UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

Transcription

1 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION ANDREA BRICHANT, ) ) Plaintiff, ) Case No. 3:12-cv-0285 ) Judge Aleta A. Trauger v. ) ) WELLS FARGO BANK, N.A. and MORTGAGE ) ELECTRONIC REGISTRATION SYSTEMS, INC., ) ) Defendants. ) MEMORANDUM Defendants Wells Fargo Bank, N.A. ( Wells Fargo ) and Mortgage Electronic Registration Systems, Inc. ( MERS ) have filed a Motion for Summary Judgment (Docket No. 59), to which plaintiff Andrea Brichant has filed a Response in opposition (Docket No. 72), the defendants filed a Reply (Docket No. 75), and Brichant file a Supplemental Brief (Docket No. 81). For the reasons discussed herein, the defendants motion will be granted and Brichant s claims will be dismissed. BACKGROUND This case arises out of a Note and Deed of Trust signed by the plaintiff, Andrea Brichant, encumbering real property located in Hendersonville, Tennessee. These instruments were ultimately transferred to a mortgage-backed securities trust, for which Wells Fargo acted as the servicer. Accordingly, Wells Fargo, through its America s Servicing Company division, sent bills to Brichant for collection. After Brichant defaulted on her loan, Wells Fargo commenced foreclosure proceedings. Brichant alleges that Wells Fargo lacked the authority to service the mortgage instruments 1 Case 3:12-cv Document 84 Filed 02/24/14 Page 1 of 15 PageID #: 4163

2 and claims that she paid several bills in reliance on Wells Fargo s false representations. In this action, she asks the court to determine whether Wells Fargo and defendant Mortgage Electronic Registration Systems, Inc. ( MERS ) have legal or equitable rights to the Note and Deed of Trust. (Docket No. 16, Compl. 22.) She also seeks damages from Wells Fargo for unjust enrichment and alleged violations of the Fair Debt Collection Practices Act ( FDCPA ),15 U.S.C. 1692, et seq., and the Tennessee Consumer Protection Act ( TCPA ), Tenn. Code Ann , et seq. (See Compl ) On March 9, 2006, Brichant executed an Adjustable Rate Note (the Note ) in the original principal amount of $284,000 in favor of WMC Mortgage Corp. ( WMC ). (Docket No ) The note was secured by a Deed of Trust on real property located in Hendersonville, Tennessee in favor of WMC. (Docket No ) The Deed of Trust provided that defendant MERS is acting solely as nominee for WMC and its successors and assigns. (Id.) It added that MERS is the beneficiary under this Security Instrument. 1 (Id.) Through the affidavit of Amanda Weatherly ( Weatherly Affidavit ), a Vice President of Loan Documentation with Wells Fargo, and the documents attached thereto, the defendants have presented evidence that, after Brichant executed the aforementioned instruments, the Note was 1 One court has described MERS s business as follows: Under the MERS system, at the origination of a residential loan, the lender takes possession of a promissory note and the borrower and lender agree to designate MERS as the beneficiary under a deed of trust. Under the MERS system, the rights to the mortgage are tracked in an internal electronic database and not recorded in the public records each time the rights to the mortgage are bought and sold, so long as the buyer is a member of the MERS system. In re Mortg. Elec. Registration Sys. Litig., MDL Docket No JAT, 2011 WL , at *3 (D.Ariz. Oct. 3, 2011). 2 Case 3:12-cv Document 84 Filed 02/24/14 Page 2 of 15 PageID #: 4164

