Dowell v. Bayview Loan Servicing, Llc et al

MOTION to Dismiss for Lack of Jurisdiction

M.D. Pa.November 2, 2016

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA ZACHARY THOMAS DOWELL, Plaintiff v. BAYVIEW LOAN SERVICING, LLC PHELAN HALLINAN DIAMOND & JONES MARIO J. HANYON, ESQUIRE WELLS FARGO, N.A. Defendants : : : : : : : : : : : : Civil No. 1:16-CV-02026 DEFENDANTS’ PHELAN HALLINAN DIAMOND & JONES, LLP AND MARIO J. HANYON, ESQUIRE MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS COMPLAINT PHELAN HALLINAN DIAMOND & JONES, LLP Dated: November 2, 2016 By: /s/ Mario J. Hanyon, Esquire Mario J. Hanyon, Esquire PA ID No. 203993 PHELAN HALLINAN DIAMOND & JONES, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 215.563.7000, Ext. 31340 mario.hanyon@phelanhallinan.com Attorney for Defendants Phelan Hallinan Diamond & Jones, LLP and Mario J. Hanyon, Esquire Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 3 of 16Case 1:16-cv-02026-YK-SES Document 14 Filed 11/02/16 Page 1 of 14 i TABLE OF CONTENTS TABLE OF CONTENTS...............................................................................................................i TABLE OF CITATIONS..............................................................................................................ii I. INTRODUCTION.......................................................................................................1 II. LEGAL ARGUMENT................................................................................................5 A. THE COMPLAINT MUST BE DISMISSED PURSUANT TO FRCP 12(b)(1) …………………………………………………………………………..5 B. THE COMPLAINT MUST BE DISMISSED WITH PREJUDICE PURSUANT TO FRCP 12(b)(6) ……………………….………………………8 C. THE STATUTE OF LIMITATIONS SET FORTH IN 15 USC §1692k(d) BARS PLAINTIFF’S COMPLAINT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 D. THE STATUTE OF LIMITATIONS SET FORTH IN 42 PA. C.S. §5524 BARS PLAINTIFF’S COMPLAINT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 13 III. CONCLUSION..........................................................................................................13 Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 4 of 16Case 1:16-cv-02026-YK-SES Document 14 Filed 11/02/16 Page 2 of 14 ii TABLE OF CITATIONS Federal Cases Institutional Investors Group v. Avaya, Inc., 564 F.3d 242, 252 (3d Cir. 2009)………………….1 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct 2499, 2509 (2007)………………………1 Mikhail v. Khan, 991 F. Supp. 2d 596, 640 (E.D. Pa. 2014)…………………………………….. 1 McDonald v. Jones, 427 F. App’x 84, 85 n.1 (3d Cir. 2011)……………………………………. 1 Ally Fin., Inc. v. Mente Chevrolet Oldsmobile., No. 11-7709, 2012 U.S. Dist. LEXIS 141111, at *8-*9 (E.D. Pa. Sept. 28, 2012)………………………………………………………………….. 1 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................ ..........9 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)..................................................................... 9, 10 Buck v. Hampton Tp. School District, 452 F.3d 256, 260 (3d Cir. 2006) . . . . . . . . . . . . . . . . . .10 Desi's Pizza, Inc. v. City of Wilkes-Barre, 321 F.3d 411 (3d Cir. 2003) . . . . . . . . . . . . . . . . . . . .6 Exxon Mobile Corp. v. Saudi Basic Indus. Corp. 544 U.S. 280 (2005) . . . . . . . . . . . . . . . . . . . . 8 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009)....................................................... . . 10 Great W. Mining & Mineral Co. v. Fox Rothschild, LLP, 615 F.3d 159 (3d Cir 2010) . . . . . . . . 6 Haines v. Kerner, 404 U.S. 519 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Jordan v. Fox Rothschild, O’Brien & Frankel, Inc., 20 F.3d 1250 (3d Cir. 1994) . . . . . . . . . . . 9 Khalil v. New Jersey Div. of Child Prot. & Permanency, No 14-1506, 2014 WL 7740497 . . . . ..7 Knapper v. Bankers Trust Co., 407 F.3d 573 (3d Cir. 2005) ……………………………… .5-6, 8 Lance v. Dennis, 546 U.S. 459 (2005) . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . .5 McArdle v. Verizon Communs., Inc., 567 Fed. App’x. 116 (3d Cir. 2014) . . . . . . . . . . . . . . . . ..13 McDowell v. Delaware State Police, 88 F.3d 188 (3d Cir.1996) . . . . . . . . . . . . . . . . . . . . . ..9-10 Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Nora v. Residential Funding Co., 543 F. App’x 601, 602 (7th Cir. 2013) . . . . . . . .. . . . . .. .. . . 