Opinion
Civil Action No. 20-cv-03438-RMR-NRN
2022-08-16
Douglass HUNDERMAN; and Dorothy Hunderman, Plaintiffs, v. NATIONSTAR MORTGAGE, LLC, et al., Defendants.
Blair Kenneth Drazic, Blair K. Drazic, Attorney at Law, Loma, CO, for Plaintiffs. Justin Donald Balser, Troutman Pepper Hamilton Sanders LLP, Irvine, CA, Megan K. Bruyns, Taylor T. Haywood, Akerman LLP, Denver, CO, Robert Harlan Scott, Jr., Akerman LLP, Salt Lake City, UT, for Defendants Nationstar Mortgage, LLC, Wilmington Trust, N.A. Emily Renwick Garnett, Brownstein Hyatt Farber Schreck, LLP, Denver, CO, Randall M. Chin, Barrett Daffin Frappier & Weisserman LLP, Denver, CO, for Defendant Barrett Frappier & Weisserman, LLP.
Blair Kenneth Drazic, Blair K. Drazic, Attorney at Law, Loma, CO, for Plaintiffs. Justin Donald Balser, Troutman Pepper Hamilton Sanders LLP, Irvine, CA, Megan K. Bruyns, Taylor T. Haywood, Akerman LLP, Denver, CO, Robert Harlan Scott, Jr., Akerman LLP, Salt Lake City, UT, for Defendants Nationstar Mortgage, LLC, Wilmington Trust, N.A. Emily Renwick Garnett, Brownstein Hyatt Farber Schreck, LLP, Denver, CO, Randall M. Chin, Barrett Daffin Frappier & Weisserman LLP, Denver, CO, for Defendant Barrett Frappier & Weisserman, LLP.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
REGINA M. RODRIGUEZ, United States District Judge
This matter comes before the Court on motions for summary judgment filed by both the Plaintiffs and the Defendants. The Plaintiffs filed a Motion for Partial Summary Judgment, at ECF 70. Defendant Barrett Frapier & Weisserman, LLP's ("BFW") filed a response to the Plaintiffs' Motion and a cross motion for summary judgment, at ECF 82. Defendants Nationstar Mortgage LLC ("Nationstar") and Wilmington Trust, National Association ("Wilmington") filed a Motion for Summary Judgment at ECF 71. The motions are fully briefed and are ripe for review.
The Plaintiffs' motion for partial summary judgment is DENIED. Clear disputes of material fact remain as to the validity of the February 2012 modification, and summary judgment is therefore not appropriate.
Defendants Nationstar and Wilmington have filed a combined motion to dismiss the claims against them. Defendant Nationstar seeks summary judgment on Plaintiffs' RESPA claim (Claim I), Plaintiffs' claim for tortious interference with contract and prospective business relations (Claim V) and Plaintiffs' claim for intentional infliction of emotional distress (Claim VI). Nationstar's motion for summary judgment is DENIED as to Claim I. Disputes as to material facts exist regarding whether Nationstar adequately investigated and responded to the Plaintiffs' qualified written request. Nationstar's motion is GRANTED as to Claims V and VI. The Plaintiffs have failed to identify evidence that Nationstar intended to interfere with Plaintiffs' business relationships, and Plaintiffs have also failed to identify conduct sufficiently extreme and outrageous to support a claim for intentional infliction of emotional distress. Defendant Wilmington seeks summary judgment on Plaintiffs' claim for declaratory judgment (Claim III). Wilmington's motion on this issue is DENIED because disputes of material fact remain as to the validity of the February 2012 modification agreement.
Defendant BFW filed a motion for summary judgment on Plaintiff's claim that BFW violated the FDCPA (Claim II). BFW's motion on this issue is DENIED because disputes of material fact exist regarding whether the Defendants had a right to possession of the property at the time of foreclosure. Issues of material fact also remain as to whether BFW's reliance on information received from its client was reasonable.
I. BACKGROUND
The Plaintiffs, Mr. and Mrs. Hunderman, obtained a $392,000 mortgage loan from First Franklin Financial in July 2005, secured by a deed of trust. The deed named Citibank as trustee. The deed of trust was later assigned to Defendant Wilmington. ECF 71, p. 2. In 2008, Plaintiffs defaulted. In 2010, Bank of America began servicing the loan.
