Kurt C Nelson v. Safeguard Properties LLC

STATE OF MICHIGAN
COURT OF APPEALS
KURT C. NIELSON, UNPUBLISHED
November 9, 2017
Plaintiff-Appellant,
v No. 333244
Oakland Circuit Court
SAFEGUARD PROPERTIES, LLC, LC No. 2015-149178-NZ
Defendant-Appellee.
Before: MURRAY, P.J., and FORT HOOD and GLEICHER, JJ.
PER CURIAM.
Defendant, Safeguard Properties, works with mortgage companies nationwide to secure
properties that have been vacated following a mortgagor’s default. In this case, Safeguard’s
agents entered a home that was clearly occupied but secured it anyway, resulting in
inconvenience and expense to the home owner. The circuit court dismissed the home owner’s
lawsuit in its entirety. Although the home owner could not establish that Safeguard was a “debt
collector” for purposes of several statutory claims, he did present evidence that the individuals
who entered his home were Safeguard’s agents and that Safeguard could be held liable on
trespass and conversion theories. We affirm in part, vacate in part, and remand for further
proceedings consistent with this opinion.
I. BACKGROUND
In April 2015, Kurt Nielson was in default on his mortgage loan held by CitiMortgage,
Inc., but the mortgagee had yet to initiate foreclosure proceedings. On April 22, Nielsen
received a letter from Citibank Preservation instructing him to call within 10 days to advise
whether his “home was occupied or vacant.” Nielson complied and Citibank Preservation
acknowledged receipt of Nielson’s call. Even so, that weekend while Nielson was away,
workers hired by Safeguard entered Nielsen’s home to “secure” it. The workers “rummaged
through” Nielson’s belongings, emptied his refrigerator, helped themselves to some of his
personal property, and let his cat out. They also “winterized” the plumbing and locked him out
of the house by attaching lock boxes on his doors. When Nielsen returned and discovered that he
could not get into his house, his neighbor delivered a door tag that had been left with him. The
tag advised that the workers found the home “vacant” and therefore Safeguard Properties, acting
on behalf of Nielson’s mortgagee, “secured” the property and added it to a “monthly
maintenance schedule.” The notice provided the number to “P & P Customer Service” to call in
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the event the home became “unsecure” or an emergency arose. It advised, “When calling, please
have the full address and zip code of the property so that we can efficiently assist you.”
Nielsen called the number and received the code to get into his house. Inside his home,
Nielsen found a letter explaining the mortgagee’s “right to inspect [the] property to verify
occupancy and to determine whether securing the property is necessary.” The letter advised:
Based on the initial inspection of the exterior of your home, it was determined
that the property was vacant and in need of securing. As a result, the securing
process was begun by changing a lock on one door to the home all other locks
remain accessible as before. After gaining entry to the property, however, it was
determined that the property was occupied. Therefore, no further work was
performed, no items were removed and the home was locked.
The writer “sincerely apologize[d] for this inconvenience” and provided another number to call
“so we can make immediate arrangements to rectify this matter.”
Nielsen claims that Safeguard entered the house on two additional occasions, once
“pil[ing] [his] personal property in his garage,” and once “track[ing] dirt and debris throughout
[the] home.” At his deposition, Nielsen conceded that Safeguard never contacted him “to
attempt to collect money due to your lack of payment on your mortgage.”
Nielson subsequently filed suit alleging 11 different causes of action against Safeguard:
violation of the federal Fair Debt Collection Practices Act, 15 USC 1692 et seq. (FDCPA);
violation of the Michigan Regulation of Collection Practices Act, MCL 445.251 et seq.
(MRCPA); violation of the Michigan Occupational Code, MCL 339.901 et seq. (MOC);
violation of the Michigan Consumer Protection Act, MCL 445.901 et seq. (MCPA); “exemplary
damages;” trespass to real property; trespass to personal property; “conversion and treble
damages;” intentional infliction of emotional distress; statutory trespass under MCL 750.552;
and “invasion of privacy/tortious intrusion.”
Before the close of discovery, Safeguard sought summary disposition pursuant to MCR
2.116(C)(10). In relation to the FDCPA, MRCPA, MOC, and MCPA claims, Safeguard argued
that it was not a “debt collector” as contemplated by the acts and therefore could not liable for
any statutory violations. In relation to the tort counts, Safeguard asserted that it used
independent contractors, rather than employees, to secure Nielson’s property and could not be
held liable for their wrongdoing. The court agreed and dismissed Nielson’s complaint in its
entirety. The court also rejected Nielson’s bid to add a negligence count.
Nielson now appeals the circuit court’s dismissal of his trespass and conversion counts,
as well as his challenges based on the FDCPA, MRCPA, and MOC.
II. SAFEGUARD IS NOT A “DEBT COLLECTOR”
The circuit court properly dismissed Nielson’s claims under the FDCPA. MRCPA, and
MOC. Those acts are inapplicable as Safeguard is not a “debt collector” as provided in the acts.
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We review de novo a lower court’s summary disposition ruling. Zaher v Miotke, 300
Mich. App. 132, 139; 832 NW2d 266 (2013).
A motion under MCR 2.116(C)(10) “tests the factual support of a
plaintiff’s claim.” Walsh v Taylor, 263 Mich. App. 618, 621; 689 NW2d 506
(2004). “Summary disposition is appropriate under MCR 2.116(C)(10) if there is
no genuine issue regarding any material fact and the moving party is entitled to
judgment as a matter of law.” West v Gen Motors Corp, 469 Mich. 177, 183; 665
NW2d 468 (2003). “In reviewing a motion under MCR 2.116(C)(10), this Court
considers the pleadings, admissions, affidavits, and other relevant documentary
evidence of record in the light most favorable to the nonmoving party to
determine whether any genuine issue of material fact exists to warrant a trial.”
Walsh, 263 Mich. App. at 621. “A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open
an issue upon which reasonable minds might differ.” West, 469 Mich. at 183.
[Zaher, 300 Mich. App. at 139-140.]
