MacRis v. Specialized Loan Servicing ( 2022 )

21-2016
Macris v. Specialized Loan Servicing
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
7th day of November, two thousand twenty-two.
Present:
JOHN M. WALKER, JR.,
WILLIAM J. NARDINI,
BETH ROBINSON,
Circuit Judges.
_____________________________________
MARK K. MACRIS,
Plaintiff-Appellant,
v. 21-2016-cv
SPECIALIZED LOAN SERVICING, LLC.,
Defendant-Appellee,
EXPERIAN INFORMATION SOLUTIONS, INC.,
Defendant.
_____________________________________
For Plaintiff-Appellant: BRIAN L. BROMBERG, Bromberg Law
Office, P.C., Brooklyn, NY. (Seth J.
Andrews, Law Offices of Kenneth Hiller,
PLLC, Amherst, NY, on the brief).
For Defendant-Appellee: BRIAN S. MCGRATH, Hinshaw & Culbertson
LLP, New York, NY.
Appeal from a judgment of the United States District Court for the Western District of New
York (William M. Skretny, Judge) entered on July 22, 2021.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
Plaintiff-appellant Mark K. Macris appeals from the grant of summary judgment by the
United States District Court for the Western District of New York to defendant Specialized Loan
Servicing, LLC (“SLS”). Macris previously jointly owned a mortgaged property with his ex-wife,
who assumed sole possession upon their divorce and, on August 14, 2012, removed Macris from
the deed. On March 6, 2015, U.S. Bank, the mortgagee, brought a foreclosure action against
Macris and his ex-wife regarding their former joint property. Macris established that he was no
longer an owner of the property, and upon SLS’s representation that he was not a necessary party,
the court removed him from the foreclosure action by an order of reference filed on November 20,
2015. While the foreclosure action was pending, SLS, the servicer of the mortgage note, contacted
Macris about catching up on his late mortgage payments, and reported the delinquent debt to
Experian, a credit reporting agency. The delinquent mortgage debt appeared on Macris’s credit
report dated May 19, 2016, which also stated that a “[f]oreclosure proceeding [had] started.”
Macris disputed this debt, which SLS investigated and confirmed as accurate. A copy of Macris’s
credit report following this investigation, dated July 27, 2016, continued to list the delinquent
mortgage debt, but also noted that the debt was disputed by the consumer. Macris sued SLS and
Experian, bringing claims against SLS under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C.
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§§ 1681-1681x, 1681s-2(b) (Count I) and various provisions of the Fair Debt Collections Practices
Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p (Count V). Macris appeals the district court’s grant of
summary judgment for SLS on both counts. On appeal, this Court reviews a grant of summary
judgment de novo. Mario v. P&C Food Markets, Inc., 313 F.3d 758, 763 (2d Cir. 2002). We
assume the parties’ familiarity with the case.
Both claims turn largely on a single issue: whether releasing Macris from the foreclosure
action also simultaneously released him from liability under the mortgage note. The district court
correctly determined that it did not. Under New York law, a lender must elect to first pursue either
a foreclosure action or a deficiency action against a mortgage debtor; it cannot pursue both
simultaneously. N.Y. Real Property Actions and Proceedings Law § 1301. If a lender first
pursues a foreclosure action, a debtor must be “made a defendant in the [foreclosure] action, and
ha[ve] appeared or [ ] been personally served with the summons,” to be later pursued in a deficiency
action. N.Y. R.A.P.L. § 1371(1)–(3). The parties do not dispute that Macris was made a
defendant in the foreclosure action and was served with a proper summons. But Macris contends
that after the court dismissed him from the foreclosure proceeding, based on SLS’s representation
that he was not a necessary party, SLS was foreclosed from pursuing any future deficiency action
against Macris on the underlying debt, and therefore he did not owe the mortgage debt at the time
of the challenged reporting and debt collection activity. We disagree because whether or not SLS
could succeed in a deficiency action against Macris after his dismissal from the foreclosure action
is beside the point—nothing in the record indicates that SLS affirmatively released him from the
mortgage note when he was dismissed from the foreclosure action, and therefore he still owed the
mortgage debt at the time of the challenged disclosure and debt collection activity.
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Summary judgment was appropriate on Macris’s FCRA claim because, having established
that Macris owed on the mortgage note, SLS did not inaccurately report the debt to a credit reporting
agency. Macris attempts to save his FCRA claim by arguing that SLS had a policy of never
reporting disputed credit events as disputed to credit reporting agencies. It is true that several other
circuits have held that failing to report a dispute can violate the FCRA’s requirement that furnishers
of credit information report “if an item of information disputed by a consumer is found to be
inaccurate or incomplete.” 15 U.S.C. § 1681s-2(b) (emphasis added). But they have also held that
a furnisher does not provide “inaccurate or incomplete” information when it fails to report a
meritless dispute. See Seamans v. Temple Univ., 744 F.3d 853, 867, 867 n.11 (3d Cir. 2014);
Gorman v. Wolpoff & Abramson, LLP, 584 F.3d 1147, 1163 (9th Cir. 2009); Saunders v. Branch
Banking & Tr. Co. of VA, 526 F.3d 142, 150 (4th Cir. 2008). Here, SLS investigated Macris’s
credit dispute and found it frivolous. Having found the dispute to be without merit, SLS had no
obligation to report the debt as disputed. Furthermore, even if SLS had an obligation to report the
item as disputed while responding to Experian’s notice that the item was disputed, the record
indicates that the dispute response SLS sent to Experian contained a dispute code and was clearly
labeled as a “dispute response.” App’x 608–09. Macris makes no argument as to why this form
does not constitute sufficient notice of the dispute. The district court therefore appropriately
granted SLS’s summary judgment motion as to the FCRA claim.
The FDCPA claim fails for similar reasons. Summary judgment was appropriate on the
portions of the FDCPA claim brought under 15 U.S.C. §§ 1692d, 1692e(2), 1692e(5), 1692e(10),
and 1692f because they are predicated entirely on SLS’s efforts to collect a debt that Macris alleges
he did not owe. But because Macris remained indebted on the mortgage note during the relevant
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period, even after his dismissal from the foreclosure action, Macris did owe on that debt, and SLS
did not violate the FDCPA in trying to collect it through otherwise lawful means.
Macris’s FDCPA claim under § 1692e(8) warrants slightly more consideration. As with
his FCRA claim, Macris contends that SLS had an obligation to report the debt as disputed to credit
reporting agencies upon his filing of such a dispute. But even if this argument were correct, we
again observe that the dispute response form sent from SLS to Experian clearly indicated that the
account was disputed, App’x 608–09, and Macris has not explained why this notice was
insufficient. Accordingly, the district court properly granted SLS’s motion for summary judgment
as to the FDCPA claim.
Macris’s notice of appeal also includes the district court’s July 8, 2021, Decision and Order
denying his motion to strike an SLS witness. However, nowhere in his briefing does he press this
argument, and we therefore find it abandoned. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n.1,
545 n.7 (2d Cir. 2005) (issues not raised in briefs are abandoned). We have reviewed the remaining
arguments and find them to be without merit. For the foregoing reasons, the order of the district
court is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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