Gillaspy v. Wells Fargo Bank, N.A., as Trustee for Park Place Securities, Inc. Asset-Backed Pass-Through Certificates, Series 2005-WCW2

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

TONY ESTLE GILLASPY, )

)

Plaintiff, )

)

v. ) Case No. 2:22-cv-193-RAH

) [WO]

WELLS FARGO BANK, N.A., )

as Trustee for Park Place Securities, Inc. )

Asset-Backed Pass-Through Certificates, )

Series 2005-WCW2, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Defendants Wells Fargo Bank and Select Portfolio Servicing tried to foreclose

on Plaintiff Tony Gillaspy’s home. Gillaspy alleges the attempted foreclosure and

the Defendants’ assertions of his loan default were wrongful because he made his

loan payments. Gillaspy brings thirteen claims, and the Defendants bring four

counterclaims. The Defendants have moved for summary judgment on all of them.

The smoke now cleared, the Court will deny summary judgment on two of Plaintiff’s

thirteen claims and all four of Defendants’ counterclaims and dispose of the

remaining eleven claims as follows.

II. JURISDICTION AND VENUE

The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and

1332. Personal jurisdiction and venue are uncontested, and the Court concludes that

venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.

III. STANDARD OF REVIEW

Summary judgment is proper if there is “no genuine issue as to any material

fact and . . . the moving party is entitled to a judgment as a matter of law.” Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986). See also Fed. R. Civ. P. 56(a). The

moving party “always bears the initial responsibility of informing the district court

of the basis for its motion,” and should rely on submissions “which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at

323. Once the moving party has met its burden, the nonmoving party must “go

beyond the pleadings” and show that there is a genuine issue for trial. Id. at 324.

Both the party “asserting that a fact cannot be,” and a party asserting that a fact is

genuinely disputed, must support their assertions by “citing to particular parts of

materials in the record,” or by “showing that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse party cannot produce

admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B).

To avoid summary judgment, the nonmoving party “must do more than

simply show that there is some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On

the other hand, “[t]he evidence of the nonmovant [must] be believed and all

justifiable inferences must be drawn in [his] favor.” Anderson v. Liberty Lobby, 477

U.S. 242, 255 (1986).

IV. BACKGROUND

On May 10, 2005, Gillaspy obtained a loan from Argent Mortgage Company

LLC by executing an Adjustable Rate Note (Note), which was secured by a mortgage

(Mortgage) on real property located on Avon Road in Montgomery, Alabama. (Doc.

40-1 at 3; Doc. 40-2; Doc. 40-3.)1 Under the Note, Gillaspy was required to make

1 For clarity, documents in the record will be referred to by their CM/ECF filing and page numbers.

monthly principal and interest payments for 30 years. (Doc. 40-2.) The Note was

subsequently endorsed in blank and sold to Wells Fargo Bank N.A., as trustee for

the Park Place Securities, Inc. Asset-Backed Pass-Through Series 2005-WCW2

(WFB) over 10 years ago. (Doc. 40-1 at 3; Doc. 40-4.)

Select Portfolio Servicing (SPS) began servicing Gillaspy’s loan for WFB in

September 2012. (Doc. 40-1 at 3.) Gillaspy acknowledges that SPS’s role is that of

servicer, not mortgagee.

Gillaspy claims that he has met his obligations under the Note and Mortgage.

(Doc. 41-7 at 8.) The Defendants claim that Gillaspy defaulted on his loan sometime

in late 2019 or early 2020, but the Defendants do not identify when exactly or by

how much he initially defaulted or why (e.g., bounced check, nonpayment, short

payment, etc.). (Doc. 41-1 at 39–40; Doc. 40-1 at 3.) This alleged default came

after Gillaspy’s mother, who had been making the payments for him, passed away

in November 2019. (Doc. 41-6 at 4–5, 11–12; Doc. 41-7 at 7; Doc. 66 at 4.) In

2020, and after his mother’s death, Gillaspy’s sister, Colleen Vickery, began helping

him with his finances, including his loan payments.

SPS mailed Gillaspy a notice of default on May 20, 2020, but Gillaspy

generally disputes that fact. (Doc. 40-1 at 4; Doc. 41-3 at 2.) SPS avers that Gillaspy

did not cure the default.

The record reveals that Gillaspy’s sister sent several checks to the Defendants

(see, e.g., doc. 41-6 at 14; doc. 64 at 6) which were either not cashed or applied; and

some were returned. The parties have not provided information about which checks

were sent, which checks were received and not applied, which checks were returned,

and the reasons for the same. But the record does reveal that checks were received

and not applied to Gillaspy’s loan. (Doc. 41-6 at 14–15.)