7 Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . .10 Stuart v. Udren Law Offices P.C., 25 F.Supp.3d 504 (M.D. Pa. 2014) . . . . . . . . . . . . . . . . . . . .11 Walker v. Horn, 385 F.3d 321 (3d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 6 Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 5 of 16Case 1:16-cv-02026-YK-SES Document 14 Filed 11/02/16 Page 3 of 14 iii Pennsylvania Cases Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc. 468 A.2d 468 (Pa. 1983) . . . . . . . . . . . . .13 Federal Rules of Civil Procedure Rule 8(a)(2) ............................................................................................... . ...................................9 Rule 12(b)(1)…………………………………………………………………………………….1,3 Rule 12(b)(6)................................................................................................................... . . . . . 8, 9 Federal Rules of Evidence FRE 802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . … . . 11 FRE 901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. .. . .. . . . . . . . . . . . . . . .. . . . . . .. . . . . 11 FRE 902 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 11 Pennsylvania Rules of Evidence Pa. R.E. 802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . … . . 11 Pa. R.E. 901 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . .. . . . . . . . … . . . . . 11 Pa. R.E. 902 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . 11 Federal Statutory Authority 15 U.S.C. §1692(a)(5) . . . . . . . . . . . . . . . . . . . .. .. . . . .. . . . . . .. . . . . . . .. . . . . .. . . . . . .. . . . .12 15 U.S.C. §1692(e).........................................................................................................................11 15 U.S.C.S. 1692k(d) . . . . . . . . . . . . . . .. . . . . . .. . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . .12 Pennsylvania Statutory Authority 42 Pa. C.S. §5524(7) . . . . . . . . . . . . . . . .. . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 13 Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 6 of 16Case 1:16-cv-02026-YK-SES Document 14 Filed 11/02/16 Page 4 of 14 1 Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, Defendants Phelan Hallinan Diamond & Jones, LLP (hereinafter “PHDJ”) and Mario J. Hanyon, Esquire (hereinafter “MJH”), by and through undersigned counsel, Mario J. Hanyon, Esquire, respectfully submit this Memorandum of Law in support of its Motion to Dismiss Complaint. I. INTRODUCTION Plaintiff Zachary Thomas Dowell (hereinafter “Plaintiff”) is the defendant in a foreclosure action filed in the Perry County Court of Common Pleas on October 20, 2014 under docket number 2014-873 (“Foreclosure Complaint”) with regard to the property at 295 Briner Drive, Elliottsburg, PA 17024 (“Property”). A true and correct copy of the Foreclosure Complaint is attached hereto, made part hereof, and marked as Exhibit A.1 The Foreclosure Complaint is based on Plaintiff’s default under the terms of a Mortgage he executed as collateral to secure repayment of funds that Plaintiff borrowed to purchase the Property. On September 13, 2002, Plaintiff executed a Promissory Note for a loan in the amount of $150,425.00 to purchase the Property and, on the same day, Plaintiff also executed a Mortgage securing the Property as collateral for repayment of the Note. A true and correct copy of the Mortgage, redacted to protect confidential information, is attached hereto, made part hereof and marked as Exhibit B. A true and correct copy of the Note, redacted to protect confidential information, is attached hereto, made part hereof and marked as Exhibit C. The Mortgage was transferred to Wells Fargo Bank, N.A. as evidenced by an Assignment of Mortgage that was recorded in Perry County as Instrument No. 201404328, then to 1 In ruling on a motion to dismiss, in addition to the Complaint, courts must consider documents “incorporated into the complaint by reference, and maters of which a court may take judicial notice.” Institutional Investors Group v. Avaya, Inc., 564 F.3d 242, 252 (3d Cir. 2009) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct 2499, 2509 (2007)). This Court can take judicial notice of all documents cited herein because the documents are either documents from other judicial proceedings or are publicly available documents. Mikhail v. Khan, 991 F. Supp. 2d 596, 640 (E.D. Pa. 2014); Ally Fin., Inc. v. Mente Chevrolet Oldsmobile., No. 11-7709, 2012 U.S. Dist. LEXIS 141111, at *8-*9 (E.D. Pa. Sept. 28, 2012) (Sanchez, J.); See also McDonald v. Jones, 427 F. App’x 84, 85 n.1 (3d Cir. 2011) (citation omitted) (taking judicial notice of state proceedings for the purpose of applying the Rooker-Feldman doctrine). Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 7 of 16Case 1:16-cv-02026-YK-SES Document 14 Filed 11/02/16 Page 5 of 14 2 the Secretary of Housing and Urban Development as evidenced by the Assignment recorded in Perry County as Instrument No. 201602727, and then to Bayview Loan Servicing, LLC as evidenced by the Assignment recorded in Perry County as Instrument No. 201602728.2 A copy of the Assignments of Mortgage are attached hereto, made part hereof and marked respectively as Exhibits “D-1”, “D-2” and “D-3”. Plaintiff defaulted on the Mortgage obligation by failing to tender the monthly mortgage payments due May 1, 2014 and each month thereafter. As a result of Plaintiff’s default, the Foreclosure Complaint was filed on October 20, 2014. Plaintiff was personally served with the Complaint at the Property and filed Preliminary Objections on December 3, 2014. The matter was scheduled for argument on January 9, 2015, which was continued to July 7, 2015 on Plaintiff’s Motion. Preliminary Objections were overruled on July 15, 2015, and Plaintiff filed an Answer to the Complaint on August 27, 2015. In response, a Motion for Summary Judgment was filed on September 16, 2016, Plaintiff filed his response thereto on October 13, 2016 and by Order dated October 14, 2016, the Motion for Summary Judgment was granted. A true and correct copy of the October 14, 2016 Order is attached hereto, made part hereof and marked as Exhibit “E”. After unsuccessfully raising allegations of fraud and standing in the Foreclosure action Plaintiff now filed this Complaint and raises violations of the Fair Debt Collection Practices Act (“FDCPA”) and the Fair Credit Extension Uniformity Act (“FCEUA”) and alleges the Mortgage and Note were forged and fraudulently created and filed in the Foreclosure action. 2 The Foreclosure Complaint was filed by Wells Fargo Bank N.A., and a Praecipe for Voluntary Substitution was filed on July 29, 2016 after the Mortgage was transferred to Bayview Loan Servicing, LLC. Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 8 of 16Case 1:16-cv-02026-YK-SES Document 14 Filed 11/02/16 Page 6 of 14 3 II. LEGAL ARGUMENT A. The Complaint Must Be Dismissed Pursuant to FRCP 12(b)(1) Plaintiff’s Complaint must be dismissed for lack of subject matter jurisdiction under the Rooker-Feldman Doctrine. Plaintiff’s Complaint amounts to a collateral attack on the judgment entered by Judge Keith B. Quigley in the Perry County Court of Common Pleas on October 14, 2016. See Exhibit E. Plaintiff’s current action is nothing more than forum shopping and an attempt to get another shot at his alleged claims that the Mortgage and Note were forged and fraudulently created and filed in the Foreclosure action. In fact, Plaintiff relies on the exact same Forensic Examination Report Digital Image Extraction Findings of Gary Michaels of Mortgage Defense Systems (“MDS”) to support this Complaint as he used in response to the Motion for Summary Judgment filed in the Foreclosure action. Federal Courts, other than the United States Supreme Court, lack subject matter jurisdiction to review judgments entered by State Courts. “The Rooker-Feldman doctrine prevents the lower federal courts from exercising jurisdiction over cases brought by state-court losers challenging state-court judgments rendered before the district court proceedings commenced.” Lance v. Dennis, 546 U.S. 459, 460 (2005). Simply stated, the Rooker-Feldman Doctrine prevents Federal Court plaintiffs from seeking relief that, if granted, would negate or reverse a state court judgment. Knapper v. Bankers Trust Co., 407 F.3d 573, 580 (3d Cir. 2005). Further, Rooker-Feldman applies to decrees of Pennsylvania’s Supreme Court, as well as to final decisions rendered by a state’s intermediate appellate court and its respective trial court. Knapper, 407 F.3d at 580. A claim is barred under Rooker-Feldman if either the claim asserted in Federal Court was “actually litigated” in state court prior to the filing of the federal action or alternatively, if the claim is “inextricably intertwined” with the state court adjudication. Id. Here, the matter is inextricably intertwined with Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 9 of 16Case 1:16-cv-02026-YK-SES Document 14 Filed 11/02/16 Page 7 of 14 4 the Foreclosure action, with the Plaintiff making the same unsupported claims of fraud and forgery pertaining to the Mortgage and