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Green v. Lakeview Loan Servicing, LLC

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

May 16, 2017

MELISSA GREEN PLAINTIFF
v.
LAKEVIEW LOAN SERVICING, LLC, et al. DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          KEITH STARRETT UNITED STATES DISTRICT JUDGE

         For the reasons provided below, the Court grants in part and denies in part the Motion for Summary Judgment [68] filed by Defendants Tanya Darlene Gray and Lukeith Ridgeway. Specifically, the Court denies the motion with respect to Plaintiff's claims of trespass, negligent infliction of emotional distress, and intentional infliction of emotional distress against Defendant Lukeith Ridgeway, but the Court grants the motion in all other respects.

         I. Background

         This is a wrongful foreclosure case. The Court discussed its factual background in a previous opinion. See Green v. Lakeview Loan Servicing, LLC, No. 2:15-CV-156-KS-MTP, 2016 U.S. Dist. LEXIS 17565, at *1-*2 (S.D.Miss. Feb. 12, 2016). Plaintiff asserted claims of trespass, conversion, and intentional/negligent infliction of emotional distress against the individual Defendants, Tanya Darlene Gray and Lukeith Ridgeway. Defendants filed a Motion for Summary Judgment [68], which the Court now addresses.

         II. Standard of Review

         Rule 56 provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Sierra Club, Inc. v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). “An issue is material if its resolution could affect the outcome of the action.” Sierra Club, Inc., 627 F.3d at 138. “An issue is ‘genuine' if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir. 2010).

         The Court is not permitted to make credibility determinations or weigh the evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding whether a genuine fact issue exists, “the court must view the facts and the inference to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club, Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).

         III. Discussion

         A. Trespass

         First, Defendants argue that Plaintiff has no evidence to support her claim that they committed a trespass by entering the subject real property and removing her personal property. “[A] civil trespass cause of action in Mississippi includes three elements: 1) an intrusion upon the land of another without license or other right for one's own purpose; 2) damage to the plaintiff as a result of physical invasion of the land; 3) credible evidence that the party charged is the party responsible for the tort.” McLaughlin v. Miss. Power Co., No. 1:01-CV-22-LG-JMR, 2010 U.S. Dist. LEXIS 105837, at *12 (S.D.Miss. Oct. 4, 2010) (citing Monsanto Co. v. Scruggs, 342 F.Supp.2d 602, 606 (N.D. Miss. 2004)).

         Plaintiff presented a Notice of Right to Reclaim Abandoned Property, which she claims was posted on the property. See Exhibit D to Response, Green v. Lakeview Loan Servicing, LLC, No. 2:15-CV-156-KS-MTP (S.D.Miss. May 1, 2017), ECF No. 73-4; Exhibit B to Response at 2, Green v. Lakeview Loan Servicing, LLC, No. 2:15-CV-156-KS-MTP (S.D.Miss. May 1, 2017), ECF No. 73-2. The Notice provided that the “premises has been rekeyed, ” and it directed Plaintiff to contact Defendant Ridgeway to gain access to the property. Exhibit D [73-4]. Defendant Ridgeway signed the Notice. Id. The parties have not directed the Court to any other evidence regarding who had the house rekeyed. Defendants argue that “the property had been rekeyed in accordance with the foreclosure process by someone other than these Defendants.” Reply at 5-6, Green v. Lakeview Loan Servicing, LLC, No. 2:15-CV-156-KS-MTP (S.D.Miss. May 10, 2017), ECF No. 76 (emphasis original). But Defendant Ridgeway's affidavit, cited in support of this argument, says nothing about who rekeyed the property. Exhibit H to Memorandum, Green v. Lakeview Loan Servicing, LLC, No. 2:15-CV-156-KS-MTP (S.D.Miss. Apr. 17, 2017), ECF No. 69-8. Plaintiff apparently assumes, based on the Notice of Right to Reclaim Abandoned Property, that Ridgeway changed the locks on the house. Indeed, she stated as much in her affidavit. Exhibit C to Response at 2, Green v. Lakeview Loan Servicing, LLC, No. 2:15-CV-156-KS-MTP (S.D.Miss. May 1, 2017), ECF No. 71-3.

         In the Court's opinion, a reasonable jury could infer from the Notice of Right to Reclaim Abandoned Property that Defendant Ridgeway rekeyed the property. Of course, Ridgeway could not have changed the locks without entering the property, and he has not presented any argument regarding his right or license to do so. The record contains evidence that Plaintiff suffered damages as a result of the locks being changed. Specifically, she stated in her affidavit that she was unable to retrieve her personal property. Exhibit B [73-2], at 2. Therefore, the Court finds that the record contains sufficient evidence to create a genuine dispute of material fact as to Plaintiff's trespass claim against Defendant Ridgeway, and it denies Defendants' motion in that respect.

         However, Plaintiff presented no evidence whatsoever that Defendant Tanya Gray trespassed on her property. In fact, Plaintiff did not even address the trespass claim as applied to Defendant Gray. Therefore, the Court grants Defendants' motion as to Plaintiff's trespass claim against Defendant Gray.

         B. ...


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