SPS published its notice of intent to foreclose on Gillaspy’s home in the

Montgomery Independent (a newspaper) on January 27, 2022, February 3, 2022, and

February 10, 2022. (Doc. 40-1 at 4; Doc. 41-4 at 2.) SPS scheduled the foreclosure

for March 23, 2022. (Doc. 40-1 at 4.) Gillaspy filed suit before the foreclosure

occurred, resulting in the cancellation of the foreclosure sale. (Doc. 40-1 at 5.)

Gillaspy brings thirteen counts against the Defendants in his operative

complaint (see doc. 22): (1) unjust enrichment against WFB; (2) unjust enrichment

against SPS; (3) breach of contract against WFB; (4) breach of contract against SPS;

(5) false light against WFB; (6) false light against SPS; (7) defamation, libel, and

slander against WFB; (8) defamation, libel, and slander against SPS; (9) violations

of the Truth in Lending Act (TILA) against SPS; (10) violations of the Real Estate

Settlement Procedures Act (RESPA) against SPS; (11) violations of the Fair Credit

Reporting Act against SPS; (12) violations of the Fair Debt Collection Practices Act

against SPS; and (13) a claim for declaratory relief.

WFB and SPS have jointly asserted counterclaims for declaratory judgment,

breach of contract, judicial foreclosure, and money had and received. (Doc. 27.)

On August 18, 2023, the Court held oral argument on the pending motions.2

At the hearing, Gillaspy’s counsel withdrew and conceded to dismissal of the

defamation/libel/slander, false light, and FCRA claims (Counts Five, Six, Seven,

Eight, and Eleven, respectively). Thus, the claims for unjust enrichment (Counts

One and Two), breach of contract (Counts Three and Four), TILA violations (Count

Nine), RESPA violations (Count Ten), FDCPA violations (Count Twelve), and for

declaratory relief (Count Thirteen) will proceed for further discussion.

V. DISCUSSION

A. The Unjust Enrichment Claims

In Counts One and Two, Gillaspy alleges the Defendants have charged him

“fees and expenses which were not permitted” and were “illegal, wrong in character,

2 The Court delayed ruling on the dispositive motions to afford the parties time to attempt to resolve

the case. They were unsuccessful.

wrong in amount, unauthorized, or otherwise improper under the mortgage

contract.” (Doc. 22 at 8–9.) The Defendants argue that Gillaspy’s unjust enrichment

claims are nothing more than repackaged breach of contract claims and should be

dismissed since the assessment of fees and expenses is governed by the terms of the

Note and Mortgage. They also argue that no unjust enrichment claims exist here

because Gillaspy was contractually obligated to pay for the expenses and costs when

they were due, especially since he defaulted on the loan.

First, as a threshold issue, Gillaspy did not satisfactorily respond to any of

Defendants’ arguments related to Counts One and Two. He provides virtually no

legal argument, does not address the Defendants’ grounds for summary judgment,

and vaguely alleges that he has presented substantial evidence to support the claims.

And he does not point to what that substantial evidence may be and where it is

located in the record. Generally, “[w]hen a party fails to respond to an argument or

otherwise address a claim, the Court deems such an argument or claim abandoned.”

Jones v. Bank of Am., N.A., 564 F. App’x 432, 434 (11th Cir. 2014) (citation

omitted); see also Rice v. JPMorgan Chase Bank, N.A., No. 7:14-cv-00318-LSC,

2014 WL 3889472, at *11 (N.D. Ala. Aug. 5, 2014) (“Rice does not mention the

unjust enrichment claim in his brief opposing the motion to dismiss, and thus he has

abandoned it.”). Gillaspy has therefore abandoned Counts One and Two.

Abandonment aside, the Defendants have nevertheless shown their

entitlement to summary judgment for substantive reasons. “The doctrine of unjust

enrichment is an old equitable remedy permitting the court in equity and good

conscience to disallow one to be unjustly enriched at the expense of another.” Avis

Rent A Car Sys., Inc. v. Heilman, 876 So. 2d 1111, 1123 (Ala. 2003) (quoting Battles

v. Atchison, 545 So. 2d 814, 815 (Ala. Civ. App. 1989)). “To prevail on a claim of

unjust enrichment under Alabama law, a plaintiff must show that: (1) the defendant

knowingly accepted and retained a benefit, (2) provided by another, (3) who has a

reasonable expectation of compensation.” Matador Holdings, Inc. v. HoPo Realty

Invs., LLC, 77 So. 3d 139, 145 (Ala. 2011) (citation omitted). The Alabama Supreme

Court has also explained that “[r]etention of a benefit is unjust if (1) the donor of the

benefit . . . acted under a mistake of fact or in misreliance on a right or duty, or (2)

the recipient of the benefit . . . engaged in some unconscionable conduct, such as

fraud, coercion, or abuse of a confidential relationship. In the absence of mistake or

misreliance by the donor or wrongful conduct by the recipient, the recipient may

have been enriched, but he is not deemed to have been unjustly enriched.” Id. at 146

(quoting Jordan v. Mitchell, 705 So. 2d 453, 458 (Ala. Civ. App. 1997)).

