Thomas Labore, Appellant, vs. J. P. Morgan Chase Bank, Defendant, Shapiro and Nordmeyer, LLP, Respondent, Homecomings Financial Network, Inc., Respondent.

Thomas Labore, Appellant, vs. J. P. Morgan Chase Bank, Defendant, Shapiro and Nordmeyer, LLP, Respondent, Homecomings Financial Network, Inc., Respondent. A06-1990, Court of Appeals Unpublished Decision, October 23, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-1990

 

Thomas Labore,

Appellant,

 

vs.

 

J. P. Morgan Chase Bank,

Defendant,

 

Shapiro and Nordmeyer, LLP,

Respondent,

 

Homecomings Financial Network, Inc.,

Respondent.

 

Filed October 23, 2007

Affirmed Willis, Judge

 

Washington County District Court

File No. C6-05-2404

 

David E. Albright, 7814 131st Street West, Apple Valley, MN  55124 (for appellant)

 

Kay Nord Hunt, Barry A. O'Neil, Lommen, Abdo, Cole, King & Stageberg, P.A., 2000 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for respondent Shapiro and Nordmeyer, LLP)

 

James W. Rude, Donald G. Heeman, Ryan A. Olson, Felhaber, Larson, Fenlon & Vogt, P.A., 220 South Sixth Street, Suite 2200, Minneapolis, MN  55402-4504 (for respondent Homecomings Financial Network, Inc.)

 

Considered and decided by Willis, Presiding Judge; Minge, Judge; and Hudson, Judge.
U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges the grant of summary judgment to respondents, arguing that the district court erred by determining that the foreclosure of appellant's property was lawful and that respondents did not violate the federal Fair Debt Collection Practices Act.  We affirm.

FACTS

 

            In 1995, appellant Thomas Labore and his then-girlfriend purchased a house in St. Paul Park.  In January 2002, Labore refinanced the property to buy out his then-ex-girlfriend's interest, obtaining a loan of $67,000 from Mortgage Express, Inc., secured by a mortgage on the property.  Mortgage Express subsequently transferred Labore's mortgage to defendant J.P. Morgan Chase Bank.  J.P. Morgan Chase Bank contracted with respondent Homecomings Financial Network, Inc. to service Labore's mortgage; Homecomings was responsible for collecting and recording payments, administrating the account's escrow, and managing delinquencies.[1]

In February 2003, Homecomings told Labore that because he had failed to maintain hazard insurance on the property, which was required by the mortgage, Homecomings had purchased insurance on his behalf and at his expense.  The insurance policy's declaration page listed Homecomings as the named insured and Labore as an additional insured.  In October 2003, Homecomings renewed the policy.

            In April 2002, Labore defaulted on his mortgage.  Homecomings sent a series of five letters to Labore advising him of the default, and in June 2003, Homecomings began foreclosure proceedings against Labore's property.  In August 2003, Labore cured the default, and Homecomings canceled the pending foreclosure.

            On March 15, 2004, a fire destroyed Labore's house.  Labore notified Homecomings of the fire, and Homecomings instructed him to continue to make his monthly payments.  After the fire, Labore received a check for $67,000 from the insurance company.  Labore called Homecomings and told them that he wanted to use the insurance proceeds to pay off his mortgage, and in that same conversation, a representative of Homecomings told Labore to direct the insurance company to send the proceeds to Homecomings for application against the mortgage.  The Homecomings representative also told Labore that after the insurance proceeds were applied to the mortgage, there would be a remaining balance of approximately $1,445.  Labore did not contact the insurance company.

Despite Homecomings' instructions to continue to make his monthly payments, Labore again defaulted on his mortgage.  In June 2004, Homecomings again began foreclosure proceedings.  On June 23, 2004, respondent Shapiro & Nordmeyer, LLP (S&N), the law firm retained by Homecomings to handle both the 2003 and the 2004 foreclosures, sent a notice of foreclosure to Labore at the address of the property.

On June 14, 2004, and July 2, 2004, respectively, Homecomings and S&N received faxes from attorney David Albright, stating that he represented Labore and requesting a payoff statement for Labore's mortgage.  On July 8, 2004, a legal assistant at S&N sent attorney Albright an e-mail stating that the legal assistant "was advised to cancel all foreclosure proceedings due to the damage on this property, so there is currently no foreclosure pending on Mr. [L]abor[e]'s property" and that she had ordered a payoff statement from Homecomings.  Homecomings' records indicate that on July 7, 2004, the foreclosure was placed on "hold due to damage" and a payoff statement was mailed to Labore.

