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Inzerillo v. Green Tree Servicing, LLC

United States District Court, N.D. California

November 24, 2014

ERASIMO A. INZERILLO, et al., Plaintiffs,

For Erasimo A. Inzerillo, Angela Inzerillo, Francesca Inzerillo, Plaintiffs: Jim Gerhart Price, Delta Law Group, Brentwood, CA.

For Green Tree Servicing, LLC, Defendant: Austin Benjamin Kenney, LEAD ATTORNEY, One Embarcadero Center, San Francisco, CA.


MARIA-ELENA JAMES, United States Magistrate Judge.


Plaintiffs Erasimo, Angela, and Francesca Inzerillo (" Plaintiffs") bring this case against Defendant Green Tree Servicing, LLC (" Defendant") for claims based on Defendant's efforts to collect on a consumer debt. Pending before the Court is Defendant's Motion for Partial Summary Judgment, filed October 30, 2014. Dkt. No. 45. Defendant seeks summary judgment on Plaintiffs' first cause of action for invasion of privacy, second cause of action under the Rosenthal Fair Debt Collection Practices Act (" Rosenthal Act"), Cal. Civ. Code § § 1788-1788.32, and third cause of action for negligent training and supervision. Plaintiffs have filed an Opposition (Dkt. No. 50), and Defendant filed a Reply (Dkt. No. 70). The Court finds this motion suitable for disposition without oral argument and VACATES the December 4, 2014 hearing. See Fed.R.Civ.P. 78(b); Civil L.R. 7-1(b). Having considered the parties' positions, relevant legal authority, and the record in this case, the Court GRANTS IN PART and DENIES IN PART Defendant's motion for the reasons set forth below.


A. Factual Background

Defendant is a mortgage loan servicer. Christensen Decl. ¶ 3, Dkt. No. 49. In December 2011, Defendant began servicing a mortgage loan Francesca Inzerillo obtained from Bank of America, referenced by Account No. 68320768. Id.; Sec. Am. Suppl. Compl. (" Compl.") ¶ ¶ 7-8, Dkt. No. 40. Francesca stopped paying her mortgage in January 2013. Christensen Decl. ¶ 9; Kenney Decl., Ex. A (" Francesca Dep.") at 37:11-17, 53:7-12, Dkt. No. 47-1. Although she disputes whether it was owed to Defendant or Bank of America, Francesca admits that she owed a debt and that she had an expectation that Defendant would call her to try to secure payment of her debt. Francesca Dep. at 180:5-9, 182:8-15.

Plaintiffs Erasimo and Angela Inzerillo are Francesca's parents. Compl. ¶ 4. They were not parties to Francesco's loan with Defendant. Id.; Christensen Decl. ¶ ¶ 6-7; Kenney Decl., Ex. B (" Erasimo Dep.") at 36:22-37:12, Dkt. No. 47-2; Kenney Decl., Ex. C (" Angela Dep.")[1] at 39:19-40:7, Dkt. No. 47-3. Erasimo and Angela have never had an open account with Defendant nor have they otherwise been indebted to the company. Erasimo Dep. at 36:22-37:22; Angela Dep. at 39:19-40:10. Defendant never attempted to collect a debt from either of them nor told them that they owed the company money. Erasimo Dep. at 36:22-37:22; Angela Dep. at 40:11-17.

When Francesca failed to pay by the January 1, 2013 due date, Defendant began calling her. Christensen Decl. ¶ 9. Plaintiffs allege that during January and February 2013, Defendant called Francesca 98 times. Francesca Decl. ¶ ¶ 2-4, Dkt. No. 68; Price Decl., Exs. 2 (Comcast telephone records, Dkt. No. 58) and 3 (Collection Comment List, Dkt. No. 59). Francesca testified that she did not answer most of Defendant's calls because she was at work. Christensen Decl. ¶ 12; Francesca Dep. at 65:3-12. When Francesca did not answer calls, Defendant reached out to third parties[2] including her parents[3] and her tenant, Deborah Gavina. Christensen Decl. ¶ 13. In January and February 2013, Defendant called Erasimo and Angela Inzerillo 12-17 times. Angela Dep. at 17:11-18; Angela Decl. ¶ 6, Dkt. No. 67; Price Decl., Exs. 2-4. Most of the time when Francesca's parents received calls from Defendant, they looked at the caller ID, saw the call was from " Green Tree, " and based on that chose not to answer the phone. Angela Dep. at 17:11-18:1; Christensen Decl. ¶ 15; Angela Decl. ¶ 6.

On February 21, 2013, Francesca advised Defendant that she was represented by counsel. Christensen Decl. ¶ 16. Defendant immediately placed a temporary hold on her account until it could verify her representation, which it did five days later. Id. It has not placed any calls to Francesca, her parents, or her tenant since February 21, 2013. Id. ¶ 16; Francesca Dep. at 56:4-12, 57:16-58:14, 162:1-3.

In or about late May 2014, Defendant received notice of a dispute by Francesca regarding information it reported to the major credit bureaus in connection with her account. Bailey Decl. ¶ 5, Dkt. No. 48. Specifically, Francesca disputed the current balance reported by Defendant: $359, 282.00 as of March 31, 2014. Id. She maintained that the reporting should reflect a $0 balance because the subject property had been sold at a foreclosure sale in October 2013. Id. Defendant responded on June 6, 2014, by sending an Automated Universal Dataform (" AUDs") to the credit bureaus to reflect that the account was in dispute. Id. ¶ 9; Ex. A. On June 14, 2014, Defendant sent a letter to Francesca to formally respond to her credit dispute. Id. ¶ 10; Ex. B. The letter states: " A foreclosure sale has not yet been completed for the property associated with this account. Thus, you are still obligated for the debt under the terms of the enclosed account. Because the account is still undergoing the foreclosure process, the account remains open." Id. The letter further states that " the information reported regarding the above-referenced account is true and correct according to account records." Id.

It is undisputed that the foreclosure sale on Francesca's account had been completed as of October 4, 2013. Id. ¶ 11. On September 12, 2014 and October 13, 2014, Defendant sent AUDs to the credit bureaus to reflect that the foreclosure was completed and the account closed as of October 13, 2014, reflecting a $0 balance and $0 payment due. Id. ¶ 12; Ex. C.

B. Procedural Background

Plaintiffs filed this action on December 31, 2013, alleging violation of the Fair Debt Collection Practices Act, 15 U.S.C. § § 1692 et seq . (" FDCPA"), invasion of privacy, and violation of the Rosenthal Act. Compl., Dkt. No. 1. Plaintiffs filed a Supplemental Complaint on January 24, 2014, to add allegations missing from the original version. Dkt. No. 7. A month later, on February 25, they filed an Amended Supplemental Complaint (" ASC"), dismissing the FDCPA claim and adding two new causes of action for " negligence" and " negligent training and supervision." Dkt. No. 10. They alleged that Defendant's debt collection practices constituted breach ...

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