The doctrine of unjust enrichment generally does not apply when there is an

express contract between the parties governing the same subject matter. Kennedy v.

Polar-BEK & Baker Wildwood P'ship, 682 So. 2d 443, 447 (Ala. 1996). See also

Jackson v. Bank of New York Mellon, No. 16-062-CG-M, 2016 WL 4942085, at *5

(S.D. Ala. July 19, 2016) (citing Kennedy); Selman v. CitiMortgage, Inc., No. 12-

0441-WS-B, 2013 WL 838193, at *13 (S.D. Ala. Mar. 5, 2013) (“under Alabama

law . . . express written agreements concerning the same subject matter as the

implicit contract underlying the . . . unjust enrichment cause of action are fatal to

that cause of action, as a matter of law”).

Applying these principles, federal courts in Alabama have routinely held that

a borrower's unjust enrichment claim against a mortgagee (or its servicer) fails if the

claim is based on the servicer's collection of fees and expenses under a promissory

note and mortgage. See, e.g., Jackson, 2016 WL 4942085, at *5; Federal Home

Loan Mortg. Corp. v. Anchrum, No. 2:14-cv-02129-AKK, 2015 WL 2452775, at *6

(N.D. Ala. May 22, 2015); Rice, 2014 WL 3889472, at *11.

Here, the relationship between Gillaspy and the Defendants, as it relates to

Gillaspy’s loan, is governed by a contract—i.e., the Note and Mortgage. The Note

and Mortgage specify the terms of the parties’ agreement, as well as the terms that

apply if Gillaspy fails to pay as required, including the assessment of fees and

expenses. Because a contract governs the same subject matter as the implicit

contract underlying the unjust enrichment causes of action, the doctrine of unjust

enrichment is inapplicable.

For these reasons, the Court will grant the Defendants’ motion for summary

judgment on Gillaspy’s unjust enrichment claims (Counts One and Two).

B. The Breach of Contract Claims

Counts Three and Four advance breach of contract claims against WFB and

SPS, respectively. Gillaspy alleges that the Defendants breached certain terms of

the Note and Mortgage “regarding the application of payment[s] and the notice

requirements of paragraph 22 of the agreement.” (Doc. 22 at 9–10, 12.) In

particular, he alleges that SPS “never applied payments to his account that it cashed”

and has “refused to take any monthly payments,” which resulted in the assessment

of improper and unauthorized fees from April 2017 to May 2022. (Doc. 22 at 10,

13.) He further alleges that SPS failed to send a proper notice of default as required

by paragraph 22 of the Mortgage.3 (Doc. 22 at 11, 13.)

WFB broadly challenges Gillaspy’s assertions and states that “Plaintiff has

not produced any evidence to support these allegations.”4 (Doc. 40 at 13.) WFB

further states that Gillaspy cannot “establish his own performance” due to his own

3 In his response, Gillaspy argues the Defendants also breached the Mortgage by failing to conduct

loss mitigation as required by HUD regulations. Gillaspy, however, alleged no such breach in his

Amended Complaint, so the Court will not consider it.

4 In his response, Gillaspy argues that the Defendants cannot advance a summary judgment

argument by merely stating that he cannot present evidence that supports his claim. (Doc. 66 at

3.) Gillaspy is generally correct on this point. The Eleventh Circuit has stated that “it is never

enough simply to state that the non-moving party cannot meet its burden at trial. . . . Instead, the

moving party must point to specific portions of the record in order to demonstrate that the

nonmoving party cannot meet its burden of proof at trial.” United States v. Four Parcels of Real

Property in Greene and Tuscaloosa Counties in State of Ala., 941 F.2d 1428, 1438 n.19 (11th Cir.

1991) (citations and internal punctuation omitted).

failure and/or refusal to make payments. (Doc. 40 at 14.) SPS raises a similar

argument, but also argues that it cannot breach a contract to which it is not a party.

To prove a claim of breach of contract under Alabama law, Gillaspy must

show “(1) a valid contract binding the parties; (2) the [plaintiff's] performance under

the contract; (3) the defendant's nonperformance; and (4) resulting damages.”

Dupree v. Peoples So. Bank, 308 So. 3d 484, 490 (Ala. 2020) (citing Shaffer v.

Regions Fin. Corp., 29 So. 3d 872, 880 (Ala. 2009)). Here, the relevant contracts

are Gillaspy's Note and Mortgage, and SPS is a party to neither. Thus, SPS owes no

contractual duty to Gillaspy, even as a servicer or agent to a party to the Note and

Mortgage. Stone v. JPMorgan Chase Bank, N.A., 786 F. App’x 212, 216 (11th Cir.