3 endorsed in blank without recourse by Melba Faraone, a WMC Assistant Secretary. (Docket No. 62 6; Docket No ) The Note was then sold and negotiated by transfer of possession to Morgan Stanley ABS Capital I, Inc ( Morgan Stanley ). 2 (Docket No ) On or prior to June 1, 2006, Morgan Stanley sold and negotiated the Note by transfer of possession to Deutsche Bank National Trust Company ( Deutsche Bank ) as trustee for Morgan Stanley ABS Capital I Inc. Trust 2006-WMC2 (the 2006-WMC2 trust ), a mortgage-backed securities trust. (Id. 7.) The defendants contend that, under Tennessee law, the transfer of the Note to Deutsche Bank in 2006 automatically carried with it the assignment of the Deed of Trust. (Docket No. 60 at 9.) MERS also separately executed and recorded two written instruments purporting to assign the Deed of Trust to Deutsche Bank in 2010 and (Docket No. 62 8; Docket No. 62-3; Docket No ) Brichant has not adduced evidence showing that the Note or Deed of Trust has been otherwise assigned. For their part, the defendants rely on the Weatherly Affidavit, which states that no other assignment of these instruments was made. (Docket No ) The Weatherly Affidavit also states that the original servicer of Brichant s loan was Litton Loan Servicing LP, but that the servicing rights were later transferred to Wells Fargo. (Docket No ; Docket No at 5.) Wells Fargo currently services Brichant s loan on behalf of Deutsche Bank, as trustee of the 2006-WMC2 trust. (Docket No ; Docket No at 25.) This relationship is evidenced by a June 1, 2006 Pooling and Servicing Agreement ( PSA ) pertaining to the trust. (Docket No ) As the servicer, Wells Fargo is authorized to receive 2 The Note expressly provides that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the Note Holder. (Docket No at 1.) The Deed of Trust also provides that the Note or a partial interest in the Note (together with this Security Instrument) can be sold one or more times without prior notice to Borrower. (Docket No at 11.) 3 Case 3:12-cv Document 84 Filed 02/24/14 Page 3 of 15 PageID #: 4165

4 loan payments and foreclose upon encumbered real property on behalf of Deutsche Bank. (Docket No ; Docket No at 41, ) It also has the authority to waive, modify, or vary the terms of the loan. (Docket No ; Docket No at 41.) On approximately July 13, 2009, Brichant executed a Loan Modification Agreement in favor of Wells Fargo in an amount that totaled $305, (Docket No ; Docket No at 1-2.) Under the Loan Modification agreement, Brichant agreed to make monthly payments of $1, (Docket No ; Docket No at 2.) The Weatherly Affidavit states that, after the parties entered into the Loan Modification Agreement, Brichant failed to make her monthly payments when due and thus defaulted on the Note. (Docket No ) Following Brichant s default, Wells Fargo began foreclosure proceedings on Brichant s property. (Id. 15.) However, to date, no foreclosure sale has taken place. (Id.) Brichant commenced this action on March 20, 2012 (Docket No. 1) and filed her First Amended Complaint on March 29, (Docket No. 16). The First Amended Complaint named Wells Fargo, MERS, Wilson & Associates PLLC (a law firm alleged to have prepared the instrument assigning the Deed of Trust in 2010), Shellie Wallace (a Wilson & Associates attorney who was later named as a successor trustee to the Deed of Trust), and DOES 1-20 as defendants. (Docket No ) Both Wilson & Associates PLLC and Shellie Wallace were dismissed by the court in a Memorandum Opinion issued on September 25, (Docket No. 42.) Wells Fargo and MERS filed the present motion on April 19, After the motion was fully briefed, the parties filed a joint motion to refer the case for a judicial settlement conference, which the court granted. The parties did not reach settlement. On February 13, 2014, Brichant 4 Case 3:12-cv Document 84 Filed 02/24/14 Page 4 of 15 PageID #: 4166