On February 27, 2012, Bank of America sent the Plaintiffs a letter offering to modify their mortgage (the February 2012 modification). The Plaintiffs signed the loan modification agreement on March 26, 2012. ECF 83, p. 3. The Plaintiffs did not at that time receive an executed version of the February 2012 modification from Bank of America. Id. In October 2012, Bank of America informed the Plaintiffs that there had been an error calculating the unpaid principal balance included in the February 2012 Modification. Bank of America sent the plaintiffs a subsequent agreement, with modified terms, in March 2013 (the "corrected modified agreement"). The Plaintiffs did not sign the corrected modified agreement.
The Court understands that the Plaintiffs take issue with reference to this document as "corrected," they assert that the document was not merely corrected, but was instead rewritten. The Court uses the term "corrected" here merely to differentiate between the February 2012 modification document and the subsequent document provided to the Plaintiffs in early 2013. By using the term "corrected," the court does not adopt any parties' characterization of that document.
From April 1, 2012 through July 1, 2013, the Plaintiffs made the payments pursuant to the February 2012 modification. In July and August 2013, Bank of America reversed and returned the Plaintiffs' payments because the "did not meet the minimum amount due at that time." ECF 70, p. 5; ECF 70-8, p. 4.
In December 2013, Nationstar took over servicing of the loan. ECF 83, p. 3. Subsequent to the transfer of the loan to Nationstar, Plaintiffs did not make any payments on the loan. Id. Nationstar appears to contend that there was not a valid modification of the Plaintiffs' loan at this time.
On February 6, 2015, Defendant Wilmington instituted foreclosure proceedings. The Plaintiffs filed for chapter 13 bankruptcy to avoid foreclosure. During the bankruptcy proceedings, Nationstar filed a copy of the February 2012 modification agreement that had been executed by Bank of America. ECF 71, p. 5. This was the first time that the Plaintiffs had seen a counter-signed copy of the February 2012 modification. The document was signed on June 18, 2013. Id.
On October 4, 2017, Plaintiffs sent a qualified written request (QWR) to Nationstar, disputing Nationstar's servicing of the mortgage and seeking correction of the Plaintiffs' account. ECF 16-2. The QWR directed Nationstar to the February 2012 modification agreement. The Plaintiffs stated that a countersigned version of that agreement had been filed in the bankruptcy proceedings. The QWR also stated that the Plaintiffs were prevented from performing under the modification agreement because their payments were returned. Id.
In its response to the Plaintiffs' QWR, Nationstar responded that it did not have a record of an executed loan modification in the Plaintiffs' file. Nationstar acknowledged that the Plaintiffs had been approved for two modifications, but they stated that neither of those documents was signed by both parties. Nationstar identified the corrected modified agreements, sent to the Plaintiffs on March 25, 2013, but stated that the modification was not approved by Bank of America because the Plaintiffs did not sign and return the agreement. The response does not address the Plaintiffs' contention that a copy of the February 2012 modification, signed by Bank of America, was filed in the bankruptcy proceedings.
Subsequently, Wilmington instituted another non-judicial foreclosure. BFW was hired as counsel in these proceedings. The Colorado State Court denied Wilmington's motion for an order authorizing sale. The Court specifically found that, due to the uncertainty regarding the February 2012 modification agreement, Wilmington had failed to put forth evidence supporting a finding that there was a reasonable probability that a default justifying the sale had occurred. ECF 70-5.
The Plaintiffs filed this action on November 20, 2020, asserting federal and state law claims against the Defendants. The parties agree that Colorado law applies. II. APPLICABLE LAW
To succeed on a motion for summary judgment, the movant must demonstrate that (1) there is no genuine dispute of material fact; and (2) the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). When analyzing a motion for summary judgment, the court must "look at the factual record and the reasonable inferences to be drawn from the record in the light most favorable to the non-moving party." Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). However, the nonmoving party may not simply rest upon its pleadings at this stage; rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998).
