Opinion
Civil 1:23-CV-1301
09-18-2023
CANDICE JO RUDY, Plaintiff, v. LAKEVIEW LOAN SERVICING, LLC., Defendant.
Rambo, Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge.
I. Statement of Facts and of the Case
This case, which was removed to federal court, (Doc. 1), comes before us for consideration of a motion to dismiss filed by the defendant, Lakeview Loan Servicing, LLC. (Doc. 5). With respect to this motion, we note that the plaintiff's complaint consists of some 205 pages of material. (Doc. 1-1). Yet, this complaint, while prolix, is also enigmatic and seems to rely upon Rudy's idiosyncratic views concerning both finance and the law. Nonetheless, as best we can discern what Rudy is attempting to allege, the following well-pleaded facts set forth in the plaintiff's complaint guide our determination of this motion:
This case arises out of Lakeview's servicing of a mortgage loan made to the plaintiff in 2009. Lakeview began servicing this mortgage in 2017, five years prior to any alleged loan default. (Doc. 1-1, Ex. 16). However, it appears that by October 2022, this loan had gone into default. (Doc. 1-1, Ex, 30). Rudy alleges without further factual detail that she made some unspecified forms of payment to Lakeview in October and November of 2022, as well as in January of 2023, but these payments were neither accepted nor returned. (Id., ¶¶ 15-16). According to Rudy, at about this time she “discovered an unknown concern” or a “previously unrecognized issue” upon reviewing the loan documents and applicable laws. (Id., ¶¶ 1, 17).
While she does not explain what this alleged “unknown concern” was, Rudy alleges that the concern led her to follow an unusual course: Rudy contends that she commenced a Private Administrative Process to verify the Mortgage debt pursuant to which she served Lakeview with a series of notices and affidavits. (Id.) Rudy also apparently sent Lakeview a Notice of Dispute and Affidavit for Demand for Verification of Debt. (Id.) When Lakeview failed to respond to these documents, Rudy avers that she sent a Notice of Default and Opportunity to Cure, a Notice of Fault in Dishonor, a Notice of Estoppel and Default in Dishonor, a Notice of Discharge of Obligation to Pay Instrument, and a Notice of Demand for Reconveyance to the defendant. (Id.)
Rudy then alleges in a summary fashion that the defendant responded to her barrage of paperwork but contends that Lakeview's response to the notices and affidavits were deficient in that Lakeview, through its servicer LoanCare, furnished duplicates of the Security Agreement, Mortgage Note, and monthly statements by U.S. Mail to validate Plaintiff's debt. (Id., ¶ 20).
On the basis of these often enigmatic averments, Rudy's complaint alleges that Lakeview Loan Servicing, LLC, violated the federal Fair Debt Collection Practices Act (“FDCPA”) (Id., Counts V and VII), the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) (Id., Counts V and VII), and the Pennsylvania Fair Credit Extension Uniformity Act (“FCEUA”) (Id., Count VI). Rudy also asserts claims against Lakeview based upon “Insufficient Response to Affidavit” (Id., Count I), Fraudulent Concealment (Id., Count II), Fraudulent Misrepresentation (Id., Count III), and Conversion. (Id., Count IV).
Lakeview removed this complaint to federal court and has now moved to dismiss this complaint, arguing that the complaint fails to state a claim under any of these state and federal statutes upon which relief may be granted. (Doc. 5). This motion is fully briefed and is, therefore, ripe for resolution. For the reasons set forth below, it is recommended that the motion to dismiss be granted.