On August 13, 2004, the hold on the foreclosure was lifted.  Homecomings published a notice of foreclosure for six weeks in the Stillwater Gazette.  And on September 22, 2004, Homecomings attempted to serve a notice of foreclosure on Labore at the property, but the property was vacant.  Labore concedes that he was not living there at that time.  On November 9, 2004, the property was sold at the sheriff's sale to a third party.  Labore subsequently redeemed the property.

Labore then sued J.P. Morgan Chase, Homecomings, S&N, and the third party that purchased the property at the sheriff's sale, alleging, inter alia, that the foreclosure was illegal and that the defendants violated the federal Fair Debt Collection Practices Act.  The third party was dismissed from the suit by stipulation, and Homecomings and S&N both brought motions for summary judgment.  Labore opposed the motions and moved for permission to amend his complaint a second time.

The district court denied Labore's motion to amend, noting that the non-dispositive-motion deadline had passed and that it would be prejudicial to the defendants to allow an amendment after Homecomings and S&N had filed their motions for summary judgment.  The district court also granted Homecomings' and S&N's motions.  Noting that "this [case] is nothing but a bunch of expert bricolage brought by plaintiffs . . . , making something out of nothing," the district court determined that there was no genuine issue of material fact regarding whether Labore was in default or whether the foreclosure was proper.  The district court also concluded that Labore's Fair Debt Collection Practices Act claims failed because the foreclosure was proper.  Finally, the district court determined that Labore had "failed to specify with any degree of reasonable certainty any damages."  This appeal follows.

D E C I S I O N

When reviewing a grant of summary judgment, this court determines (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  There is no genuine issue of material fact when the record taken as a whole would not permit a rational fact-finder to find for the nonmoving party.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).  When the nonmoving party bears the burden of proof on an element essential to the nonmoving party's case, the nonmoving party must make a showing sufficient to permit reasonable persons to draw different conclusions regarding that essential element.  Id. at 71.  This court reviews the record in a light most favorable to the nonmoving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I.

            Homecomings argues first that we should affirm the district court on the ground that although the district court determined that Labore "failed to specify with any degree of reasonable certainty any damages," Labore did not challenge that determination in his brief.  Labore claims in his reply brief that the district court "never mentioned the word ‘damages,'" apparently asserting that the district court did not in fact determine that he had failed to specify his damages to any reasonable degree of certainty and that, regardless of whether he argued the issue of damages in his brief, we should consider his claims.

When damages is an element to a claim and the record contains a "complete lack of proof" of the plaintiff's damages, summary judgment is appropriate.  See Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995); Jackson v. Reiling, 311 Minn. 562, 563, 249 N.W.2d 896, 897 (1977) (noting that a damages claim cannot be "remote and speculative").  Further, issues not raised in an appellant's brief are waived and cannot be revived in a reply brief.  McIntire v. State, 458 N.W.2d 714, 717 n.2 (Minn. App. 1990), review denied (Minn. Sept. 28, 1990).  And the cases that Labore cites in support of his argument that we should consider his claims are inapplicable.  See Sanders v. State, 628 N.W.2d 597, 600 (Minn. 2001) (discussing exceptions to general rule that on a petition for postconviction relief, a court will not consider claims that were raised or could have been raised in a direct appeal); Kugling v. Williamson, 231 Minn. 135, 143, 42 N.W.2d 534, 540 (1950) (declining to address appellant's arguments on the basis that arguments were mere assertions without supporting authority).  Finally, Labore's assertion that the district court did not use the word "damages" is plainly wrong.  But we may address any issue in the interests of justice.  Minn. R Civ. App. P. 103.04.  We will consider Labore's claims.

II.