We also review de novo matters of statutory interpretation. Stanton v City
of Battle Creek, 466 Mich. 611, 614; 647 NW2d 508 (2002). The goal of statutory
interpretation is to discern and give effect to the intent of the Legislature. Odom v
Wayne Co, 482 Mich. 459, 467; 760 NW2d 217 (2008). To that end, the first step
in determining legislative intent is the language of the statute. Id. If the statutory
language is unambiguous, then the Legislature’s intent is clear and judicial
construction is neither necessary nor permitted. Id. [Barclae v Zarb, 300 Mich
App 455, 466-467; 834 NW2d 100 (2013).]
A. FDCPA
The FDCPA prohibits a debt collector from “us[ing] any false, deceptive, or misleading
representation or means in connection with the collection of any debt.” 15 USCA 1692e. The
FDCPA regulates only the conduct of those who fall within the act’s definition of a “debt
collector.” Ruth v Triumph Partnerships, 577 F3d 790, 796 (CA 7, 2009). 15 USC 1692a(6)
defines “debt collector” as follows:
The term “debt collector” means any 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.
Notwithstanding the exclusion provided by clause (F) of the last sentence of this
paragraph, the term includes any creditor who, in the process of collecting his
own debts, uses any name other than his own which would indicate that a third
person is collecting or attempting to collect such debts. For the purpose of section
1692f(6) of this title, such term also includes any person who uses any
instrumentality of interstate commerce or the mails in any business the principal
purpose of which is the enforcement of security interests. [Emphasis added.]
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The two italicized segments of this subsection give rise to two different definitions of the
term “debt collector,” and both are relevant in this case. The first italicized section refers to the
more typical understanding of a debt collector as a person that regularly collects or attempts to
collect debts. The second is more complicated, as it references yet another subsection of the
FDCPA, 15 USC 1692f(6), which provides:
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:
* * *
(6) Taking or threatening to take any nonjudicial action to effect
dispossession or disablement of property if--
(A) there is no present right to possession of the property claimed as
collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or disablement.
The second part of the definition of “debt collector” applies to repossession agents and similar
entities that would otherwise fall outside the scope of the first definition of a “debt collector.”
An unpublished federal district court opinion aptly summarizes the parameters of this species of
debt collector:
Although a repossession agency generally is not considered to be a “debt
collector,” 15 [USC 1692a] creates a limited exception where the ‘principal
purpose’ of the business is the enforcement of security interests and it violates 15
[USC 1692f(6)] by dispossessing an individual of property where “there is no
present right to possession.” [Lee v Toyota Motor Sales USA Inc, unpublished
order of the federal Northern District of California, entered September 6, 2016
(Docket No. 16-CV-03195-JCS).]
Thus, the FDCPA describes two types of “debt collectors:” (1) a person who regularly
collects or attempt to collect, directly or indirectly, debts owed or due or asserted to be owed or
due another, and (2) a person “whose business has the principal purpose of enforcing security
interests but who does not otherwise satisfy the definition of a debt collector[,]” and who acts in
a manner consistent with § 1692f(6). Kaltenbach v Richards, 464 F3d 524, 527 (CA 5, 2006).
Nielsen asserts that Safeguard satisfies one or the other of these two definitions. The evidence
does not support his claims.
The first definition of “debt collector” captures any person who “regularly collects or
attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due
another.” Nielsen contends that Safeguard “regularly collects or attempts to collect . . .
indirectly” debts owed to mortgage companies. Nielsen appears to rely on “the paperwork” left
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with his neighbor and inside the house as his evidence that Safeguard indirectly attempted to
collect a debt when it entered and secured his home.
In Romine v Diversified Collection Servs, Inc, 155 F3d 1142, 1147 (CA 9, 1998), the
United States Court of Appeals for the Ninth Circuit held that a service offered by defendant
Western Union that “was ‘specially developed for the credit and collections industry’ ” satisfied
the “indirect” debt collection method. Western Union mailed debtors a notice that there was a
“personal delivery telegram” being held for them that could be delivered only if the debtor
supplied his or her telephone number. The recipient was told to call a Western Union operator to
request the telegram, so that a caller ID system could record his or her unlisted telephone
number. When the debtor called, the operator elicited the caller’s personal information and read
a message instructing the caller to “immediately” contact an office offering debt refinancing
services. Id. at 1144. Western Union advertised that this service would “ ‘stimulate recoveries
dramatically.’ ” Id. at 1143-1144. The Court summarized that Western Union “obtain[ed]
debtors’ telephone numbers by eliciting responses to personal delivery telegrams, then
disseminate[d] the unlisted numbers to creditors and collection agencies.” Id. at 1143. The
Ninth Circuit concluded that this activity could constitute “an indirect attempt to collect a debt.”
Id. at 1147.1
The United States Court of Appeals for the Third Circuit relied on Romine in Siwulec v
JM Adjustment Servs, LLC, 465 Fed Appx 200 (CA 3, 2012), which involved a somewhat
different approach to indirect debt collection. The defendant, JMAS, hand-delivered letters from
Chase, the recipient’s lender, seeking information to assist Chase “in ‘resolv[ing]’ ” a “ ‘past
due’ ” loan. Id. at 201 (alteration in orginal). According to the plaintiff’s complaint, after she
accepted the letter, the JMAS representative dropped some documents on her lawn “contain[ing]
standard instructions and procedures provided by JMAS to its agents.” Id. The documents did
not include any of the disclosures required under the FDCPA. Id.
JMAS contended that it was merely a “messenger service,” not a “debt collector.” The
Third Circuit concluded otherwise, summarizing:
Given the facts as alleged, JMAS is no mere messenger service for debt
collectors. Compare Udis v Universal Communications Co, 56 P3d 1177 (Colo
App, 2002) (finding Romine persuasive on interpretation of Colorado’s analogous
FDCPA and holding that a company that markets its services gathering debtor
contact-information to debt collectors is covered by the Act) with Laubach v
Arrow Serv Bureau, Inc, 987 F Supp 625, 631-632 (ND Ill, 1997) (holding that
printing and mailing of collection letters on behalf of debt collector did not render
mailing company debt collector for FDCPA purposes). In addition to delivering
letters, JMAS representatives are instructed to urge alleged debtors, in person, to
call the creditor while they watched. They were to gather contact information
from the debtors directly, to speak with their neighbors, and to conduct a visual
1
The Colorado Court of Appeals adopted this analysis in an almost identical case, Udis v
Universal Communications Co, 56 P3d 1177, 1179 (Colo App, 2002).