Ultimately, the Court's inquiry on summary judgment is whether the facts and evidence identified by the parties present "a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable . . . or is not significantly probative . . . summary judgment may be granted." Id. at 249, 106 S.Ct. 2505.
III. PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
The Plaintiff has filed a motion for partial summary judgment, asking the Court to find as a matter of law that the Plaintiffs' Mortgage payments were excused, that there was no mortgage default, and that non-judicial foreclosure was improper. The Plaintiffs also ask the Court to enter summary judgment against BFW on liability. As a threshold, the Court notes that the Plaintiffs' motion is rather difficult to follow. While the Court appreciates zealous advocacy, characterization of the opposing party's conduct does not constitute legal argument. Where the legal standards and the facts supporting those legal standards are not set forth clearly, it becomes incredibly difficult for the Court to determine whether the summary judgment standard has been met. Nonetheless, the Court has carefully reviewed the arguments and evidence, and considers each of Plaintiffs' requests in turn.
A. Declaratory Judgment
The Plaintiffs ask the Court to find as a matter of law that their mortgage payments are excused. In the alternative, the Plaintiffs ask the Court to order a payment schedule as to some or all payments. The Plaintiffs argue that Bank of America repudiated its signed modification agreement by sending the Plaintiffs' payments back. The Plaintiffs argument on this issue is sparse, and it is directed largely to the "nast[iness]" of the Defendants' conduct. The Court, however, cannot grant summary judgment on this issue simply because the Plaintiff has asserted that the Defendants' conduct was nasty and outrageous. The Plaintiffs' argument fails to engage in or address any applicable legal standard.
The Defendants argue in response that the Plaintiffs have not established the existence of a contract. The Defendants specifically point to evidence that they argue suggests that the February 2012 Modification was not valid because it was not timely executed by Bank of America. The Defendants argue that the modification documents were expired at the time that they were purportedly executed by Bank of America, and a contract for modification therefore did not exist.
Here, clear disputes as to material facts exist, and summary judgment is thus not appropriate at this time. The Plaintiffs contend that the February 2012 modification constitutes a valid agreement, and they have cited to evidence in support of that argument. The Defendants argue that the February 2012 modification does not constitute a valid agreement, and they have cited to facts in support of their argument as well. Whether the February 12 modification was binding on the parties is at the very heart of this matter. Because facts underlying this issue are disputed, summary judgment is not proper. The Plaintiffs' motion for summary judgment on this issue is DENIED.
B. Unilateral Mistake
Shortly after Bank of America received the February 2012 modification document from the Plaintiffs, and before Bank of America executed that document, it contacted the Plaintiffs regarding an error in the terms of the February 2012 modification document. Bank of America then sent a subsequent corrected modified agreement to the Plaintiffs in March 2013. The Plaintiffs refused to sign the amended agreement. See ECF 83, p. 3 (admitted by Plaintiffs in ECF 90, p. 3).
The Defendants argue that the February 2012 modification document contained an error. Specifically, the Defendants contend that Bank of America determined that there had been an error calculating the unpaid principal balance. The Defendants contend that the January 2013 document contained corrections to that mistake. The Defendants argue that they were entitled to make the correction because the February 2012 modification included a statement that "Borrower agrees that if any document related to the Security Instrument, Note, and/or modification is lost, misplaced, misstated, inaccurately reflects the true and correct terms and conditions of the loan as modified, or is otherwise missing, Borrower(s) will comply with Lender's request to execute, acknowledge, initial and deliver to Lender any document Lender deems necessary."
The Plaintiffs argue that this provision is known as a "Document Correction Agreement," and that it permits the lender to correct only clerical mistakes in a document. In support of this argument, the Plaintiff cites to entries from the websites "123Notary" and "Just Answered, Real Estate Law." ECF 70, p. 11. The Plaintiffs argue that these web pages establish that the term "Document Correction Agreement" "ha[s] a recognized meaning in the world that does not encompass 'correcting' agreed upon major terms like the agreed loan balance." Id. The Plaintiffs state that "The Court can and should do its own research on this issue." Id. But it is not the Court's burden to establish that the Plaintiff is entitled to judgment as a matter of law; it is the Plaintiffs'. The Court cannot find that the Plaintiffs are entitled to judgment as a matter of law on this issue when the Plaintiffs have not actually cited to law in support of their argument.