II. Discussion
A. Motion to Dismiss - Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal Rules of Civil Procedure only if the complaint fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). With respect to this benchmark standard for the legal sufficiency of a complaint, the United States Court of Appeals for the Third Circuit has aptly noted the evolving standards governing pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of jurisprudence in recent years. Beginning with the Supreme Court's opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008)], and culminating recently with the Supreme Court's decision in Ashcroft v. Iqbal, __U.S__, 129 S.Ct. 1937 (2009), pleading standards have seemingly shifted from simple notice pleading to a more heightened form of pleading, requiring a plaintiff to plead more than the possibility of relief to survive a motion to dismiss.Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief may be granted, the court must accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom are to be construed in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint's bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not alleged.” Associated Gen. Contractors of Cal. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a plaintiff must provide some factual grounds for relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do.” Id., at 555. “Factual allegations must be enough to raise a right to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has underscored that a trial court must assess whether a complaint states facts upon which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to dismiss, a court should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 679. According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id., at 678. Rather, in conducting a review of the adequacy of a complaint, the Supreme Court has advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than conclusions are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.Id., at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain more than mere legal labels and conclusions; it must recite factual allegations sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation. As the United States Court of Appeals for the Third Circuit has stated:
[After Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a “plausible claim for relief.” In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to “show” such an entitlement with its facts.Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for overcoming a motion to dismiss and refined this approach in Iqbal. The plausibility standard requires the complaint to allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard when the factual pleadings “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This standard requires showing “more than a sheer possibility that a defendant has acted unlawfully.” Id. A complaint which pleads facts “merely consistent with” a defendant's liability, [ ] “stops short of the line between possibility and plausibility of ‘entitlement of relief.' ”Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied, 132 S.Ct. 1861 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a three-step analysis:
First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Iqbal, 129 S.Ct. at 1947. Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id., at 1950. Finally, “where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950).
In considering a motion to dismiss, the court generally relies on the complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). The court may also consider “undisputedly authentic document[s] that a defendant attached as an exhibit to a motion to dismiss if the plaintiff's claims are based on the [attached] documents.” Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, “documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered.” Pryor v. Nat'l Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 382, 388 (3d Cir. 2002) (holding that “[a]lthough a district court may not consider matters extraneous to the pleadings, a document integral to or explicitly relied upon in the complaint may be considered without converting the motion to dismiss in one for summary judgment”). However, the court may not rely on other parts of the record in determining a motion to dismiss, or when determining whether a proposed amended complaint is futile because it fails to state a claim upon which relief may be granted. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
In addition to these pleading rules, a civil complaint must comply with the requirements of Rule 8(a) of the Federal Rule of Civil Procedure, which defines what a complaint should say and provides that:
(a) A pleading that states a claim for relief must contain (1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought, which may include relief in the alternative or different types of relief.Fed. R. Civ. P. 8.
Thus, a well-pleaded complaint must contain more than mere legal labels and conclusions. Rather, a pro se plaintiff's complaint must recite factual allegations that are sufficient to raise the plaintiff's claimed right to relief beyond the level of mere speculation, set forth in a “short and plain” statement of a cause of action.
Moreover, in a case such as this where a plaintiff is making allegations of fraud in a complaint, there are additional requisites which must be satisfied in order to state a claim. Rule 9 of the Federal Rules of Civil Procedure prescribes what must be pleaded to assert a claim of fraud in federal court and sets a heightened standard for pleading allegations of fraud. Under Rule 9: “In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). In this regard, it is well settled that:
[T]he rules governing specificity of pleading fraud in federal court call for much greater clarity in pleading and proof to sustain such grave allegations. As the United States Court of Appeals for the Third Circuit has observed:
[Allegations of fraud must comply with Federal Rule of Civil Procedure 9(b), which requires that allegations of fraud be pled with specificity. In order to satisfy Rule 9(b), plaintiffs must plead with particularity “the 'circumstances' of the alleged fraud in order to place the defendants on notice of the precise misconduct with which they are charged, and to safeguard defendants against spurious charges of immoral and fraudulent behavior.” Plaintiffs may satisfy this requirement by pleading the “date, place or time” of the fraud, or through “alternative means of injecting precision and some measure of substantiation into their allegations of fraud.” Plaintiffs also must allege who made a misrepresentation to whom and the general content of the misrepresentation.
Lum v. Bank of America, 361 F.3d 217, 223-4 (3d Cir.2004) (citations omitted, emphasis added).
