Anderson v. Hill Wallack Llp et alBRIEF in OppositionD.N.J.December 5, 2016UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Civil Action No. 3:16-cv-02437- FLw-LHG Motion Returnable: December 19, 2016 OPPOSITION OF DEFENDANT SENECA MORTGAGE SERVICING,LLC.’S MOTION TO DISMISS THE COMPLAINT Adam Deutsch, Esq. Denbeaux & Denbeaux 366 Kinderkamack Road Westwood, NJ 07675 (201) 664-9167 adeutsch@denbeauxlaw.com Attorneys for Plaintiff Karen Anderson KAREN ANDERSON, Plaintiff, vs. HILL WALLACK LLP; SENECA MORTGAGE SERVICING, LLC.; BSI FINANCIAL SERVICES a/k/a SERVIS ONE, INC.; OHA NEWBURY VENTURES, L.P.; GOSHEN MORTGAGE LLC; JOHN DOES I-X, Defendants. i Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 1 of 25 PageID: 466 TABLE OF CONTENTS STATEMENT OF FACTS RELEVANT TO THE SENECA MOTION TO DISMISS…………………………………………………………………………………………………………… 1 LEGAL ARGUMENT………………………………………………………………………………………… 3 I. LEGAL STANDARD ON THE MOTION TO DISMISS BEFORE THE COURT…………………………………………………………………………………………………… 3 II. PLAINTIFF’S COMPLAINT SETS FORTH A CLAIM FOR RELIEF FOR VIOLATION OF THE FAIR DEBT COLLECTION PRACTICES ACT………………………………………………………………………………………………………… 5 a. Seneca is a Debt Collector Subject to the Fair Debt Collection Practices Act…………………………………… 6 b. The Complaint Sufficiently Alleges that Seneca Engaged in Conduct that Violates 15 U.S.C. §1692c 9 c. The Complaint Sufficiently Alleges that BSI Engaged in Conduct that Violates 15 U.S.C. §1692d 11 d. The Complaint Sufficiently Alleges that Seneca Engaged in Conduct that Violates 15 U.S.C. §1692e 14 III. PLAINTIFF’S COMPLAINT SETS FORTH A CLAIM FOR RELIEF UNDER THE TELEPHONE CONSUMER PROTECTION ACT……………… 15 CONCLUSION…………………………………………………………………………………………………… 18 ii Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 2 of 25 PageID: 467 TABLE OF AUTHORITIES CASES Allen ex rel. Martin v. LaSalle Bank, N.A. 629 F.3d 364, 368 (3d Cir. 2011)………………………………………………………………………………………………… 6 Ashcroft v. Iqbal, 556 U.S. 662, 696 (U.S. 2009) 3,4 Beals v. Bank of Am., N.A., 2011 U.S. Dist. LEXIS 128376, 47-50 (D.N.J. Nov 4, 2011)……………………………………………………………………… 7 Bell Atl. Corp. v. Twombly, 550 US. 544 (2007)… 3,4 Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d, 1358, 1362 (3d Cir. Pa. 1992)……………………………………………… 13 Block v. Seneca Mortg. Servicing, 2016 U.S. Dist. LEXIS 150380 at *65-66 (N.J.D.C. Oct 31, 2016)…………………………………… 7 Cable v. Allied Interstate, Inc. 2012 U.S. Dist. LEXIS *5-6 169344 (M.D. P.a. 2012)……………………………………………………………… 12 Christy v. EOS CCA 905 F. Supp. 2d 648, 654 (E.D. P.a. 2012)……………………………………………………………………………………………………………… 12 Daniels v. Community Lending, Inc. 2014 WL 51275 (S.D. Cal. 2014)……………………………………………………………………………………………………………… 17 Daubert v. NRA Group, LLC, 2016 U.S. Dist. LEXIS 69630 *41 (M.D. P.A. May 27, 2016)…………………………………………………………………………… 16 Dawson v. Dovenmuehle Mortgage, Inc., No. 00-6171, 2002 U.S. Dist. LEXIS 5688, 2002 WL 501499, at *5 (E.D. Pa. Apr. 3, 2002)……………………………………………………………………………………………………………… 8 Douglass v. Convergent Outsourcing, 756 F.3d 299, 303 (3d Cir. 2014)……………………………………………………………………………………………………………… 5 Dutton v. Wolpoff & Abramson 5, F.3d 649 (3d Cir. 1993)……………………………………………………………………………………………………………… 15 iii Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 3 of 25 PageID: 468 Evankavitch v. Green Tree Servicing, LLC 2015 U.S. App. LEXIS 12024 (3d Cir. July 13, 2015)……………………………………………… 6 Flores v. Adir International, LLC, 2015 WL 4340020 (C.D. Cal. 2015)……………………………………………………………………………………………………………… 17 Gager v. Dell Fin. Servs., LLC 727 F.3d 265, 271 (3d Cir. 2013)……………………………………………………………………………………………………………… 15-16 Jensen v. Pressler & Pressler 791 F.3d 413, 421 (3d Cir. 2015)……………………………………………………………………………………………………………… 6 Kaymark v. Bank of America, N.A. 783 F.3d 168, 174 (3d Cir. 2015)……………………………………………………………………………………………………………… 6 Knutson v. Reply!, Inc. WL 291076 (S.D. Cal 2011) 17 Lesher v. Law Offices