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Zirk v. Nationstar Mortgage

United States District Court, W.D. Wisconsin

August 8, 2017

CORINA ZIRK, Plaintiff,

          OPINION & ORDER

          JAMES D. PETERSON District Judge.

         Plaintiff Corina Zirk brings claims against defendant Nationstar Mortgage for violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq., violations of Wis.Stat. § 224.77, and breach of contract. Dkt. 1. Zirk contends that Nationstar gave her confusing and conflicting information about the status of her mortgage and failed to apply payments that she had made.

         This case has not progressed smoothly, primarily because Zirk did not timely respond to Nationstar's discovery requests and she propounded no discovery requests of her own. But the fault does not lie entirely with Zirk, because Nationstar waited too long to deal with Zirk's lack of diligence. As a result, the record before the court is sparse and something of a mess. But this much is beyond genuine dispute: Zirk has failed to adduce admissible evidence to sustain her burden to prove her federal claims. The court will grant Nationstar's motion for summary judgment. The court will decline jurisdiction over her state-law claims and dismiss them.


         In 2004, plaintiff Corina Zirk, then known as Corina Kritz, purchased a duplex on the corner of S. Walnut Street and Nicolet Street in Janesville, Wisconsin. The purchase was financed by the First Federal Capital Bank of La Crosse and secured by a mortgage. In 2006, the mortgage and loan were assigned to H&R Block Bank, and at some point defendant Nationstar Mortgage became the servicer of the loan.

         Then Zirk ran into financial difficulties, which she attributes to her ex-husband's failure to pay child support. In 2011, Zirk filed a chapter 13 bankruptcy petition. During the bankruptcy proceedings, Nationstar filed a motion for relief from stay, contending that Zirk had missed several mortgage payments in 2012. Nationstar and Zirk resolved that motion by agreeing that Zirk had missed four payments and that she would amend her bankruptcy plan accordingly. Zirk's bankruptcy was converted to a chapter 7, Zirk received an order of discharge, and the bankruptcy court closed the case. Zirk now lives in the house in Janesville that secures the Nationstar mortgage. The bankruptcy is not really our concern: all that really matters here is that the parties agree that Zirk was caught up on her mortgage as of March 2, 2015. Dkt. 30, ¶ 17 (citing Dkt. 24-8).

         The central dispute concerns whether Nationstar properly credited Zirk's payments in the rest of 2015 and 2016. The facts that we have come from some statements from Nationstar that Zirk has submitted to the court. Nationstar challenges the admissibility of these statements, but we'll deal with that later. For now, here's what the statements show.

         The annual tax statement for 2015 shows that Nationstar applied $2, 770.42 to Zirk's principal balance in 2015. Dkt. 24-4, at 4.

         A notice sent to Zirk in May 2016 shows that from July 2015 to July 2016, Zirk's monthly mortgage payment was supposed to be $1, 740.98; $381.65 of that payment would be applied to principal. Id. at 5.

         Five monthly statements that Zirk received from January 20, 2016, to May 18, 2016, show that Zirk was not making payments. As of February 1, 2016, she owed Nationstar $19, 150.78. Id. at 15. The May 18 statement shows that Zirk owed $26, 114.70 (her regular monthly payment due June 1, plus $24, 373.72 in overdue payments). Id. at 7-8. Thus, by May 18, Zirk had missed 14 payments, with another due on June 1. That same statement shows that Nationstar had not received any payments from Zirk in 2016. Id. at 8.

         The statements also cite legal fees and property inspection fees, marked “lender-paid expenses.” See, e.g., id. at 8, 10. According to a footnote on the statements, “‘Lender Paid Expenses' are funds paid by Nationstar on [Zirk's] behalf to another company.” Id. at 11. It is not clear that Nationstar passed these expenses on to Zirk, because they were never included in her “total amount due.” Zirk adduces no other documentation of any payments to Nationstar, and she does not remember anything that adds to the information in the billing statements. Zirk contends that she had trouble figuring out how Nationstar had applied her payments. As a result, she feared she would lose her house, and she began experiencing anxiety, stress, sleeplessness, and headaches. She stopped participating in activities she enjoys.

         In 2015, after her bankruptcy, Zirk applied for a modification of her loan. Zirk signed her modification application packet on November 8, 2015. Zirk argues that Nationstar waited until January 2016 respond to the modification application. But Nationstar has adduced evidence that it responded to Zirk's various modification requests on November 11, 2015, November 18, 2015, January 11, 2016, January 13, 2016, and February 11, 2016. Dkt. 30, ¶ 39.

         Zirk filed suit on June 23, 2016, alleging that Nationstar's actions had violated the FDCPA and Wis.Stat. § 224.77 (prohibiting certain practices by mortgage lenders), and that it had breached Zirk's loan agreement.

         Nationstar propounded discovery requests to Zirk on January 12, 2017. Zirk failed to respond despite repeated demands, and Nationstar moved to compel responses on April 14, 2017, which was a mere ten days before the dispositive motion deadline. The court, through Magistrate Judge Stephen Crocker, granted the motion to compel and moved the dispositive motion deadline to May 8, 2017. Dkt. 14. The court deemed Zirk's objections to have been waived and ordered complete responses by April 21, 2017. Judge Croker also warned Zirk that if she was late or served incomplete responses, he would recommend dismissing the case under Rule 37(b). Zirk served her responses on April 18. Dkt. 15-1. Nationstar contends that the responses are incomplete and it moves to dismiss the complaint under Rule 37. Dkt. 15. Nationstar also moves for summary judgment on the merits. Dkt. 16.

         The court has subject matter jurisdiction over Zirk's FDCPA claims pursuant to 28 U.S.C. § 1331, because they arise under federal law. The court may exercise supplemental jurisdiction over ...

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