The Defendants have cited to evidence that, at the very least, establishes a factual dispute as to whether the changes proposed in the corrected modified document fell within the scope of the provision. The Plaintiffs' motion for summary judgment on this issue is DENIED.
C. Plaintiffs Are Not Entitled To Judgment Against Wilmington, Nationstar, and BFW
The Plaintiffs' requests for summary judgment as to Defendants Wilmington Trust, Nationstar, and BFW all rely on this Court granting Plaintiffs' requests on the above issues. Because the Court declines to grant the Plaintiffs' motion for summary judgment as stated, supra, Plaintiffs' additional requests for summary judgment are also DENIED.
IV. DEFENDANTS NATIONSTAR AND WILMINGTON'S MOTION FOR SUMMARY JUDGMENT
Defendants Nationstar Mortgage LLC and Wilmington Trust, N.A. have also moved for summary judgment. Defendant Nationstar seeks summary judgment on Plaintiffs' RESPA claim (Claim I), Plaintiffs' claim for tortious interference with contract and prospective business relations (Claim V) and Plaintiffs' claim for intentional infliction of emotional distress (Claim VI). Defendant Wilmington seeks summary judgment on Plaintiffs' claim for declaratory judgment (Claim III).
A. RESPA
Nationstar seeks summary judgment as to Count I against it, alleging violations of RESPA. Nationstar argues that it is entitled to summary judgment on two bases. First, Nationstar argues that its response complied with RESPA's requirements. Second, even if their response did not comply with RESPA, Nationstar argues that Plaintiffs' claim fails because the Plaintiffs have not established that they suffered damages as a result of Nationstar's alleged noncompliance.
Pursuant to 12 U.S.C. § 2605, a loan servicer has a duty to respond to borrower inquiries. When a borrower submits a qualified written request, a lender must, within 30 days:
(A) make appropriate corrections in the account of the borrower, including the crediting of any late charges or penalties, and transmit to the borrower a written notification of such correction (which shall include the name and telephone number of a representative of the servicer who can provide assistance to the borrower);
(B) after conducting an investigation, provide the borrower with a written explanation or clarification that includes--
(i) to the extent applicable, a statement of the reasons for which the servicer believes the account of the borrower is correct as determined by the servicer; and
(ii) the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower; or
(C) after conducting an investigation, provide the borrower with a written explanation or clarification that includes--
12 U.S.C.A. § 2605 (e)(2). A borrower must also show actual damages from the servicer's noncompliance. Id. § 2405(f)(1)(A).(i) information requested by the borrower or an explanation of why the information requested is unavailable or cannot be obtained by the servicer; and
(ii) the name and telephone number of an individual employed by, or the office or department of, the servicer who can provide assistance to the borrower.
Nationstar argues that Plaintiff's RESPA claim must be dismissed because Nationstar complied with the requirements of § 2605(e). Nationstar argues that the Plaintiffs cannot establish that Nationstar failed to undertake an adequate investigation or that it failed to give statements of the reasons for which it believed the accounting is correct.
The Plaintiffs' argument in response is difficult to follow, but the Plaintiffs appear to argue that Nationstar's investigation and response was not reasonable or adequate, and they therefore violated RESPA. The Plaintiffs argue that the Nationstar's failure to identify the executed February 2012 modification, which was a part of the public record, rendered their investigation and response inadequate.
The Court agrees with the Plaintiffs that, at the very least, disputes as to material facts exist on this issue. That Nationstar failed to address the February 2012 modification in their response—notwithstanding that the Plaintiffs had indicated that a copy signed by Bank of America had been filed by Nationstar in the Bankruptcy proceedings—could lead a reasonable jury to find that Nationstar failed to conduct a reasonable investigation. Because disputes of material facts exist on this issue, summary judgment is not appropriate.