5 filed a supplemental brief, which attached an intervening decision by the Tennessee Court of Appeals in Mortgage Elec. Registration Sys., Inc. v. Ditto, No. E COA-R3-CV, 2014 WL (Tenn. Ct. App. Jan. 2, 2014). ANALYSIS I. Standard of Review Rule 56 requires the court to grant a motion for summary judgment if the movant shows 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). If a moving defendant shows that there is no genuine issue of material fact as to at least one essential element of the plaintiff s claim, the burden shifts to the plaintiff to provide evidence beyond the pleadings, set[ting] forth specific facts showing that there is a genuine issue for trial. Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009); see also Celotex Corp. v. Catrett, 477 U.S. 317, (1986). In evaluating the evidence, the court must draw all inferences in the light most favorable to the non-moving party. Moldowan, 578 F.3d at 374 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). At this stage, the judge s function is not... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). But [t]he mere existence of a scintilla of evidence in support of the [non-moving party s] position will be insufficient, and the party s proof must be more than merely colorable. Anderson, 477 U.S. at 249, 252. An issue of fact is genuine only if a reasonable jury could find for the non-moving party. Moldowan, 578 F.3d at 374 (citing Anderson, 477 U.S. at 252). 5 Case 3:12-cv Document 84 Filed 02/24/14 Page 5 of 15 PageID #: 4167

6 II. Declaratory Judgment Claim The defendants argue that the record evidence shows that Wells Fargo is the servicer of Brichant s loan and is thus entitled to collect payments on behalf of Deutsche Bank, the current owner and holder of Brichant s Note and Deed of Trust. (Docket No. 60 at 8.) In addition, the defendants contend that MERS possessed the right to assign the Deed of Trust in 2010 and (Id. at ) In her opposition brief, Brichant first attacks the Weatherly Affidavit, claiming that it does not constitute evidence that can support a summary judgment motion. (Docket No at 9-12.) She next argues that summary judgment should be denied because the note is not a negotiable instrument. (Id. at ) The court will address each of these contentions in turn. A. Sufficiency of the Weatherly Affidavit The Federal Rules of Civil Procedure require that affidavits or declarations filed in support of a summary judgment motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated. Fed. R. Civ. P. 56(c)(4). In her affidavit, Weatherly states that she is a Vice President of Loan Documentation at Wells Fargo, is competent to testify, is familiar with the company s books and records, and is authorized to make the affidavit. (Docket No ) She further states that [e]ach and every statement of fact contained in this [a]ffidavit is true and correct based upon my first-hand knowledge or upon information obtained from documents that were generated and maintained in the ordinary course of business of Wells Fargo. (Id.) Given these statements, the court finds that the Weatherly Affidavit meets Rule 56(c)(4) s requirements. Indeed, a similar argument attacking an affidavit containing nearly identical foundational statements was rejected in a recent 6 Case 3:12-cv Document 84 Filed 02/24/14 Page 6 of 15 PageID #: 4168

7 decision from by this court involving analogous facts. See Chapman v. Bank of Am., No cv-0504, 2012 WL , at *2 (M.D. Tenn. Sept. 17, 2012) (finding that the affidavit of a Bank of America Vice President satisfied Rule 56(c)(4) s requirements); see also AT&T Corp. v. Overdrive, Inc., No. 1:05cv1904, 2006 WL , at *2 (N.D. Ohio Nov. 21, 2006) (noting that [p]ersonal knowledge... is not strictly limited to activities in which the declarant has personally participated, as it can be derived from reviewing the contents of business records, and an affiant may testify to acts that she did not personally observe but which are nonetheless described in such records) (citations omitted). B. Whether the Note is Negotiable or Non-Negotiable Brichant next contends that the Note is non-negotiable under Chapter 3 of Tennessee s Uniform Commercial Code (the TUCC ) because (a) it is not for a fixed amount of money and/or (b) includes other undertakings or instructions apart from the unconditional promise to pay. 3 (Docket No at ) Both of these contentions are without merit. Brichant argues that the Note is not for a fixed amount of money because it authorizes the holder to collect unspecified fees and costs associated with enforcing the Note, including reasonable attorney s fees. (Docket No at 14.) However, the TUCC expressly contemplates that an instrument remains for a fixed amount, even if it authorizes the payment of such fees and costs. See Tenn. Code Ann (a) (providing that an instrument is negotiable if it is for a fixed amount of money, with or without interest or other charges described in the promise ) (emphasis added); see also 22 Williston on Contracts 60:6 (4th ed. 3 Brichant also argues that there is a genuine dispute of material fact as to whether her signature on the instrument is a forgery. (Docket No ) However, this contention is without merit, as she admitted at her deposition that the signatures on the Note were hers and not forgeries. (Docket No at 8.) 7 Case 3:12-cv Document 84 Filed 02/24/14 Page 7 of 15 PageID #: 4169