of Mitchell N.Ka, P.C., 650 F.3d 993, 996 (3d Cir. 2011)……………………………………………………………………………………… 5-6 McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756 F.3d 240, 245 (3d Cir. 2014)……………………………………………………………………………………… 11 Mims v. Arrow Fin. Servs., LLC 132 S. Ct. 740, 745, 181 L. Ed. 2d 881 (2012)………………………………………………………………………………………… 16 Neitzke v. Williams, 490 U.S., 319, 327 (1989)… 4 Phillips v. County of Allegheny 515 F.3d 224, 233 (3 Cir. 2008)……………………………………………………………………………………………………………… 18 Police v. National Tax Funding, L.P. 225 F.3d 379, 403-405 (3d Cir. 2000)………………………………………………………………………………………………… 7 Rush v. Portfolio Recovery Assocs., LLC 977 F. Supp. 2d 414, 429 (D.N.J. 2013)………………………………………………………………………………………… 13 Schuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686 (1974)…………………………………………………………………………………………………………… 3 iv Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 4 of 25 PageID: 469 Simon v. FIA Card Servs., N.A., 732 F.3d 259, 264 (3d Cir. 2013)……………………………………………………………………………………… 4 Siwulec v. Chase Home Fin., LLC, 2010 U.S. Dist. LEXIS 128942, 2010 WL 5071353, at *3 (D.N.J. Dec. 7, 2010)……… 7 Turner v. Prof’l Recovery Servs., Inc., 956 F. Supp.2d 573 (D.N.J. 2013)………………………………………………………………………………………… 13 Whitingham v. Mortg. Elec. Registration Services, Inc., 2007 WL 1456196 (D.N.J. May 15, 2007)……………………………………………… 8 v Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 5 of 25 PageID: 470 STATUTES AND REGULATIONS 47 C.F.R. §64.1200…………………………………………………………………………… 17 12 U.S.C. §2601(a)…………………………………………………………………………… 12 U.S.C. 2605(e)……………………………………………………………………………… 15 U.S.C. §1692…………………………………………………………………………………… 11 15 U.S.C. §1692(a)…………………………………………………………………………… 5,6 15 U.S.C. §1692c(a)(2)………………………………………………………………… 10 15 U.S.C. §1692a(3)………………………………………………………………………… 15 U.S.C. §1692a(6)………………………………………………………………………… 15 U.S.C. §1692c………………………………………………………………………………… passim 15 U.S.C. §1692c(b)………………………………………………………………………… 15 U.S.C. §1692d………………………………………………………………………………… 11,12,13 15 U.S.C. §1692e………………………………………………………………………………… 14 15 U.S.C. 1692(e)……………………………………………………………………………… 5 15 U.S.C. §1692e(11)……………………………………………………………………… 14 15 U.S.C. §1692k………………………………………………………………………………… 9 47 C.F.R. §64.1200…………………………………………………………………………… 17 47 C.F.R. 64.1200(a)(1)(iii)………………………………………………… 17 47 U.S.C. §227(b)(1)(A)……………………………………………………………… 16,17 47 U.S.C. §227(b)(1)(A)(iii)………………………………………………… 16,17 vi Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 6 of 25 PageID: 471 RULES Fed.R.Civ.P. 12(b)(6)…………………………………………………………………… 18 Fed.R.Civ.P. 8……………………………………………………………………………………… 18 vii Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 7 of 25 PageID: 472 STATEMENT OF FACTS RELEVANT TO THE SENECA MOTION TO DISMISS Plaintiff has owned and resided in the real property located at 540 Undercliff Avenue, Edgwater, New Jersey since 1999. [ECF 1 ¶9-10] In September 2009 Plaintiff entered into refinance mortgage loan agreement with Bank of America, N.A. [ECF 1 ¶11] After the loan closed it was sold multiple times. [ECF 1 ¶12] Due to unforeseen economic circumstances, Plaintiff defaulted on the mortgage loan in 2011. [ECF 1 ¶13] On October 15, 2014 debt collection law firm McCabe, Weisberg & Conway, P.C. filed a debt collection foreclosure action on behalf of Ventures Trust 2013-I-H-R by MCM Capital Partners, LLC, its trustee, under New Jersey Superior Court docket F-043267-14. [ECF 1 ¶14] On May 4, 2015 Plaintiff, through her counsel, filed a contesting Answer in the foreclosure debt collection litigation and the parties exchanged discovery. [ECF 1 ¶16-17] BSI Financial Services a/k/a Servis One, Inc. (“BSI”) became the servicer of the mortgage loan after it was in default. BSI knew Plaintiff was represented by legal counsel in relation to the debt in part because it received a Qualified Written Request in May 2015 advising it of representation. [ECF 1 ¶18] 1 