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Jason A. Smith v. Nationstar Mortgage

June 10, 2011

JASON A. SMITH, PLAINTIFF,
v.
NATIONSTAR MORTGAGE, LLC, ORLANS ASSOCIATES, P.C., WAYNE COUNTY TREASURER, FIRST AMERICAN REO SERVICING, AND TITLE SOURCE, DEFENDANTS.



The opinion of the court was delivered by: Hon. Marianne O. Battani

OPINION AND ORDER GRANTING DEFENDANT ORLANS ASSOCIATES, P.C.'S MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendant Orlans Associates, P.C.'s (Orlans) Motion for Summary Judgment (Doc. No. 32). The Court has reviewed all the relevant filings and finds oral argument will not aid in the resolution of this dispute. See E. D. Mich. LR 7.1(f)(2). For the reasons discussed below, the Court GRANTS Defendant's motion.

I. STATEMENT OF FACTS

In his complaint, Plaintiff Jason A. Smith alleges violations of state and federal law arising out his mortgage agreement and the subsequent foreclosure. The Court previously dismissed the other Defendants and claims. The remaining claim is based on Smith's allegation that Orlans violated the Fair Debt Collection Practices Act by failing to verify a debt and continuing collection efforts pending verification. Specifically, Smith contends that Orlans "failed to cease and desist collection activities as a third party debt collector, when [Plaintiff] disputed the debt alleged by Defendant Nationstar Mortgage and asked for verification of the debt." (Doc. No. 1, ¶ 33.)

Orlans was retained on January 8, 2009, to assist in conducting a mortgage foreclosure by advertisement on a residential mortgage executed by Plaintiff, Jason Smith, and Alia Smith in March 2007. (Doc. No. 342, Ex. 2, ¶ 6.). According to Orlans, its Loan Resolution Department received a "debt dispute" letter on November 23, 2009. (Id. at ¶ 7.) Orlans is unable to locate the actual letter received, but the file contains no other receipt of correspondence disputing the debt from Plaintiff. (Id. at ¶¶ 8, 9.).

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(c) authorizes the Court to grant summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." There is no genuine issue of material fact if there is not a factual dispute that could affect the legal outcome on the issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether to grant summary judgment, this Court "must construe the evidence and draw all reasonable inferences in favor of the nonmoving party." Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 332 (6th Cir. 2008).

III. ANALYSIS

The FDCPA gives consumers, such as Plaintiff, the right to a validation notice, including the right to make a written request for verification of the debt and to dispute the validity of the debt. 15 U.S.C. §1692g(a). After a debt collector provides notice to the consumer that the debt will be assumed to be valid, the consumer has 30 days from receipt of the notice to dispute the debt. 15 U.S.C. § 1692g(a)(4); Fed. Home Loan Mortgage Corp. v. Lamar, 503 F.3d 504, 508 n. 3 (6th Cir. 2007). If the consumer disputes the debt within the 30-day period, § 1692g(b) provides, in part, that "the debt collector shall cease collection of the debt. . .until the ...


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