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Order Granting in Part Cross-Motion For Summary Judgment
Order Granting in Part Cross-Motion For Summary Judgment
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6 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
7 AT SEATTLE
8 LETICIA LUCERO,
9 Plaintiff, No. C13-0602RSL
10 v. ORDER GRANTING IN PART
CROSS-MOTIONS FOR SUMMARY
11 CENLAR FSB, et al., JUDGMENT
12 Defendants.
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This matter comes before the Court on the “Motion for Summary Judgment or, in the
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Alternative, for Partial Summary Judgment of Defendant Cenlar FSB” (Dkt. # 215) and
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“Plaintiff’s Motion for Partial Summary Judgment Against Cenlar FSB” (Dkt. # 227). Summary
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judgment is appropriate if, viewing the evidence in the light most favorable to the nonmoving
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party, “the movant shows that there is no genuine dispute as to any material fact and the movant
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is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); L.A. Printex Indus., Inc. v.
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Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012). The moving party “bears the initial
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responsibility of informing the district court of the basis for its motion.” Celotex Corp. v.
23 Catrett, 477 U.S. 317, 323 (1986). It need not “produce evidence showing the absence of a
24 genuine issue of material fact” but instead may discharge its burden under Rule 56 by “pointing
25 out ... that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325.
26 Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-
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1 moving party fails to designate “specific facts showing that there is a genuine issue for trial.” Id.
2 at 324. “The mere existence of a scintilla of evidence in support of the non-moving party’s
3 position is not sufficient:” the opposing party must present probative evidence in support of its
4 claim or defense. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.
5 2001); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
6 “An issue is ‘genuine’ only if there is a sufficient evidentiary basis on which a reasonable fact
7 finder could find for the nonmoving party.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008)
8 (internal citations omitted). Having reviewed the memoranda, declarations, and exhibits
9 submitted by the parties,1 and taking the evidence in the light most favorable to the non-moving
10 party, the Court finds as follows:
11 Plaintiff has asserted a number of causes of action against Cenlar, most of which are based
12 on Cenlar’s efforts to charge the attorney’s fees it has incurred in this litigation to plaintiff’s
13 mortgage account.2 Each cause of action is considered below.
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The Court has not considered the Declaration of Bernard Jay Patterson or Exhibit 1 thereto. Mr.
16 Patterson was not timely disclosed as an expert. The Court has, however, considered the other
17 documents attached to Mr. Patterson’s declaration.
The Court finds no disqualifying inconsistency between plaintiff’s declaration and her deposition
18 testimony regarding emotional distress, as discussed more fully in the context of the RESPA claim.
Cenlar’s other evidentiary objections were not properly raised and have not been considered. LCR 7(g)
19 (requests to strike material presented by the opposing party must be included in the responsive brief, if
there is one).
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Cenlar’s request for judicial notice (Dkt. # 220) is GRANTED.
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Cenlar began charging attorney’s fees to plaintiff’s account in November 2013 and continued to
22 do so at least through October 2014. The October 2014 statement included only the principal ($539.70),
interest ($617.09), and escrow amounts ($396.24) in the “Current Payment Due,” and no amounts were
23 identified as overdue. Nevertheless, the statement indicates that the “Total Amount Due” was $3,246.63,
more than double plaintiff’s normal mortgage payment. Attorney’s fees totaling $8,745.34 were levied
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against the account in the preceding month. It is not clear what portion of them, if any, is reflected in the
25 “Total Amount Due.” Dkt. # 150-3 at 2. When the servicing of plaintiff’s loan was transferred to
Nationstar Mortgage LLC in March 2015, the loan history included $26,763 in “Previous Servicer
26 Advance” and $26,724 in “Corporate Advance Legal Fee.” Dkt. # 237 at 31.
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Although Cenlar was willing to concede that it was a “debt collector” for purposes of its
23 motion to dismiss, it has now shown that, as a factual matter, it took over the servicing of
24 plaintiff’s mortgage years before the debt was in default. Thus, under 15 U.S.C. § 1692a(6)(F),
25 Cenlar is not a debt collector and is not subject to the requirements of the FDCPA.
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