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 8 of 25 PageID: 473 Servicing of the loan was transferred from BSI to Seneca Mortgage Servicing, LLC (“Seneca”) in June 2015. [ECF 1 ¶28] The loan was in default at the time Seneca became the loan servicer. Seneca knew or had reason to know Plaintiff was represented by counsel at the time it became servicer of the loan. [ECF 1 ¶31] Seneca sent Plaintiff a letter dated June 8, 2015 directly to her home. The letter states “Seneca Mortgage Servicing, LLC is attempting to collect a debt and any information obtained will be used for that purpose.” [ECF 1 P28-29; ECF 1 Exhibit 6] Seneca sent Plaintiff a letter dated June 12, 2015 directly to her home. The letter states “Seneca Mortgage Servicing, LLC is attempting to collect a debt and any information obtained will be used for that purpose.” [ECF 1 ¶30; ECF 1 Exhibit 7] The June 12 letter contains an accounting of the amount allegedly owed on the mortgage loan. Id. On November 15, 2015 Seneca sent a representative to Plaintiff’s home and placed a notice on her door. [ECF 1 ¶34; ECF 1 Exhibit 8] On December 15, 2015 Seneca again sent a representative to Plaintiff’s home and placed a notice on her door. [ECF 1 ¶35; ECF 1 Exhibit 9] One month later on January 15, 2015 Seneca again sent a representative to Plaintiff’s home and placed a notice on her door. [ECF 1 ¶36; ECF 1 Exhibit 10] 2 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 9 of 25 PageID: 474 On February 1, 2016 Seneca received a letter dated January 26, 2016 sent by Plaintiff’s counsel. The letter instructs Seneca to cease and desist from contacting Plaintiff directly. [ECF 1 ¶44] Seneca regularly placed phone calls to Plaintiff’s personal phone. [ECF 1 ¶39] Plaintiff changed her cell phone number on or about November 2015 in part to avoid receiving debt collection calls from Seneca. [ECF 1 ¶40] Seneca obtained Plaintiff’s new cell phone number and called it without authorization, on February 4 and February 8, 2016. [ECF 1 ¶41- 43] The phone calls made to Plaintiff’s cell phone were made using a telephone system equipped with automatic dialer technology. [ECF 1 ¶95] LEGAL ARGUMENT I. LEGAL STANDARD ON THE MOTION TO DISMISS BEFORE THE COURT. The legal standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6) is well settled and straightforward. The purpose of the motion to dismiss is to test the sufficiency of the complaint. See Schuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686 (1974). In doing so the Court is to follow the legal standard set forth by the U.S. Supreme Court in Bell Atl. Corp. v. Twombly, 550 US. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 696 (U.S. 2009). 3 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 10 of 25 PageID: 475 Under the standard, the Court is to treat all allegations in the complaint as true and to view them in a light most favorable to the claimant. Simon v. FIA Card Servs., N.A., 732 F.3d 259, 264 (3d Cir. 2013). Motions to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6) may only be granted if a court finds the Plaintiff has failed to set forth fair notice of what the claim is and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 US. 544, 555 (2007). The Court is not charged with the duty to determine whether the claimant is likely to ultimately prove its legal claims, instead the claimant must be permitted to proceed so long as the allegations if proven could result in establishing liability. See Ashcroft v. Iqbal, 556 U.S. 662, 696 (U.S. 2009) (citing Neitzke v. Williams, 490 U.S., 319, 327 (1989)). Reviewing the Complaint and assuming all facts to be true, there is no question that Plaintiff’s claim for relief is viable under the Fed. R. Civ. P. 12(b)(6) standard. Plaintiff has set forth the factual basis for the claim with citation to the applicable statute(s). Accordingly, the Court should deny motions of the several defendants so the case may proceed on the merits. 