Thus, “[p]ursuant to Rule 9(b), a plaintiff averring a claim in fraud must specify ‘ “the who, what, when, where, and how: the first paragraph of any newspaper story.”' Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir.1999) (quoting DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir.1990)).
‘Although Rule 9(b) falls short of requiring every material detail of the fraud such as date, location, and time, plaintiffs must use “alternative means of injecting precision and some measure of substantiation into their allegations of fraud.”' In re Rockefeller Ctr. Props. Secs. Litig., 311 F.3d 198, 216 (3d Cir.2002) (quoting In re Nice Sys., Ltd. Secs. Litig., 135 F.Supp.2d 551, 577 (D.N.J.2001), emphasis supplied).” Animal Science Products, Inc. v. China Nat. Metals & Minerals Import & Export Corp., 596 F.Supp.2d 842, 878 (D.N.J.2008).Angino v. Wells Fargo Bank, N.A., No. 1:15-CV-418, 2016 WL 787652, at *10 (M.D. Pa. Feb. 19, 2016), report and recommendation adopted, No. 1:15-CV-418, 2016 WL 759161 (M.D. Pa. Feb. 26, 2016), affd, 666 Fed.Appx. 204 (3d Cir. 2016).
Judged against these legal guideposts, Rudy's complaint fails on a number of scores, as discussed below.
B. The Defendant's Motion to Dismiss Should be Granted.
1. The Complaint Violates Rule 8
In this case, Rudy's complaint runs afoul of a series of legal obstacles. At the outset, dismissal of this complaint is warranted because this pleading fails to comply with Rule 8's basic injunction that “A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2).
It is well settled that: “[t]he Federal Rules of Civil Procedure require that a complaint contain ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' Fed.R.Civ.P. 8(a)(2), and that each averment be ‘concise, and direct,' Fed.R.Civ.P. 8(e)(1).” Scibelli v. Lebanon County, 219 Fed.Appx. 221, 222 (3d Cir. 2007). Thus, when a complaint is “illegible or incomprehensible[,]” id., or when a complaint “is not only of an unwieldy length, but it is also largely unintelligible[,]” Stephanatos v. Cohen, 236 Fed.Appx. 785, 787 (3d Cir. 2007), an order dismissing a complaint under Rule 8 is clearly appropriate. See, e.g., Mincy v. Klem, 303 Fed.Appx. 106 (3d Cir. 2008); Rhett v. New Jersey State Superior Court, 260 Fed.Appx. 513 (3d Cir. 2008); Stephanatos v. Cohen, 236 Fed.Appx. 785; Scibelli v. Lebanon County, 219 Fed.Appx. 221; Bennett-Nelson v. La. Bd. of Regents, 431 F.3d 448, 450 n.1 (5th Cir. 2005).
Dismissal under Rule 8 is also proper when a complaint “left the defendants having to guess what of the many things discussed constituted [a cause of action],” Binsack v. Lackawanna County Prison, 438 Fed.Appx. 158 (3d Cir. 2011), or when the complaint is so “rambling and unclear” as to defy response. Tillio v. Spiess, 441 Fed.Appx. 109 (3d Cir. 2011). Similarly, dismissal is appropriate in “those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Tillio v. Spiess, 441 Fed.Appx. at 110 (quoting Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (quotations omitted)); Tillio v. Northland Grp. Inc., 456 Fed.Appx. 78, 79 (3d Cir. 2012). Further, a complaint may be dismissed under Rule 8 when the pleading is simply illegible and cannot be understood. See, e.g., Moss v. United States, 329 Fed.Appx. 335 (3d Cir. 2009) (dismissing illegible complaint); Radin v. Jersey City Medical Center, 375 Fed.Appx. 205 (3d Cir. 2010); Earnest v. Ling, 140 Fed.Appx. 431 (3d Cir. 2005) (dismissing complaint where “complaint fails to clearly identify which parties [the plaintiff] seeks to sue”); Oneal v. U.S. Fed. Prob., Civ. No. 05-5509, 2006 WL 758301 (D.N.J. Mar. 22, 2006) (dismissing complaint consisting of approximately 50 pages of mostly-illegible handwriting); Gearhart v. City of Philadelphia Police, Civ. No. 06-0130, 2006 WL 446071 (E.D. Pa. Feb. 21, 2006) (dismissing illegible complaint).