Nationstar secondarily argues that the Plaintiffs' RESPA claim fails because they have not shown actual damages from Nationstar's alleged noncompliance. Nationstar argues that the damages alleged by the Plaintiffs predate the 2017 QWR response, and therefore cannot support a violation. "To recover actual damages pursuant to § 2605(f)(1)(A), [a plaintiff] must adequately plead a causal link between [its] claimed damages and the specific RESPA violation committed by [the Defendant]." Ogden v. PNC Bank, No. 13-CV-01620-MSK-MJW, 2014 WL 4065617, at *8 (D. Colo. Aug. 15, 2014), aff'd, 599 F. Appx 331 (10th Cir. 2015); Henson v. Bank of Am., 935 F. Supp. 2d 1128, 1145 (D. Colo. 2013).
Nationstar argues that the injuries alleged by the Plaintiffs relate to the default and foreclosure proceedings beginning in years prior to Nationstar's 2017 response. Nationstar has identified evidence that, when asked about her reaction to the 2017 letter, the Plaintiff Mrs. Hunderman replied, "I don't recall specifically a reaction to a certain event . . ." ECF 71, p. 13. Nationstar also points to evidence that, when asked how they were harmed by Nationstar, the Plaintiffs point to Mrs. Hunderman's 2016 hospital stay, which predates the 2017 response.
The Plaintiffs' response on this issue does not address damages at all. The response on this issue, beginning at ECF 84, p. 9, restates Plaintiffs' general allegation that Nationstar violated RESPA. At page 11, the Plaintiffs appear to address damages, generally, arguing that "Plaintiffs will be entitled to an 'eggshell skull rule' instruction at trial." The eggshell skull doctrine provides that "a negligent defendant is liable for the resulting harm even though the harm is increased by the particular plaintiff's condition at the time of the negligent conduct." Schafer v. Hoffman, 831 P.2d 897, 900 (Colo. 1992). The Plaintiff argues that "in this case the evidence shows the Hundermans when from happy outgoing friendly people to stressed out recluses after years of mistreatment with Defendants trying to take their dream home . . . The portion caused by Nationstar is for the jury after they determine which torts on what dates Nationstar committed." But that is not what RESPA requires. RESPA requires a plaintiff to establish a causal connection between the alleged violation and the harm suffered. Failure to do so renders a plaintiff's claims inadequate as a matter of law.
While the Plaintiffs' briefing itself fails to offer any support on this issue, this Court nonetheless has an obligation at this stage to look at the factual record and the reasonable inferences to be drawn from the record in the light most favorable to the non-moving party. Self v. Crum, 439 F.3d at 1230. Based on the evidence identified by the Parties, the Court finds that there are least disputes as to the material facts on this issue. As stated, supra, a jury may find that Nationstar failed to adequately respond to the Plaintiffs' QWR. The evidence also establishes that, after responding to the Plaintiffs' QWR, the Defendants nonetheless instituted foreclosure proceedings against them. That the Plaintiffs were damaged by the Defendants' collective actions in the years preceding the response does not necessarily mean that the response itself could not also cause damage. The Plaintiffs here have alleged facts suggesting that Nationstar's purported failure to adequately respond to their QWR caused them physical and psychological harm. This evidence could also support a finding that the alleged harm was caused by Nationstar's failure to adequately investigate and respond to the Plaintiffs' inquiry. Because disputes as to material facts remain, Nationstar's motion for summary judgment on this issue is DENIED.
B. Declaratory Judgment
In Count III, the Plaintiffs seek declaratory judgment against Wilmington, asking the Court to find that Wilmington's conduct in returning Plaintiffs' payments excused further performance by the Plaintiffs under the note and deed of trust. Wilmington seeks summary judgment on this issue.
As discussed, supra, the parties dispute whether the February 2012 modification constituted a valid agreement. Whether the February 2012 modification represents a binding agreement is a fact that is material to the Plaintiffs' request for declaratory relief. Because a dispute as to this material fact remains, summary judgment on this issue is not proper. Wilmington's motion for summary judgment on this issue is DENIED.
In a single sentence, Wilmington argues that the Plaintiffs' claim is barred by the three-year statute of limitations for contract actions. It argues that the claim accrued no later than 2013, when the Hundermans brought suit against Bank of America to compel performance of the February 2012 modification documents. This argument, however, fails to account for the fact that the Plaintiffs did not even have a copy of the February 2012 Modification document signed by Bank of America at that time. It also fails to account for the subsequent legal proceedings. All in all, this argument is simply too sparse and unsupported for the Court to find that Wilmington is entitled to judgment as a matter of law on this issue.