2019) (“Because Chase is not a party to the relevant contracts, Stone has failed to

state a claim against Chase for breach of contract.”); Indus. Dev. Bd. of City of

Montgomery v. Russell, 124 So. 3d 127, 138 (Ala. 2013). As such, SPS is entitled

to summary judgment on Count Four.

The outcome is somewhat different on the merits of Gillaspy’s contract claim

against WFB in Count Three. WFB is a party to the Note by virtue of its holder

status. But WFB has not shown its entitlement to summary judgment on Gillaspy’s

payment allegations based upon the parties’ current arguments and record. As the

Court understands WFB’s arguments, it claims it is entitled to summary judgment

because Gillaspy has failed to make his payments and has therefore defaulted on the

loan because he cannot show that he made all his payments. Alternatively, in WFB’s

view, any breach by WFB is excused because of Gillaspy’s own nonperformance.

In other words, WFB rests its argument on what the parties can show about the

payments made on the loan.

The problem here is that neither party has explained the payment records or

transactional history. For example, WFB—which bears the burden here—states in

its brief that “Plaintiff defaulted on his mortgage loan by, among other things, failing

to make payments as agreed,” and then cites to a document custodian declaration

that similarly states, “Plaintiff defaulted on his mortgage loan by, among other

things, failing to make payments as agreed.” (Doc. 40-1 at 3.) That document

custodian declaration then broadly references and attaches a 168-page transaction

history report that contains miniscule lines of hundreds and hundreds of transaction

entries. (Doc. 40-1 at 3; Doc. 41-1.) WFB also cites to five pages of deposition

testimony from Ms. Vickery in which Ms. Vickery is instructed to simply look at

several entries from the transaction report. None of this is helpful in sorting out the

pertinent issues relating to Gillaspy’s payments and loan status, especially when the

parties do not explain what they believe the records show or how the Court should

interpret them.5

The parties dispute Gillaspy’s loan payments. That much is quite clear. To

an experienced mortgagee or loan servicer, stacks of transactional records alone may

well demonstrate nonpayment or a default. But it is not this Court’s job to decipher

those records itself with little-to-no assistance from the parties, pinpoint missed or

late payments, determine when payments were received and not applied or sent back,

determine when the loan went in or out of default, or determine when efforts were

made to reinstate a loan and whether the mortgagor did so. That is WFB’s job. The

Court will not make the parties’ arguments for them or sift through voluminous

records in search of a question of fact, or the lack of one. See Henry v. City of

Tallahassee, 216 F. Supp. 2d 1299, 1310 (N.D. Fla. 2002) (citations omitted) (“A

fact question either exists or it does not. . . . [D]istrict courts are not obligated to

search for a fact question by sifting through the record.”).

Gillaspy does no better in identifying and explaining the pertinent fact

questions. But he has presented evidence, as broad as it is, that he made payments

5 Presumably, SPS maintained servicing notes that would reflect account communications and

account activities such as returned payments. These notes are not contained in the record.

by check in 2020 and that some of these checks were not applied to the loan and

were instead returned or left uncashed. (See, e.g., Doc. 41-6 at 14; Doc. 64 at 6.)

WFB does not explain why or when checks were sent back or what Gillaspy’s

account status was at the time.

Again, the Court will not spend its time trying to decipher these records. WFB

bears the burden of showing a lack of material fact, and it has not met that burden.

WFB’s summary judgment motion on Count Three is thus due to be denied as it

relates to the payments made on the loan.

But not so with regard to Gillaspy’s breach of contract claim on the notice of

default. Paragraph 22 of the Mortgage requires the lender to give notice of a default

to Gillaspy prior to acceleration. Defendants have provided evidence showing they

mailed Gillaspy a notice of default on May 20, 2020 to the property address, and

they have provided a copy of that notice. (Doc. 40-1 at 4; Doc. 41-3 at 2.) Gillaspy

has presented an affidavit from Ms. Vickery, who testified that the Defendants never

sent Gillaspy such a notice, but her testimony is conclusory and speculative. (Doc.

64 at 10.) Gillaspy submitted no other evidence to dispute that the notice was sent

and delivered to the property. In his affidavit, Gillaspy never addressed the issue

and never denied receiving the notice.6 (Doc. 65.) Thus, the Court concludes there

is no question of fact on this issue and WFB is entitled to summary judgment on

Count Three as it relates to the notice of default.

C. The TILA Claim

In Count Nine, Gillaspy alleges that SPS violated TILA, 15 U.S.C. § 1601 et

seq. and Federal Reserve Board Regulation Z, 12 C.F.R. § 226—a regulation

promulgated pursuant to TILA. Specifically, Gillaspy alleges that SPS failed to send

6 The record suggests Gillaspy suffers from a brain injury and that his sister, Ms. Vickery, handles

his finances and holds his power of attorney. But there is no evidence Gillaspy is under a

conservatorship or that he has been declared incompetent.

monthly billing statements to him from August 2019 to March 2022 in violation of

TILA. SPS responds, not by disputing the factual assertion, but by arguing that

TILA does not apply to SPS because it is a servicer and not a creditor. SPS also

argues the TILA claim is time-barred.

