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Horwitz v. Wells Fargo Bank N.A.

United States District Court, Seventh Circuit

May 15, 2013

GARY HORWITZ, Plaintiff,
v.
WELLS FARGO BANK N.A., Defendant.[1]

MEMORANDUM OPINION AND ORDER

RONALD A. GUZMAN, District Judge.

Plaintiff sues Wells Fargo Bank, N.A. for its alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), the Sherman Act and state law. Wells Fargo has filed a Federal Rule of Civil Procedure ("Rule") 56 motion for summary judgment. For the reasons set forth below, the Court grants the motion.

Facts[2]

On March 7, 2001, The Home Loan Center ("HLC") executed a power of attorney appointing Wells Fargo as its attorney-in-fact "to execute any and all documents for the purpose of assigning and transferring to [Wells Fargo] any and all mortgages, deeds of trust, and security instruments, and the related notes." (Pl.'s LR 56.1(b)(3)(B) Stmt. § 16; Wells Fargo's LR 56.1(a) Stmt., Ex. G, Power of Attorney.)

In August 2005, plaintiff executed a note in the amount of $260, 000.00 and a mortgage on his property at 7525 North Washtenaw in Chicago in favor of HLC. (Pl.'s LR 56.1(b)(3)(B) Stmt. §§ 1, 10-11; Wells Fargo's LR 56.1(a) Stmt., Ex. A, Mortgage; id., Ex. C, Note.) Among other things, the mortgage states that:

The Note or partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower. A sale might result in a change to the entity (known as the "Loan Servicer") that collects Periodic Payments due under the Note and this Security Instrument and performs other mortgage loan servicing obligations under the Note, this Security Instrument, and Applicable Law.... If the Note is sold and thereafter the Loan is serviced by a Loan Servicer other than the purchaser of the Note, the mortgage loan servicing obligations to Borrower will remain with the Loan Servicer or be transferred to a successor Loan Servicer and are not assumed by the Note purchaser unless otherwise provided by the Note purchaser.

(Wells Fargo's LR 56.1(a) Stmt., Ex. A, Mortgage § 20.)

When plaintiff executed the note and mortgage, HLC gave him a disclosure statement that says HLC "do[es] not service mortgage loans and... intend[s] to assign, sell, or transfer the servicing of your mortgage loan" and a notice that says, "You are hereby notified that the servicing of your mortgage loan, that is, the right to collect payments from you, is being assigned, sold or transferred from The Home Loan Center to Wells Fargo Bank N.A., effective October 1, 2005." (Pl.'s LR 56.1(b)(3)(B) Stmt. §§ 12-13; Wells Fargo's LR 56.1(a) Stmt., Ex. D, Loan Servicing Disclosure Statement; id., Ex. E, Notice of Assignment.)

Sometime thereafter, Freddie Mac became an investor in the mortgage and note, but neither instrument was transferred to or is currently held by Freddie Mac. (Pl.'s LR 56.1(b)(3)(B) §§ 14, 20.)

On April 9, 2007, an officer of Wells Fargo, acting on behalf of HLC, assigned plaintiff's mortgage to Wells Fargo. ( Id. § 18; see Wells Fargo's LR 56.1(a) Stmt., Ex. I, Mortgage Assignment.) Another officer of Wells Fargo, acting on behalf of HLC, indorsed the note to Wells Fargo "without recourse." (Pl.'s LR 56.1(b)(3)(B) Stmt. § 19; Wells Fargo's LR 56.1(a) Stmt., Ex. C, Note at 6.)

Plaintiff stopped making mortgage payments in September 2011, and in January 2012, Wells Fargo filed a foreclosure suit against him in state court. (Pl.'s LR 56.1(b)(3)(B) Stmt. §§ 22-24.)

Discussion

To prevail on a summary judgment motion, "the movant [must] show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). At this stage, we do not weigh evidence or determine the truth of the matters asserted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). We view all evidence and draw all inferences in favor of the non-moving party. Michas v. Health Cost Controls of Ill., Inc., 209 F.3d 687, 692 (7th Cir. 2000). Summary judgment is appropriate only when the record as a whole establishes that no reasonable jury could find for the non-moving party. Id.

In Count I, plaintiff alleges that Wells Fargo violated the FDCPA by falsely telling plaintiff it was the servicer of his mortgage and note. ( See 2d Am. Compl. § 34.) Wells Fargo contends that it is entitled to judgment on this claim because it is not a debt collector to whom the statute applies. The statute defines "debt collector" as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another" unless the debt collection activity "concerns a debt which was not in default at the time it was obtained by such person." 15 U.S.C. § 1692a(6)(F). The record shows that HLC assigned ...


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