Case Law
Decision Date
21
Mar 2018
Name
IN RE: Terry Lee FORSON, Debtor. Terry Lee Forson, on behalf of himself and Others Similarly Situated, Plaintiffs v. Nationstar Mortgage, LLC, Defendant.
Attorney(s)
Troy J. Doucet, Dublin, OH, Jefferson H. Massey, Zanesville, OH, for Debtor., C. Kathryn Preston, United States Bankruptcy Judge This cause came on for consideration of Plaintiff Terry Lee Forson's Motion for Summary Judgment (Doc. 52) (the "Motion") filed by Debtor Terry Lee Forson ("Plaintiff"), the Memorandum in Opposition to Plaintiff's Motion for Summary Judgment (Doc. 57) (the "Response") filed by Defendant Nationstar Mortgage, LLC ("Defendant"), Plaintiff Terry Lee Forson's Reply to Defendant Nationstar Mortgage, LLC's Memorandum in Opposition to Plaintiff's Motion for Summary Judgment (Doc. 58) (the "Reply"), and the Sur-Reply Brief in Response to Plaintiff's Reply (Doc. 62) (the "Sur-Reply")., On or around September 19, 2007, Plaintiff executed and delivered to Defendant a note and mortgage ("Mortgage Loan") in order to refinance a home located at 145 Craig Drive, Thornville, Ohio 40376. On November 7, 2008, Plaintiff filed a voluntary petition for relief under Chapter 13 of the Bankruptcy Code . According to Defendant's proof of claim filed March 18, 2009, as of commencement of Plaintiff's bankruptcy case, the Mortgage Loan had a balance of $123,817.31, which included an installment payment arrearage of $7,564.95. Plaintiff's confirmed Chapter 13 Plan provided for regular monthly payments on the Mortgage Loan to be made by "conduit" through the Chapter 13 Trustee. Plaintiff successfully completed the Plan, and on June 19, 2013, upon motion by the Chapter 13 Trustee, the Court entered an order deeming the Mortgage Loan current as of May, 2013 (the "Mortgage Order"). The Mortgage Order also directed Defendant to adjust the Mortgage Loan balance to reflect the balance delineated in the original amortization schedule as of May, 2013, and ordered that any amounts in excess of that balance were discharged. Thereafter, Plaintiff made his monthly mortgage payment on the Mortgage Loan for the months of June 2013 through December 2013, which is undisputed by Defendant. Notwithstanding the fact that Plaintiff maintained his monthly payments to Defendant, Defendant sent letters and mortgage statements to Plaintiff indicating the Mortgage Loan was delinquent., Plaintiff's Amended Complaint, filed November 3, 2015, contends that Defendant failed to treat Plaintiff's Mortgage Loan as current following entry of the Mortgage Order and Plaintiff's discharge, and sets forth detailed allegations that Defendant attempted to collect, and actually collected, thousands of dollars in discharged fees from Plaintiff. The Amended Complaint further alleges that Defendant has a uniform set of policies and procedures for servicing mortgage loans, that Defendant has routinely failed to correct its records following a debtor's receipt of a Chapter 13 discharge, and that Defendant systemically collects and/or attempts to collect discharged debts from Chapter 13 debtors. Thus, Plaintiff seeks relief on behalf of a Southern District of Ohio districtwide class of debtors (the "Districtwide Class")., On behalf of Plaintiff and the Districtwide Class, the Amended Complaint requests an order finding Defendant in contempt, and seeks, along with other redress, an award of compensatory and punitive damages for Defendant's alleged violations of the discharge injunction imposed by 11 U.S.C. § 524. Plaintiff's Motion requests this Court determine as a matter of law that Defendant attempted to collect a debt in violation of the discharge injunction. Defendant argues that the one way intervention doctrine prohibits this Court from making a merit-based determination before deciding a motion to certify the class. In addition, Defendant asserts that there are genuine disputes of material fact that require the Motion be denied., II. Standard of Review for Motions for Summary Judgment, Rule 56 of the Federal Rules of Civil Procedure, made applicable to adversary proceedings by Federal Rule of Bankruptcy Procedure 7056, provides that a court "shall grant summary judgment if the movant shows that 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 party seeking summary judgment bears the initial burden of "informing the ... court of the basis for its motion, and identifying those portions of the [record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)., If the movant satisfies this burden, the nonmoving party must then assert that a fact is genuinely disputed and must support the assertion by citing to particular parts of the record. See Fed. R. Civ. P. 56(c)(1). The mere allegation of a factual dispute is not sufficient to defeat a motion for summary judgment; to prevail, the non-moving party must show that there exists some genuine issue of material fact. