Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Holland v. Keesler Federal Credit Union

United States District Court, S.D. Mississippi, Southern Division

December 22, 2016

STEVEN W. HOLLAND PLAINTIFF
v.
KEESLER FEDERAL CREDIT UNION DEFENDANT

          MEMORANDUM OPINION AND ORDER DENYING DEFENDANT KEESLER FEDERAL CREDIT UNION'S MOTION FOR SUMMARY JUDGMENT [42], AND GRANTING PLAINTIFF'S FEDERAL RULE OF CIVIL PROCEDURE 56(d) MOTION [60]

          HALIL SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.

         BEFORE THE COURT is Defendant Keesler Federal Credit Union's Motion for Summary Judgment [42] filed July 29, 2016, and Plaintiff Steven W. Holland's Federal Rule of Civil Procedure 56(d) Motion [60] filed in response on September 20, 2016. Having considered the parties' submissions, the record as a whole, and relevant legal authority, the Court is of the opinion that Defendant's Motion for Summary Judgment [42] should be denied, and Plaintiff's Rule 56(d) Motion [60] should be granted.

         I. BACKGROUND

         A. Factual Background

         On March 8, 2010, the late Claude A. Holland and Bobbie B. Holland, husband and wife, executed a Promissory Note in the amount of $155, 000.00 payable to Defendant Keesler Federal Credit Union (“Keesler”) secured by a Deed of Trust on their house at 20 Oakwood Drive, Gulfport, Mississippi 39507 (the “Subject Property”). Aff. Delma Powell (“Powell”) [42-7] at 1-2. On September 2, 2013, Plaintiff Steven W. Holland's (“Plaintiff”) mother, Bobbie B. Holland, who was predeceased by her husband, passed away. Compl. [1] at 2. Plaintiff and his brothers James Holland and Scott Allen Holland (“Scott”), are the children of the late Claude A. Holland and Bobbie B. Holland (collectively, “Parents”). Pl. Dep. [67-2] at 5.

         Plaintiff alleges that after their mother's death, he and Scott “spoke with a representative of Keesler” named “Cindy” to inform Keesler of their mother's death, and that they subsequently provided Keesler with a copy of her death certificate. Id. at 3, 9. Scott then spoke with a “Ms. Hallman” who agreed on behalf of Keesler to accept “an interest-only payment for six months so that [they] could figure out what [they] were going to do” with the Subject Property. Id. at 10. Scott began making interest-only payments to Keesler on the Promissory Note. Id. At some point, Scott informed Plaintiff that a new “collection agent” had taken over the account and that they were now required to pay the full monthly amount of the Note as well as catch up the outstanding amounts due on the prior monthly payments. Id. Plaintiff made “six to eight” payments to Keesler in varying amounts. Id. at 11-12.

         On January 29, 2015, Kelly M. Poulos (“Poulos”), an employee of Keesler, wrote Plaintiff and returned a check from him in the amount of $1, 400.00. Poulos informed Plaintiff that Keesler would “no longer accept payments or payment arrangements on this loan” because the Subject Property had not been “placed on the market and sold, ” and Keesler had “no other choice but to call the [N]ote due to protect our interest in the property.” Poulos Letter [42-12] at 1. In response, on February 4, 2015, Plaintiff wrote Poulos to notify Keesler that improvements were being made to the house prior to putting it on the market, and to request that Keesler respond to his request for a loan modification. Pl. Letter [42-12] at 2-3. Plaintiff provided his office and cellular telephone numbers, and asked that Keesler call him to discuss the matter. Id. After receiving no response to his February letter, Plaintiff wrote Keesler twice more, on March 2, 2015, and April 6, 2015, asking that Keesler transfer the title to the Subject Property into Plaintiff and Scott's names pursuant to “Federal law, as well as State of Mississippi statutes regarding the transfer or (sic) real property to the heirs of deceased parents, ” and asserting that the “Garn St. Germain Depository Institutions Act of 1982 prohibits any due on sale clause from being invoked” such that Keesler's acceleration of the mortgage was improper. Pl. Letters [42-12] at 4, 5.