C. Tortious Interference With Contract
In their fifth cause of action, the Plaintiffs allege that Nationstar tortiously interfered with their "highly likely settlement" with Wilmington by "simply and mechanically pushing [their] loan to a wrongful foreclosure." ECF 16, ¶¶ 60-61. In order to prove tortious interference with contract, a plaintiff must show: (1) a contract existed; (2) the defendant had knowledge of the contract; (3) the defendant interfered and induced the other party to breach the contract; and (4) the plaintiff was injured as a result. Westfield Dev. Co. v. Rifle Inv. Assoc., 786 P.2d 1112, 1117 (Colo. 1990) (en banc). Most importantly, the interference must be intentional and improper. Amoco Oil Co. v. Ervin, 908 P.2d 493, 501 (Colo. 1996); see also Nobody in Particular Presents, Inc. v. Clear Channel Commc'ns, Inc., 311 F. Supp. 2d 1048, 1115 (D. Colo. 2004).
In order to prove tortious interference with prospective business advantage, a plaintiff need not establish the existence of an underlying contract. Instead, a plaintiff must establish intentional and improper interference with another's prospective contractual relation. For liability to attach, defendant's intentional and improper interference must either induce or cause the third party not to enter into or continue relations. Id.
The Plaintiffs' allegation here stems from the "likely settlement" with Wilmington, and they therefore have not established the existence of a contract to support a claim for intentional interference with contract. To the extent that Plaintiff's claim five alleges intentional interference with contract, that claim is not supported by evidence in the record, and Nationstar is entitled to judgment as a matter of law.
Nationstar argues that it is also entitled to judgment on Plaintiffs' claim for tortious interference with prospective business advantage because "there are no facts showing Nationstar acted with the intent to interfere with a business relationship between Wilmington and the Hundermans." ECF 71, p. 16. "The second element of tortious interference with prospective business relations is that the improper conduct must be intentional." Nobody in Particular Presents, Inc., 311 F. Supp. 2d at 1119.
In their response, the Plaintiffs do not substantively address this argument. They argue first that an agent can be held liable for tortiously interfering with its principal's agreement, but that does not appear to be an argument raised or relied on by Nationstar. The Plaintiffs further argue that "[a] reasonable jury could find that the trust did not receive the payments, nor could the Hundermans pay, going forward, because of Defendant's behavior." ECF 84, p. 19. The Plaintiffs here, however, appear to mistake intent for causation. To state a claim for tortious interference with prospective business advantage, the Plaintiffs must identify evidence suggesting that Nationstar actually intended to interfere with the "highly likely settlement" with Wilmington. The Plaintiffs have not identified, nor is the Court able to discern, any evidence supporting such a finding. Because the Plaintiffs have failed to identify any evidence establishing intent, their claim fails as a matter of law. Nationstar's motion for summary judgment on count five is GRANTED.
D. Intentional Infliction Of Emotional Distress
In their sixth claim for relief, the Plaintiffs allege intentional infliction of emotional distress against Nationstar. To prevail on a claim for intentional infliction of emotional distress (IIED) under Colorado law, "a plaintiff must show that (1) the defendant engaged in extreme and outrageous conduct; (2) recklessly or with the intent of causing the plaintiff severe emotional distress; (3) causing the plaintiff severe emotional distress." Matthys v. Narconon Fresh Start, 104 F. Supp. 3d 1191, 1205 (D. Colo. 2015). Nationstar argues that the Plaintiffs claim for IIED fails because the Plaintiffs have not alleged extreme and outrageous conduct. The Court agrees.