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When deciding a motion for summary judgment, all justifiable inferences must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Anderson , 477 U.S. at 255, 106 S.Ct. 2505., [T]he moving [party] may discharge its burden by "pointing out to the ... court ... that there is an absence of evidence to support the nonmoving party's case." The nonmoving party cannot rest on its pleadings, but must identify specific facts supported by affidavits, or by depositions, answers to interrogatories, and admissions on file that show there is a genuine issue for trial. Although we must draw all inferences in favor of the nonmoving party, it must present significant and probative evidence in support of its [position]. "The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].", Hall v. Tollett, 128 F.3d 418, 422 (6th Cir. 1997) (citations omitted). A material fact is one whose resolution will affect the determination of the underlying action. See Tenn. Dep't of Mental Health & Mental Retardation v. Paul B. , 88 F.3d 1466, 1472 (6th Cir. 1996). An issue is genuine if a rational trier of fact could find in favor of either party on the issue. See Schaffer v. A.O. Smith Harvestore Prods., Inc., 74 F.3d 722, 727 (6th Cir. 1996). "The substantive law determines which facts are 'material' for summary judgment purposes." Hanover Ins. Co. v. Am. Eng'g Co. , 33 F.3d 727, 730 (6th Cir.1994). In determining whether each party has met its burden, the court must keep in mind that "[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses ...." Celotex , 477 U.S. at 323-24, 106 S.Ct. 2548., Rule 23 is intended to accommodate lawsuits to vindicate shared rights of widely-dispersed individuals where joinder of all the interested parties would be impractical. But vindication of those rights additionally implies its opposite: the full exoneration of those found innocent of alleged violations of collective rights. To provide for the complete vindication of meritorious group claims and the complete exoneration of falsely accused defendants, Rule 23... requires both plaintiff class members (whether or not personally participating in the class action) and defendants to be bound by judgments on class claims., Class action suits serve several basic purposes. One primary purpose is to promote judicial economy and efficiency by avoiding multiple adjudications of the same issues. From the plaintiffs' perspective, class actions afford aggrieved persons a remedy when it is not economically feasible to obtain relief through the traditional framework of multiple individual damage actions as, for example, when each claim involves only a small dollar amount. Thus, the class action device enhances access to the courts by spreading litigation costs among numerous litigants with similar claims. From the defendants' perspective, a class action provides a single proceeding in which to determine the merits of the plaintiffs' claims and, therefore, may protect defendants from repeated and potentially inconsistent adjudications., Federal Rule of Civil Procedure 23(c)(1)(A) provides that "[a]t an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action." Fed. R. Civ. P. 23(c)(1)(A). And generally, "courts decide class certification motions before addressing dispositive motions." Hyman v. First Union Corp. , 982 F.Supp. 8, 11 (D.D.C. 1997). However, "the timing provision of Rule 23 is not absolute. Under the proper circumstances-where it is more practicable to do so and where the parties will not suffer significant prejudice-the district court has discretion to rule on a motion for summary judgment before it decides the certification issue." Wright v. Schock , 742 F.2d 541, 543-44 (9th Cir. 1984)., Neither Fed.R.Civ.P. 23 nor due process necessarily requires that the district court rule on class certification before granting or denying a motion for summary judgment. Rule 23 clearly favors early determination of the class issue, but where considerations of fairness and economy dictate otherwise, and where the defendant consents to the procedure, it is within the discretion of the district court to decide the motion for summary judgment first., In the instant case, based on the one way intervention doctrine, Defendant argues that Plaintiff is prohibited from seeking a merit-based determination from the Court