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assessment of their properties. These activities bring JMAS out of any messenger
exception and into the coverage of the FDCPA, which was certainly intended to
regulate in-person debt collection visits.
Consequently, we find that the amended complaint sufficiently alleged
that JMAS was a debt collector for purposes of the FDCPA because the principal
purpose of JMAS's business is the collection of debts and JMAS regularly
engages in indirect debt collection. [Siwulec, 465 Fed Appx at 204.]
Federal district courts in the Northern District of Illinois have invoked the reasoning in
Romine and Siwulec in several cases involving Safeguard and other “mortgage service”
companies, and Nielsen relies heavily on these district court cases in his argument.
Unfortunately for Nielsen, the facts of Romine, Siwulec, and the Illinois cases are distinguishable
from his case.
For example, Simpson v Safeguard Props, LLC, unpublished opinion of the federal
Northern District of Illinois, issued June 12, 2013 (Docket No. 13-CV-2453), arose in the context
of a motion filed under Fed R Civ P 12(b)(6) seeking judgment on the pleadings. Simpson
claimed that after her mortgage company (Midland) informed her that she was in default,
Safeguard representatives left five notes on her door, described by the district court as follows:
All five notes were identical, and the front of each one read, “IMPORTANT
INFORMATION ENCLOSED[.]” The reverse side of each note included the
following instructions: “IMPORTANT[,]” “PLEASE CALL[,]” “PLEASE BE
READY TO GIVE YOUR ACCOUNT NUMBER[,]” and “WE ARE
EXPECTING YOUR CALL TODAY.” A phone number was handwritten in a
space provided on each note, the same number as the one Midland Mortgage
listed for its loan counselors in the notice of default. [Id., slip op at 2 (emphasis
and alteration in original).]
Simpson alleged that Safeguard’s agents left the notes while performing “field agent” services
for Midland, in violation of the three provisions of the FDCPA. Id.
Safeguard insisted that it was not a “debt collector” as defined by the FDCPA, and
accordingly was entitled to summary judgment. The district court determined that based on the
pleadings, Simpson had properly stated a claim:
Simpson alleges that Safeguard . . . markets its services to mortgage
companies with delinquent and defaulted borrowers. The complaint further states
that Safeguard advertises field services that it provides to its clients, and among
these services are communicating with delinquent borrowers on behalf of
mortgage companies, contacting mortgagors to request that they call mortgage
companies, and reporting back to mortgage companies whether it has made
contact with mortgagors and regarding the condition of mortgaged properties.
These are well-pleaded factual allegations that the court must accept as true.
Although Simpson does not allege that Safeguard collects or attempts to
collect debts on behalf of mortgage companies, entities that contact consumers
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attempting to facilitate communication with creditors have been found to be “debt
collectors.” See [Siwulec, 465 F Appx at 204] (holding that field service in which
an agent contacts and encourages a debtor to call the creditor is more than “mere
messenger service for debt collectors”), [Romine, 155 F3d at 1149] (holding that
Western Union’s practice of disseminating to creditors telephone numbers that
were obtained by eliciting personal responses to telegrams sent to debtors goes
“beyond mere information gathering or message delivery”). Safeguard argues
that the facts in Simpson’s complaint demonstrate that Safeguard is merely a
messenger. However, the allegation that Safeguard markets its services to
mortgage companies makes it reasonable to infer that Safeguard attempts to
regularly facilitate the collection of debts, which the court finds qualifies under §
1692a(6) as “regular[] . . . attempts to collect, . . . indirectly, debts . . . asserted to
be owed or due another.” Because the court must draw this inference, as it must
draw all reasonable inferences in Simpson’s favor, it also finds that the complaint
sufficiently alleges that Safeguard is a debt collector. [Id., slip op at 3-4.]
A second chapter of Simpson recently unfolded following cross motions for summary
judgment filed under FRCP 56, Simpson v Safeguard Props, LLC, unpublished opinion of the
federal Northern District of Illinois, issued September 28, 2017 (Docket No. 13-CV-02453). The
basic facts described in the court’s initial opinion remained unchanged. In addition, the court
noted that Safeguard had admitted that it markets its services to mortgage companies, “refers to
itself as a ‘privately held mortgage field services company’ that ‘inspects and maintains
defaulted and foreclosed properties for mortgage service companies, lenders, investors, and other
financial institutions,’ ” and “advertises ‘communicating with delinquent borrowers’ as a service
it provides.” Id., slip op at 4. Safeguard classified its activities at the Simpson home as “contact
attempt inspection” (CAI). Id. Other services provided by the company include “cutting the
grass, winterizing pipes and utilities, and installing a lock box if the property becomes vacant.”
Id. Door hangers are left if the property is occupied. Id.
The district court denied summary judgment to either side, ruling that disputed evidence
necessitated a trial. Id., slip op at 8. In finding a triable issue for the plaintiff, the court relied on
the placement of the door hangers demanding a call to the mortgage company (assuming the
plaintiff could prove that they were designed by Safeguard) in combination with the fact that
Safeguard was “ ‘dispatched to the homes of particularly delinquent debtors as part of
[Midland’s] debt collection efforts.’ ” Id., slip op at 9, 12. This evidence supported Simpson’s
claim that Safeguard indirectly attempted to obtain payment “through personal solicitation,”
thereby rendering Safeguard a debt collector. Id., slip op at 12-13. The court concluded:
Weighed as a whole, the summary judgment evidence could support a jury
decision for either side on whether Safeguard is a “debt collector” when it
performs its [CAIs]. If inclined to see things Simpson’s way, the [CAIs], a jury
could decide, have a principal purpose of encouraging a debtor, with all the
subtext of a visible reminder of an in-person visit and a handwritten note (five in
Simpson’s case), to call Midland, so it can attempt to obtain payment for debt. . . .