         Keesler purchased the Subject Property at a foreclosure sale on June 9, 2015, pursuant to the terms of the Deed of Trust. Keesler Mem. in Supp. [43] at 2. Plaintiff learned of the foreclosure sale when a “locksmith came onto the property and changed the locks and told my son that, yes, Keesler had foreclosed on the property and that we no longer owned it.” Pl. Dep. [67-2] at 28.

         On August 3, 2015, Keesler filed a “Complaint for Unlawful Entry and Detainer” in the County Court of Harrison County, Mississippi, naming as Defendants Plaintiff's Parents and “any other unknown tenants or occupants” of the Subject Property. Keesler Mem. in Supp. [43] at 2. Plaintiff was aware of the Complaint and that a hearing was set for September 2, 2015; however, he did not attend. Pl. Dep. [67-2] at 29. A “Judgment in Unlawful Detainer” was entered on September 2, 2015. J. [42-4] at 1-2.

         B. Procedural Background

         On September 15, 2015, Plaintiff filed a Complaint [1] in this Court against Keesler advancing two causes of action: (1) Violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227; and (2) Wrongful Foreclosure under the Garn St. Germain Depository Institutions Act, 12 U.S.C. § 1701j-3(d). Compl. [1] at 7-9. Plaintiff seeks a judgment for compensatory damages, punitive damages, costs, and interest. Id.

         Keesler filed its Motion for Summary Judgment [42] on July 29, 2016. Kessler asserts that: (1) Keesler did not violate the TCPA because Keesler does not have an “automated telephone dialing system, ” Keesler Mem. in Supp. [43] ¶ 23-28; Powell Aff. [42-7] at 2; and (2) Keesler did not wrongfully foreclose because “following the death” of the Parents, “the Note went into default due to nonpayment, ” and the “lawful foreclosure” occurred when the default was not “cured, ” Keesler Mem. in Supp. [43] at 10; Powell Aff. [42-7] at 2.

         On September 20, 2016, Plaintiff filed a Rule 56(d) Motion in Opposition [60] alleging in pertinent part that

In order for Plaintiff to establish his claim that Defendant violated the TCPA with respect to the Plaintiff, he will be required to prove the two elements of a TCPA claim: that Defendant made (1) a call to Plaintiff's cellular telephone; (2) using an “automatic telephone dialing system” (“ATDS”) or an “artificial or prerecorded voice.”

David P. Mitchell Aff. [62] at 3, ¶ 8. Plaintiff contends that

[a]s of the date of the filing of this Motion, Plaintiff has still not received many of the essential discovery materials that would enable him to properly respond to Defendant's Motion for Summary Judgment (Dkt. 42) and Memorandum of Law in Support Thereof (Dkt. 43), which materials are within Defendant's exclusive possession and control. For this specific reason, Plaintiff cannot currently present facts essential to justify his opposition [to] Defendant's Motion for Summary Judgment (Dkt. 42) and Memorandum of Law in Support Thereof (Dkt. 43).

Pl. Rule 56 (d) Mot. [60] at 1. Plaintiff requests that the Court either stay or deny Keesler's Motion for Summary Judgment pending the completion of discovery and/or the entry of an order on Plaintiff's pending Motion to Compel [57]. Id. at 2. Plaintiff maintains that “Defendant's withholding of the discovery materials outlined in Plaintiff's Motion to Compel (Dkt. 58) has directly prevented Plaintiff from obtaining evidence necessary to establish the elements of his TCPA claim and to oppose Defendant's Motion for Summary Judgment (Dkt. 42).” Pl. Mem. in Supp. [61] at 5-13; Aff. David P. Mitchell [62] at 1-6.

         In its Rebuttal [69] in support of its Summary Judgment Motion, Keesler maintains that it is entitled to summary judgment on both ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.