Labore argues that under Minnesota law, the foreclosure was illegal. Under Minnesota law, a mortgagee may foreclose on a property if a default has occurred that gives rise to the mortgagee's "power to sell," there are no other legal proceedings underway to collect the debt, and the mortgagee's security interest has been recorded.  Minn. Stat. § 580.02 (2006); Lindberg v. Gebo, 381 N.W.2d 905, 907 (Minn. App. 1986), review denied (Minn. May 16, 1986).  All essential requirements of the statute must be complied with, and a "clear departure" from those requirements "vitiates" the foreclosure.  Hudson v. Upper Mich. Land Co., 165 Minn. 172, 174, 206 N.W. 44, 45 (1925).  Labore does not dispute that, under the terms of the mortgage, he was in default; that there were no other legal proceedings ongoing to collect the debt; or that the mortgagee's interest was recorded.  Labore argues instead that Homecomings' "power to sell" was not "operative" because under contract law, his default was excused.

A.                Ineffective notice of foreclosure

Labore argues first that S&N violated the federal Fair Debt Collection Practices Act (FDCPA) by sending a notice of foreclosure to him personally, although S&N knew that he was represented by an attorney.  Labore asserts that we must read the FDCPA and Minnesota mortgage law together and that because S&N violated the FDCPA, the foreclosure was unlawful.  But Labore cites no authority to support his argument, and a claim based on mere assertion without supporting argument or authority is deemed waived unless prejudicial error is obvious on mere inspection.  State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).  We see no obvious prejudicial error here, and we note that Labore denied in his answers to interrogatories any communication with S&N.

B.                 Hindrance of performance

Labore argues next that his failure to perform his duties under the mortgage was excused because Homecomings hindered his performance.  See Zobel & Dahl Const. v. Crotty, 356 N.W.2d 42, 45 (Minn. 1984) (noting that a party's duty to perform under a contract is excused if the other party hinders or renders the performance of that duty impossible).  Labore asserts that Homecomings hindered his ability to perform by refusing to give him an "accurate" payoff statement.  The record contains evidence that Homecomings sent Labore four payoff statements.  But even if we were to assume that Homecomings sent none, Labore has not shown how such a failure would have hindered his ability to make his monthly payments.  And it is undisputed that Labore failed to make those payments.

Labore argues next that Homecomings hindered his ability to perform by refusing to communicate with his attorney and by refusing for six months to credit the insurance proceeds to the remaining balance of the mortgage.  We disagree.  It is undisputed that S&N, which represented Homecomings in the foreclosure, did communicate with attorney Albright.  Further, Labore does not establish how Homecomings' failure to credit the insurance proceeds for six months, which was occasioned, at least in part, by Labore's failure to communicate with the insurance company, hindered his ability to make his monthly payments, especially in light of the undisputed fact that the insurance proceeds were insufficient to pay off the remaining balance.[2]

Labore argues next that Homecomings hindered his ability to perform because S&N misrepresented that Homecomings had canceled the foreclosure.  This argument is without merit.  Labore has not shown how S&N's alleged misrepresentation hindered Labore's ability to make his monthly payments.

Labore argues finally that Homecomings hindered his ability to perform by refusing to accept "what [Labore] actually owed."  Labore argues specifically that he "tendered a complete payoff of the mortgage, and all legitimate interest and costs" and that "[a]ll that was required was application of the fire proceeds and [$1,445] from [Labore's employer]."  Tender is "the act by which one produces and offers to a person holding a claim or demand against him the amount of money which he considers and admits to be due in satisfaction of such claim or demand without any stipulation or condition."  Balder v. Haley, 441 N.W.2d 539, 542 (Minn. App. 1989) (quotation omitted), review denied (Minn. July 27, 1989).  Labore cites no evidence supporting his assertion that he "tendered full performance" on June 8, 2004.  Although Labore may have indicated to Homecomings that he wanted to pay off the remaining balance, there is no evidence in the record that Labore tendered payment.  A tender requires a "continued readiness" to perform.  Dale v. Pushor, 246 Minn. 254, 257, 75 N.W.2d 595, 599 (1956).  Labore's contention that his employer was willing to advance Labore the money needed to pay the balance remaining after the fire-insurance proceeds were applied is not sufficient to show "continued readiness."  See Clark v. Dye, 158 Minn. 217, 227, 197 N.W. 209, 213 (1924) (holding that a party's showing that a third-party was "ready, willing and able" to furnish money owed was insufficient to show that a tender had been made).  We therefore conclude that Labore has not shown that Homecomings hindered his ability to perform under the mortgage.

