United States District Court, W.D. Michigan, Southern Division
NICHOLE B. THOMPSON, Plaintiff,
FIVE BROTHERS MORTGAGE COMPANY SERVICES AND SECURING INC., Defendant.
OPINION AND ORDER
J. JONKER, CHIEF UNITED STATES DISTRICT JUDGE
Nichole Thompson defaulted on a mortgage of her home located
in Grand Rapids, Michigan. The mortgagee, U.S. Bank, pursued
a non-judicial foreclosure and purchased the property at a
July 24, 2013, sheriff's sale. After the redemption
period expired, U.S. Bank engaged Defendant Five Brothers
Mortgage Company to secure the property. U.S. Bank neither
sought nor obtained a judicial order for possession.
subsequently entered the property, removed and disposed
various items located inside, and changed the locks on the
house. Plaintiff initiated this civil action on January 15,
2015, alleging the Defendant's actions violated the Fair
Debt Collection Practices Act, 15 U.S.C. § 1692 et
seq and Michigan's Anti-Lockout Act, Mich. Comp.
Laws § 600.2918.
Court has asked the parties to address whether any question
of material fact remains in the case following a new decision
of the Supreme Court that invalidated, or at least
undermined, the Sixth Circuit authority upon which the Court
had relied to move the case to trial. The Court now concludes
there is no outstanding issue of fact remaining and that
Defendant is entitled to judgment as a matter of law.
Thompson took out a mortgage on her home located at 1101
Noble St SE Grand Rapids, Michigan. Plaintiff subsequently
defaulted on her mortgage and the mortgagee, U.S. Bank,
initiated a non-judicial foreclosure. A sheriff's sale
was held on July 24, 2013 where U.S. Bank purchased the home
for $17, 250.00. This left a deficiency of approximately $52,
435.19 because the full amount Plaintiff was stated to have
been in default was $69, 685.19. (ECF Nos. 45-1;
purchasing the home, U.S. Bank hired Defendant to
“coordinate securing and property preservation services
of the Property.” (Sutton Decl. ¶ 6, ECF No. 66-1,
PageID.314). Defendant conducted an exterior inspection on
August 10, 2013. (Id. at ¶ 9). The statutory
redemption period after the sheriff's sale then expired
on January 24, 2014. (Id. at ¶ 10). After the
redemption period expired, Defendant attempted to contact
Plaintiff, and affixed a “Hello Letter” to the
entrance of the property in January 2014 and again in
February 2014. (Id. at ¶¶ 11-15). After
the second attempt, Defendant determined the property was
vacant. (Id. at ¶ 15).
on February 21, 2014, U.S. Bank directed Defendant to secure
the home. This entailed affixing lock boxes and padlocks to
the exterior doors. Defendant also performed what it says was
routine property maintenance, and that included
“monthly inspections, winterization, removal of debris
and hazards, and removal of wet carpet from the
basement.” (Id. at ¶¶ 16-17). Then
on April 7, 2014, a subcontractor for Defendant removed what
Defendant calls debris and what Plaintiff calls personal
property. (ECF 40-1, PageID.178). All this was done without
any State Court order of eviction or order adjudicating
possessory rights to the home, but after the redemption
period had expired.
approximately April 8, 2014, Plaintiff discovered she was
unable to enter the home and called U.S. Bank. The Complaint
asserts U.S. Bank put Plaintiff in contact with Defendant so
that she could get back into the house, (Compl. ¶¶
11-12, ECF No. 1, PageID.2), and told Plaintiff they would
arrange for her to access the property. (Id. at
¶ 13). Plaintiff was able to access her house on Monday
April 14, 2014. On that date she discovered that Defendant
had disposed of all her personal property. (Id. at
sued Defendant on January 14, 2015, asserting a violation of
the FDCPA, 15 U.S.C. § 1692f(6), and a violation of
Michigan's Anti-Lockout Act, Mich. Comp. Laws
§600.2918. The case proceeded without any motion
20, 2016, the Court adjourned the final pretrial conference
and trial settlement conference because the requisite
pretrial materials had not been timely filed. (ECF No. 30.)
Before issuing a new schedule, the Court ordered the parties
to submit supplemental briefing that addressed “(1) the
legal and factual issues of the FDCPA claim in Count 1 of the
Complaint; and (2) whether the Court should, or should not,
exercise supplemental jurisdiction over the state law claim
in Count 2 of the Complaint.” (ECF No. 39, PageID.169).
The parties submitted briefs. Plaintiff primarily rested her
argument as to Defendant's alleged FDCPA liability on the
Sixth Circuit's decision in Glazer v. Chase Home Fin.
LLC, 704 F.3d 453 (6th Cir. 2013). The Court agreed.
Even though the alleged wrongdoing occurred after a
foreclosure and after the redemption period, “a
theoretical risk of deficiency judgment remained, and there
was no judicial order settling possession. Under these
circumstances, defendant could fall within the statutory
definition of debt collector based on the Circuit's
decision in Glazer.” (ECF No. 46, PageID.227).
The Court then issued a new final pretrial conference and
trial schedule. (Id.).
the final pretrial conference was held, however, the Supreme
Court issued its decision abrogating Glazer in
Obduskey v. McCarthy & Holthus LLP, 139 S.Ct.
1029 (Mar. 20, 2019). The Court subsequently ordered further
briefing on “whether any question of material fact
remains after [the decision] as to whether Defendant
qualifies as a debt collector under the FDCPA.” (ECF
No. 62, PageID.263). The Court's order satisfied Rule
56(f)'s notice requirement for judgment independent of a
motion. See Fed. R. Civ. P. 56(f); Smith v.
Perkins Bd. of Educ., 708 F.3d 821, 829 (6th Cir. 2013)
(noting that there is adequate notice if the losing party had
knowledge that it “had to muster the necessary facts to
withstand summary judgment[.]”) Plaintiff has filed a
brief (ECF No. 64) and Defendant (represented by new counsel)
has also filed a brief. (ECF No. 66). The matter is ready for
Plaintiff's FDCPA Claim
Count 1, Plaintiff states that Defendant “violated the
FDCPA by dispossessing plaintiff from her home and her
personal property when there was no legal right to
possession[.]” (Compl. ¶ 17 [sic], ECF No. 1,
PageID.3). Plaintiff specifically ...