United States District Court, D. Nevada
KIM VANAMAN, individually and on behalf of all other similarly situated. Plaintiff,
NATIONSTAR MORTGAGE, LLC, Defendant.
J. Dawson, United States District Judge
before the Court is Defendant's Motion for Summary
Judgment (#41). Plaintiff filed a response in opposition
(#48) to which Defendant replied (#53).
about December 22, 2009, Plaintiff filed a Chapter 13
voluntary bankruptcy petition. In Schedule D of her petition,
Plaintiff listed Bank of America Home Loan Servicing
(“Bank of America”) as the first mortgage
creditor on her mortgage loan for her primary residence at
7593 Slipstream Street, Las Vegas, NV 89139 (“the
Slipstream property”). Her case was voluntarily
converted to Chapter 7 on December 11, 2012.
1, 2013, the bankruptcy court entered an order discharging
Debtor, Bank of America, in Plaintiff's Chapter 7
proceeding. On December 1, 2013, Bank of America transferred
servicing of Plaintiff's mortgage loan to Nationstar. On
December 13, 2013, the bankruptcy court entered an order
approving sale of the Slipstream property pursuant to §
363(b) of the Bankruptcy Code subject to all existing liens
and encumbrances, including the lien secured by the mortgage
loan serviced by Nationstar.
as servicer, obtained Plaintiff's consumer credit report
for account review purposes on six occasions between January
2014 and August 2015. On each occasion, the lien still
attached to the Slipstream property and a balance still
existed on the mortgage account.
in the regular course of business, performs “soft
pulls” of consumer reports for its mortgage accounts
for a variety of account maintenance reasons. The soft pull
populates approximately 150 generic credit attributes to
Nationstar's files. Data obtained, included, but was not
limited to: summaries of outstanding credit balances,
addresses, alerts for identity theft or fraud, information
about consumer status such as whether she is in the military,
incarcerated, divorced, deceased, bankrupt or has tax liens
or other judgments against her.
pull does not provide individual account or tradeline
information found on a full consumer report obtained for a
“hard pull” for the extension of credit. The soft
pull helps the mortgage servicer determine the consumer's
status and predict the consumer's future behavior.
Nationstar regularly, usually quarterly, pulls consumer
information for account review and servicing reasons. An
account remains “active” or “open” in
Nationstar's internal systems and servicing platform
until (1) the account balance has been “zeroed”,
including escrow balances and unpaid principal balances, and
(2) the final tax forms required for liquidation or servicing
transfer have been completed.
has continuing contractual obligations as the mortgage
servicer. The life cycle of servicing includes servicing of
accounts for Nationstar customers, including those current
with payments, those in default, bankrupt customers, escrow
customers, customers seeking modification and liquidation
customers. Duties and obligations included: property
preservation and eviction; tax and escrow reporting via 1098
and 1099 forms; compliance with loan programs such as the
Home Affordable Modification Program (“HAMP”);
evaluating customers for loan modification; cash-for- keys
settlements; accepting deeds-in-lieu of foreclosure; short
sales; and preventing identity theft and fraud.
discharge had only a limited effect on Nationstar's
on-going servicing requirements. Discharge did not affect
whether an account was active, open or existed within the
Nationstar system. A remaining balance on the Nationstar
account was still secured by a lien on the Slipstream
property serving as collateral. The soft pulls helped to
provide Nationstar information necessary to proceed with the
account post-discharge. Nationstar had to determine how a
consumer would proceed: stay in the property and continue to
make payments; attempt loan modification; accept a loss
mitigation alternative; or subject the property to
filed the present complaint asserting a single claim under
the Fair Credit Reporting Act (“FCRA”): that
Nationstar's account review inquiries, or “soft
pulls” lacked any permissible purpose after the
bankruptcy discharge. See 15 U.S.C. § 1681b(f).
After discovery, Defendant filed the present motion for
summary judgment asserting that as a matter of law, Plaintiff
could not show that Defendant's actions were
Standard for Summary Judgment
judgment may be granted if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law. See Fed.R.Civ.P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The moving party bears the initial burden of
showing the absence of a genuine issue of material fact.
See Celotex, 477 U.S. at 323. The burden then shifts
to the nonmoving party to set forth specific facts
demonstrating a genuine factual issue for trial. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
justifiable inferences must be viewed in the light must
favorable to the nonmoving party. See Matsushita,
475 U.S. at 587. However, the nonmoving party may not rest
upon the mere allegations or denials of his or her pleadings,
but he or she must produce specific facts, by affidavit or
other evidentiary materials as provided by Rule 56(e),
showing there is a genuine issue for trial. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The
court need only resolve factual issues of controversy in
favor of the non-moving party where the facts specifically
averred by that party contradict facts specifically averred
by the movant. See Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990); see also
Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69
F.3d 337, 345 (9th Cir. 1995) (stating that conclusory or
speculative testimony is insufficient to raise a genuine
issue of fact to defeat summary judgment). Evidence must be
concrete and cannot rely on “mere speculation,
conjecture, or fantasy. O.S.C. Corp. v. Apple Computer,