C.                 Improper demand

Labore also argues that his duty of performance was excused because "Homecomings demanded payment of interest and fees far in excess of what was actually owed."  Labore relies on the Eighth Circuit's decision in Ewing v. Von Nieda, 76 F.2d 177, 180 (8th Cir. 1935), in which a manufacturer demanded that a distributor withdraw his business from certain states.  The circuit court held that "[g]enerally speaking, combining a lawful demand with one not required by contract renders the demand for performance insufficient."  Id. at 182.  Ewing is inapposite: there, the manufacturer demanded that the distributor withdraw from states in which the distributor had a right to operate.  Id. at 180.  Here, beyond a bare assertion that he was overcharged, Labore offers no evidence that Homecomings was not entitled to the interest and fees that it claimed.  Thus, Labore's argument is unavailing.

D.                Waiver

Labore argues finally that Homecomings waived Labore's duty of performance when "they refused to accept full payoff," falsely represented that the foreclosure had been canceled and that S&N's file had been "closed," and failed to provide an accurate payoff statement in July 2004.  We disagree.  Waiver is the voluntary relinquishment of a known right.  Cohler v. Smith, 280 Minn. 181, 189, 158 N.W.2d 574, 579 (1968).  Whether a waiver occurs is largely a question of the party's intent.  Id.  Even if we were to assume that Labore's assertions are true, that is no evidence that Homecomings intended to waive its rights under the mortgage.  

III.

            Labore also argues that the district court erred by concluding that respondents did not violate the FDCPA.  The FDCPA is intended to protect consumers from abusive practices of debt collectors.  Peters v. General Serv. Bureau, 277 F.3d 1051, 1054 (8th Cir. 2002).  Thus, it applies only to a person who is within the statutory definition of "debt collector."  See Heintz v. Jenkins, 514 U.S. 291, 115 S. Ct. 1489 (1995) (determining that a lawyer was a debt collector under the statute).  The statute defines a "debt" as "any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes."  15 U.S.C. § 1692a(5) (2006). And the statute defines a "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." Id. at (6).

Both Homecomings and S&N assert that the FDCPA does not apply to this foreclosure.  Homecomings argues that Labore failed to allege in his complaint that Homecomings is a debt collector and that, in any event, it is not a debt collector under the FDCPA.  We agree.  A debt collector is a person whose business's "principal purpose" is, or who regularly engages in, the collection of "debts owed or due or asserted to be owed or due another."  15 U.S.C. § 1692a(6) (2006).  Labore offers no evidence that the "principal purpose" of Homecomings' business is the collection of debts owed to others.  Thus, his FDCPA claims against Homecomings fail.

S&N argues that the FDCPA does not apply because "actions taken . . . in connection with foreclosing on a security interest are not generally subject to the FDCPA."  We note that the federal courts are in conflict on this issue.  Compare Hulse v. Ocwen Fed. Bank, FSB, 195 F. Supp. 2d 1188, 1204 (D. Or. 2002) (concluding that the enforcement of a security interest is not a collection of a debt under the FDCPA), with Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373, 376 (4th Cir. 2006) (concluding that the foreclosure of a security interest is a collection of a debt), and Kaltenbach v. Richards, 464 F.3d 524, 526 (5th Cir. 2006) (accord).  But we need not reach this issue because we conclude that even if we were to assume that the FDCPA applies to this foreclosure, Labore has not shown an FDCPA violation.

Labore raises three claims against respondents under the FDCPA.  Because we have concluded that Labore's FDPCA claims against Homecomings fail, we will address these claims only as they apply to S&N.  Labore argues first that S&N made several misrepresentations to Labore; to his attorney; and to third parties, such as the Washington County Sheriff's Department.  The FDCPA generally prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e (2006). Labore argues specifically that S&N misrepresented to him that "no foreclosure was pending," that the foreclosure proceedings had been canceled, and that S&N had requested that Homecomings provide Labore with a payoff statement.  Labore asserts also that S&N misrepresented to third parties the fact that the foreclosure was proper.

Labore's arguments are unpersuasive.  Contrary to Labore's assertion, the record shows that on July 8, when S&N's legal assistant e-mailed attorney Albright and stated that no foreclosure was pending, there was no foreclosure pending; it had been placed on hold on July 7.  Further, even if we were to assume that S&N misrepresented the fact that they had requested a payoff statement from Homecomings, Labore has not established how such a misrepresentation would be an attempt to collect a debt.  See 15 U.S.C. § 1692e (2006) (requiring that the misleading representation be in connection with collecting a debt).  And we note that the record contains evidence that Homecomings sent Labore a payoff statement on July 7.  Finally, Labore's argument that S&N made misrepresentations to third parties rests on his assertion that the foreclosure was improper.  Because we have concluded that it was not improper, Labore's argument fails.