These principles apply here and call for the dismissal of this complaint in its current form. As we have observed, while the complaint is prolix at 205 pages, its substance and meaning are well disguised. Thus, the complaint, in its current form, “is not only of an unwieldy length, but it is also largely unintelligible[,]” Stephanatos, 236 Fed.Appx. at 787. Moreover, the complaint leaves “the defendant[] having to guess what of the many things discussed constituted [a cause of action],” Binsack, 438 Fed.Appx. at 158. And in the final analysis, this “complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Tillio, 441 Fed.Appx. at 110 In such circumstances Rule 8 calls for the dismissal of the pleading.
2. Rudy's Fraud Claims Fail to Comply with the Pleading Requirements of Rule 9.
Additionally, Rudy's complaint alleges multiple counts of fraud and fraudulent concealment, but the complaint is largely devoid of well-pleaded facts describing the nature of this alleged fraud. This cryptic form of fraud pleading will not do since Rule 9 commands that, “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). In this regard, it is well settled that “[u]nder Rule 9 ‘boilerplate and conclusory allegations will not suffice.... Plaintiffs must accompany their legal theory with factual allegations that make their theoretically viable claim plausible.' ” Hamill v. Twin Cedars Senior Living, LLC, No. 3:20-CV-231, 2022 WL 16840356, at *9 (M.D. Pa. Aug. 5, 2022) (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1418 (3d Cir. 1997)). Rule 9 “therefore requires plaintiffs to plead ‘“the who, what, when, where, and how: the first paragraph of any newspaper story.' ” In re Advanta Corp. Sec. Litig., 180 F.3d 525, 534 (3d Cir. 1999) (quoting DiLeo v. Ernst & Young, 901 F.2d 624, 627 (7th Cir. 1990)). Judged by these benchmarks, Rudy's fraud claims, which are set forth in a boilerplate fashion without supporting factual details, simply do not satisfy the specificity requirements of Rule 9. Therefore, these fraud claims should be dismissed.
3. Rudy's Complaint Fails to State a Claim under The Fair Debt Collection Practices Act.
Beyond these two overarching threshold shortcomings, Rudy's complaint is deficient in other, more specific ways. For example, in her complaint Rudy appears to assert a federal claim under the FDCPA, 15 U.S.C. § 1692a, et seq. The precise nature of this claim remains stubbornly ambiguous, but apparently relates to some “unknown concern” or a “previously unrecognized issue” identified by Rudy at the time her loan went into default. (Id., ¶¶ 1, 17). However, to the extent that Rudy is attempting to convert her previously unknown and unidentified concerns into an FDCPA violation, these FDCPA allegations fail.
On this score, it is axiomatic that, the FDCPA only applies to “debt collectors,” a term of art which is defined by statute to mean:
[A]ny person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. . . . The term does not include-
(F) any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . .;
(iii) concerns a debt which was not in default at the time it was obtained by such person . . . .15 U.S.C. § 1692a.
This statutory definition essentially excludes loan servicers, who accept loan servicing responsibilities at a time when the debt is not in default, from the coverage of the Act. And, in fact, courts generally agree that loan servicers are not “debt collectors” for purposes of the FDCPA. As one court has aptly noted in this regard when considering a similar complaint:
Plaintiffs allege nothing more regarding [defendant's] status as a debt collector than that [defendant] is “a residential mortgage servicer” and a “debt collector under the FDCPA.” Compl., ¶ 3. These allegations are plainly insufficient to adequately plead that [the defendant] “regularly collects” debts owed to another. See Green Tree Servicing, LLC v. Cargille, No. 15-0938, 2019 WL 316750, at *3 (D.N.J. Jan. 24, 2019) (dismissing FDCPA claim against mortgage servicer when plaintiff failed to allege that servicer was not collecting on debt for its own account); see also Kurtzman v. Nationstar Mortgage LLC, 709 Fed.Appx. 655, 659 (11th Cir. 2017) (dismissing FDCPA claim against mortgage servicer when “[t]he complaint is silent regarding whether the principal purpose of [the defendant mortgage loan servicer's] business is collecting debts, and it only generally asserts that ‘regularly attempts to collect debts not owed to [it]' ”)Raciti v. Rushmore Loan Mgmt. Servs., LLC, 412 F.Supp.3d 462, 468-69 (D.N.J. 2019).