8 2013) ( A negotiable instrument is for a fixed amount, even though it allows for payment of other charges, such as attorney s fees or the costs of collection efforts ). Moreover, Tennessee courts have long held that provisions in notes authorizing the recovery of collection costs, including reasonable attorney s fees, are enforceable. Julian v. Am. Nat l Bank, 113 S.W.2d 746, 747 (Tenn. 1938); see also In re Frost, 1 B.R. 313, 314 (Bankr. M.D. Tenn. 1979) ( The provision in a promissory note for payment of attorneys fees and other collection expenses is deemed by Tennessee courts to be a constituent part of the obligation ). Brichant s arguments concerning other undertakings or instructions apart from the obligation are similarly without merit. She asserts that the Note is non-negotiable because it incorporates an undertaking from the Deed of Trust authorizing the lender to accelerate the payment due on the Note if Brichant sells or transfers the encumbered property, or any interest thereof, without the lender s prior written consent. (Docket No at ) But the reference to another agreement does not, by itself, make the Note non-negotiable. Indeed, Tenn. Code Ann provides that: [T]he obligation of a party to an instrument to pay the instrument may be... supplemented by a separate agreement of the obligor and a person entitled to enforce the instrument, if the instrument is issued or the obligation is incurred in reliance on the agreement or as part of the same transaction giving rise to the agreement. Id.; see also cmt. 1 (noting that [t]he separate agreement might be a security agreement or mortgage ). Nor does the lender consent requirement pertaining to the sale or transfer of the encumbered property render the Note non-negotiable, as the TUCC expressly provides that a promise to pay money may also contain an undertaking to... maintain, or protect collateral to secure payment. Tenn. Code Ann (a)(3). 8 Case 3:12-cv Document 84 Filed 02/24/14 Page 8 of 15 PageID #: 4170

9 In a similar vein, Brichant also complains that the Note includes an additional undertaking by requiring her to give written notice of any prepayment of principal to the Note s holder. (Docket No at 14.) Brichant has not cited any legal authority in support of her assertion. In contrast, a number of courts have rejected this argument. See In re Steinberg, BAP No.WY , 2013 WL , at *4 (B.A.P. 10th Cir. May 30, 2013); In re Walker, 466 B.R. 271, (Bankr. E.D. Pa. 2012); Picatinny Fed. Credit Union v. Fed. Nat l Mortg. Ass n, Civil Action No (GEB), 2011 WL , at *7 (D.N.J. Apr. 7, 2011); In re Edwards, Bankr. No , Adversary No , 2011 WL , at *5 (Bankr. E.D. Wis. Dec. 23, 2011); HSBC Bank USA, N.A. v. Gouda, F , 2010 WL , at *2-*3 (N.J. Super. Ct. App. Div. Dec. 17, 2010). In the Steinberg case, the Bankruptcy Appellate Panel of the Tenth Circuit summarized the rationale underlying the aforementioned decisions: Most courts have rejected the other undertaking argument, reasoning that a prepayment notice requirement isn t one because (1) prepaying principal is voluntary, not required; (2) the prepayment notification requirement imposes no additional liability on the debtor and is not an additional condition placed on the debtor s promise to pay; and (3) there is no penalty for failing to notify of prepayments WL , at *4 (citations omitted). The court finds this rationale to be persuasive and will thus reject Brichant s contention. The Note is, therefore, a negotiable instrument. The TUCC states that, when, as here, a note is endorsed in blank, it becomes payable to the bearer (i.e., the person in possession of the instrument), and the bearer is entitled to enforce the note as its holder. Tenn. Code Ann (5), (21)(A); Tenn. Code Ann , Moreover, under established Tennessee law, the transfer of a note automatically carries with it the assignment of a deed of trust. See, e.g., W.C. Early Co. v. Williams, 186 S.W. 102, (Tenn. 1916) ( It is a well-settled rule 9 Case 3:12-cv Document 84 Filed 02/24/14 Page 9 of 15 PageID #: 4171

