After Fed. R. Civ. reviewing the evidence, the court is free to accept, reject, or modify the proposed findings or recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C). The district court is not required to review — under a de novo or any other standard — those aspects of the report and recommendation to which no objection is made. Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt the findings and rulings of the magistrate judge to which no specific objection is filed. “The does not filing meet of the vague, general, requirement of 4 Id. at 151. or conclusory specific objections objections and is tantamount to a complete failure to object.” Cason, 354 F. App’x 228, 230 (6th Cir. 2009). Zimmerman v. Parties cannot validly object to a magistrate’s report without explaining the source of the error. Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 509 (6th Cir. 1991). III. Analysis A. Accounting Claim In his Complaint, Fox states that he “does not understand” why the amount of money he owes as of March 16, 2015, is higher than the amount he originally borrowed. 13.) (Compl., ECF No. 1 at He alleges a “lack of clear chain of title” as well as “defective and fraudulent assignments.” seeks an order compelling Defendants (Id. at 13-14.) to provide written accounting of all sums allegedly due.” a He “verified (Id.) The Magistrate Judge concludes that Fox lacks standing to challenge subsequent assignments of the Note. ECF No. 27 at 7.) the one and ONLY (Report and Rec., In his Objection, Fox argues that “he [is] one to have standing in this case and to challenge the assignment as [he is a] party to the alleged TRUST that is the alleged Lender of the Loan.” (Obj., ECF No. 28 at 6.) Although Fox may have executed the original Note and Deed, without more a debtor may not challenge a subsequent assignment. Bridge v. Aames Capital Corp., 2010 WL 3834059 at *4 (N.D. Ohio 5 Sept. 29, 2010); Livonia Prop. Holdings v. Farmington Holdings, 717 F. Supp. 2d 724, 735 (E.D. Mich. 2010). Road That is true even when the debtor alleges, as Fox does, that his loan was transferred to a trust in violation of the trust’s pooling and service agreement. Dauenhauer v. Bank of N.Y. Mellon, 2013 WL 2359602 at *5 (M.D. Tenn. May 28, 2013), aff’d, 562 F. App’x 473 (6th Cir. 2014). Fox makes no argument and offers no authority to rebut the Magistrate Judge’s predicated on a conclusion. lack of clear Fox’s chain claim of for title accounting or defective assignment must be DISMISSED. B. FDCPA Claim Fox alleges that Defendants failed to provide verification of the debt, despite his request, and failed to cease collection activity until verification was provided, in violation of 15 U.S.C. § 1692g(a). (Compl., ECF No. 1 at 14-15.) that collection Defendants’ practices He alleges violated numerous provisions of the FDCPA, including false statements of material fact, unfair and unconscionable means of collection, harassment, oppression, and abuse, among others. and (Id. at 15- 17.) The Magistrate Judge concludes that the exhibits attached to Fox’s Complaint were Rec., ECF No. 27 at 10.) adequate verification. (Report and After requesting verification, Fox 6 received a letter within 30 days informing him of the account origination, accompanied by the Deed of Trust, Note, Assignment, and a Loan Information Report, sufficient to satisfy the requirements of the FDCPA. (Letter, ECF No. 1-8; Report and Rec., ECF No. 27 at 10-11.) The Magistrate Judge also concludes that, other than reciting the statute verbatim, Fox makes no factual allegations in his Complaint to support his additional claims about collection practices. (Report and Rec., ECF No. 27 at 11-12.) In his Objection, Fox states that debt verification “requires sworn affidavit testimony,” which he was not provided, citing the Dictionary. definition of “verification” (Obj., ECF No. 28 at 8-9.) is not binding on the Court. in Black’s Law Black’s Law Dictionary The Court of Appeals for the Sixth Circuit has opined that “the ‘baseline’ for verification is to enable the obligation,’” consumer and to that ‘sufficiently “an itemized dispute accounting the payment detailing the transactions in an account . . . is often the best means of accomplishing that objective.” Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 758 F.3d 777, 785 (6th Cir. 2014). was provided with a payment history for the years, among many other documents and reports. testimony was not required. 7 three Fox previous Sworn affidavit Fox makes no argument that his Complaint sufficiently alleges his FDCPA claim about collection practices. and rephrases sections of the FDCPA itself. does not offer any new facts. Complaint. C. He restates (Id. at 15-16.) He He does not seek to amend his The FDCPA claim must be DISMISSED. TCSA and TCPA Claims Fox alleges that Defendants’ “violations of FDCPA . . . created violations of the” TCPA and TCSA. 17-18.) He claims that, by failing (Compl., ECF No. 1 at to meet the disclosure requirements of the FDCPA in 15 U.S.C. § 1692g(a), Defendants violated the TCSA, and by “using false deceptive means,” they violated the TCPA. representations or (Id. at 18.) In her Report, the Magistrate Judge draws two conclusions about these claims. First, she concludes