Bailey v. Security National Servicing Corp.

154 F.3d 384, 1998 WL 498287
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 19, 1998
DocketNo. 97-3437
StatusPublished
Cited by12 cases

This text of 154 F.3d 384 (Bailey v. Security National Servicing Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Security National Servicing Corp., 154 F.3d 384, 1998 WL 498287 (7th Cir. 1998).

Opinion

MANION, Circuit Judge.

We must decide whether the defendants (mortgage service providers) violated the technical strictures of the Fair Debt Collection Practices Act in -their communications with April and Clifford Bailey, who initially defaulted on their home mortgage loan but later negotiated a forbearance agreement which gave them a fresh start. The district court granted summary judgment to the defendants after concluding that they were not subject to the Act because they were not [386]*386demanding payment on a defaulted loan, but rather were servicing a current payment plan, or forbearance agreement, executed between the Baileys and the Department of Housing and Urban Development. We affirm.

I.

Clifford and April Bailey bought a home in 1984 with a mortgage loan guaranteed by HUD. But by 1991 they had fallen behind on their payments and soon afterward went into default. Because of the default, the loan was assigned to HUD in 1992. From 1992 to 1995, the Baileys and HUD entered into a series of payment plans, or forbearance agreements, so that the Baileys could try to bring their loan up to date. Each agreement or payment plan stated that while the “original note” remained in default, the forbearance agreement “temporarily superseded” it. Under the forbearance payment plan, the Baileys paid HUD $551.00 each month.

In late 1995, HUD grouped the Baileys’ loan under the forbearance agreement with other loans it held into portfolios and auctioned them to private investors. HUD sold the portfolio containing the Baileys’ loan (and about 2,000 other loans) to BCGS, L.L.C., which in turn hired the defendants, Wend-over and Security National, to service these loans. Servicing a loan like the Baileys’ means that the defendants were responsible for sending out monthly statements, collecting mortgage payments and notifying borrowers of accounts payable. On January 4, 1996, Security and Wendover sent the Baileys a letter that listed the next four payments due (the first of which was due seven days from the date of the letter). The letter did not contain any of the Fair Debt Collection Practices Act’s required notices, but instead stated:

We wish to work with you on the resolution of your delinquency and will allow you to continue to make the payments remaining under this agreement. However, sending less than the forbearance payment amount and late, payment of your monthly installment may render this agreement null and void requiring immediate payment in full of all sums due under the terms of your Note.

The Baileys responded to this letter by filing a class action complaint against Security and Wendover. The Baileys claimed that the letter did not comply with the FDCPA. Specifically, it did not inform the Baileys that they could obtain verification of the amount of their debt by requesting it in writing within 30 days. 15 U.S.C. § 1692g. Nor did it disclose that the defendants were attempting to collect a debt and that any information obtained would be used for that purpose. 15 U.S.C. § 1692e(ll). Security and Wendover moved for summary judgment on the basis that they were not “debt collectors” (as that term is defined by the Act) with respect to the Baileys’ loan. They also argued that even if they were debt collectors, the letters they sent to the Baileys were not the type of communications covered by the FDCPA. The district court agreed with both arguments and granted summary judgment to Wendover and Security.

II.

The only issues on appeal are whether Wendover and Security are “debt collectors” under the FDCPA, and, if they are, whether their communications complied with the strictures of the Act. The Act defines “debt collector” as:

(6) ... 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.... The term does not include-- * * *
(F) any person collecting or attempting to collect any debt owed or asserted to be owed or due another to the extent such activity ... (iii) concerns a debt which was not in default at the time it was obtained by such person.

15 U.S.C. § 1692(a) (emphasis added).

Wendover and Security argue that they fall within the exception contained in subsection (F). Specifically, they argue they are [387]*387not debt collectors because their activities in this case concern the collection of an obligation not in default — but instead subject to an ongoing forbearance agreement — at the time they obtained it. The plaintiffs counter this principally by citing language used by HUD in its forbearance agreement: “In return for [HUD] not foreclosing on my mortgage which is still in default under the original note, I agree to the following terms and conditions.” (Emphasis added.)

Like all eases involving statutory interpretation (here,. § 1692a(6)(F)), our first task is to determine if the language Congress wrote resolves the issue before us. “Where the statute’s language is plain, the court’s function is to enforce it according to its terms.” Kariotis v. Navistar Int’l Trans. Corp., 131 F.3d 672, 680 (7th Cir.1997). The plain language of § 1692a(6)(F) tells us that an individual is not a “debt collector” subject to the Act if the debt he seeks to collect was not in default at the time he purchased (or otherwise obtained) it.

Of course a debtor may be in default of some debts and not others (default, unlike bankruptcy, is not a condition that permeates all of one’s financial obligations). That is what happened in this case — the Baileys defaulted on their original note but then had it superseded by a renegotiated payment plan executed with HUD in which they owed a different monthly premium (perhaps not less than their original one because of accumulating late fees or penalties). The advantage of these renegotiated plans is quite clear — the creditor wins because he believes he’ll be better off restructuring the loan obligation and perhaps even entering into an entirely new agreement rather than litigating or pursuing the typical remedies available to him by virtue of a default (acceleration, foreclosure, etc.). The debtor wins because in a sense his slate (and the previous default) is wiped clean under the terms of the new agreement so long as he stays current on his new obligations.

Whatever the motivations, all of them undoubtedly sensible, for our purposes it is important only that debtors such as the Baileys end up with two agreements (the original one and the superseding forbearance agreement), making it important which one a creditor or his mortgage servicer seeks to collect. If he seeks to collect on the original note technically remaining in default — meaning it’s revived because the debtor defaulted again under the new agreement — then he is a “debt collector” under the Act so long as the debt was in default at the time he obtained or purchased it. If on the other hand he seeks to collect on payments currently due under the new superseding agreement then he.

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Cite This Page — Counsel Stack

Bluebook (online)
154 F.3d 384, 1998 WL 498287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-security-national-servicing-corp-ca7-1998.