10 with us that the lien of a mortgage or trust deed passes, without a special assignment thereof, to the indorsee of a note or transferee of the debt secured by the instrument. The policy of the law is to treat the note as the principal thing and the mortgage as the incident the transfer of the note secured as a transfer pro tanto of the incident, the lien of the mortgage ); Clark v. Jones, 27 S.W. 1009, 1010 (Tenn. 1894) ( The transfer of the note, without more, carried with it the lien created by the deed of trust ); Chapman, 2012 WL at *1, n.4 ( It is well-settled under Tennessee law that any assignment of a note automatically transfers beneficial ownership of the accompanying deed of trust ); Samples v. Bank of Am., N.A., No. 3:12-cv-44, 2012 WL at *4 (E.D. Tenn. April 16, 2012) (same). Here, the Weatherly Affidavit and its supporting documents, which have not been controverted by competent evidence, 4 show that the Note was sold and negotiated by transfer of possession from WMC to Morgan Stanley, who then sold and transferred it to Deutsche Bank, as trustee for the 2006-WMC2 trust. Under Tennessee law, the transfer of the Note to Deutsche Bank carried with it the assignment of the Deed of Trust. Again, there is no evidence that either 4 In opposing the defendants motion, Brichant cites to an affidavit from Terri Petit, a Certified Forensic Loan Auditor with an entity called the Property Rights Group. Petit has not been retained as an expert witness in this case. Brichant primarily relies on Petit s assertion that the 2006-WMC2 trust terminated and dissolved on April 2, 2007, thus extinguishing Wells Fargo s authority to act as the servicer of Brichant s mortgage. (See Docket No ) That assertion is based on a Form 15 filing made by the 2006-WMC2 trust with the U.S. Securities and Exchange Commission on January 29, However, the filing expressly notes that it is made pursuant to Rule 15d-6 of the General Rules and Regulations Under the Securities Exchange Act of 1934, which governs the suspension of an issuer s duty to file reports. See 17 C.F.R d-6. The filing does not state that the trust was terminated or dissolved. (See Docket No ) The Weatherly Affidavit states that, as of April 2, 2013, the 2006-WMC2 trust remains in existence. (Docket No ) The defendants have also produced documentary evidence showing that the 2006-WMC2 trust was still in existence as of December 13, (See Docket No ) Aside from Petit s affidavit, which is insufficient to create a genuine dispute of fact on this point, Brichant has not presented any other evidence in support of her contention that the trust no longer exists. 10 Case 3:12-cv Document 84 Filed 02/24/14 Page 10 of 15 PageID #: 4172

11 instrument has been further assigned to any other entity. Thus, Deutsche Bank is the current owner and holder of the Note and Deed of Trust and is entitled to enforce them. Moreover, because Wells Fargo acts on behalf of Deutsche Bank as the servicer of those instruments, it is entitled to receive loan payments from Brichant and foreclose on the encumbered property. C. Relationship Between MERS and the Servicing Obligations In a separate line of argument that is exceedingly difficult to follow, Brichant appears to argue that no property interest in the Deed of Trust was ever conveyed to Deutsche Bank. As best the court can discern, Brichant appears to contend that MERS never had any independent property interest in the Deed of Trust and that, as a consequence, the purported 2010 and 2011 assignments are invalid. Brichant also argues that the 2010 and 2011 purported assignments were invalid because they purported to convey property to Deutsche Bank with respect to the 2006-WMC2 Trust, even though (a) WMC had ceased doing business years earlier, and (b) under the terms of the PSA, the 2006-WMC2 Trust was closed to conveyances after the June 28, 2006 closing date. Finally, Brichant argues that the 2010 and 2011 assignments were invalid because they were signed by a known robo-signer and/or for lack of consideration. As the court explained in the previous section, the undisputed facts demonstrate that the Note was a negotiable instrument, that the Note was conveyed to Deutsche Bank in June 2006, that the Deed of Trust therefore passed to Deutsche Bank at that time by operation of law, and that Deutsche Bank still holds the Note. In other words, both the Note and the Deed of Trust passed to Deutsche Bank in June 2006, notwithstanding the absence of a separate special assignment document. Therefore, whether or not the purported 2010 and 2011 documents styled as assignments of MERS s purported interests in the Deed of Trust were independently 11 Case 3:12-cv Document 84 Filed 02/24/14 Page 11 of 15 PageID #: 4173