SPS’s statute of limitations argument largely lacks merit. Under TILA,

including the monthly billing regulations that fall under it, a claim must be brought

within one year. Here, Gillaspy filed his suit on April 21, 2022, and he claims that

SPS failed to send monthly billing statements from August 2019 to March 2022. As

such, Gillaspy’s allegations concerning the lack of billing statements are not time-

barred, at least with respect to those that should have been sent from April 2021

forward.

Even so, SPS has shown its entitlement to summary judgment because it is a

loan servicer. Under TILA, a consumer has a private right of action against “any

creditor who fails to comply with any requirement imposed under this part[.]” 15

U.S.C. § 1640(a). But by its plain language, TILA’s private right of action applies

only to actions against “creditors.” Id. TILA defines a “creditor” as “the person to

whom the debt arising from the consumer credit transaction is initially payable[.]”

15 U.S.C. § 1602(g).

Gillaspy acknowledges that SPS is a loan servicer and not a creditor or an

assignee within TILA’s purview. Citing to Kahn v. Bank of New York Mellon, 849

F. Supp. 2d 1377 (S.D. Fla. 2012), in which a court addressed the issue of vicarious

liability with regard to TILA, Gillaspy argues that SPS can be liable as a loan

servicer. Kahn does not support his position because the court there held that a

creditor was liable for its servicer’s § 1641(f)(2) violation. See generally, 849 F.

Supp. 2d 1377. Gillaspy’s problem is that he has not asserted a TILA claim against

a creditor for the actions of a servicer. Instead, he has only asserted a TILA claim

against a servicer, SPS, and has failed to offer any alternative theory for which a

servicer alone can be liable under TILA.

Gillaspy also cites to the Eleventh Circuit’s decision in Lamirand v. Fay

Servicing LLC, 38 F.4th 976 (11th Cir. 2022), in support of his argument that SPS

can be sued under TILA for failing to send monthly billing statements. Lamirand is

not persuasive or helpful here because the Eleventh Circuit did not examine the issue

of servicer liability for an alleged TILA violation. See generally, 38 F.4th 976. It

only addressed whether the billing statement mandates of TILA could give rise to a

claim under the FDCPA and Florida’s equivalent state statute.

In short, Gillaspy has not shown that he can maintain a cause of action directly

against SPS, as a loan servicer, under TILA. See Jackson, 2016 WL 4942085, at

*12; Moragan v. Ocwen Loan Servicing LLC, No. 6:17-cv-2028-Orl-40KRS, 2018

WL 8582447, at *4 (M.D. Fla. Apr. 18, 2018) (dismissing TILA claim concerning

alleged failed modification attempt because loan servicers are not liable under

TILA); Perdum v. Wells Fargo Home Mortg., No. 1:17-CV-00972-SCJ-JCF, 2017

WL 8186694, at *15–18 (N.D. Ga. Dec. 8, 2017). Accordingly, SPS is entitled to

summary judgment on Count Nine.

D. The RESPA Claim

In Count Ten, Gillaspy alleges violations of RESPA, 12 U.S.C. §§ 2601-2617,

against SPS. Specifically, Gillaspy alleges that SPS violated RESPA by failing to

acknowledge or respond to his Qualified Written Requests (QWR) within the time

provided by federal law.7

“When a loan servicer receives a QWR from a borrower, the loan servicer

must first provide to the borrower, within five days, a written response

7 The regulations adopted to implement RESPA describe two types of QWRs: notices of error

(NOE) and requests for information (RFI). See 12 C.F.R. §§ 1024.31, 1024.35(a), 1024.36(a). To

the extent Gillaspy sent a NOE or RFI, such notices and requests will be referred to as a QWR.

acknowledging receipt of the QWR. . . . The loan servicer must then, within thirty

days of receiving the QWR, send the borrower a written response explaining any

corrections to the borrower’s loan account, clarifying the reasons that the loan

servicer believes the borrower’s account is accurate, or providing the information

the borrower requested.” Thomas v. US Bank Nat’l Ass’n, 675 F. App’x 892, 899

(11th Cir. 2017) (per curiam). See also 12 U.S.C. § 2605. If the servicer fails to

adequately respond to a borrower’s QWR in violation of RESPA, the borrower may

bring a cause of action against the servicer for “any actual damages to the borrower

as a result of the failure.” 12 U.S.C. § 2605(f)(1)(A). “[D]amages are an essential

element in pleading a RESPA claim” and a “causal link” must exist “between the

alleged violation and the damages.” Renfroe v. Nationstar Mortg., LLC, 822 F.3d

1241, 1246 (11th Cir. 2016).