4 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 11 of 25 PageID: 476 II. PLAINTIFF’S COMPLAINT SETS FORTH A CLAIM FOR RELIEF FOR VIOLATION OF THE FAIR DEBT COLLECTION PRACTICES ACT. There are four elements to an FDCPA claim and Plaintiff has met the pleading burden of each element against each defendant. A Plaintiff must allege “(1) [she] is a consumer, (2) the defendant is a debt collector, (3) the defendant’s challenged practice involves an attempt to collect a ‘debt’ as the Act defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the debt.” Douglass v. Convergent Outsourcing, 756 F.3d 299, 303 (3d Cir. 2014). In this case, Plaintiff has alleged all of these elements as to Seneca. Accordingly, the motion to dismiss should be denied. Congress enacted the FDCPA in 1977 “to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. 1692(e). Congress noted that such abusive debt collection practices contribute to the number of personal bankruptcies, marital instability, the loss of jobs, and invasions of individual privacy. Douglass v. Convergent Outsourcing, 765 F.3d 299 (3d Cir. 2014), citing 15 5 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 12 of 25 PageID: 477 U.S.C. §1692(a); see also Lesher v. Law Offices of Mitchell N.Ka, P.C., 650 F.3d 993, 996 (3d Cir. 2011); Evankavitch v. Green Tree Servicing, LLC 2015 U.S. App. LEXIS 12024 (3d Cir. July 13, 2015). It is against this backdrop that Plaintiff seeks relief before this Court. In its review of this motion to dismiss, the Court must apply the least sophisticated consumer standard. Kaymark v. Bank of America, N.A. 783 F.3d 168, 174 (3d Cir. 2015). Using this standard, the Court is directed to inquire whether the allegedly false or misleading statement “has the potential to affect the decision-making process of the least sophisticated debtor; in other words, it must be material when viewed through the least sophisticated debtor’s eyes.” Jensen v. Pressler & Pressler, 791 F.3d 413, 421 (3d Cir. 2015). Furthermore, the “FDCPA is a strict liability statute to the extent it imposes liability without proof of an intentional violation.” Allen ex rel. Martin v. LaSalle Bank, N.A. 629 F.3d 364, 368 (3d Cir. 2011) a. Seneca is a Debt Collector Subject to the Fair Debt Collection Practices Act. Plaintiff’s complaint alleges that Seneca is a debt collector as defined by 15 U.S.C. §1692a of the Fair Debt Collection Practices Act. [ECF Doc 1 ¶64] Seneca erroneously argues that it is not a debt collector. The case law disagrees. 6 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 13 of 25 PageID: 478 Recently in Block v. Seneca Mort. Servicing this Court explained: The FDCPA defines a debt collector as “any 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.” Id. §1692a(6). However, that term does not include “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 … concerns a debt which was not in default at the time it was obtained by such person.” Id. §1692a(6)(F). Therefore, the servicer of a residential mortgage loan is not a “debt collector” if the loan in question is not in default when acquired by the servicer. See Siwulec v. Chase Home Fin., LLC, 2010 U.S. Dist. LEXIS 128942, 2010 WL 5071353, at *3 (D.N.J. Dec. 7, 2010). See also Simm, 2013 U.S. Dist. LEXIS 62849, 2013 WL 1867035, at *7 (citations omitted)(“if Plaintiffs could show that Bank of America was a debt collector under the FDCPA because the loan was already in default when it was transferred.”); See also Beals, 2011 U.S. Dist. LEXIS 128376, 2011 WL 5415174, at *18 (quoting Police v. Nat’l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000)) (“Pursuant to the words of the statute, courts have concluded that ‘an assignee of an obligation is not a ‘debt collector’ if the obligation is not in default at the time of the assignment.’ But ‘an assignee may be deemed a ‘debt collector’ if the obligation is already in default when it is assigned.”) Block v. Seneca Mortg. Servicing, 2016 U.S. Dist. LEXIS 150380 at *65-66 (N.J.D.C. Oct 31, 2016) Seneca is a debt collector subject to the FDCPA so long as the loan was in default before it became the servicer of the 7 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 14 of 25 PageID: 479 mortgage loan1. The Complaint leaves no dispute that the loan was in default when Seneca took over mortgage servicing duties. Defendant defaulted on the mortgage loan in 2011. [ECF Doc 1 ¶13] On October 15, 2014 a foreclosure debt collection lawsuit was filed against Plaintiff seeking to enforce the mortgage loan that is part the subject of this litigation. [ECF Doc 1 ¶14] Seneca did not acquire servicing of Plaintiff’s mortgage loan until June 1, 2015. [ECF Doc 1 p44] By letter dated June 12, 2015 Seneca confirmed that it took over servicing of the mortgage loan while it was in default. [ECF Doc 1 p49-50] The June 12, 2015 letter marked Exhibit 7 to the Complaint states that as of June 12, 2015 in addition to principal owed on the loan, Plaintiff owed “Accrued Interest” totaling $104,446.38 together with additional fees and penalties. Id. The facts before the Court demonstrate that Seneca took over servicing of the mortgage loan while foreclosure litigation was ongoing and 1 Seneca incorrectly states the law on this issue in its brief. Defendant cites to Whitingham v. Mortg. Elec. Registration Services, Inc., 2007 WL 1456196 (D.N.J. May 15, 2007) for the proposition that “the legislative history of the FDCPA demonstrates that the term ‘debt collectors’ does not encompass a mortgage servicing company.” In the very same paragraph of that decision, Judge Kugler cites Dawson v. Dovenmuehle Mortgage, Inc., No. 00-6171, 2002 U.S. Dist. LEXIS 5688, 2002 WL 501499, at *5 (E.D. Pa. Apr. 3, 2002) as follows: “A loan servicer, someone who services but does not own the debt, is not a ‘debt collector’ if the servicer begins servicing of the loan before default… [T]he statute applies to a mortgage servicing company only where the mortgage at issue was already in default at the time when servicing began.” Defendant Seneca knows that under the facts of this case, the FDCPA applies to Seneca. 8 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 15 of 25 PageID: 480 the loan was in default. [ECF Doc 1 ¶31] Seneca is a debt collector in relation to Plaintiff. b. The Complaint Sufficiently Alleges that Seneca Engaged in Conduct that Violates 15 U.S.C. §1692c. Defendant’s motion to dismiss does not address Plaintiff’s §1692c claim. Out of an abundance of caution, Plaintiff nonetheless addresses the merits of the claim. Plaintiff’s §1692c claim is based upon written and telephonic correspondence made by BSI to Plaintiff in an attempt to collect a debt. All of the alleged conduct giving rise to this claim occurred within one year of the filing of this lawsuit and thus the conduct falls within the applicable statute of limitations imposed by 15 U.S.C. §1692k. Section 1692c states in part: §1692c. Communication in connection with debt collection (a) Communication with the consumer generally. Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt -- … (2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer. 9 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 16 of 25 PageID: 481 15 U.S.C. §1692c Section 1692a(2) of the Fair Debt Collection Practices Act defines the term “communication as follows: The term ‘communication’ means the conveying of information regarding a debt directly or indirectly to any person through any medium. 