Golliday v. Chase Home Finance, LLC
761 F. Supp. 2d 629
W.D. Mich.2011Background
- Golliday plaintiffs, homeowners in Michigan, allege foreclosure-related claims against Chase Home Finance and Trott & Trott; case removed to WD Michigan on federal question grounds.
- Mortgages were originated with Gateway Mortgage Group; MERS held mortgage as nominee and purportedly assigned debt/ownership to Chase.
- Trott & Trott, P.C. represented Chase in foreclosure by advertisement under Michigan law.
- Plaintiffs filed a FDCPA claim against Trott & Trott and a state-law fraud claim based on an allegedly forged assignment executed by MERS employee Jeanne M. Kivi.
- Magistrate Judge Scoville issued a Report and Recommendation recommending summary judgment for Trott & Trott on all claims; plaintiff Lindsey Golliday objected.
- Judge Bell adopted the R&R, granting Trott & Trott summary judgment and dismissing all Trott & Trott claims; case proceeds remain with other defendants if any claims survive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Trott & Trott is a 'debt collector' under the FDCPA | Golliday argues Trott & Trott is a debt collector due to mortgage-foreclosure activities. | Trott & Trott contends it is not a debt collector under the FDCPA. | Trott & Trott not a debt collector under FDCPA. |
| If debt collector, whether Trott & Trott complied with 1692g(b) verification requirements | Plaintiffs claimed lack of validation/verification after dispute. | Even if a debt collector, Trott & Trott mailed verification May 26, 2010. | Verified debt provided; no FDCPA violation; foreclosure activity in interim not debt collection. |
| Whether the state-law fraud claim survives given authority to sign from MERS | Kivi forged/acted without authority in executing the assignment. | Kivi had authority from MERS, supported by corporate resolution; no forgery. | No triable issue; fraud claim failed; Kivi had authority; evidence insufficient for forgery. |
| Whether plaintiffs have standing to challenge MERS corporate resolution and assignment | Non-parties challenge the corporate resolution's authenticity/seal/notarization. | Standing to challenge assignment is lacking; resolution authentic and sufficient. | Standing issues not material; showing of authority defeated fraud claim. |
Key Cases Cited
- Heintz v. Jenkins, 514 U.S. 291 (U.S. 1995) (law firms may qualify as debt collectors under FDCPA)
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich, LPA, 130 S. Ct. 1605 (U.S. 2010) (Supreme Court addressed FDCPA applicability to law firms)
- Montgomery v. Huntington Bank, 346 F.3d 693 (6th Cir. 2003) (debt collector definition focus on principal purpose, not isolated conduct)
- Smith v. Transworld Systems, Inc., 953 F.2d 1025 (6th Cir. 1992) (debt-collection activities and timing under FDCPA)
- Arendale v. City of Memphis, 519 F.3d 587 (6th Cir. 2008) (clear and convincing evidence standard for fraud in Michigan)