Paul Manos v. Freedom Mortgage Corporation ( 2022 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-1324
PAUL MANOS; MARGARET M. MANOS,
Plaintiffs - Appellants,
v.
FREEDOM MORTGAGE CORPORATION,
Defendant - Appellee.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Graham C. Mullen, Senior District Judge. (3:19-cv-00578-GCM)
Submitted: March 15, 2022 Decided: March 24, 2022
Before MOTZ, HARRIS, and RICHARDSON, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: M. Shane Perry, COLLUM & PERRY, Mooresville, North Carolina, for
Appellants. John J. Berry, Pittsburgh, Pennsylvania, David A. Zulandt, DINSMORE &
SHOHL LLP, Cleveland, Ohio, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Paul and Margaret Manos (“Plaintiffs”) filed a complaint against Freedom
Mortgage Corporation (“Freedom”) pursuant to the Fair Credit Reporting Act (“FCRA”),
15 U.S.C. §§ 1681 to 1681x, the North Carolina Unfair and Deceptive Trade Practices Act
(“NCUDTPA”), N.C. Gen. Stat. § 75-1.1 (LexisNexis 2021), and the North Carolina Debt
Collection Act (“NCDCA”), N.C. Gen. Stat. §§ 75-50 to 75-56 (LexisNexis 2021). The
district court granted Freedom’s motion for summary judgment. On appeal, Plaintiffs
argue that there existed genuine disputes of material fact that should have precluded
summary judgment.
We review de novo the district court’s order granting summary judgment. Calloway
v. Lokey, 948 F.3d 194, 201 (4th Cir. 2020). “A district court ‘shall grant 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.’” Jacobs v. N.C. Admin. Off. of the
Cts., 780 F.3d 562, 568 (4th Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). A genuine dispute
exists “if a reasonable jury could return a verdict for the nonmoving party.” Id. (internal
quotation marks omitted). In determining whether a genuine issue of material fact exists,
this court “view[s] the facts and all justifiable inferences arising therefrom in the light most
favorable to . . . the nonmoving party.” Id. at 565 n.1 (internal quotation marks omitted).
However, “the nonmoving party must rely on more than conclusory allegations, mere
speculation, the building of one inference upon another, or the mere existence of a scintilla
of evidence.” Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d
532, 540 (4th Cir. 2015) (internal quotation marks omitted).
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Plaintiffs first argue that Freedom violated the FCRA by reporting misleading
information and that Freedom’s investigations were not reasonable and in compliance with
the FCRA. The FCRA prohibits those who furnish information to credit reporting agencies
from providing information they know to be false and requires them to correct information
discovered to be false. 15 U.S.C. § 1681s-2(a)(1), (2). A credit report is inaccurate if it
reports misleading information. Saunders v. Branch Banking and Tr. Co., 526 F.3d 142,
148 (4th Cir. 2008). The FCRA also requires that a creditor conduct a reasonable
investigation after receiving notice of a dispute. 15 U.S.C. § 1681s-2(b)(1)(A); Johnson v.
MBNA Am. Bank, N.A., 357 F.3d 426, 431 (4th Cir. 2004). Whether an investigation was
reasonable “is based on an evaluation of information within the furnisher’s possession,
such as correspondence between the consumer and the furnisher, the data identified by the
reporting agency as disputed, and the furnisher’s other records relating to the disputed
account.” Daugherty v. Ocwen Loan Servicing, LLC, 701 F. App’x 246, 253 (4th Cir.
2017) (No. 16-2243).
In this case, Freedom did not omit any pertinent information that would render its
report misleading, nor did it include information that was false. Rather, Freedom correctly
reported the undisputed fact that Plaintiffs’ March 2018 mortgage payment was received
more than 30 days late. Although Plaintiffs assert that Freedom’s report was misleading
for failing to disclose that Plaintiffs made a good faith effort to pay on time, Plaintiffs’
evidence is insufficient to create a disputed issue of material fact regarding whether they
made a good faith effort to pay on time. As for Freedom’s investigation, the record reveals
that each time Plaintiffs disputed Freedom’s report, Freedom conducted an investigation
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that included review of Plaintiffs’ accounts—including the payment history, servicing
notes, recordings, web logs, and cash management records—and determined that
Plaintiffs’ March 2018 payment was submitted more than 30 days late. Plaintiffs have not
produced any evidence showing that Freedom’s investigation was unreasonable. As such,
we conclude that the district court did not err in granting summary judgment with respect
to this claim.
