United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
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.
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
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.
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).
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.
annual tax statement for 2015 shows that Nationstar applied
$2, 770.42 to Zirk's principal balance in 2015. Dkt.
24-4, at 4.
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.
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.
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
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.
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.
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.
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 ...