The contrary conclusion, consistent with Midland’s Rule 30(b)(6) depositions and
the undisputed fact that Safeguard receives limited information from Midland,
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would also be reasonable with the benefit of inferences favorable to Safeguard.
[Id., slip op at 13-14.]
A handful of other Northern District of Illinois cases offer facts closer to those of the case
at hand, in which Safeguard or other “mortgage service” representatives actually entered a home
and “secured” it. Notably, however, all of the cases Nielsen cites involve motions for summary
judgment on the pleadings rather than motions filed after discovery.
In Schlaf v Safeguard Props, LLC, unpublished order of the federal Northern District of
Illinois, entered February 16, 2016 (Docket No. 15-CV-50113), slip op at 2, the plaintiff’s
mortgage company “hired Safeguard to determine the physical status of plaintiff’s home,
including whether it was abandoned, and to conduct a contact inspection.” Safeguard performed
the inspection and left a door hanger instructing the plaintiff to call the mortgage company and to
have his account number ready. Id. The plaintiff’s complaint also quoted extensively from
Safeguard’s website, which advertised that Safeguard’s inspectors “ ‘will make up to three
attempts on behalf of mortgage servicers and lenders to provide contact information to
delinquent borrowers,’ ” would leave door tags “ ‘in an effort to have the mortgagor call the
client,’ ” and recommended that “ ‘[CAIs] are a servicer’s best option for contacting borrowers
who are unable to be reached.’ ” Id., slip op at 1-2. The district court found that Safeguard was
a “debt collector” under 15 USC 1692a(6), reasoning:
Safeguard sold a service to make three attempts at a face-to-face encounter with a
debtor, and to leave a written message, all with the alleged intent that the debtor
should contact the mortgage servicer to assist in that servicer’s collection efforts.
As with Simpson, those allegations are sufficient to plausibly suggest that
Safeguard “attempts to collect, directly or indirectly, debts owed or due or
asserted to be owed or due another.” [Id., slip op at 3-4 (emphasis added).]
Here, no evidence supports that Safeguard qualifies as a debt collector under the first
definition. The record is devoid of evidence substantiating that Safeguard regularly collects or
attempts to collect debts directly. Nielsen produced no communications from Safeguard to
himself or others seeking payment. Nor do the record facts support that Safeguard’s
“securitization” services were performed as part of a direct effort to collect payment.2
Relying on the “indirect” language of the statute, Nielsen argues that “[t]he door hanger
left with Plaintiff’s neighbor, is a communication in connection with the collection [of] a debt,
despite not explicitly mentioning any debt.” The door hanger includes only one brief reference
to Nielsen’s mortgage company (“Safeguard Properties, on behalf of the mortgage company, will
be maintaining the property to ensure it does not sustain any additional damages.”). This
statement is far removed from the language on the door hangers found to be indirect attempts at
2
“[T]he Act’s substantive provisions indicate that debt collection is performed through either
‘communication,’ . . . § 1692c, ‘conduct,’ . . . § 1692d, or ‘means,’ . . . §§ 1692e, 1692f. These
broad words suggest a broad view of what the Act considers collection.” Glazer v Chase Home
Finance LLC, 704 F3d 453, 461 (CA 6, 2013).
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debt collection in the Northern District of Illinois cases. Those door hangers instructed the
homeowners to call their lenders and to have their mortgage information at hand when they did.
The unspoken threat inferable from the door hangers in combination with the lock-outs was: pay
your mortgage if you want this to stop. As the district court put it, the evidence in the Illinois
cases supported that Safeguard indirectly attempted to facilitate the lender’s collection of a
mortgage debt. Here, however, the communication did not even mention a debt.
Indisputably, Safeguard’s conduct was unwanted, unnecessary (the home was lived-in,
not abandoned or vacant), and, as Nielsen alleges, “intrusive.” But any connection with debt
collection was so indirect and insubstantial that deeming Safeguard a “debt collector” under the
FDCPA would extend the reach of the statutory definition well beyond its plain meaning. The
operative sentence defines a debt collector as someone “who regularly collects or attempts to
collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” Nielsen
has presented no evidence of the “regularity” of Safeguard’s alleged collection efforts, or that
debt collection was an indirect reason for Safeguard’s visits to his home. The evidence supports
only one reasonable inference: Safeguard’s acts were in furtherance of the purpose stated in the
door hanger and the letter it left in Nielsen’s home, which was to secure the property.
Safeguard’s belief that “securitization” was warranted was mistaken. But that fact does not
transform its acts into debt collection activity.
Nor can Nielsen satisfy the second definition of a “debt collector.” Again, by way of
reminder, the operative language for the second definition is:
For the purpose of section 1692f(6) of this title, such term also includes
any person who uses any instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the enforcement of security
interests. [15 USC 1692a (emphasis added).]
15 USC 1692f(6) provides:
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:
* * *
(6) Taking or threatening to take any nonjudicial action to effect
dispossession or disablement of property if--
(A) there is no present right to possession of the property claimed as
collateral through an enforceable security interest;
(B) there is no present intention to take possession of the property; or
(C) the property is exempt by law from such dispossession or disablement.
Nielsen claims that by entering his home, placing locks on his doors, “winterizing” the
plumbing, emptying his refrigerator, and taking some of his personal property, Safeguard
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nonjudicially dispossessed or disabled his property without a right to take possession of the
property. A number of courts have determined that Safeguard or similar companies met this
definition of a “debt collector,” at least at the pleading stage.
In Flippin v Aurora Bank, FSB, No. unpublished opinion of the Northern District of
Illinois, issued August 8, 2012 (Docket No. 12-CV-1996), slip op at 1, Mortgage Contracting
Services, Inc., “changed the locks on the [plaintiff’s] home and ‘winterized’ it by turning off the
water.” Like Safeguard, MCS was “in ‘the business of securing and preserving property for
mortgage lenders and others in the foreclosure industry.’ ” Id., slip op at 3. According to the
plaintiff, MCS personnel also took jewelry and other valuable property from the home. Id., slip
op at 2. The district court refused to dismiss the case on the pleadings. It found the plaintiff’s
allegations that her mortgage company had hired MCS to turn off the water and to change the
locks adequate at the pleading stage to support a claim that MCS operated as a “debt collector”
under § 1692a(6). Id., slip op at 4.