Turning to Plaintiffs’ NCUDTPA claim, the NCUDTPA states that “unfair or
deceptive acts or practices in or affecting commerce are declared unlawful.” N.C. Gen.
Stat. § 75-1.1(a). “In order to establish a prima facie claim for unfair trade practices, a
plaintiff must show: (1) the defendant committed an unfair or deceptive act or practice, (2)
the action in question was in or affecting commerce, and (3) the act proximately caused
injury to the plaintiff.” Bumpers v. Cmty. Bank of N. Va., 747 S.E.2d 220, 226 (N.C. 2013)
(alteration and internal quotation marks omitted).
Plaintiffs argue that Freedom’s failure to disclose its policy of requiring payment to
be postdated if made after 11:00 p.m. was deceptive and in violation of the NCUDTPA,
and they dispute the district court’s determination that the NCDCA supplants the
NCUDTPA because their claim under the NCUDTPA does not specifically pertain to debt
collection. We conclude that, regardless of whether the NCDCA supplanted the
NCUDTPA, the court correctly determined that Plaintiffs failed to establish a NCUDTPA
claim. “[W]hether an act or practice is an unfair or deceptive practice that violates N.C.
Gen. Stat. § 75-1.1 [is] a question of law for the court.” In re Fifth Third Bank, N.A., 719
S.E.2d 171, 176 (N.C. Ct. App. 2011) (alterations and internal quotation marks omitted).
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“A practice is unfair . . . when it offends established public policy as well as when the
practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to
consumers.” Id. (internal quotation marks omitted). Failing to disclose information has
been considered deceptive when it rises to the level of a misrepresentation. Kron Med.
Corp. v. Collier Cobb & Assoc., Inc., 420 S.E.2d 192, 196 (N.C. Ct. App. 1992).
Plaintiffs failed to produce any evidence that Freedom’s alleged nondisclosure of
its postdating policy was unfair or deceptive. Freedom had a banner on its website
notifying customers that payments made after 11:00 p.m. would be posted the following
day and had a system in place to notify customers attempting to make online payments
after 11:00 p.m. of how to properly submit their payment. Moreover, Plaintiffs
successfully submitted a payment after 11:00 p.m. in February 2018 following Freedom’s
procedure. Given the undisputed evidence of constructive and actual disclosure, we find
that the district court did not err in granting summary judgment with respect to Plaintiffs’
NCUDTPA claim.
Finally, Plaintiffs argue that the district court erred in granting summary judgment
with respect to their NCDCA claim under N.C. Gen. Stat. § 75-55(2) because it improperly
weighed the evidence and did not view the evidence in the light most favorable to them.
To state a claim under the NCDCA, “[f]irst, the obligation owed must be a ‘debt’; second,
the one owing the obligation must be a ‘consumer’; and third, the one trying to collect the
obligation must be a ‘debt collector.’” Green Tree Servicing LLC v. Locklear, 763 S.E.2d
523, 527 (N.C. Ct. App. 2014) (internal quotation marks omitted). Then, the three
requirements of a NCUDTPA claim must be met. Reid v. Ayers, 531 S.E.2d 231, 235 (N.C.
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Ct. App. 2000). Section 75-55(2) specifically prohibits a debt collector from collecting a
late fee by unconscionable means.
Freedom’s records showed that an error message was displayed after Plaintiffs
attempted to submit their payment after 11:00 p.m., that no confirmation number was sent
after the attempted payment, and that Freedom attempted to call Plaintiffs numerous times.
Moreover, Plaintiffs admitted that they received two letters from Freedom notifying them
of the overdue payment, but they did not open the letters. Thus, the district court correctly
determined that no jury could find that Plaintiffs properly submitted their March 2018
payment, or that Freedom failed to provide notice to Plaintiffs that their payment was not
properly submitted. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (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.”).
Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
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