Forgues v. Select Portfolio Servicing, Inc.

690 F. App'x 896
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 30, 2017
Docket16-3540
StatusUnpublished
Cited by1 cases

This text of 690 F. App'x 896 (Forgues v. Select Portfolio Servicing, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Forgues v. Select Portfolio Servicing, Inc., 690 F. App'x 896 (6th Cir. 2017).

Opinion

OPINION

KAREN NELSON MOORE, Circuit Judge.

This case arises from a dispute between Christine J. Forgues (“Forgues” or “Appellant”) and Select Portfolio Servicing, Inc. (“SPS” or “Appellee”), the servicer of Forgues’s mortgage loan. Forgues alleges numerous violations of both the Fair Debt Collection Practices Act (“FDCPA”) and the Fair Credit Reporting Act (“FCRA”). Most of Forgues’s claims were dismissed upon a motion by SPS, and the remaining claims were disposed of on summary judgment. Forgues now appeals the district court’s dismissal of certain of her FDCPA claims and the district court’s entry of summary judgment on one FCRA claim. Specifically, Forgues raises five issues: (1) whether the district court properly dismissed Forgues’s claims under 15 U.S.C. § 1692e; (2) whether the district court properly concluded that claim preclusion applied to Forgues’s Truth In Lending Act (“TILA”) rescission claim; (3) whether the district court failed to apply 15 U.S.C. § 1635 according to its terms when it denied Forgues a private right of action based on TILA rescission; (4) whether the district court properly dismissed Forgues’s claim under 15 U.S.C. § 1692g; and (5) whether the district court properly granted summary judgment on Forgues’s claim under 15 U.S.C. § 1681s-2(b). For the reasons set forth below, we AFFIRM the judgment of the district court.

I. FACTS AND PROCEDURE

A. Factual History

Christine J. Forgues and her now deceased husband entered into a mortgage loan for a property at 15109 Merrimeade Drive in Cleveland, Ohio, on March 23, 2007. R. 1 (Compl. at 4) (Page ID #4). Forgues and her husband signed a promissory note. R. 8-1 (Foreclosure Compl. at 10-30) (Page ID #106-126). The mortgage was assigned to Deutsche Bank on May 14, 2010, and the Forgueses eventually defaulted on the terms of the note and mortgage. Id. at Page ID #99-106.

According to Forgues, she mailed Chase Bank USA, NA (the then-servicer of the loan) a “TILA Notice of Rescission,” evidencing her desire to rescind the loan, on January 7, 2010. R. 1 (Compl. at ¶ 16) (Page ID #4). On March 29, 2012, Deutsche Bank filed a foreclosure action against Forgues (and her deceased husband) in the Cuyahoga County Court of Common Pleas. R. 8-1 (Foreclosure Compl. at 1) (Page ID #97). The state court never received an answer from Forgues, and a *898 default judgment was entered against For-gues on February 12, 2013. R. 8-3 (Order at 1) (Page ID #143). On April 12, 2013, a state-court magistrate found that Forgues owed $142,144.25 plus 9.8% interest from October 1, 2009, and issued a judgment decree in foreclosure. R. 8-4 (Mag. Order at 1-3) (Page ID #144-146). Forgues filed no objections to the magistrate’s order and the order was adopted by the court on May 1, 2013. R. 8-5 (Foreclosure Entry) (Page ID #157-162), Forgues never appealed.

On June 1, 2013, SPS became the servi-cer of Forgues’s loan. R. 1-2 (Compl. at Ex. B) (Page ID #30). After numerous failed attempts at potential loan modification, SPS received from Forgues “a series of notices purporting to dispute the debt she had previously sought to modify.” Ap-pellee Br. at 4.

On June 30, 2015, Forgues filed a motion for relief from judgment in state court on the grounds that her loan and mortgage had been rescinded. R. 8-7 (Mot. for Relief) (Page ID #181-93). The state court denied the motion, and the Ohio Court of Appeals for the Eighth District affirmed the judgment. R. 8-8 (Order) (Page ID #216-20); Deutsche Bank Nat’l Tr. Co. v. Forgues, No. 103613, 2016 WL 3571273, at *1 (Ohio Ct. App. June 30, 2016).

B. Procedural History

Forgues filed her two-count Complaint in the instant case on August 19,2015. R. 1 (Compl. at 1) (Page ID #1). Count One alleges six discrete violations of the Fair Debt Collection Practices Act: (1) that SPS contacted Forgues at times known to be inconvenient to the consumer, in violation of 15 U.S.C. § 1692c; (2) that SPS’s conduct toward Forgues was harassing or abusive, in violation of 15 U.S.C. § 1692d(5); (3) that SPS engaged in unfair practices, in violation of 15 U.S.C. § 1692f(l); (4) that SPS failed properly to validate the subject debt, in violation of 15 U.S.C. § 1692g; (5) that SPS furnished certain deceptive forms, in violation of 15 U.S.C. § 1692j(a); and (6) that SPS engaged in false, deceptive, or misleading representations or means in connection with its debt-collection efforts, in violation of 15 U.S.C. §§ 1692e(2), 1692e(8), and 1692e(10). Id. at 15-20 (Page ID #15-20). Count Two alleges two violations of the Fair Credit Reporting Act: (1) that SPS furnished inaccurate and derogatory information to Credit Reporting Agencies (“CRAs”) without first providing notice that the information was disputed, in violation of 15 U.S.C. § 1681s-2(a)(l)-(3); and (2) that SPS failed reasonably to investigate disputes regarding SPS’s credit reporting, in -violation of 15 U.S.C. § 1681s-2(b). Id. at 20-24 (Page ID #20-24).

SPS moved to dismiss the Complaint on October 5, 2015. R. 8 (Mot. to Dismiss) (Page ID #72). Forgues filed a brief in opposition, and SPS filed a reply. R. 9 (Br. in Opp.) (Page ID #127); R. 15 (Reply) (Page ID #356). On December 8, 2015, the district court granted in part and denied in part Defendant’s motion to dismiss the Complaint. R. 21 (Opinion on Mot. to Dismiss) (Page ID #396). The district court granted the motion on the FDCPA claims under 15 U.S.C. §§ 1692e(2), 1692e(8), and 1692f, and the FCRA claim regarding SPS’s alleged failure to report that the debt was disputed. Id.

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690 F. App'x 896, Counsel Stack Legal Research, https://law.counselstack.com/opinion/forgues-v-select-portfolio-servicing-inc-ca6-2017.