15 U.S.C. §1692a(2) On June 1, 2015 Seneca became servicer of Plaintiff’s mortgage loan. [ECF 1 Exhibit 6] It was well documented by that time that Plaintiff was represented by legal counsel in relation to her mortgage loan. There was an ongoing contested foreclosure action in which Plaintiff was represented by counsel, and Plaintiff had notified prior loan servicer BSI in writing that she was represented by counsel and wanted all communications regarding the loan to be directed at legal counsel. [ECF 1 Exhibit 1] Seneca knew or should have known when it acquired servicing of the mortgage loan that Plaintiff was represented by counsel. The written June 6 and June 8, 2015 letters sent by Seneca to Plaintiff each declare that the communications are made in connection with the collection of a debt. [ECF 1 Exhibits 6 & 7] Both letters state “Seneca Mortgage Servicing, LLC is attempting to collect a debt and any information obtained will be used for that purpose.” Id. The June 6 letter includes a solicitation 10 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 17 of 25 PageID: 482 for payment on the loan wherein it asks Plaintiff to sign an “AUTHORIZATION FOR AUTOMATIC PAYMENT Recurring, monthly drafts.” [ECF 1 Exhibit 6] The June 8 letter sets forth the accounting of money allegedly owed on the loan, and thus conveys information regarding a debt. [ECF 1 Exhibit 7] On January 26, 2016 Plaintiff’s attorney sent Seneca a letter advising Seneca to stop all communications with Plaintiff and instead to direct them to her attorneys. [ECF 1 Ex 12] After receiving the letter on February 1, 2016, Seneca placed multiple phone calls to Plaintiff’s personal phone in connection with the collection of a debt. [ECF 1 ¶42-43] None of the communications from Seneca directed at Plaintiff in connection with the collection of a debt, were made with permission of the court or Plaintiff’s attorney. The communications were made in violation of 15 U.S.C. §1692c. See McLaughlin v. Phelan Hallinan & Schmieg, LLP 756 F.3d 240, 245- 45 (3d Cir. Pa 2014). The Court should therefore deny Defendant’s motion and sustain the cause of action. c. The Complaint Sufficiently Alleges that BSI Engaged in Conduct that Violates 15 U.S.C. §1692d. To achieve the goal articulated in 15 U.S.C. §1692 of eliminating abusive debt collection practices that contribute to broad harms including “invasions of individual privacy,” 11 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 18 of 25 PageID: 483 Congress enacted 15 U.S.C. 1692d. Section 15 U.S.C. 1692d specifically prohibits a debt collector from engaging “in an conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt.” 15 U.S.C. 1692d. As with other sections of the Fair Debt Collection Practices Act, §1692d is drafted in an expansive form that purposefully does not articulate every conceivable act that would exhibit the conduct violating the provision. Cable v. Allied Interstate, Inc. 2012 U.S. Dist. LEXIS *5-6 169344 (M.D. P.a. 2012); Christy v. EOS CCA 905 F. Supp. 2d 648, 654 (E.D. P.a. 2012) Plaintiff’s complaint alleges that Seneca sent debt collection correspondence to Plaintiff’s home, called Plaintiff’s phone when the number had not been provided to Seneca, and that Seneca sent representatives to Plaintiff’s home all while Seneca knew Plaintiff was represented by legal counsel in relation to her mortgage debt. Plaintiff retained legal counsel in part so she could be free from the anxiety of constantly receiving debt collection communications. [ECF 1 ¶20] Defendant knew Plaintiff was represented by counsel, knew 15 U.S.C. §1692c prohibited BSI from communicating directly with Plaintiff in connection with the collection of a debt, and BSI did so anyway. “The question of whether a debt collector engages in ‘harassing, annoying, or abusive’ conduct is 12 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 19 of 25 PageID: 484 ordinarily an issue of fact for the jury.” Rush v. Portfolio Recovery Assocs., LLC 977 F. Supp. 2d 414, 429 (D.N.J. 2013) Due to the fact sensitive nature of 15 U.S.C. §1692d claims, District Courts in the Third Circuit have consistently permitted well pleaded claims to move