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Vanaman v. Nationstar Mortgage, LLC

United States District Court, D. Nevada

March 22, 2017

KIM VANAMAN, individually and on behalf of all other similarly situated. Plaintiff,


          Kent J. Dawson, United States District Judge

         Presently before the Court is Defendant's Motion for Summary Judgment (#41). Plaintiff filed a response in opposition (#48) to which Defendant replied (#53).

         I. Facts

         On or 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.

         On May 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.

         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.

         Nationstar, 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.

         A soft 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.

         Nationstar 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.

         Bankruptcy 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 foreclosure.

         Plaintiff 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 “willfull.”

         II. Standard for Summary Judgment

         Summary 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).

         All 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, Inc., ...

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