United States District Court, D. Connecticut
MATTHEW D. WILLIAMS, Plaintiff,
RUSHMORE LOAN MANAGEMENT SERVICES, LLC, Defendant.
RULING AND ORDER
N. Chatigny United States District Judge.
Matthew D. Williams brings this action under the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C.
§ 1692 et seq., against defendant Rushmore Loan
Management Services, LLC.Pending are Williams's motion for
reconsideration of a ruling denying a motion for partial
summary judgment that was previously briefed and argued (ECF
No. 144) and Rushmore's motion for summary judgment (ECF
No. 129). For reasons that follow, Williams's motion for
reconsideration is denied and Rushmore's motion for
summary judgment is granted in part and denied in
record shows the following. In 2008, Williams and his former
spouse obtained a loan secured by a mortgage on their home in
Madison, Connecticut. By 2009, they were in default and facing
foreclosure proceedings. In 2010, Williams obtained a
bankruptcy discharge, freeing him from any personal liability
on the loan. See In re Williams, 10-BR-31257 (Bankr.
D. Conn., Aug. 3, 2010) (ECF No. 28). Though he did not
resume making mortgage payments, the foreclosure action
remained dormant. In May 2013, the action was dismissed for
failure to prosecute. See BAC Home Loans v.
Williams, NNH-CV-10-6006965-S (Sup. Ct. New Haven).
2013, Rushmore became the servicing agent for the mortgage
and on June 28, 2013, it sent a letter to Williams. The
letter provided a “Summary of Total Debt Composition,
” the “Current Monthly Payment Amount, ”
and the “Payment Due Date.” The letter stated:
Please call Rushmore Loan Management Services LLC at
1-888-504-6700 for a current payoff at the time of any
Pursuant to the Federal Fair Debt Collections Practices Act,
if you do not notify us within 30 days after receiving this
notice that you dispute the validity of this debt or any
portion thereof, we will assume the debt is valid. . . .
You should consider this letter as coming from a Debt
Collector as we sometimes act as a Debt Collector and any
information received will be used for that purpose. However,
if you are in Bankruptcy or received a Bankruptcy Discharge
of this debt, this letter is not an attempt to collect a debt
and does not constitute a notice of personal liability with
respect to that debt.
2, 2013, Williams discussed his options regarding the loan
with Rushmore representative John Torres. He expressed an
interest in obtaining a loan modification and resuming
payments to keep his home. Torres subsequently sent him a
loss mitigation assistance package. On July 22, 2013, he
submitted documents to Rushmore to apply for loss mitigation
among the documents was a Third Party Authorization Request
Form, which authorized Rushmore to discuss Williams's
mortgage loan and “negotiate terms of a workout
agreement” with his attorney, Bradford Sullivan.
Plaintiff's affidavit states that, “[b]ecause I was
interested in making arrangements to keep my home, I did not,
either orally or in writing, ask Rushmore to stop contacting
me. I requested and expected that Rushmore would deal with me
through my lawyer.” Throughout August and September
2013, Williams provided additional documents in support of
his loss mitigation application, which Torres had requested
October 17, 2013, Rushmore sent Williams a letter confirming
that he was approved for a Short Term Forbearance Agreement
(“the Agreement”). The letter described how and
when he should make the initial payment. Like the letter
quoted above, it also provided a debt collection notice
(“Rushmore . . . is attempting to collect a
debt.”) and bankruptcy disclaimer (“[I]f you . .
. have been previously discharged from a bankruptcy, please
be advised that this letter does not in any way mean that
Rushmore . . . is attempting to hold you personally liable
for the loan.”).
executed the Agreement on October 28, 2013. Under the terms
of the Agreement, Rushmore agreed not to foreclose on the
property so long as Williams made certain specified payments
from October 2013 to February 2014. If Williams fully
complied, Rushmore agreed to conduct another review of the
loan for a “final Loss Mitigation alternative which may
fully cure the loan default.” The Agreement also stated
If Borrower(s) . . . received a discharge from the Bankruptcy
Court of his/her/their personal liability under the Note,
Lender agrees and Borrower(s) acknowledge as follows: (i)
Lender will not pursue collection of any discharged
obligation from Borrower(s) personally, (ii) this Agreement
is not intended as a demand for payment, (iii) unless the
Bankruptcy Court has ordered otherwise, Lender continues to
retain whatever rights Lender holds in the Property, despite
Borrower(s)' bankruptcy filing . . .
made the agreed-upon payments, and on March 24, 2014,
Rushmore sent him a proposed final loan modification
agreement. The cover letter included a debt collection notice
and bankruptcy disclaimer. Between April and July 2014,
Williams expressed dissatisfaction with the payment terms
under the proposed agreement and asked that they be changed.
Rushmore requested additional information verbally and by
letter, and Williams sent Rushmore a second loss mitigation
application. Each letter sent by Rushmore included a debt
collection notice and bankruptcy disclaimer. Around this time,
Williams submitted additional Third Party Authorization
Request Forms naming attorneys Brian E. Kaligan and Michael
August 1, 2014, Rushmore sent Williams a letter denying his
request for a loan modification under the terms he requested.