The Colorado Supreme Court has held that "the level of outrageousness required for conduct to create liability for intentional infliction of emotional distress is extremely high: 'Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.' " Coors Brewing Co. v. Floyd, 978 P.2d 663, 666 (Colo. 1999). In Coors Brewing Co., the Colorado Supreme Court found that the plaintiff's allegations that Coors "engaged in an extensive criminal conspiracy involving illegal drugs and money laundering and that Coors fired [plaintiff] to scapegoat him for these crimes," did not constitute conduct "so extreme in degree" such that it would support a claim for IIED. This Court acknowledged in its order on the Defendants' motion to dismiss that "conduct, otherwise permissible, may become extreme and outrageous if it is an abuse by the actor of a position in which he or she has actual or apparent authority over the other, or the power to affect the other's interests." Matthys v. Narconon Fresh Start, 104 F. Supp. 3d 1191, 1205 (D. Colo. 2015). Where such a power imbalance exists, "the severity of the conduct that plaintiff need allege decreases as the defendant's level of control increases." Pearson v. Kancilia, 70 P.3d 594, 598 (Colo. App. 2003) (citing Spahn v. International Quality & Productivity Center, 211 F.Supp.2d 1072, 1076 (N.D. Ill. 2002)). Even taking this standard into account, however, the Court still cannot discern conduct that is sufficiently extreme or outrageous to support the Plaintiffs' claim for IIED here.
The Plaintiffs argue that "Defendants intentionally and repeatedly tried to take Plaintiffs' house over many years for the same unjustifiable reasons. The thing that made this case outrageous was the continuing nature of the actions . . . It is up to the jury to determine when and if the conduct cumulatively became sufficiently outrageous . . .". Again, however, the Plaintiffs confuse the required showing at this stage. In order to survive summary judgment, the Plaintiffs must point to evidence showing that Nationstar's conduct was outrageous. Here, the evidence suggests that there was confusion over the applicability of the February 2012 modification agreement. The evidence also suggests that the decision to foreclose was premised on the delinquency of the Plaintiffs' account. That the Plaintiffs dispute that their account was delinquent is not determinative, and it does not render Nationstar's conduct extreme or outrageous. Having considered all the evidence, the Court finds that Nationstar's conduct does not meet the exacting standard set forth in Colorado case law. Nationstar's motion for summary judgment on this issue is GRANTED.
V. BFW'S MOTION FOR SUMMARY JUDGMENT
Defendant BFW field a combined motion opposing Plaintiffs' request for summary judgment and a cross motion for summary judgment. In its motion, BFW moves for summary judgment on Plaintiffs' claim for violation of the Fair Debt Collection Practices Act (FDCPA). Pursuant to the FDCPA:
A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section . . . Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if . . . there is no present right to possession of the property claimed as collateral through an enforceable security interest.15 U.S.C. § 1692f(6).
BFW specifically argues that it is entitled to summary judgment because the Tenth Circuit has instructed that a law firm is not liable for alleged FDCPA violations if it reasonably relied on information from its client. BFW directs the Court to Solomon v. Baer & Timberlake, P.C., 504 F. Appx 702, 705 (10th Cir. 2012), in which the Tenth Circuit upheld the trial court's finding that a law firm debt collector "could not be held liable for any alleged misrepresentations about the amount to the debt because it reasonably relied upon information from its client, which it is permitted to do."
BFW argues that it reasonably relied upon the information that it received from its clients before initiating the nonjudicial foreclosure. BFW points to evidence that Plaintiffs were in default following years of nonpayment. BFW testified that it relied on that evidence when initiating the nonjudicial foreclosure. In their response, the Plaintiffs point to evidence suggesting that BFW knew or should have known of the purported issues with the foreclosure. See ECF 89-1, p. 7.
The parties' arguments on this issue reveal disputes as to material facts. Because the parties have presented conflicting facts regarding the reasonableness of BFW's reliance, the issue is not appropriately decided on summary judgment. For this reason, BFW's motion for summary judgment is DENIED.
VI. CONCLUSION
The Court therefore ORDERS as follows: 1. The Plaintiffs' Motion for Partial Summary Judgment, ECF 70, is DENIED. 2. Defendants Nationstar and Wilmington's Motion for Summary Judgment, ECF 71, is GRANTED in part and DENIED in part. a. The motion is GRANTED as to Plaintiffs' Counts V (tortious interference with contract and prospective business advantage) and VI (intentional infliction of emotional distress). b. The motion is DENIED as to Plaintiffs' Counts I (RESPA) and III (declaratory judgment); 3. Defendant BFW's cross motion for summary judgment is DENIED.