So it is here. The exhibits which Rudy attaches to her complaint unmistakably indicate that the defendants began servicing this loan in February of 2017, more than five years prior to any alleged mortgage default. (Doc. 1-1, Ex. 16). Thus, it is apparent on the face of Rudy's complaint that this case concerns Lakeview's servicing of a debt which was not in default at the time it was obtained by the defendant. 15 U.S.C. § 1692a. Since such loan servicers, as a matter of law, are not debt collectors as that term is defined under the FDCPA, this claim fails as a matter of law and should be dismissed.
4. Rudy's State Law Statutory Claims Also Fail as Currently Pleaded.
Finally, Rudy's complaint also brings two state law statutory claims under Pennsylvania's Fair Credit Extension Uniformity Act, 73 P.S. § 2270.1, et seq. (“FCEUA”), and Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 202-1, et seq. (“UTPCPL”). In considering these claims, it is important to recognize the interplay between these two state statutes. As the Pennsylvania Superior Court has recently observed:
[T]he FCEUA does not have its own private cause of action. Instead, pursuant to the enforcement and penalties provision of Section 2270.5 of the FCEUA, “If a debt collector or creditor engages in an unfair or deceptive debt collection act or practice under this act, it shall constitute a violation of the [UTPCPL]. ” 73 P.S. § 2270.5(a) (emphases added).Matteo v. EOS USA, Inc., 2023 WL 2699561 at *8, 2023 PA Super 51 (Mar. 30, 2023). Therefore, the FCEUA does not give rise to a freestanding legal claim on Rudy's behalf. In any event, any state law FCEUA claim pursued by Rudy encounters an insurmountable legal obstacle similar to that which bars a federal claim under the FDCPA. The plain language of the statute provides that it does not reach “a debt which was not in default at the time it was obtained by” a loan servicer. 73 Pa. Stat. Ann. § 2270.3. Therefore, the immutable fact that Lakeview began servicing this loan in 2017, five years prior to any alleged default, checkmates any state law claim under the FCEUA.
Rather, liability exists under state law only to the extent that the facts alleged by the plaintiff separately violate Pennsylvania's UTPCPL. In this regard:
[I]n order ‘[t]o establish liability under the catch-all provision of the UTPCPL, “a plaintiff must present evidence showing: (1) a deceptive act that is likely to deceive a consumer acting reasonably under similar circumstances; (2) justifiable reliance; and (3) that the plaintiff's justifiable reliance caused ascertainable loss.”Angino v. Santander Bank, N.A., No. 1:15-CV-1145, 2015 WL 13738828, at *10 (M.D. Pa. Dec. 15, 2015), report and recommendation adopted as modified, No. 1:15-CV-1145, 2016 WL 386377 (M.D. Pa. Feb. 2, 2016) (collecting cases). In the instant case, Rudy's allegations fall well short of what is needed to state a viable UTPCPL claim. At the outset, the complaint merely alleges that at the time her loan went into default, Rudy “discovered an unknown concern” or a “previously unrecognized issue” upon reviewing the loan documents and applicable laws. (Id., ¶¶ 1, 17). This enigmatic averment falls well below what the UTPCPL requires: a deceptive act that is likely to deceive a consumer acting reasonably.