The facts of Bywater v Wells Fargo Bank, NA, unpublished opinion of the Northern
District of Illinois, issued March 24, 2014 (Docket No. 13-CV-4415), also resemble those
presented there. The plaintiff’s FDCPA complaint alleged that after she had defaulted on her
mortgage, her mortgagee instructed LPS Field Services to “winterize” her home, which included
changing the locks. LPS arranged for subcontractors to bid on this job; A-Son’s Construction,
Inc. won the bid. Id., slip op at 2. A-Son’s forcibly entered the plaintiff’s home, changed her
locks, and, according to the complaint, stole personal items. Id., slip op at 2-3. LPS and A-
Son’s moved for summary judgment on the pleadings, contending that they were not “debt
collectors” under the FDCPA. Id., slip op at 10.
The court denied summary judgment, relying on the second definition of “debt collector:”
One of plaintiffs’ allegations against LPS and A-Son’s, however, permits
plaintiff to take advantage of a broader definition of “debt collector.” Under 15
[USC 1692f(6)], it is an “unfair or unconscionable” practice violative of the
FDCPA to take or threaten “nonjudicial action to effect dispossession or
disablement of property,” if, among other things, there is no present right to
possession of the property through an enforceable security interest. Section
1692a(6) expands the definition of “debt collector” for purposes of liability under
section 1692f(6); for purposes of that subsection, a debt collector “also includes
any person who uses any instrumentality of interstate commerce or the mails in
any business the principal purpose of which is the enforcement of security
interests.” [Id.]
The court ruled that plaintiff’s allegations sufficed to bring LPS and A-Son’s within this
definition. The court observed that the plaintiff claimed that LPS and A-Son’s had acted “in
concert” as “part of an effort to evict her and her family from the home[.]” Id., slip op at 11.
These allegations brought the defendants within the scope of subsection 1692f(6), the court
ruled: “The complaint alleges that both LPS and A-Son’s are in the business of securing
properties for mortgage lenders in connection with foreclosures, . . . which is sufficient to bring
them within the scope of section 1692a(6)’s expanded definition of a ‘debt collector.’ ” Id.
Several other cases cited in Bywater employ the same analysis and reach the same result.
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As Safeguard points out, there is contrary authority as well. The plaintiff in Alqaq v
CitiMortgage, Inc, unpublished opinion of the Northern District of Illinois, issued April 29, 2014
(Docket No. 13-CV-5130), slip op at 1, brought a putative class action against Safeguard and
other defendants, alleging that the class members were threatened with “dispossession or
disablement of their homes and [actually] dispossessed before” foreclosure judgments issued.
The facts alleged in the complaint included that after foreclosure proceedings launched but
before the mortgagee had a right to possess the property, Safeguard posted a notice on the home
stating: “We found this property to be vacant/abandoned. This information will be reported to
the mortgage holder. The mortgage holder has the right and duty to protect this property. The
property will be rekeyed and/or winterized within 3 days. If this property is NOT VACANT,
please contact Safeguard Properties at 877-340-8482.” Id., slip op at 4-5 (emphasis omitted).
During the next several weeks, Safeguard returned on more than one occasion, “broke into the
house and ‘winterized’ the property,” stole personal items, and again posted stickers
summarizing what it had done. Id., slip op at 5. The plaintiff contended that Safeguard qualified
as a “debt collector” under 15 USC 1692f(6)(A) because it took nonjudicial action to effect
dispossession or disablement of the property to enforce a security interest. Id., slip op at 6.
The district court acknowledged that Safeguard’s conduct as alleged “appears to have
been improper and even tortious as performed,” but found that it was not a violation of the
FDCPA. Id., slip op at 7-8. The court reasoned:
Federal mortgage regulations, Illinois law, and municipal ordinances
impose strict duties on mortgagees to properly secure and protect foreclosed
property from deterioration. In order to comply with law and regulations relating
to foreclosed property, mortgagees employ firms who specialize in property
management to perform the action required. The “principal purpose” of such
businesses is not debt collection or the enforcement of security interests, but
rather securing property. [Id., slip op at 8.]
In other words, the court ruled that Safeguard’s actions were “incidental to debt collection” and
“not dispossession or disablement of [the] property.” Id., slip op at 10.
A newer, published case from the Northern District of Illinois reaches essentially the
same conclusion. Hunte v Safeguard Props Mgt, LLC, __ F Supp 3d __ (ND Ill, 2017), slip op at
2, arose from Safeguard’s “seizure” of the plaintiff’s home after the plaintiff defaulted on his
mortgage but before foreclosure. According to the complaint, Safeguard emptied the home of
the plaintiff’s personal possessions, changed the locks, and winterized the plumbing. Id.
