United States District Court, D. Delaware
Jacqueline Edwards, Wilmington, Delaware. Pro Se Plaintiff.
Catherine M. Di Lorenzo, Esquire, Alba Law Group, P.A.,
Newport, Delaware. Counsel for Defendant.
ANDREWS, U.S. DISTRICT JUDGE
Jacqueline Edwards, who appears pro se and has paid
the filing fee, filed this action on June 8, 2016, alleging
violations of the Fair Debt Collection Practices Act
("FDCPA"), 15 U.S.C. §§ 1692, et
seq. (D.I. 2). The Amended Complaint is the operative
pleading. (D.I. 23). The parties have filed cross-motions for
summary judgment and briefing is complete. (D.I. 32, 34).
verified Complaint alleged that Defendant is a debt
collector, Plaintiff is a consumer, and Defendant illegally
communicated with Plaintiff by failing to comply with 15
U.S.C. § 1692c(a). (D.I. 2). The original complaint was
dismissed upon Defendant's motion and Plaintiff's
motion for leave to amend. The Amended Complaint raises two
claims: Count 1, pursuant to 15 U.S.C. § 1692g
(validation of debts); and Count 2, pursuant to 15 U.S.C. §
1692e (false or misleading representations. (D.I. 23).
Plaintiff seeks statutory and actual damages.
Amended Complaint contains numerous exhibits, as follows: (1)
Exhibit 1, a March 14, 2016 letter to Plaintiff from
Defendant introducing her "dedicated point of
contact"; (2) Exhibit 2, a March 18, 2016,
"transfer of service notice"; (3) Exhibit 3, an
April 11, 2016 letter to Plaintiff from Defendant advising
Plaintiff that its records show expiration of hazard
insurance; (4) Exhibit 4, Plaintiff's May 3, 2016 notice
of dispute to Defendant; (5) Exhibit 5, Defendant's May
12, 2016 response to Plaintiff's dispute of the validity
of the debt, which includes copies of Defendant's account
activity statements, March 18, 2016 transfer of service
notice, March 7, 2006 mortgage, undated Allonge to Note
payable to CitiFinancial Service LLC; August 12, 2015
assignment of mortgage, March 7, 2006 note, March 7, 2006
HUD-1 form, good faith estimate, September 11, 2014 notice of
default, and July 18, 2010 notice of intent to accelerate;
(6) Exhibit 6, a May 20, 2016 letter from Defendant to
Plaintiff regarding an adjustment affecting the interest due
and advising Plaintiff that if she received a debt validation
letter when her loan originally transferred to Defendant, an
updated copy would be mailed to her; (7) Exhibit 7, the updated
May 23, 2016 debt validation letter advising Plaintiff that
it seeks to bring Plaintiff's mortgage account current,
that it is attempting to collect a debt on behalf of U.S.
Bank, the current owner of Plaintiffs loan, and advising
Plaintiff of the loan number, the property address, the loan
amount, how to dispute the validity of the debt, and
providing contact information; and (8) Exhibit 8, the August
14, 2016 mortgage statement. (See D.I. 23).
executed a note and mortgage on March 7, 2006 with
CitiFinancial, Inc. (D.I. 23 at 53-58). Plaintiff defaulted
on the loan in 2014. See Bayview Loan Servicing LLC v.
Edwards, C.A. No. N16L-01-070 ALR, Amended Complaint
(Del. Super. June 21, 2016).
August 12, 2015, CFNA Receivables, Inc. F/K/A CitiFinancial,
Inc. assigned its interest to CitiFinancial Servicing, LLC.
(Id. at 59). On March 4, 2016 Defendant became the
new loan servicer for Plaintiff's loan. (Id. at
26). An allonge to the note was executed on March 22, 2016
wherein CitiFinancial Servicing, LLC endorsed the instrument
in blank. (D.I. 36 at Ex. D). On March 31, 2016 CitiFinancial
Servicing, LLC assigned its interest to Defendant.
