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Joseph Mazzei On Behalf of Himself and All Others Similarly Situated v. the Money Store

September 29, 2011


The opinion of the court was delivered by: John G. Koeltl, District Judge:


The plaintiff, Joseph Mazzei, brings this purported class action on behalf of himself and all others similarly situated against The Money Store, TMS Mortgage, Inc., and HomEq Servicing Corporation (collectively "the defendants").

The plaintiff alleges violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1666d, TILA Regulation Z, 12 C.F.R. § 226.21, and California Business & Professional Code § 17200 et seq. (West 2011) in connection with the defendants' allegedly improper debt collection practices. The defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the plaintiff's claim under TILA, which is the sole remaining federal claim in this action.*fn1


The standard for granting summary judgment is well established. "The 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Behringer v. Lavelle Sch. for the Blind, No. 08 Civ. 4899, 2010 WL 5158644, at *1 (S.D.N.Y. Dec. 17, 2010).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible . . . ." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Behringer, 2010 WL 5158644, at *1.


The following facts are undisputed unless otherwise noted.


The plaintiff, Joseph Mazzei, took out a mortgage loan from The Money Store in 1994 on his home in Sacramento, California. (Defs.' 56.1 Stmt. ¶¶ 4, 10; Pl.'s 56.1 Stmt. ¶¶ 4, 10.) The Money Store is a mortgage lender and servicer of loans. (Defs.' 56.1 Stmt. ¶ 5; Pl.'s 56.1 Stmt. ¶ 5.) At the time the plaintiff took out the loan, he was an employee of The Money Store. (Defs.' 56.1 Stmt. ¶ 10; Pl.'s 56.1 Stmt. ¶ 10.)

In December 1999, the plaintiff began to experience financial difficulties and fell behind on his loan. (Defs.' 56.1 Stmt. ¶ 13; Pl.'s 56.1 Stmt. ¶ 13.) The plaintiff was late in his loan payments and defaulted on several occasions. (Defs.' 56.1 Stmt. ¶ 12; Pl.'s 56.1 Stmt. ¶ 12.) In June 2000, the Money Store accelerated the plaintiff's loan obligations and declared the full amount of the debt immediately due and payable. (Defs.' 56.1 Stmt. ¶ 19; Pl.'s 56.1 Stmt. ¶ 19.) The Money Store also notified the plaintiff of its intent to foreclose on his home. (Notice of Default and Trustee's Sale under Deed of Trust dated June 24, 2000, attached as Ex. Q to Dunnery Declaration ("Dunnery Decl.").) At the time of acceleration, the plaintiff's account had a debit balance of over $60,000. (Defs.' 56.1 Stmt. ¶ 20; Pl.'s 56.1 Stmt. ¶ 20.) The plaintiff filed for bankruptcy in July 2000. (Defs.' 56.1 Stmt. ¶ 13; Pl.'s 56.1 Stmt. ¶ 13.)

Following the plaintiff's bankruptcy filing, The Money Store stopped the foreclosure on the plaintiff's home. (Defs.' 56.1 Stmt. ¶ 22; Pl.'s 56.1 Stmt. ¶ 22.) The plaintiff made several payments to The Money Store after acceleration of the loan. (Defs.' 56.1 Stmt. ¶ 23; Pl.'s 56.1 Stmt. ¶ 23.) The parties dispute whether these payments had the effect of reinstating the plaintiff's loan. (Defs.' 56.1 Stmt. ¶¶ 38, 39; Pl.'s 56.1 Stmt. ¶¶ 38, 39.)


On October 17, 2000, the plaintiff made a payment of $61,147.32 in an effort to repay his loan in full ("October 2000 repayment"). (Ex. G to Dunnery Decl.; Defs.' 56.1 Stmt. ¶ 24; Pl.'s 56.1 Stmt. ¶ 24.) The plaintiff received a letter from The Money Store dated October 24, 2000 which advised him that his loan had recently been "paid in full" and that a "payoff overpayment in the amount of $188.51" would be refunded to him shortly. (Money Store letter to Joseph Mazzei dated October 24, 2000, attached as Ex. A to Grobman Declaration ("Grobman Decl.").) The defendants contend that this letter was erroneous because it did not reflect additional charges incurred by The Money Store that had not yet been posted to the plaintiff's account at the time of the October 2000 repayment (the "late-posted charges"). (Defs.' 56.1 Stmt. ¶¶ 25, 34; Dep. Tr. of John Dunnery ("Dunnery Dep. Tr."), attached as Ex. C to Dunnery Decl., at 310: 3-25.) According to the defendants, these charges included costs incurred by The Money Store for real estate broker price opinions, property inspections, payment of delinquent property taxes, preparation of breach letters, late payment fees, attorneys' fees, and various other expenses. (Customer Account Activity Statement for Joseph Mazzei dated September 16, 2002, attached as Ex. G to Dunnery Decl.; Letter from The Money Store to Joseph Mazzei dated February 27, 2001, attached as Ex. M to Dunnery Decl.) The defendants claim that these charges caused the plaintiff to have an outstanding debit balance of $229.26, even after the October 2000 repayment, which ...

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