Safeguard filed a motion for summary judgement on the pleadings, contending that Safeguard
was not a “debt collector” under the FDCPA. The plaintiff argued that Safeguard’s “principal
purpose” is not to collect debts (thereby disavowing reliance on § 1692a(6)), but to enforce
security interests, bringing Safeguard within § 1692f(6). Id., slip op at 3. The district court
observed that the plaintiff’s complaint had indeed alleged that “ ‘Safeguard’s principal purpose is
the enforcement of security interests.’ ” Id., slip op at 4. However, another paragraph in the
complaint averred that Safeguard’s “ ‘principal purpose [is to] manage and preserve at-risk and
foreclosed properties.’ ” Id. (alteration in original). In his brief, the plaintiff relied on the latter
paragraph, highlighting that “Safeguard’s ‘principal purpose is to manage and preserve at-risk
and foreclosed properties,’ ” and also asserted that “Safeguard ‘has as a primary purpose the
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enforcement of security interests[.]’ ” Id. (emphases in original). Focusing on the difference
between a “principal purpose” (the words of the last sentence of § 1692a(6)), and “primary
purpose,” the court found that the plaintiff had not engaged in “alternative pleading,” but rather
essentially conceded that Safeguard’s “principal purpose” was managing and preserving at-risk
property and not enforcing security interests. Id., slip op at 4-5. The court elaborated:
The pertinent portion of § 1692a(6) defines “debt collector” as an entity “the
principal purpose of which is the enforcement of security interests.” 15 [USC
1692a(6)] (emphasis added). Not “a principal purpose of which,” but “the
principal purpose of which.” Congress’s use of the definite article to modify
“principal purpose” means that Congress intended to cover only entities having
one principal purpose, that of enforcing security interests. . . . Thus, if [the
plaintiff] meant to allege that Safeguard had two principal purposes, the allegation
would take Safeguard outside the FDCPA’s definition of “debt collector” even
though one of those purposes was enforcing security interests. See Rockridge
Trust v Wells Fargo, NA, 985 F Supp 2d 1110, 1137 (ND Cal, 2013) (“[T]he
[complaint] alleges that ‘one of the principal businesses of [Wells Fargo] is debt
collection on a regular basis.’ . . . [This] establishes only that debt collection is
some part of Wells Fargo’s business. For Wells Fargo to be a debt collector . . .,
Plaintiffs must allege that the principal purpose of Wells Fargo’s business is debt
collection, not that one of Wells Fargo’s principal businesses is debt collection.”)
(second brackets in original). [Id., slip op at 5-6 (emphasis in original).]
Nielsen’s complaint alleges in ¶ 3 that “the principal purpose” of Safeguard’s business “is
the collection of debts.” The affidavit submitted by Safeguard in support of summary disposition
asserts that Safeguard “is a mortgage field services company” that “provide[s] preservation
services for real estate throughout the country,” “does not engage in the practice of debt
collection.” and “does not attempt to collect debts of any kind.” Nielsen brought forward no
evidence to refute these averments.
The plain language of § 1692a(6) bestows “debt collector” status on those “who use[] any
instrumentality of interstate commerce or the mails in any business the principal purpose of
which is the enforcement of security interests.” (Emphasis added.) While the affidavit does not
directly address “security interests,” it does disclaim that Safeguard plays any part in the
collection of “debts.” Enforcers of security interests are “debt collectors” under the FDCPA.
The first sentence of the statute states that “[t]he term ‘debt collector’ means . . . .” The last
sentence reads: “For the purpose of section 1692f(6) of this title, such term also includes any
person” who uses interstate commerce in a business having as “the principal purpose” the
enforcement of security interests.” 15 USC 1692a(6). Therefore, the affidavit’s omission of a
specific reference to security interests is inconsequential.
Safeguard’s entry into Nielsen’s home, its destruction of his property, and the lock-out it
executed arguably effected a “dispossession or disablement of the property.” And perhaps a
side-effect of this conduct was to encourage Nielsen to pay his mortgage and to eliminate the risk
of Safeguard’s return. But the legal question presented is whether Nielsen has substantiated that
Safeguard has as its “principal purpose . . . the enforcement of security interests.” If not
collecting debts “indirectly,” Safeguard is liable as a “debt collector” only if it is “principally” in
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the security interest enforcement business. Because Nielsen failed to bring forward any evidence
refuting that Safeguard’s “principal purpose” is property management rather than security
interest enforcement, his claim under the FDCPA must fail.
B. MRCPA and MOC
Two Michigan statutes address unfair or abusive debt collection practices: the MRCPA,
MCL 445.251 et seq., and the MOC, MCL 339.901 et seq. The MRCPA addresses the “debt
collection practices” of “collection agencies” and “regulated persons.” A “collection agency” is:
a person that is directly engaged in collecting or attempting to collect a claim
owed or due or asserted to be owed or due another, or repossessing or attempting
to repossess a thing of value owed or due or asserted to be owed or due another
person, arising out of an expressed or implied agreement. Collection agency
includes an individual who, in the course of collecting, repossessing, or
attempting to collect or repossess, represents himself or herself as a collection or
repossession agency, or a person that performs collection activities that are
regulated under article 9 of the [MOC], . . . MCL 339.901 to 339.920. [MCL
445.251(1)(b).]
Nielsen argues that because Safeguard “engages in collection activities,” it is a “collection
agency” under the MRCPA. This argument is unpersuasive. Unlike the FDCPA, the MRCPA
encompasses only “direct[]” debt collection. No evidence suggests that Safeguard directly
endeavored to collect Nielsen’s overdue mortgage payments. Nor is there evidence that
Safeguard “directly engaged” in “repossessing or attempting to repossess” Nielsen’s home. At
best, Safeguard’s efforts were indirect, and in the section of his brief discussing the FDCPA,
Nielsen concedes this point.
MCL 445.251(1)(b) also includes “a person that performs collection activities that are
regulated under article 9 of the [MOC].” The relevant subsection of the MOC defines a
“regulated person” as:
a person whose collection activities are confined and are directly related to the
operation of a business other than that of a collection agency including any of the
following:
(i) A regular employee who collects accounts for 1 employer if the collection
efforts are carried on in the name of the employer.
(ii) A state or federally chartered bank that collects its own claim.
(iii) A trust company that collects its own claim.
(iv) A state or federally chartered savings and loan association that collects its
own claim.
(v) A state or federally chartered credit union that collects its own claim.
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(vi) A licensee under the regulatory loan act, . . . MCL 493.1 to 493.24.
(vii) A business that is licensed by this state under a regulatory act that regulates
collection activity.
(viii) An abstract company that is engaged in an escrow business.
(ix) A licensed real estate broker or salesperson if the claim the broker or
salesperson is collecting is related to or in connection with the broker’s or
salesperson's real estate business.
(x) A public officer or a person that is acting under a court order.
(xi) An attorney who is handling a claim or collection on behalf of a client and in
the attorney's own name. [MCL 339.901(b).]
Nielsen’s development of this issue in his brief is superficial and conclusory. He offers
no explanation of how Safeguard falls within one of the MOC categories. Safeguard simply does
not “collect accounts,” rendering the MOC inapplicable.