12 valid, the Deed of Trust had already passed to Deutsche Bank several years earlier. The defendants are entitled to judgment on this basis alone. Brichant contends that the recent Tennessee Court of Appeals decision in Mortgage Electronic Systems, Inc., v. Ditto supports their position WL There, MERS filed suit to set aside the tax sale of a property, alleging that MERS should have been notified of the sale under the terms of the original deed of trust, which (as here) purported to name MERS as the beneficiary... solely as nominee for the lender/note-holder. Id. at *1-*2. The purchaser of the property argued that MERS lacked standing because MERS had no independent property interest to vindicate in its lawsuit. The court agreed that MERS was never given an independent interest in the property and was specifically relegated to the role of nominee relative to the interests transferred by the [property owners]. Id. at *5. The court also found that MERS had not suffered any injury from the sale of the property. Id. Accordingly, the court found that MERS lacked standing to file suit. Id. Ditto does not impact the court s findings here for multiple reasons. First, as previously explained, the validity of the 2010 and 2011 assignments is irrelevant because the Note and Deed of Trust were transferred to Deutsche Bank by operation of law years earlier. Second, it is not clear to the court that the holding in Ditto, which related to the assertion of affirmative relief by MERS, precludes MERS from assigning its own rights (if it has any) or the rights of the lender (with MERS acting as an agent) identified in the deed of trust. 5 Third, even if the validity 5 Prior to Ditto, courts within this circuit, including one case applying Tennessee law, had approved of MERS serving in the role of nominee and beneficiary. See, e.g., Samples, 2012 WL , at *4 (applying Tennessee law) ( The role of MERS in the mortgage process has also been validated by many courts, including those within the United States Court of Appeals for the Sixth Circuit ); Golliday v. Chase Home Fin., LLC, No. 1:10-cv-532, 2011 WL , at *7 (W.D. Mich. Aug. 23, 2011) (noting that courts have routinely approved of MERS s role in 12 Case 3:12-cv Document 84 Filed 02/24/14 Page 12 of 15 PageID #: 4174