Notably, there are restrictions on where a borrower can send a QWR. The

Eleventh Circuit has recognized that, under RESPA, “[i]f a servicer designates a

particular address for receiving QWRs, Regulation X requires a borrower to mail a

QWR to that address to trigger the servicer’s duty to respond.” Bivens v. Bank of

Am., N.A., 868 F.3d 915, 919 (11th Cir. 2017).

Here, Gillaspy alleges that he mailed QWRs to SPS on December 15, 2020,

May 10, 2021, September 13, 2021, December 20, 2021, and March 21, 2022. But

Gillaspy did not attach the purported QWRs to his Amended Complaint, and he did

not produce them in discovery, other than the one he mailed on March 21, 2022,

which SPS acknowledges as having been received. Nowhere in the Amended

Complaint or in the record does Gillaspy allege or provide evidence of the content

of the other QWRs. Instead, he broadly argues that he mailed several QWRs.

SPS has submitted evidence showing that it timely responded to the only

QWR that it has any record of receiving; that is, the March 21, 2022, QWR that it

responded to the same day. As such, Gillaspy has shown no question of fact as it

concerns the March 21, 2022, QWR.

As to the other QWRs, SPS argues that Gillaspy has presented no evidence

that they existed or what exactly they said, let alone that they were properly mailed,

beyond simply stating that he sent them. Can Gillaspy maintain a RESPA claim at

the summary judgment stage based on alleged QWRs that he merely claims to have

sent without any other evidence of their existence, contents, mailing or receipt? No.

Gillaspy’s bare statements alone cannot support a RESPA claim at the summary

judgment stage of litigation. He offers up no photocopy of the signed letters or

copies of, for example, the word processing version or data files for the letters. He

offers no proof of mailing, such as a United States Postal Service receipt, and no

proof of receipt by SPS. He points to no evidence from SPS’s own records showing

receipt of these letters either. And he provides no evidence of what these letters

actually said or requested. His vague, conclusory statements regarding the

unaccounted-for QWRs are insufficient to create a bona fide issue of material fact

on his RESPA claim. See, e.g., Tonea v. Bank of Am., N.A., 6 F. Supp. 3d 1331,

1346 (N.D. Ga. 2014) (addressing plaintiff’s unsupported conclusory allegation that

he mailed a QWR to the defendant and finding that the plaintiff’s failure to “provide

any allegations about the content of his mailing” and to “attach copies of the mailing

to the complaint” is insufficient “to survive a motion to dismiss”); Costine v. BAC

Home Loans, 946 F. Supp. 2d 1224, 1233 (N.D. Ala. 2013); Lucero v. Diversified

Invs. Inc., No. 09-cv-1742-BTM, 2010 WL 3463607, at *4 (S.D. Cal. Aug. 31, 2010)

(“[B]ecause [the plaintiffs] do not allege the contents of the QWR or attach it to their

Complaint, it is unclear whether Plaintiffs included enough information for the

servicer to identify them, or asked for information covered by 12 U.S.C. § 2605.”);

Carrillo v. Bank of New York, No. 09-61642-CIV, 2009 WL 5708925, at *4 (S.D.

Fla. Dec. 22, 2009) (Section 2605 claim failed to state a cause of action because,

among other deficiencies, the complaint “does not indicate the subject matter of the

written correspondence”); Costine v. BAC Home Loans, 946 F. Supp. 2d 1224,

1232–33 (N.D. Ala. 2013) (“It is not enough to simply use the words ‘qualified

written request’ somewhere in the Complaint. Rather, Plaintiff[] must plead facts

demonstrating that a written request was actually made, such as by . . . describing its

contents showing they satisfied the requirements enumerated in 12 U.S.C.

§ 2605(e)(1)(B).”); Odum v. Specialized Loan Servicing, No. 1:15-cv-01949-MHC-

JKF, 2016 WL 4582070, at *4 (N.D. Ga. July 5, 2016) (finding plaintiff’s RESPA

claim could not survive a motion to dismiss where he failed to plead specific facts

that a written request was actually made); Saint-Felix v. Bayview Loan Servicing

LLC, No. 1:15-cv-1679-ELR-CMS, 2015 WL 13777024, at *8 (N.D. Ga. Nov. 12,

2015); Zanaty v. Wells Fargo Bank, N.A., No. 2:16-CV-0277-VEH, 2016 WL

6610443, at *9 (N.D. Ala. Nov. 9, 2016) (agreeing with other courts that a plaintiff

must “substantiate the validity of a QWR's contents as a part of his complaint”);

Patrick v. CitiFinancial Corp., No. 3:15cv296-WHA, 2015 WL 3988860, at *3–4

(M.D. Ala. June 30, 2015) (dismissing RESPA claims where plaintiff failed to allege

content of QWR); Tallent v. BAC Home Loans, No. 2:12-CV-3719-LSC, 2013 WL

2249107, at *4 (N.D. Ala. May 21, 2013) (requiring a showing that the QWR was

in writing, included the name and account of the borrower, and included a statement

of the reasons for the belief that the account is in error or provides sufficient detail

regarding the information sought); Malally v. BAC Home Loan Servicing, LLC, No.