Again, the letter included a debt collection notice and
bankruptcy disclaimer. Between August and September 2014,
Williams disputed the accuracy of an appraisal used by
Rushmore to calculate his proposed payments under the loan
modification plan and submitted additional income
documentation. Williams appealed Rushmore's decision
denying his request. On October 1, 2014, Rushmore sent
Williams a letter denying his appeal. This letter also
included a debt collection notice and bankruptcy disclaimer.
to Williams, he spoke to Torres on October 1, 2014, and
“specifically told . . . Torres that [his] attorney
would get back to him.” Instead of waiting for
Williams's attorney to respond, Torres called Williams on
October 8, 2014, and engaged him in a lengthy conversation.
After that phone call, Williams responded to all of
Rushmore's calls by stating, “speak to my
attorney.” Nonetheless, Torres called him directly on
October 16, 2014, and twice on February 20, 2015. Another
Rushmore representative called him directly on October 24,
to Williams, during the October 8 phone call, Torres told him
that Rushmore's attorneys, Hunt Leibert Jacobson, P.C.
(“Hunt”),  would enter a “foreclosure
judgment” on November 6, 2014. However, foreclosure
proceedings did not commence until June 2016. A judgment of
strict foreclosure entered on September 11, 2017. See
GMAT Legal Title Trust 2013-1 v. Williams,
NNH-CV16-6063079-S (Sup. Ct. New Haven).
December 29, 2014, Hunt sent Williams a letter stating that
it had been retained to represent GMAT in connection with the
mortgage loan. The letter stated that Hunt was aware Williams
had received a discharge in bankruptcy and, consequently,
Hunt was not attempting to collect the balance of the loan.
Instead, the letter was meant to provide “notification
of rights you have under federal law.” The letter
referred to the signing attorney as a “Debt
Collector” and included a debt collection notice and
bankruptcy disclaimer similar to Rushmore's letters
described above. The letter did not mention Rushmore.
February 20, 2015, Rushmore sent Williams a letter stating:
“It is . . . our understanding that you have a strong
desire to settle this debt with Rushmore, however the real
property that secures your loan, may not sell for an adequate
amount to pay off your loan in full. For this reason, you
have asked if we would consider accepting an amount less than
the total debt due through the sale of the property.”
The letter asked Williams to provide information related to
the request. The letter did not include a debt collection
notice or bankruptcy disclaimer. The record does not show
whether Williams responded to the letter. Williams filed this
suit on May 6, 2015.
the time Rushmore serviced Williams's mortgage loan, it
sent him monthly mortgage statements. The statements included
the “Amount Due, ” due dates, and instructions
for making payment. Each statement included a debt collection
notice and bankruptcy disclaimer. In addition, each month
from December 2013 to December 2014, Rushmore reported to
Experian, a national credit bureau, that Williams was in
default and the property was in foreclosure. The reports to
Experian did not indicate that the debt was disputed.
judgment may be granted when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). To avoid summary judgment, the non-moving
party must point to evidence that would permit a jury to
return a verdict in his or her favor. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986). In determining
whether this standard is met, the evidence must be viewed in
the light most favorable to the non-moving party.
Id. at 255.
asserts four claims under the FDCPA. He claims that Rushmore:
(1) communicated with him without his consent after Rushmore
knew he had retained a lawyer, in violation of §
1692c(a)(2); (2) communicated false information to a credit
bureau, in violation of § 1692e(8); (3) attempted to
collect charges that were not due, in violation of §
1692f(1); and (4) falsely stated that foreclosure was
imminent on a date certain, in violation of §
1692e(2)(A). Rushmore moves for summary judgment on all four
claims. Before addressing Rushmore's motion, I address
Williams's motion for reconsideration.
Plaintiff's Motion for Reconsideration
motion for reconsideration concerns Williams's claim that
Rushmore violated 15 U.S.C. § 1692c(a)(2) by
communicating directly with Williams without his consent
after it knew he had a lawyer. In previously moving for
partial summary judgment as to Rushmore's liability on
this claim, Williams asked the Court to find that the record
established a violation of the statute as a matter of law.
See Pl.'s Motion (ECF No. 56). The Court denied
the motion stating, “genuine issues of material fact
are presented with regard to whether the plaintiff consented
to have the defendant communicate directly with him.”
Order of May 30, 2017 (ECF No. 140).
standard for granting a motion for reconsideration is
“strict.” Shrader v. CSX Transportation,
Inc., 70 F.3d 255, 257 (2d Cir. 1995).
“[R]econsideration will generally be denied unless the
moving party can point to controlling decisions or data that
the court overlooked - matters, in other words, that might
reasonably be expected to alter the conclusion reached by the
court.” Id. A motion for reconsideration
“cannot be employed as a vehicle for asserting new
arguments or for introducing new evidence that could have
been adduced during the pendency of the underlying
motion.” Palmer v. Sena, 474 F.Supp.2d 353,