13 of the 2010 and 2011 assignments were material and Brichant had coherently argued that Ditto impacts the court s analysis, Brichant was not a party to either of the purported MERS assignments and thus lacks standing to contest the transfer of the Deed of Trust. See Livonia Props. Holdings, LLC v Farmington Rd. Holdings, LLC, 399 F. App x 97, 102 (6th Cir. 2010). As the Sixth Circuit stated in Livonia: [T]here is ample authority to support the proposition that a litigant who is not a party to an assignment lacks standing to challenge that assignment. [A]n obligor may assert as a defense any matter which renders the assignment absolutely invalid or ineffective, or void. 6A C.J.S. Assignments 132 (2010). These defenses include nonassignability of the instrument, assignee s lack of title, and a prior revocation of the assignment.... Id. Obligors have standing to raise these claims because they cannot otherwise protect themselves from having to pay the same debt twice. Id. Id. (internal quotation marks and certain citations omitted). Thus, where the holder of the original note is identifiable and there is no risk of double liability on the debt, the debtor lacks standing to challenge the assignment. See id.; Robinson v. Select Portfolio Servicing, Inc., No , 2013 WL , at *3-*4 (6th Cir. Apr. 9, 2013) (holding that plaintiffs lacked standing to challenge MERS s post-closing date assignment of a deed of trust to a mortgagebacked securities trust); Collier v. Greenbrier Developers, LLC, 358 S.W.3d 195, 203 (Tenn. Ct. App. 2009) (noting that, as a general matter, gratuitous assignments are revocable) (citing E. mortgage transactions), R&R adopted, 2011 WL (W.D. Mich. Sept. 16, 2011). In Samples, which applied Tennessee law, the court noted that an identical provision in a deed of trust naming MERS as nominee and beneficiary gave MERS legal title to the secured interests WL , at *4, n.3. The court further noted that such language explicitly granted MERS the power to act as the agent of any valid note holder, including assigning a deed of trust and enforcing a note WL , at *4 (citing Golliday, 2011 WL , at *7; Ciardi v. Lending Co., No. CV PHX-JAT, 2010 WL , at *3-*4 (D.Ariz. May 24, 2010)). Given that Brichant s arguments concerning the 2010 and 2011 assignments fail for other independent reasons and because the issue requires a more thorough examination and analysis than Brichant has presented here the court will not analyze the potential impact of Ditto on this line of precedent. 13 Case 3:12-cv Document 84 Filed 02/24/14 Page 13 of 15 PageID #: 4175

14 Allan Farnsworth, Contracts 11.6 (3d ed. 1999)); 6A C.J.S. Assignments 132 (2013) (noting that an obligor cannot raise acts of fraud to void an assignment). Again, the court has ruled that the assignee (Deutsche Bank) has legal title, as it is the owner and holder of the Note and Deed of Trust. The court thus fails to see how Brichant could genuinely be at risk of making double payments on the same debt obligation. Accordingly, for all of these reasons, summary judgment will be granted to the defendants and Brichant s declaratory judgment claim will be dismissed. 6 B. Remaining Claims In light of the court s finding that Wells Fargo is entitled, as the loan servicer, to collect payments from Brichant and foreclose on her property, Brichant s unjust enrichment and TCPA claims must necessarily fail, as they are premised on Wells Fargo s wrongfully representing that it was the servicer of the Note and Deed of Trust. (See Docket No , 36-38, ) Brichant s FDCPA claim also fails, since Wells Fargo is not a debt collector for purposes of the statute. The FDCPA defines a debt collector to mean: [A]ny 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. 15 U.S.C. 1692a(6). However, the definition excludes a person attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity... concerns a debt which was not in default at the time it was obtained by such person. Id. 1692(6)(F)(iii). The 6 In her opposition brief, Brichant also references the existence of an insurance policy held by the 2006-WMC2 trust. As the defendants note, aside from citing its existence, Brichant has failed to present any evidence showing how this policy affected her obligation to make payments under the loan. (Docket No. 75 at 10.) Nor has Brichant cited any legal authority stating that its existence affects her loan obligations in any way. 14 Case 3:12-cv Document 84 Filed 02/24/14 Page 14 of 15 PageID #: 4176

15 record evidence here shows that Wells Fargo began servicing Brichant s loan on June 1, At her deposition, Brichant testified that she was current on her loan payments throughout that year. (Docket No at 9.) Because the debt was not in default at the time Wells Fargo obtained Brichant s loan for servicing, Wells Fargo cannot be a debt collector. Accordingly, Brichant s FDCPA claim will be dismissed. 7 CONCLUSION Based on the foregoing, the defendants Motion for Summary Judgment (Docket No. 59) will be GRANTED. An appropriate order will enter. ALETA A. TRAUGER United States District Judge 7 The defendants have alternatively argued that the doctrine of res judicata precludes Brichant from litigating her claims in this court. (Docket No. 60 at 6-8.) However, given the court s aforementioned rulings, there is no need to address that argument. 15 Case 3:12-cv Document 84 Filed 02/24/14 Page 15 of 15 PageID #: 4177