3:10-CV-0074-JTC-JFK, 2010 WL 5140626, at *8 (N.D. Ga. Oct. 8, 2010).8 See

also Konst v. Fla. E. Coast Ry. Co., 71 F. 3d 850, 851 (11th Cir. 1996) (a

8 Most courts have addressed these same deficiencies at the motion to dismiss stage. While the

Court deals with it here at the summary judgment stage, these court decisions are no less

persuasive.

“‘presumption of receipt’ arises upon proof that the item was properly addressed,

had sufficient postage, and was deposited in the mail.”).

Accordingly, SPS is entitled to summary judgment on Count Ten.

E. The FDCPA Claim

In Count Twelve, Gillaspy alleges violations of the FDCPA, 15 U.S.C. §§

1692-1692p, by SPS concerning its handling of Gillaspy’s loan, including its

communications with Gillaspy. SPS argues summary judgment is appropriate

because Gillaspy admits his default and because the FDCPA does not apply to its

servicing actions.

To prevail on an FDCPA claim, a plaintiff must establish: (1) he has been the

object of collection activity arising from a consumer debt; (2) the defendant

attempting to collect the debt qualifies as a debt collector under the FDCPA; and (3)

the defendant has engaged in a prohibited act or has failed to perform a requirement

imposed by the FDCPA. Janke v. Wells Fargo and Co., 805 F. Supp. 2d 1278, 1281

(M.D. Ala. 2011); Frazier v. Absolute Collection Serv., Inc., 767 F. Supp. 2d 1354,

1363 (N.D. Ga. 2011). The FDCPA applies only to “debt collectors,” not to creditors

or servicers. See 15 U.S.C. § 1692a(6); Correa v. BAC Home Loans Servicing LP,

No. 6:11-cv-1197-Orl, 2012 WL 1176701, at *11 (M.D. Fla. Apr. 9, 2012)

(explaining that the “critical element is whether the defendant is a debt collector” as

defined under the statute). Additionally, the statute excludes from the definition of

“debt collector” any person who acquires a debt before it is in default. See 15 U.S.C.

§ 1692a(6)(F). This exclusion has been interpreted by courts to mean mortgage

servicers are not covered by the FDCPA if they began servicing the loan at a time

when the loan was not in default. Alhassid v. Nationwide Mortg. LLC, 771 F. App’x

965, 968 (11th Cir. 2019); Stroman v. Bank of Am. Corp., 852 F. Supp. 2d 1366,

1375 (N.D. Ga. 2012).

SPS states that Gillaspy has admitted his default, and then cites to paragraph

104 of the Amended Complaint as the basis for that admission. A review of

paragraph 104 does not confirm that assertion. Instead, in that paragraph, Gillaspy

alleges, “At the time SPS began servicing the loan, the loan was either in default, or

it was serviced by SPS as a defaulted loan.” (Doc. 22 at 24–25, ¶104.) The Amended

Complaint is not a concrete assertion of Gillaspy’s default, let alone an admission

rendering the FDCPA inapplicable to SPS.

Regardless, Gillaspy’s FDCPA claim is before the Court via the Defendants’

summary judgment motion where the evidence shows that WFB is the note holder

or creditor and that SPS is a loan servicer. Gillaspy admits as much. Mortgage loan

servicers generally are not debt collectors for purposes of the FDCPA absent proof

that the loan was in default at the time of assignment or transfer of the loan or

servicing. Gillaspy has failed to provide that proof, assuming that such proof alone

could make a loan servicer a debt collector under the FDCPA. And further, Gillaspy

has failed to show how SPS’s account activities, as the servicer of a loan secured by

a mortgage on real property, constitute a violation of the FDCPA. Warren v.

Countrywide Home Loans, Inc., 342 F. App'x 458, 460–61 (11th Cir. 2009) (holding

that “an enforcer of a security interest, such as a [mortgage company] foreclosing on

real property . . . falls outside the ambit of the FDCPA.”).

The Court will therefore grant SPS’s motion for summary judgment on Count

Twelve.

F. The Declaratory Judgment Claim

In Count Thirteen, Gillaspy seeks declaratory relief against WFB on the basis

that the Defendants breached the Note and Mortgage by failing to follow the

paragraph 22 default notice requirements and to properly accept and apply his loan

payments.