Further, this complaint runs afoul of insurmountable legal obstacles in terms of any alleged reliance upon those representations and any ascertainable loss to the plaintiff. Initially, this complaint fails because, as pleaded, Rudy does not allege that she relied to her detriment upon any assertions by Lakeview. Such allegations of justifiable reliance are an essential element to a claim under Pennsylvania's UTPCPL since, as the Third Circuit has noted:
Given the Pennsylvania courts' repeated holdings that “[t]o bring a private cause of action under the [Consumer Protection Law], a plaintiff must show that he justifiably relied on the defendant's wrongful conduct or representation and that he suffered harm as a result of that reliance,” Yocca, 854 A.2d at 438 . . ., we conclude that private plaintiffs alleging deceptive conduct. . . must allege justifiable reliance.Hunt v. U.S. Tobacco Co., 538 F.3d 217, 224 (3d Cir. 2008).
Moreover, the complaint does not assert well-pleaded facts showing that Rudy suffered an ascertainable loss as a result of her dealings with Lakeview. In order to satisfy this element of a UTPCPL claim, “courts require that the loss asserted be ‘an actual, non-speculative, loss of money or property.' ” Hall v. Equifax Info. Servs. LLC, 204 F.Supp.3d 807, 812 (E.D. Pa. 2016). Thus:
While the Pennsylvania Supreme Court mandates a liberal construction of the UTPCPL, lower court cases and the plain language of the statute indicate an actual loss of money or property must have occurred to state a cognizable UTPCPL claim. See, e.g., Brock v. Thomas, 782 F.Supp.2d 133, 137 (E.D.Pa.2011) (Plaintiff alleged loss of title to his Philadelphia residence because of Defendant's fraudulent conduct); Baynes v. George E. Mason Funeral Home, Inc., No. 09-153, 2011 WL 2181469, at *5 (W.D.Pa. June 2, 2011) (Plaintiff had proven loss of money when he purchased defective steel casket instead of solid bronze one that was advertised). A plaintiff must be able to point to money or property that he would have had but for the defendant's fraudulent actions. See Rubenstein v. Dovenmuehle Mortg., Inc., No. 09-721, 2009 WL 3467769, at *6 (E.D.Pa. Oct. 28, 2009) (dismissing UTPCPL claim against mortgage company because plaintiffs could not show an ascertainable loss from mortgage company's failure to immediately disclose that they did not have plaintiffs' complete mortgage payment history); Solarchick ex rel. Solarchick v. Metro. Life Ins. Co., 430 F.Supp.2d 511, 516 (W.D.Pa.2006)
(“A party cannot lose what she does not or will not have, and cannot be compensated for a loss not suffered.”).Benner v. Bank of Am., N.A., 917 F.Supp.2d 338, 360 (E.D. Pa. 2013).
On this score, it has been held that a dispute regarding “an outstanding liability, . . . does not constitute a ‘loss of money or property' ” for purposes of the UTPCPL. Id. Thus, an “unpaid fee, while an outstanding liability, did not constitute a ‘loss of money or property' necessary to state a [UTPCPL] claim.” Conway v. U.S. Bank, Nat'l Ass'n, No. CV 18-4916, 2019 WL 2320872, at *8 (E.D. Pa. May 29, 2019), affd sub nom. Conway v. U.S. Bank Nat'l Ass'n as trustee for structured asset securities corporation, structured asset investment loan trust, mortgage pass-through certificates, series 2005-2, 804 Fed.Appx. 120 (3d Cir. 2020). Stripped to its essentials, Rudy's complaint entails a dispute over an outstanding liability, her mortgage debt. Therefore, in the absence of further well-pleaded facts this UTPCPL claim fails to satisfy the statute's misrepresentation, justifiable reliance, and ascertainable loss elements. Accordingly, this UTPCPL state law claim is also subject to dismissal. See Glover v. Wells Fargo Home Mortg., 629 Fed.Appx. 331, 344 (3d Cir. 2015).
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED THAT the defendant's motion to dismiss (Doc. 5) be GRANTED, and the plaintiff's complaint should be dismissed.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.