Labore argues next that S&N violated the FDCPA when it communicated directly with him after they learned that he was represented by an attorney.  The FDCPA prohibits a debt collector from communicating directly with a debtor if the debt collector knows that the debtor is represented in connection with the debt.  15 U.S.C. § 1692c(a)(2) (2006).  But contrary to his claim on appeal, in his answers to respondents' interrogatories, Labore denied any communication with S&N.  Thus, his claim fails.

Labore argues finally that S&N violated the FDCPA by failing to investigate the disputed debt.  Labore cites no authority to support his argument, and as we noted earlier, arguments based on mere assertion, without supporting authority or argument, are waived unless prejudicial error is obvious on mere inspection.  See Modern Recycling, 558 N.W.2d at 772.  We do note that the FDCPA provides that if a debtor disputes a debt, the debt collector shall cease efforts to collect that debt until the debt collector obtains verification of the debt or the name and address of the original creditor and mails that information to the debtor.  15 U.S.C. § 1692g(b) (2006).  But Labore offers no evidence that he actually disputed the debt:  the faxes from attorney Albright show that, although he requested a payoff statement, he did not dispute the underlying debt.  

Thus, we see no error by the district court in finding no violations of the FDCPA.

IV.

Labore argues next that the district court erred by determining that respondents did not commit civil fraud.  Respondents argue that Labore's claim fails because he did not plead the elements of a fraud claim with particularity.  See Minn. R. Civ. P. 9.02.  The elements of a fraud claim are that the defendant

(1) made a representation (2) that was false (3) having to do with a past or present fact (4) that is material (5) and susceptible of knowledge (6) that the [defendant] knows to be false or is asserted without knowing whether the fact is true or false (7) with the intent to induce the other person to act (8) and the person in fact is induced to act (9) in reliance on the representation (10) that the plaintiff suffered damages (11) attributable to the misrepresentation.

 

M.H. v. Caritas Family Servs., 488 N.W.2d 282, 289 (Minn. 1992).

Although Labore's complaint alleges that respondents made several "representations," he does not allege that these representations were "false," nor does he allege that the statements were "material," that they were intended to induce him to act, or that he acted in reliance on the statements.  Because Labore failed to plead the elements of a fraud claim with particularity, summary judgment was appropriate.  See Berke v. Resolution Trust Corp., 483 N.W.2d 712, 717 n.3 (Minn. App. 1992), review denied (Minn. May 21, 1992).

V.

Labore argues next that the district court erred by determining that respondents had not defamed him.  To be defamatory, a statement must be false, it must be communicated to others, and it must "tend to harm" the plaintiff's reputation.  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).  The truth of a statement is an absolute defense to a defamation claim.  Id.  Labore argues that respondents' statements to "every one [except] Tom Labore that they were foreclosing on his mortgage" were false because "[t]hese experienced and sophisticated debt collectors had ample reason to know that the foreclosure was improper . . . ."  Thus, Labore's claim rests on his assertion that "the foreclosure was improper."  But as we have determined, Labore has not established that the foreclosure was improper.  Therefore, the statements that Labore alleges are defamatory are not actionable because they were, in fact, true.

VI.

Labore argues finally that the district court erred by making credibility judgments on a motion for summary judgment.  Labore takes particular issue with the district court's statement that his case "is nothing but a bunch of expert bricolage . . . , making something out of nothing."  Although a district court may not weigh the evidence on a motion for summary judgment, it is not "required to ignore its conclusion that the evidence presented has no probative value and that reasonable persons could not reach different conclusions from the evidence presented."  Zander v. State, 703 N.W.2d 845, 856-57 (Minn. App. 2005).  We have determined that there were no genuine issues of material fact that precluded summary judgment.  Thus, we conclude that the district court did not make impermissible credibility judgments here.

Affirmed.

[1] Although J.P. Morgan Chase Bank is named as a party to this action, it did not participate in this appeal.

[2] We note that many of the disputes in this case likely would have been avoided if Homecomings had corresponded with Labore in writing when it forwarded the payoff statements and when it instructed him regarding the disposition of the insurance proceeds.