Donna Embry v. Carrington Mortgage Services, LLC, et al
- Summarized by Jonathan Batiste , Rensselaer Polytechnic Institute
- 3 months 2 weeks ago
- Case Type:
- Consumer
- Case Status:
- Affirmed in part and Reversed in part
- Citation:
- No. 24-13352 (11th Circuit, Nov 06,2025) Not Published
- Tag(s):
-
- Ruling:
- The district court erred by granting the defendants’ summary judgment motion for the Real Estate Settlement Procedures Acts claim because the plaintiff attached the required Qualified Written Requests to her amended complaint. The district court did not err by shifting the burden to prove entitlement to judgment to the plaintiff because the burden shifts to nonmoving parties once a movant’s initial burden is met. Based on the record, the court did not err in its granting of the rest of the defendants’ motions for summary judgment.
- Procedural context:
- Plaintiff filed for chapter 13 bankruptcy in 2019, and the court confirmed her plan several months later. The court dismissed Plaintiff’s case mere months after confirming her plan because she failed to make payments for six months. Plaintiff then filed a complaint in state court to avoid foreclosure, and the suit moved to federal court. Defendants moved for summary judgment and to strike Plaintiff’s affidavit. The district court granted the motions, and Plaintiff appealed to the circuit court.
- Facts:
- Donna Embry (“Plaintiff”) purchased her home in March 2007 with money she borrowed from Taylor Mortgage. Plaintiff filed for her first chapter 13 bankruptcy case in February 2010, and she received a discharge in July 2015. Plaintiff then filed for another bankruptcy case in January 2019, and the court confirmed her plan in June 2019. The court then dismissed the case in November after Plaintiff failed to make payments on the mortgage loan. Plaintiff then filed a complaint in state court against the loan servicers that she had dealt with to avoid foreclosure of her home. The case then moved to federal court. The district court rejected Plaintiff’s unjust enrichment claims because the doctrine was inapplicable because of the existing mortgage contract and because there were no payments made that were inconsistent with the contract. Plaintiff abandoned her unjust enrichment claims by not responding to the defendants’ arguments. Plaintiff’s failure to make a payment made her unentitled to bring a breach of contract under state law. The record did not support Plaintiff’s slander, libel, and defamation claims. The court rejected the Truth in Lending Act claim because the cause of action was only available against creditors, not servicers. The court rejected the Fair Debt Collection Practices Act claim because Plaintiff’s debt was in default, there was the right to foreclose, and the servicer acted properly. The court rejected the Fair Credit Reporting Act claim because the statute of limitations barred it and because Plaintiff did not provide any evidence to support it. The court approved motions against Plaintiff for declaratory judgment, breach of contract, and judicial foreclosure. On appeal, the circuit court affirmed all of the district court’s decision except for the rejection of the Real Estate Settlement Procedures Acts (“RESPA”) claim. The circuit court remanded the RESPA claim to the district court for further proceedings.
- Judge(s):
- Jordan, Luck, and Anderson
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