into discovery and be resolved at summary judgment in the defendant’s favor only where no reasonable jury could find that the proven conduct resulted in harassing, abusive, or oppressive conduct. See Rush v. Portfolio Recovery Assocs., LLC 977 F. Supp. 2d 414, 431 (D.N.J. 2013) (Finding “these assertions are enough to merit a genuine dispute of fact as to the number, frequency, and timing of phone calls Portfolio made to Plaintiffs. Because a genuine dispute of fact exists, I cannot determine, as a matter of law, that Portfolio’s conduct unequivocally did not violated §1692d(5). See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d, 1358, 1362 (3d Cir. Pa. 1992) Instead I find it appropriate in this case, like in most cases, that the question of whether Portfolio’s conduct harassed, oppressed, or abused Plaintiffs is a question of fact for a jury to decide.”); Turner v. Prof’l Recovery Servs., Inc., 956 F. Supp.2d 573 (D.N.J. 2013). In this case, Plaintiff sought reprieve from collection phone calls made by BSI pursuant to her legal rights. Seneca violated Plaintiff’s rights by sending debt collection mail to her home, making phone calls to Plaintiff’s personal phone and 13 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 20 of 25 PageID: 485 sending representatives to her house who placed notices on her front door. All of Seneca’s conduct occurred after it became affirmatively prohibited under 15 U.S.C. §1692c from contacting Plaintiff directly. This adds to the likelihood that a reasonable fact finder could determine Seneca’s conduct had the natural consequence to harass, oppress or abuse the plaintiff. Seneca’s conduct demonstrates complete disregard for Plaintiff, and the requirements of the Fair Debt Collection Practices Act. d. The Complaint Sufficiently Alleges that Seneca Engaged in Conduct that Violates 15 U.S.C. §1692e. Plaintiff’s allegations regarding Seneca’s violation of 15 U.S.C. §1692e are limited to subsection (11). The statute states: The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action. 15 U.S.C. §1692e(11) (emphasis added) The Third Circuit Court of Appeals has determined that the plain language of 15 U.S.C. §1692e(11) unequivocally requires all follow up communications made by a debt collector must 14 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 21 of 25 PageID: 486 include a warning disclosing that the communication is from a debt collector. See Dutton v. Wolpoff & Abramson 5, F.3d 649 (3d Cir. 1993) The Complaint alleges that on three separate occasions Seneca posted notices on Plaintiff’s home door in connection with the collection of a debt, demanding that Plaintiff call Seneca. Seneca placed these notices on Plaintiff’s door because its attempts to communicate in connection with the collection of a debt by letter and phone were unsuccessful. Plaintiff’s complaint sets forth sufficient information for the fact finder to determine if the communication was officially in connection with the communication of a debt. Logically, there is no reason for Seneca to have communicated with Plaintiff other than for the collection of a debt because the relationship between the parties is limited to that of a debtor and collector/servicer. The Court should deny the motion to dismiss and permit the claim to move forward on the merits at this time. III. PLAINTIFF’S COMPLAINT SETS FORTH A CLAIM FOR RELIEF UNDER THE TELEPHONE CONSUMER PROTECTION ACT. Case law governing the Telephone Consumer Protection Act (“TCPA”) in the Third Circuit is well established. “Congress passed the TCPA to protect individual consumers from receiving intrusive and unwanted calls.” Gager v. Dell Fin. Servs., LLC 15 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 22 of 25 PageID: 487 727 F.3d 265, 271 (3d Cir. 2013)(citing Mims v. Arrow Fin. Servs., LLC 132 S. Ct. 740, 745, 181 L. Ed. 2d 881 (2012). The TCPA makes it unlawful for any person: To make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial prerecorded voice… to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call. 47 U.S.C. §227(b)(1)(A)(iii) To sustain a cause of action at the pleading stage, a Plaintiff must allege the Defendant (1)placed calls to the Plaintiff’s cellular phone without consent, and that the call was made using (2) an automatic telephone dialing system. 