prior to the Court deciding whether a class can be certified. In contrast, Plaintiff posits that Defendant waived the right to object to a merit-based determination because it failed to object to the Court's Order Setting Deadlines (Doc. 44) (the "Scheduling Order") that established deadlines for merit-based discovery and dispositive motions., The Court concludes that it is appropriate in this case to decide the Motion prior to a determination of class certification for two reasons: First, the Court held a pretrial conference on May 18, 2016 (the "Pretrial") which was attended by counsel for both Plaintiff and Defendant. After the Court and the parties discussed the progress of the litigation, Plaintiff suggested that the Court set deadlines for only merit-based discovery and dispositive motions. As is normal for the Court, it asked the parties whether the proposed procedure was acceptable to the parties, and neither Plaintiff nor Defendant objected or otherwise expressed concern. Accordingly, this Court finds that Defendant implicitly waived its right to have a class certification motion decided first. See Hyman v. First Union Corp. , 982 F.Supp. 8, 11 (D.D.C. 1997) (concluding that the defendants implicitly waived their right to have the certification motion decided first and finding that "both parties cooperated with this court, without raising any objections or concerns, so that the summary judgment papers would be ripe at the same time the court would be considering the class certification issues"); see also Caraluzzi v. Prudential Sec., Inc. , 824 F.Supp. 1206, 1211 (N.D. Ill. 1993) ( "[I]t is relevant that neither party has objected to nor raised concerns about this court's consideration of defendant's motion to dismiss before deciding the issue of class certification.")., Second, considerations of fairness and economy weigh in favor of this Court determining the Motion prior to class certification. Plaintiff and Defendant both attended the Pretrial and neither expressed any disagreement with or concern regarding the proposal that a merit-based determination be made prior to class certification in this case. Indeed, for over a year now the parties have proceeded under this mutual understanding that the Court was going to make a merit-based decision before a motion to certify class would be filed. Presumably Plaintiff relied upon the Scheduling Order and has expended a significant amount of time and resources on seeking only a merit-based determination from this Court at this stage of the litigation. For the Court to determine now after the litigation has progressed for over a year that it must hold the Motion in abeyance until a determination regarding class certification would be inequitable and uneconomical. To be sure, the parties would have to engage in class certification-based discovery before a motion could even be filed if the Court decided to hold the Motion in abeyance, causing yet more delay in this litigation. Accordingly, this Court finds that fairness and economy dictate that it decide the Motion now, before class certification., 11 U.S.C. § 524(a)(2). With respect to discharged debts, this injunction replaces the automatic stay, set forth in § 362(a), of actions to pursue collection of debts from the debtor personally. See Ung v. Boni (In re Boni) , 240 B.R. 381, 384 n.5 (9th Cir. BAP 1999) ("When the debtor receives a discharge, although the automatic stay of acts against the debtor expires, it is replaced by the discharge injunction."); In re Perviz , 302 B.R. 357, 369 (Bankr. N.D. Ohio 2003) ("[ Section] 524(a)(2) simply makes permanent what had previously been temporary under § 362(a)(6)."). Unlike § 362, however, § 524 does not include an enforcement mechanism. As a result, damages are not available in private actions to enforce the discharge injunction. See Pertuso v. Ford Motor Credit Co. , 233 F.3d 417, 423 (6th Cir. 2000). Rather, a debtor's only recourse for violation of the discharge injunction is to request that the offending party be held in contempt of court. See Pertuso , 233 F.3d at 421 ("The obvious purpose [of § 524(a)(2) ] is to enjoin the proscribed conduct-and the traditional remedy for violation of an injunction lies in contempt proceedings ...."). "A creditor that attempts collection of a discharged debt is in contempt of the bankruptcy court that issued the discharge, and that court can impose sanctions under Bankruptcy Code § 105." Montano v. First Light Fed. Credit Union (In re Montano ), 2007 WL 2688606, at *2, 2007 Bankr. LEXIS 3125, *5 (Bankr. D.N.M. 2007).
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