United States District Court, E.D. Washington
DANIEL P. MELVILLE and MARY R. MELVILLE, Plaintiffs,
THE BANK OF NEW YORK MELLON CORPORATION, also known as The Bank of New York as Trustee for Citicorp Mortgage Securities Trust Series 2007-6; CHASE HOME FINANCE; JP MORGAN CHASE BANK NATIONAL ASSOCIATION; NORTHWEST TRUSTEE SERVICES, INC; and QUALITY LOAN SERVICE CORP OF WASHINGTON, Defendants.
ORDER GRANTING SUMMARY JUDGMENT TO DEFENDANTS
JPMORGAN CHASE BANK, N.A., AND THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A., AS TRUSTEE
ROSANNA MALOUF PETERSON United States District Judge.
THE COURT is a motion for summary judgment, ECF No. 45, by
Defendants Bank of New York Mellon Trust Company, N.A., as
Trustee, sued as “The Bank of new York Mellon
Corporation, f/k/a The Bank of New York as Trustee for
Citicorp Mortgage Securities Trust Series 2007-6”
(“BNY Mellon Trustee”), and JPMorgan Chase Bank,
N.A. (“Chase”). Plaintiff Daniel
Melvilledid not respond to the motion. Having
reviewed Defendants' motion and reply, the remaining
record, and the relevant law, the Court grants
Defendants' motion for the reasons that follow.
Court previously granted in part and denied in part the Chase
and BNY Mellon Trustee Defendants' motion to dismiss
Plaintiffs' claims against those entities for failure to
state a claim under Fed.R.Civ.P. Rule 12(b)(6). ECF No. 30.
The Court dismissed Plaintiffs' conversion claims as to
all Defendants and all of Ms. Melville's claims against
Chase based on the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et
seq., . The Court granted Mr. Melville leave to amend a
deficient FDCPA claim under § 1692g, an opportunity that
Mr. Melville did not take, and the Court found that Mr.
Melville had stated plausible claims against Chase under
§§1692e and 1693f. ECF No. 30 at 18.
repeatedly have failed to participate in this case, even
after the Court expressly warned Plaintiffs, on several
occasions, of the potential consequences of failure to
participate, respond to pleadings, or abide by Court orders.
Namely, Plaintiffs did not participate in the scheduling
conference in this matter on November 2, 2017. Following the
conference, the Court notified Plaintiffs in its scheduling
order that a consequence of continued non-participation or
non-compliance with Court orders could result in dismissal of
their lawsuit. ECF No. 42 at 2.
letter to the Court received on November 20, 2017, Plaintiff
Mr. Melville represented that he had been busy with
Plaintiffs' real estate development business and had
experienced problems receiving mail. The Court extended the
Plaintiffs' opportunity to respond to the summary
judgment motion of former Defendant Northwest Trustee
Services, Inc. (“NWTS”) until December 11, 2017,
and directed the Clerk's Office to provide a copy of the
Court's Order to Plaintiffs at their e-mail address in
addition to their mailing address. ECF No. 53. To date,
Plaintiffs have not filed a waiver to receive court documents
electronically nor filed a motion for leave to obtain a login
and password to file documents through the Electronic Case
Filing (“ECF”) system. Even with the extended
timeframe, Plaintiffs still did not respond to NWTS's
summary judgment motion, and the Court granted that motion on
its merits on January 10, 2018, dismissing NWTS as a
instant motion was set for hearing after Plaintiffs should
have received the order granting summary judgment to
co-Defendant NWTS, which noted Plaintiffs' failure to
respond to that motion. In addition, the Court twice has
issued a notice to Plaintiffs, as pro se litigants, regarding
the need to respond to motions for summary judgment to avoid
potential entry of summary judgment in the moving party's
favor. ECF Nos. 39 and 52. The Court's notice further
explained in detail the requisite format and components of a
response to a summary judgment motion. See id.
However, Plaintiffs did not file any response to
Defendants' summary judgment motion and have not
otherwise participated in this action since Mr.
Melville's November 2017 letter.
urge in their reply that Plaintiff Mr. Melville's failure
to respond should be read as a concession regarding the
merits of Defendants' summary judgment motion. ECF No. 55
at 2. In addition, Defendants submit documents that were not
before the Court at the time it resolved the prior motions to
dismiss, and provide additional factual support for their
legal arguments. ECF Nos. 47, 48, and 49.
Rule 7.1(d) provides that “failure to comply”
with the District's rules of motion practice “may
be deemed consent to the entry of an Order adverse to the
party who violates these rules.” Nevertheless, the
Court has analyzed the motion on its merits, and finds that
Defendants' motion should be granted on its merits.
Melvilles obtained a mortgage in December 2007. Shortly after
origination of the loan, the mortgage lender indorsed the
promissory note to Chase in 2008. Plaintiffs had not
defaulted on the promissory note when Chase began servicing
it; rather, Plaintiffs stopped making payments on the loan in
November 2011. Chase referred the loan for foreclosure to
NWTS in September 2013. The Melvilles' loan is not and
was never securitized or deposited in Chase Mortgage Finance
Trust Series 2007-S6, for which BNY Mellon serves as Trustee,
and BNY Mellon submits evidence that they would have had no
reason to contact Plaintiffs and have no record of any
judgment is appropriate when “the movant shows that
there is no genuine dispute as to any material fact that the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). As a matter of law,
Plaintiffs' FDCPA claims against Defendants may succeed
only if Defendants were acting as “debt
collectors” under the statute. See Dowers v.
Nationstar Mortg., LLC, 852 F.3d 964 (9th Cir. 2017);
see also 15 U.S.C. § 1692c(a)(2). The FDCPA
defines a debt collector as “(1) a person whose
principal purpose is to collect debts; (2) a person
who regularly collects debts owed to
another; or (3) a person who collects its own debts,
using a name other than its own as if it were a debt
collector. Henson v. Santander Consumer USA, Inc.,
817 F.3d 131, 136 (4th Cir. 2016). (rephrasing 15 U.S.C.
§ 1692a(6) for clarity) (emphasis in original).
Defendants demonstrate that Chase was not interacting with
Plaintiffs as a “debt collector” under the FDCPA,
and BNY Mellon Trustee was not interacting with Plaintiffs at
all. Therefore, summary judgment dismissal is appropriate of
Plaintiff Mr. Melville's remaining claims against
Defendants Chase and BNY Mellon Trustee.
IT IS HEREBY ORDERED:
Defendants Chase and BNY Mellon Trustee's Motion for