47 U.S.C. §227(b)(1)(A); Daubert v. NRA Group, LLC, 2016 U.S. Dist. LEXIS 69630 *41 (M.D. P.A. May 27, 2016) Plaintiff set forth sufficient facts to establish a cause of action and the Defendant’s motion must be denied. The complaint explains: 40. On or about November 2015, Plaintiff changed her cell phone number in part to avoid receiving debt collection calls from Seneca. 41. Seneca obtained Plaintiff’s new cell phone number and proceeded to call the number without authorization. 42. On February 4, 2016 Seneca called Plaintiff’s new cell phone number from phone number (866) 919-5608 in an attempt to collect a debt. 43. On February 8, 2016 Seneca called Plaintiff’s new cell phone number from phone number (866) 919-5608 in an attempt to collect a debt. … 16 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 23 of 25 PageID: 488 91. At all relevant times Seneca Mortgage Servicing LLC has used, controlled and/or operated automatic telephone dialing systems as defined by 47 U.S.C. §227(a)(1) and 47 C.F.R. §64.1200. 92. Seneca Mortgage Servicing LLC made several phone calls to Plaintiff’s personal mobile phone since Plaintiff changed her phone number on or about November 2015. 93. On February 4, 2016 and February 8, 2016, Seneca Mortgage Servicing LLC made unauthorized phone calls to Plaintiff’s cellular phone. 94. At no time has Plaintiff provided Seneca Mortgage Servicing LLC prior express consent to use an automatic telephone dialing system to call Plaintiff on her cellular phone. 95. The phone calls to Plaintiff from Seneca Mortgage Servicing LLC were made using an automatic telephone dialing system in violation of 47 U.S.C. §227(b)(1)(A)(iii) and 47 C.F.R. 64.1200(a)(1)(iii). [ECF 1 Complaint] The facts as alleged by Plaintiff far surpass the notice pleading standard imposed at this stage of the litigation. In support of its motion to dismiss, Defendant relies exclusively on unpublished case law from the Central District of California. See Flores v. Adir International, LLC, 2015 WL 4340020 (C.D. Cal. 2015); Daniels v. Community Lending, Inc. 2014 WL 51275 (S.D. Cal. 2014) and Knutson v. Reply!, Inc. WL 291076 (S.D. Cal 2011). None of these cases have any precedential or relatable impact to the case before the Court. The central theme of the California cases is to require a heightened pleading standard to that imposed by the Third Circuit. 17 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 24 of 25 PageID: 489 Third Circuit case law makes clear that Fed.R.Civ.P. 8 requires “only a short and plain statement of the claim and its grounds” sufficient to place the Defendant on notice of the allegations raised by Plaintiff. Phillips v. County of Allegheny 515 F.3d 224, 233 (3 Cir. 2008) Following Phillips, Plaintiff has provided sufficient facts given the context of the claim to survive a Fed.R.Civ.P. 12(b)(6) motion to Dismiss and is entitled to proceed to discovery. The court should disregard Seneca’s reliance on out of circuit unpublished case law and deny the motion to dismiss. CONCLUSION Plaintiff’s complaint sets forth facts to establish a claim for relief against Seneca under the Fair Debt Collection Practices Act and Telephone Consumer Protection Act. Accordingly, Seneca’s motion to dismiss the Complaint should be denied in its entirety. Dated December 5, 2016 /s/ Adam Deutsch Adam Deutsch, Esq. Denbeaux & Denbeaux Counsel for Plaintiff 18 Case 3:16-cv-02437-BRM-LHG Document 48 Filed 12/05/16 Page 25 of 25 PageID: 490