To the extent this claim is premised upon the same notice and payment issues

made the basis of the breach of contract claims, summary judgment is due to be

granted in part and denied in part for the same reasons as the breach of contract

claims. WFB is therefore entitled to summary judgment on Count Thirteen as it

relates to the paragraph 22 notice allegation. Summary judgment is denied on this

claim as it relates to Gillaspy’s loan payments.

G. The Defendants’ Counterclaims

In their Answer to Gillaspy's Amended Complaint, WFB and SPS jointly

assert counterclaims for declaratory judgment, breach of contract, judicial

foreclosure, and money had and received. They move for summary judgment on all

four claims, stating the evidence shows that WFB is the owner and holder of the debt

and the assignee of the mortgage, and that Gillaspy has failed to make payments as

agreed. Therefore, according to Defendants, WFB and SPS have the right to

foreclose on Gillaspy’s home.

The Defendants provide virtually no legal argument in support of their

summary judgment assertions, and they fail to delineate which claims apply to which

entity. In fact, they treat both entities the same and interchangeably.9 Presumably,

the Defendants simply rely upon their previous arguments against Gillaspy’s

affirmative claims for relief.

Gillaspy too does little in responding to the Defendants’ summary judgment

motion on their counterclaims. He relies upon his previous arguments about the

payment issues on the loan, the notice of default, and lack of standing/authority to

foreclose, and he focuses his response on the Defendants’ judicial foreclosure claim.

9 Whereas SPS trumpets its lack of privity argument as a basis for summary judgement as to

Gillaspy’s breach of contract claim, SPS apparently claims contractual privity for purposes of

bringing a breach of contract claim against Gillaspy.

Since the parties rely on their arguments concerning Gillaspy’s claims, the

Court will look to those arguments to resolve the Defendants’ motion on the

counterclaims. And since all four counterclaims tend to turn on the exact same issues

raised in Gillaspy’s breach of contract claims, they will be treated similarly. Because

WFB did not show its entitlement to summary judgment on Gillaspy’s breach of

contract claim on his unapplied/misapplied payment allegations, the Defendants are

not entitled to summary judgment on their counterclaims for the same reasons.

Further, the Court will deny the Defendants’ summary judgment motion to

the extent they are asserting their legal right to foreclose because of WFB’s status as

an assignee of the Mortgage. Although the Court agrees that WFB has shown it is

the holder of the Note, WFB and SPS have not shown, or even argued, their right,

either collectively or individually, to foreclose on the property in the absence of an

assignment of the Mortgage to WFB. Of note, WFB has not filed an assignment of

mortgage, but it has filed an affidavit stating that the assignment was lost. Neither

WFB nor SPS have benefited the Court with any research or argument explaining

how they can proceed with a foreclosure, nonjudicial or judicial, merely by virtue of

WFB’s status as the Note holder when there is no evidence that the Mortgage was

ever assigned to WFB or that an assignment of mortgage actually existed.

In short, the Defendants have not shown their entitlement to summary

judgment on any of their counterclaims.

VI. CONCLUSION

For these reasons, it is ORDERED as follows:

1. Defendants’ Motion for Final Summary Judgment (doc. 40) is

GRANTED in part and DENIED in part. Counts Five (false light against WFB),

Six (false light against SPS), Seven (defamation, libel, and slander against WFB),

Eight (defamation, libel, and slander against SPS), and Eleven (FCRA violations

against SPS) of the Amended Complaint (doc. 22) are DISMISSED with prejudice

upon consent of the Plaintiff. Summary judgment is granted in favor of Defendants

and against Plaintiff on Counts One (unjust enrichment against WFB), Two (unjust

enrichment against SPS), Four (breach of contract against SPS), Nine (TILA

violations against SPS), Ten (RESPA violations against SPS), and Twelve (FDCPA

violations against SPS) of the Amended Complaint (doc. 22), as well as Counts

Three (breach of contract against WFB) and Thirteen (declaratory judgment) only

as to Plaintiff's theory that Defendants failed to follow the proper notice

requirements concerning a default. Those claims are thus DISMISSED with

prejudice.

2. Summary judgment is DENIED on Counts Three (breach of contract

against WFB) and Thirteen (declaratory judgment) of the Amended Complaint (doc.

22) only as they relate to Plaintiff's loan payments to Defendants and is DENIED

as to Counts One (declaratory judgment), Two (breach of contract), Three (judicial

foreclosure), and Four (money had and received) of the Countercomplaint (doc. 27).

Those claims therefore remain.

3. Defendants’ Motionin Limine (doc. 48) is DENIED as moot but with

leave to refile as it concerns trial-related issues as narrowed by the Court’s summary

judgment rulings.

4. The Defendants’ Motion to Strike (doc. 76) is DENIED as moot.

DONE this the Ist day of March 2024.

UNITED STATES DISTRICT JUDGE

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