(Id. at Ex. C).
is the servicer for U.S. Bank with authority to administer
the loan and collect payments as creditor. (D.I. 42 at Ex. E,
Admission Nos. 1, 2, 3). The original note was transferred to
Defendant, and its custodian has possession of the original
promissory note. (Id. at Admission Nos. 7, 8).
Defendant sent Plaintiff two letters on March 14, 2016, a
debt validation letter indicating that it was attempting to
collect a debt on behalf of U.S. Bank and a letter
designating a point of contact. (D.I. 36 at Exs. E, F). On
May 9, 2016, Plaintiff disputed the debt by a letter dated
May 3, 2016. (D.I. 23 at 39-42). On May 12, 2016, Defendant
acknowledged receipt of the dispute letter, advising that it
had acquired servicing of the loan on March 4, 2016, and that
it was given the servicing rights. (Id. at 44). With
the May 12, 2016 letter Defendant provided Plaintiff a copy
of an account activity statement that provided a detailed
accounting of all transactions, a notice of the transfer,
mortgage, assignment of mortgage, note, HUD1, good faith
estimate, notice of default, and notice of intent to
accelerate. (Id. at 44-72).
20, 2016, Defendant sent Plaintiff a letter advising that it
had reviewed her loan. The review resulted in an adjustment
affecting the interest due and noted that the new interest
balance was as of the date Defendant received Plaintiff's
last payment or the date the loan was transferred to
Defendant, "whichever is greater." (Id. at
74). The letter further advised that if Plaintiff had
received a debt validation letter when her loan originally
transferred to Defendant, an updated copy would be mailed to
her. (Id.). On May 23, 2016, Defendant sent
Plaintiff another debt validation letter, and she responded
with a second notice of dispute on June 7, 2016.
(Id. at 76; D.I. 33 at 52 (Ex. C, answer to
interrogatory No. 6)). In August 2016, Defendant sent
Plaintiff an August 14, 2016 mortgage statement.
(Id. at 80-81).
proceedings were initiated against Plaintiff in the Superior
Court of the State of Delaware in and for New Castle County
on January 18, 2016 by CitiFinancial Servicing LLC. (D.I. 33
at 72 (Ex. D, ¶)). With leave of Court, Defendant,
through its foreclosure counsel, amended the complaint to
substitute the parties on June 21, 2016 (Id.). After
Plaintiff failed to participate in the mortgage mediation
process, she was ordered to answer. (Id. at 73).
Defendant filed a motion for summary judgment in the
foreclosure proceeding, which was granted, and an order
entered against Plaintiff on March 13, 2017 for the principal
balance of $104, 315.52; interest from March 3, 2016 to
September 23, 2016 at $26.20 per diem in the sum of $21,
956.20, as well as other costs, plus interest from September
23, 2016 at $26.20 per diem for a total debt due of $127,
175.09. (Id. at 70). The Court takes judicial notice
that Plaintiff did not appeal the Delaware Superior Court
order awarding judgment and that the property was sold at an
October 9, 2018 Sheriff's Sale. Plaintiff commenced this
action on June 8, 2016 prior to the sale of the property.
parties move for summary judgment. Under Rule 56(a) of the
Federal Rules of Civil Procedure, "[t]he court shall
grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." The moving
party bears the burden of demonstrating the absence of a
genuine issue of material fact. See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp.,475 U.S. 574,
585-86 (1986). An assertion that a fact cannot be -or,
alternatively, is - genuinely disputed must be supported
either by "citing to particular parts of materials in
the record, including depositions, documents, electronically
stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials,"
or by "showing that the materials cited do not establish
the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support
the fact." Fed.R.Civ.P. 56(c)(1)(A) & (B). If the
moving party has carried its burden, the nonmovant must then
"come forward with specific facts showing that there is
a genuine issue for trial." Matsushita, 475
U.S. at 587 (internal quotation marks omitted). The Court
will "draw all reasonable inferences in favor of the