III. TRESPASS AND CONVERSION COUNTS
Nielson also challenges the circuit court’s summary dismissal of his trespass and
conversion counts. At this stage, there remain genuine issues of material fact, rendering
summary disposition inappropriate. Specifically, the circuit court erred by dismissing Nielsen’s
trespass and conversion claims on the ground that Safeguard used only independent contractors
at Nielsen’s home. Safeguard does not deny that the independent contractors were carrying out
Safeguard’s orders by entering Nielsen’s home, emptying the refrigerator, and placing new
locks. The evidence supports at least an inference that Safeguard directed and controlled these
actions. The evidence also supports Nielsen’s claim of agency by estoppel. Thus, whether the
independent contractors acted as Safeguard’s agents is a fact question.
“ ‘Agency’ in its broadest sense includes every relation in which one person acts for or
represents another by his authority.” Saums v Parfet, 270 Mich. 165, 171; 258 N.W. 235 (1935)
(quotation marks and citation omitted). The Supreme Court highlighted in Saums that
determining whether an agency exists necessitates an examination of “the relations of the parties
as they in fact exist under their agreements or acts.” Id. (quotation marks and citation omitted).
The Court reiterated these principles in St Clair Intermediate Sch Dist v Intermediate Ed
Ass’n/Michigan Ed Ass’n, 458 Mich. 540, 558; 581 NW2d 707 (1998) (citation omitted), adding
that “the right to control the conduct of the agent with respect to the matters entrusted to him” is
also fundamental to the agency relationship.
An independent contractor, on the other hand, carries out an “independent business” by
agreeing “to do a piece of work according to his own methods, and without being subject to
control of his employer as to the means by which the result is to be accomplished, but only as to
the result of the work.” Utley v Taylor & Gaskin, Inc, 305 Mich. 561, 570; 9 NW2d 842 (1943)
(quotation marks and citation omitted). But “[i]f the employer of a person or business ostensibly
labeled an ‘independent contractor’ retains control over the method of the work, there is in fact
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no contractee-contractor relationship, and the employer may be vicariously liable under the
principles of master and servant.” Candelaria v BC Gen Contractors, Inc, 236 Mich. App. 67, 73;
600 NW2d 348 (1999).
In examining the relations between the parties, we must remain mindful that the labels
that the parties assign to their relationship are not dispositive. “[I]f an act done by one person in
behalf of another is in its essential nature one of agency, the one is the agent of such other
notwithstanding he is not so called.” Van Pelt v Paull, 6 Mich. App. 618, 624; 150 NW2d 185
(1967) (quotation marks and citation omitted). Furthermore, whether an agency relationship
exists and a defendant acted within the scope of its authority are jury questions. Lincoln v
Fairfield-Nobel Co, 76 Mich. App. 514, 520; 257 NW2d 148 (1977). Alternatively stated,
“Where there is a disputed question of agency, any testimony, either direct or inferential, tending
to establish agency creates a question of fact for the jury to determine.” Meretta v Peach, 195
Mich. App. 695, 697; 491 NW2d 278 (1992).
The common law also recognizes a subset of agency relationships alternatively called
agency by estoppel and ostensible agency. This concept holds a principal liable for the acts of
another even if the other does not technically qualify as an agent. Under certain circumstances a
principal may be estopped from disputing the scope of an agent’s authority despite that the
principal does not control the putative agent’s actions. See Howard v Park, 37 Mich. App. 496,
498; 195 NW2d 39 (1972). The elements of this form of agency are:
(1) the person dealing with the agent must do so with belief in the agent’s
authority and this belief must be a reasonable one, (2) the belief must be
generated by some act or neglect on the part of the principal sought to be charged,
and (3) the person relying on the agent’s authority must not be guilty of
negligence. [Chapa v St Mary’s Hosp, 192 Mich. App. 29, 33-34, 480 NW2d 590
(1991).]
Safeguard avers that it hires “independent contractors” to perform the services that it
offers to mortgage companies: securing and preserving property. But Safeguard’s identification
of the workers who entered Nielsen’s home as “independent contractors” does not necessarily
resolve whether the workers were actually controlled by Safeguard or held out as its ostensible
agents. The record supports that either agency theory could apply in this case.
The evidence indicates that the workers did exactly what Safeguard told them to do: enter
the home, change the locks, winterize the plumbing, and discard the food in the refrigerator. In
this sense, the workers were apparently controlled by Safeguard. The property clearly was
occupied rather than vacant; had the workers been able to exercise their own discretion, it seems
obvious that they would not have thrown anything away, winterized the plumbing, or changed
more than one lock. Further, the door tag prepared by Safeguard states that Safeguard was hired
by the mortgage company to “maintain[] the property,” to “secure[]” it, and to place it on a
“monthly maintenance schedule”: precisely the work that was performed. A “sign in sheet” was
also left inside the home, which stated:
This sign in sheet is posted by Safeguard Properties, Inc., as a request of the
mortgagee to track all parties entering the property. It is required that all persons
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entering this property provide an explanation of their visit and sign and date this
form.
Please notify Safeguard Properties at 800-852-8306 Ext 2158 immediately if an
emergency situation is discovered at this property. . . .
The letter left at the home explained that “the securing process was begun by changing a lock on
one door,” apologized for the entry, and offered the same telephone number for questions.
Nielson also presented a copy of his email correspondence seeking compensation for the
food in his refrigerator, and the cost of “dewinterizing” his plumbing, and reimbursement for his
missing items. The person who replied identified herself as “P & P Resolution Specialist,
Safeguard Properties.” This evidence supports that Safeguard held out the workers as its own.
Nielsen reasonably believed that Safeguard was responsible for the entry of his home; all of the
information left by the intruders identified them as Safeguard workers. There is no plausible
explanation for this other than that Safeguard sought to take responsibility for what happened in
the home.