that the TCPA does not apply to foreclosure proceedings. (Report and Rec., ECF No. 27 at 13 (citing Pursell v. First Am. Nat’l Bank, 937 S.W.2d 838, 841-42 (Tenn. 1996); Peoples v. Bank of Am., 2012 WL 601777 at *9 (W.D. Tenn. Feb. 22, 2012).) Second, she concludes that there is no private cause of action under the TCSA. (Id. (citing Hunter v. Wash. Mut. Bank, 2008 WL 4206604 at *6 (E.D. Tenn. Sept. 10, 2008).) She recommends that the TCSA and TCPA claims be dismissed. In his Objection, violations of the FDCPA. Fox first the alleged (Obj., ECF No. 28 at 10-11.) For the 8 reiterates reasons stated above, the FDCPA claim is dismissed and provides no support for a TCSA claim. Next, Fox states, without legal support or argument, that “this is an illegal debt collection not a FORECLOSURE.” (Id.) That contradicts his Complaint, in which he premises his claims on allegations that the Defendants “lack standing to foreclose” and improperly provided “notice of foreclosure.” (Id. at 4, 13.) In his Complaint, he argues that the Sixth Circuit has “held that mortgage foreclosure IS debt collection under the FDCPA.” (Id. at 4, 14 (citing Glazer v. Chase Home Finance, LLC, 704 F.3d 453 (6th Cir. 2013)).) That holding was specific to the FDCPA and does not apply to the TCPA. Even if Glazer did apply, Fox makes no factual allegations in his Complaint about false representation or deceptive means. He simply states his conclusory allegations and restates the relevant statutory language. Fox does not offer any additional facts or seek to amend his Complaint. The TCSA and TCPA claims must be DISMISSED. D. FCRA Claim Fox alleges that Defendant Wells Fargo “failed to maintain, and failed to follow reasonable procedures to assure maximum possible accuracy of FOX’s credit report” and failed “to conduct a proper and lawful reinvestigation,” in violation of the FCRA. 9 (Compl., ECF No. 1 at 18-19.) Fox alleges that his credit score was lowered because of these failings. (Id. at 19.) In her Report, the Magistrate Judge concludes that the FCRA imposes two distinct duties on furnishers of information for credit reports. they must reporting (Report and Rec., ECF No. 27 at 15.) provide agencies. accurate 15 credit U.S.C. § information 1681s-2(a). to First, consumer Second, if a consumer reporting agency asks the furnisher to respond to a dispute about the information provided, the furnisher must investigate the disputed information and report the results to the consumer reporting agency. The Magistrate Judge Id. § 1681s-2(b). concludes that consumers private right of action to enforce § 1681s-2(a). have no (Report and Rec., ECF No. 27 at 16 (citing Boggio v. USAA Fed. Sav. Bank, 696 F.3d 611, 615 (6th Cir. 2012).) She also concludes that, although consumers may bring a cause of action under § 1681s2(b), they may do so “only after a furnisher has received proper notice of a dispute from” a consumer reporting agency. (Id. (citing Boggio, 696 F.3d at 615-16).) In his Objection, Fox does not challenge these conclusions. Rather, he alleges that “FOX notified WELLS FARGO of its dispute by mail.” the (Obj., ECF No. 28 at 11.) Complaint and is beyond the deciding the Motion to Dismiss. 10 That was not alleged in Court’s consideration Amini, 259 F.3d at 502. in Fox does not allege the predicate to his cause of action, that Wells Fargo received notice from a consumer reporting agency. He makes no argument that such a notice was not required under § 1681s-2(b). E. The FCRA claim must be DISMISSED. Invasion of Privacy Claim Fox alleges that Wells Fargo “illegally obtained FOX[‘s] consumer credit report(s)” and that Wells “obtained FOX[‘s] social security number.” at 19-20.) Fox alleges invasion of privacy. In her that these Fargo illegally (Compl., ECF No. 1 actions constitute an (Id.) Report, the Magistrate Judge concludes that Tennessee recognizes a cause of action for invasion of privacy in four circumstances: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of another’s name and likeness; (3) public disclosure of private facts; and (4) placing another in a false light to the public. (Report and Rec., Media ECF No. 27 at 16-17 (citing West v. Gen. Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001); Rest. 2d Torts § 652A-E (1977).) The Magistrate Judge concludes that Fox has failed to allege the elements of any of the four circumstances in which privacy might be invaded. (Id. at 17-18.) In his Objection, Fox makes no argument and cites no law challenging the Magistrate Judge’s proposed conclusion. Rather, Fox reasserts his FDCPA claim and seeks to set forth a new claim 11 under Tenn. Code Ann. § 47-18-104. (Obj., ECF No. 28 at 12-13.) Fox’s FDCPA claims must be dismissed for the reasons already stated. His new claim under § 47-18-104 is not properly raised in an Objection to a Report and Recommendation. given by the Magistrate Judge, Fox’s For the reasons unspecific claim for invasion of privacy must be DISMISSED. IV. Conclusion For the foregoing reasons, the Magistrate Judge’s Report is ADOPTED and the case is DISMISSED. So ordered this 23rd day of November, 2015. /s/ Samuel H. Mays, Jr._____ SAMUEL H. MAYS, JR. UNITED STATES DISTRICT JUDGE 12

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