United States District Court, S.D. Mississippi, Southern Division
STEVEN W. HOLLAND PLAINTIFF
KEESLER FEDERAL CREDIT UNION DEFENDANT
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT
KEESLER FEDERAL CREDIT UNION'S MOTION FOR SUMMARY
JUDGMENT , AND GRANTING PLAINTIFF'S FEDERAL RULE OF
CIVIL PROCEDURE 56(d) MOTION 
SULEYMAN OZERDEN UNITED STATES DISTRICT JUDGE.
THE COURT is Defendant Keesler Federal Credit Union's
Motion for Summary Judgment  filed July 29, 2016, and
Plaintiff Steven W. Holland's Federal Rule of Civil
Procedure 56(d) Motion  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  should be denied, and Plaintiff's Rule
56(d) Motion  should be granted.
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.  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.
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.
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.
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.  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.
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.  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.
September 15, 2015, Plaintiff filed a Complaint  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.  at
7-9. Plaintiff seeks a judgment for compensatory damages,
punitive damages, costs, and interest. Id.
filed its Motion for Summary Judgment  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.  ¶
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.  at 10;
Powell Aff. [42-7] at 2.
September 20, 2016, Plaintiff filed a Rule 56(d) Motion in
Opposition  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
David P. Mitchell Aff.  at 3, ¶ 8. Plaintiff
[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.  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 .
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.  at 5-13; Aff. David P.
Mitchell  at 1-6.
Rebuttal  in support of its Summary Judgment Motion,
Keesler maintains that it is entitled to summary judgment on