United States District Court, M.D. Georgia, Macon Division
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
C. ASHLEY ROYAL, District Judge.
Plaintiff Charlotte Abdullah, proceeding pro se , brings this consumer action contending Defendant Ocwen Loan Servicing, Inc. (Ocwen) engaged in harassing telephone calls in an attempt to collect a debt, in violation of the Telephone Consumer Protection Act (TCPA) and the Fair Debt Collection Practices Act (FDCPA). Before the Court is Defendant Ocwen's Motion for Summary Judgment. After fully considering the matter, the Court finds Ocwen is entitled to summary judgment on Plaintiff's TCPA claim, but genuine issues of material fact exist as to Plaintiff's FDCPA claims. Thus, Ocwen's Motion for Summary Judgment [Doc. 37] is GRANTED IN PART and DENIED IN PART.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted "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." A genuine issue of material fact only exists when "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Thus, summary judgment must be granted if there is insufficient evidence for a reasonable jury to return a verdict for the nonmoving party or, in other words, if reasonable minds could not differ as to the verdict. When ruling on a motion for summary judgment, the court must view the facts in the light most favorable to the party opposing the motion.
The moving party "always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact" and that entitle it to a judgment as a matter of law. If the moving party discharges this burden, the burden then shifts to the nonmoving party to go beyond the pleadings and present specific evidence showing that there is a genuine issue of material fact. This evidence must consist of more than mere conclusory allegations or legal conclusions.
As a pro se litigant, Plaintiff is held "to a less stringent standard than formal pleadings drafted by lawyers." Nevertheless, Plaintiff's pro se status "does not exempt [her] from compliance with relevant rules of procedural and substantive law, " including those applicable on summary judgment.
Plaintiff Charlotte Abdullah borrowed $83, 6000.00 (the "Loan") from Charter Capital Services, Inc. ("Charter") on October 28, 1999. In connection therewith, she executed a promissory note promising to repay the Loan to Charter and its successors and assigns. Plaintiff also executed a security deed securing repayment of the Loan with her property, Lot 157 Town Creek, Eatonton, GA 312124. On November 10, 1999, Charter assigned Plaintiff's security deed to Provident Bank. Thereafter, Provident Bank assigned Plaintiff's security deed to Wells Fargo.
Although Wells Fargo is the owner of Plaintiff's Loan, Defendant Ocwen services the Loan on behalf of Wells Fargo. Ocwen acquired the servicing rights from Litton Loan Servicing LLC ("Litton"). On October 14, 2011, Litton mailed Plaintiff a letter entitled "Notice of Servicing Transfer (RESPA) and Welcome to Ocwen Loan Servicing, " notifying Plaintiff that her Loan would be transferred to Ocwen for servicing effective November 1, 2011. Plaintiff's Loan was already in default when it was transferred to Ocwen.
After acquiring Plaintiff's Loan, Ocwen began making telephone calls to Plaintiff's home regarding debt collection on the Loan. Plaintiff states she sent three separate letters requesting debt validation and that Ocwen cease the debt collection calls. Plaintiff testifies that she mailed the first letter to Ocwen on March 14, 2012. In its regular course of business, Ocwen keeps and maintains a Comments Log and Transaction History recording the written correspondence received from or sent to borrowers and logging all inbound and outbound telephone calls to borrowers. Ocwen's Transaction History does not show that Ocwen received any written correspondence from Plaintiff in March 2012.
Ocwen did not respond to Plaintiff's March 2012 debt validation request and continued to make telephone calls to Plaintiff's home regarding debt collection on her Loan. Ocwen's Transaction History shows that it made a total of 34 telephone calls to Plaintiff's residence between January and August 2012. Plaintiff also kept logs of Ocwen's telephone calls to her residence. Her logs show Ocwen made 63 telephone calls to her residence between February and September 19, 2012, with 61 of those calls occurring at different times and dates than the 34 calls reflected by Ocwen's records. Thus, viewing the facts in the light most favorable to Plaintiff, she received 97 telephone calls from Ocwen between January 2012, and September 19, 2012, regarding debt collection of her Loan. Plaintiff's records also reflect Ocwen twice called her on a Sunday. Ocwen placed most of the calls to Plaintiff using an automated dialer capable of continuously dialing and leaving messages without human interaction. Indeed, Plaintiff testifies that she did not answer most of the calls which resulted in pre-recorded messages left on her answering machine. When she did answer the calls, most of the time she hung up immediately when she realized it was Ocwen. Plaintiff states that she spoke to a representative on a few occasions and each time told the representative to stop calling her, but Ocwen continued to call.
Due to the "harassing" telephone calls, Plaintiff testifies that she mailed Ocwen a second letter on September 7, 2012, and a final letter on September 27, 2012, continuing to request debt validation and that Ocwen cease the telephone calls. Ocwen's records reflect that it received a written correspondence from Plaintiff on October 3, 2012, requesting debt validation. Thus, on October 10, 2012, Ocwen responded to Plaintiff's request and mailed a validation letter to her home address. Plaintiff denies receiving this letter.
Plaintiff filed this action claiming Ocwen violated the Telephone Consumer Protection Act, 47 U.S.C. § 227(b) (TCPA), and the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 et seq. (FDCPA), by "repeatedly harassing her in attempts to collect an alleged but nonexistent debt." As explained below, Ocwen is entitled to summary judgment on Plaintiff's TCPA claim. However, because genuine issues of material ...