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Lori Jo Vincent, et al v. the Money Store

September 29, 2011

LORI JO VINCENT, ET AL., PLAINTIFFS,
v.
THE MONEY STORE, ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

The plaintiffs, Lori Jo Vincent, Ruth Ann Gutierrez (also known as Ruth Ann Alamillo), Linda U. Garrido and John Garrido bring this purported class action on behalf of themselves and all others similarly situated against The Money Store, TMS Mortgage, Inc., HomEq Servicing Corp. (collectively "The Money Store Defendants") and Moss, Codilis, Stawiarski, Morris, Schneider & Prior, LLP ("Moss Codilis").

The plaintiffs bring claims against all defendants for fraud, unjust enrichment, and violations of California Business & Professional Code § 17200, et seq. (West 2011). Additionally, they bring claims against The Money Store Defendants for violations of the Truth in Lending Act ("TILA"), 15 U.S.C. § 1666d, TILA Regulation Z, 12 C.F.R. § 226.21, and for breach of contract. Finally, they assert an additional claim against Moss Codilis for violations of § 12-5-115 of the Colorado Revised Statutes.

The Money Store Defendants move pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the plaintiffs' claim under TILA. Defendant Moss Codilis also moves for summary judgment dismissing all of the plaintiffs' claims against it. Finally, the plaintiffs move for reconsideration of an order of this Court by Judge Sprizzo, dated December 7, 2005, granting partial summary judgment dismissing the plaintiffs' claims against The Money Store Defendants under the Fair Debt Collection Practices Act ("FDCPA), 15 U.S.C. § 1692, et seq.

I.

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., Ltd. P'ship, 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 any 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); see also 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, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (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.

II.

The following facts are undisputed unless otherwise noted.

A.

The plaintiffs are individuals who took out mortgage loans on their homes. The Money Store is a mortgage lender and servicer of loans. The Money Store Defendants claim that they did not make the loans at issue in this case but that the loans were later assigned to them. (Money Store Defs.' 56.1 Stmt. ¶¶ 5, 7, 11, 15.)

In February 1998, plaintiff Lori Jo Vincent took out a mortgage loan on her house in Carrollton, Texas. The Note and Deed of Trust she executed state that the lender is Accubanc Mortgage Corporation. (Note of Lori Jo Vincent, attached as Ex. C to Kobelt Declaration ("Kobelt Decl."); Deed of Trust of Lori Jo Vincent, attached as Ex. D to Kobelt Decl.) The Money Store Defendants contend that the loan was assigned to EquiCredit Corporation of America in February 1998 and then to TMS Mortgage, Inc. in April 1998. (Money Store Defs.' 56.1 Stmt. ¶¶ 6, 7; Assignment from Accubanc to Equicredit, attached as Ex. E to Kobelt Decl.; Assignment from EquiCredit to TMS Mortgage, attached as Ex. F to Kobelt Decl.; Letter from The Money Store to Vincent dated June 22, 1998, attached as Ex. G to Kobelt Decl.)

In April 1997, plaintiff Ruth Gutierrez (also known as Ruth Ann Alamillo) took out a mortgage loan on her home in Stockton, California. The Note and Deed of Trust she executed state that the lender is First Financial Funding Group. (Note of Ruth Ann Gutierrez a/k/a Alamillo, attached as Ex. I to Kobelt Decl; Deed of Trust of Ruth Ann Gutierrez a/k/a Alamillo, attached as Ex. J to Kobelt Decl.) The Money Store Defendants contend that the loan was then assigned to TMS Mortgage, Inc. which became Ms. Gutierrez' new lender. (Money Store Defs.' 56.1 Stmt. ¶ 11; Assignment from First Financial Funding Group to TMS Mortgage, Inc., attached as Ex. K to Kobelt Decl.; Letter from The Money Store to Gutierrez dated April 16, 1997, attached as Ex. L to Kobelt Decl.)

In May 1996, plaintiffs Linda U. Garrido and John Garrido took out a mortgage loan on their home in Huntington Station, New York. The Note and Mortgage they executed state that the lender is FHB Funding Corp. (Note of Linda and John Garrido, attached as Ex. N to Kobelt Decl; Mortgage of Linda and John Garrido, attached as Ex. O to Kobelt Decl.) The Money Store Defendants contend that the loan was then assigned to TMS Mortgage in June 1996, which became the Garridos' new lender. (Money Store Defs.' 56.1 Stmt. ¶ 15; Assignment from FHB Funding Corp. to TMS Mortgage, Inc., attached as Ex. P to Kobelt Decl.; Letter from The Money Store to Garridos dated July 1, 1996, attached as Ex. Q to Kobelt Decl.)

B.

In April 1997, TMS Mortgage hired Moss Codilis to create and operate a system to send breach notices to borrowers who had defaulted on their loans ("Breach Letter Program"). Such notices were a prerequisite to TMS Mortgage taking action to foreclose on borrowers' property.

Ms. Christina Nash, an attorney with Moss Codilis, was charged with supervising the Breach Letter Program from its inception in April 1997. (Moss Codilis' 56.1 Stmt. ¶ 5; Pls.' Resp. to Moss Codilis' 56.1 Stmt. ¶ 5.) Ms. Nash was not licensed to practice law in Colorado, where Moss Codilis' only office was located. (Moss Codilis' Answer & Affirmative Defenses to First Am. Compl. ¶ 23.) In July 1999, Moss Codilis hired Valerie Bromley, an attorney licensed to practice law in Colorado, to assist Ms. Nash in operating the Breach Letter Program. Moss Codilis asserts that Ms. Bromley took over the Breach Letter Program at the end of October 1999 and that Ms. Nash's involvement was "extremely limited" ...


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