The fact that the workers possibly committed a tort is not dispositive. “Just as a master is
responsible for the torts of his servant which are committed within the scope of employment, a
principal is responsible for the torts of his agent which are committed within the scope of the
agency.” Cronk v Chevrolet Local Union No 659, 32 Mich. App. 394, 401; 189 NW2d 16 (1971),
citing 3 Am Jur 2d, Agency, § 267, p 631. More recently, this Court explained:
A principal may be vicariously liable to a third party for harms inflicted by
his or her agent even though the principal did not participate by act or omission in
the agent's tort. Vicarious liability is indirect responsibility imposed by operation
of law. Courts impose indirect responsibility on the principal for his or her
agent’s torts as a matter of public policy, but the principal, having committed no
tortious act, is not a “tortfeaser” as that term is commonly defined. Because
liability is imputed by law, a plaintiff does not have to prove that the principal
acted negligently. Rather, to succeed on a vicarious liability claim, a plaintiff
need only prove that an agent has acted negligently. Concomitantly, if the agent
has not breached a duty owed to the third party, the principal cannot be held
vicariously liable for the agent’s actions or omissions. [Bailey v Schaaf (On
Remand), 304 Mich. App. 324, 347; 852 NW2d 180 (2014) (quotation marks and
citations omitted), vacated in part on other grounds 497 Mich. 927; 856 NW2d 692
(2014).]
This principle is also reflected in the Restatement Agency, 3d, § 7.04 (2006), which provides:
Agent Acts with Actual Authority
A principal is subject to liability to a third party harmed by an agent's conduct
when the agent’s conduct is within the scope of the agent's actual authority or
ratified by the principal; and
(1) the agent’s conduct is tortious, or
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(2) the agent’s conduct, if that of the principal, would subject the principal to tort
liability.
One of the Restatement’s “illustrations” describing § 7.04 resembles the facts presented here:
3. P, who owns Blackacre Towers, leases an apartment in it to T. P then wishes
instead to lease T’s apartment to S. P tells S to enter T’s apartment and remove
and destroy T’s personal property. S does so. Entering T’s apartment and
removing and destroying T’s personal property is tortious. P is subject to liability
to T. S is also subject to liability to T whether or not S acted as P’s agent.
The record evidence plausibly demonstrates that Safeguard directed that workers it hired
would enter the Nielsen home, “preserve” the property in a manner dictated by Safeguard, and
“secure” it by placing locks on the doors. A reasonable jury could find that the people carrying
out Safeguard’s instructions were its agents, or that Safeguard held them out as its agents. That
their conduct may have been tortious does not relieve Safeguard of responsibility as a principal.
The evidence also supports a second legal basis for holding Safeguard responsible for the
torts allegedly committed by the people who entered and secured Nielsen’s home: that the
workers sent to the home acted in concert with Safeguard. Under longstanding Michigan
precedent, the “concert of action” theory allows a plaintiff to hold a defendant liable for the
tortious conduct of others, if the defendant acted in concert with the others in causing the
plaintiff’s injury. In Fisher v Rumler, 239 Mich. 224, 226; 214 N.W. 310 (1927), five police
officers from two different jurisdictions illegally entered the plaintiff’s house to search for a
bootlegger. In the process, one of the officers “detained” a young girl, who sued for false
imprisonment and assault and battery. Id. at 226-227. A jury awarded the girl $1,000. Two
defendants argued on appeal that the evidence did not support that they had personally assaulted
or falsely imprisoned the child. Id. at 227. The Supreme Court rejected this defense, reasoning:
We think it not important that the evidence does not disclose which of the two in
fact restrained the plaintiff nor which in fact committed the incidental assault and
battery. There was concert of action. Both were liable for the acts of either in the
scope of their joint enterprise. . . . Their primary purpose, as has been noted, was
to discover evidence of violation of the prohibitory law, and their ultimate
purpose was to apprehend the offender or offenders. We think the court was right
in holding that restraint of the person or persons then in charge was within the
common plan. [Id. at 227-228 (citations omitted).]
The Supreme Court reaffirmed the concert of action theory of liability in Abel v Eli Lilly & Co,
418 Mich. 311, 338; 343 NW2d 164 (1983).
Here, the evidence supports that Safeguard and its contractor acted pursuant to a common
design. That the contractor was not named as a defendant is unimportant, as the concert of
action theory may be applied even in cases involving unnamed defendants. Cousineau v Ford
Motor Co, 140 Mich. App. 19, 32-33; 363 NW2d 721 (1985). On this basis as well as agency, the
court erred in summarily dismissing Nielsen’s trespass and conversion claims.
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IV. AMENDMENT OF THE COMPLAINT
At the summary disposition hearing, Nielson requested for the first time that it be allowed
to amend its complaint. Nielson claimed that he was unaware that Safeguard used independent
contractors until Safeguard filed its motion for summary disposition. Based on this new
information, Nielson desired to raise a claim of negligence against Safeguard.
We review for an abuse of discretion a trial court’s decision to deny a motion for leave to
amend. Detroit Int’l Bridge Co v Commodities Export Co, 279 Mich. App. 662, 666; 760 NW2d
565 (2008). A court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes. Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 NW2d (2006).
MCR 2.116(I)(5) provides that when a court grants summary disposition under MCR
2.116(C)(10), “the court shall give the parties an opportunity to amend their pleadings as
provided by MCR 2.118, unless the evidence then before the court shows that amendment would
not be justified.” MCR 2.118(A)(1) grants a party the right to file one amendment within 14
days of receiving the defendant’s answer. All other amendments require the court’s permission
or a stipulation of the parties. MCR 2.118(A)(2). The court rules dictate that “[l]eave shall be
freely given when justice so requires.” Id. “Leave to amend should be denied only for
particularized reasons, such as undue delay, bad faith, or dilatory motive on the movant’s part,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party, or where amendment would be futile.” Jenks v Brown, 219 Mich. App. 415, 420;
557 NW2d 114 (1996).
Nielsen waited until the last possible moment to raise his amendment request. The record
demonstrates that Nielsen had not engaged in any discovery regarding the circumstances
surrounding the entry into his home, making him responsible for his own lack of knowledge. By
the time the motion was heard, witness lists had been filed and the discovery period had closed.
While the amendment standard is generally liberal, Nielsen’s delay in seeking amendment was
protracted. The circuit court’s ruling does not fall outside the range of principled outcomes.
We affirm in part, vacate in part, and remand for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Karen M. Fort Hood
/s/ Elizabeth L. Gleicher
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