Note he executed on September 13, 2002 and with reliance on the same report of MDS executed on August 10, 2016. The Court held in Knapper that a cause of action is deemed to be “inextricably intertwined” with a state court judgment when: “(1) the federal court must determine that the state court judgment was erroneously entered in order to grant the requested relief, or (2) the federal court must take an action that would negate the state court's judgment....” Knapper, 407 F.3d at 581 (quoting Walker v. Horn, 385 F.3d 321, 330 (3d Cir. 2004)); Desi's Pizza, Inc. v. City of Wilkes- Barre, 321 F.3d 411, 421 (3d Cir. 2003). Both standards are met in the current matter. To grant the relief requested here, the Court must find that the alleged forged and fraudulent negotiable instruments were filed with the Motion for Summary Judgment in Perry County, an argument rejected by the Court in Perry County in entering judgment on October 14, 2016. Accordingly, if this Court were to grant the requested relief, which includes a request for injunctive relief to stop the judgment in the Foreclosure action, the Court would necessarily negate the State Court’s judgment. Additionally, the Third Circuit has concluded that four (4) requirements must be met for Rooker-Feldman to apply: “(1) the federal plaintiff lost in state court; (2) the plaintiff complain[s] of injuries caused by [the] state court judgments; (3) those judgments were rendered before the federal suit was filed; and (4) the plaintiff is inviting the district court to review and reject the state judgments.” Great W. Mining & Mineral Co. v. Fox Rothschild, LLP, 615 F.3d 159, 166 (3d Cir 2010). All four (4) requirements have been met in this case. The fact that Plaintiff couches his Complaint as an FDCPA and FCEUA claim does not remove this action from review under Rooker-Feldman. See, e.g., Nora v. Residential Funding Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 10 of 1614 Filed 1/02/16 Page 8 4 5 Co., 543 F. App’x 601, 602 (7th Cir. 2013) (internal citations omitted). The entire basis for Plaintiff’s Complaint and requested relief is related to the Foreclosure action. If this Court were to reach the conclusions and fashion a remedy of the kind that Plaintiff is seeking, it would require a finding that Judge Quigley’s determination was improper. As in Knapper, such conclusions are "inextricably intertwined" with the State Court judgment and would necessarily negate the State Court judgment which was litigated. The Rooker-Feldman Doctrine precludes such a determination and deprives this Court of subject matter jurisdiction. Knapper, supra. Therefore, the Court must dismiss this action with prejudice. B. The Complaint Must be Dismissed with Prejudice pursuant to F. R.C.P. 12(b)(6) Plaintiff generally alleges violations of the FDCPA, FCEUA and fraud. However, Plaintiff’s Complaint fails to allege any specific facts to support his claims. Moreover, Plaintiff fails to set forth any specific violations by PHDJ or MJH. The Complaint fails to assert any plausible cause of action against PHDJ or MJH for which relief can be granted. The Complaint is abusive of the FDCPA. The FDCPA is not a tool to be used for the filing of frivolous cases based upon fabricated violations. Yet, Plaintiff has initiated a frivolous action in this Court that lacks any basis and which should be dismissed with prejudice. Plaintiff’s allegations are insufficient to state a claim upon which relief can be granted. A complaint should be dismissed when it fails “to state a claim upon which relief can be granted.” FRCP 12(b)(6). The Court must accept the plaintiff’s factual allegations as true, and construe all reasonable inferences 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, the Court “need not credit a complaint’s bald assertions or legal conclusions.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 11 of 1614 Filed 1/02/16 Page 9 4 6 Rule 12(b)(6) requires dismissal where a complaint lacks factual allegations sufficient to establish a proper and plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662 (2009). To survive a Rule 12(b)(6) Motion, the Plaintiff’s Complaint must show a right to relief based on facts, not merely conclusory statements. See id. at 679. The plaintiff must provide factual grounds for relief, which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint’s allegations and supporting facts must raise the plaintiff’s right to relief to beyond mere speculation. Id. The facts plead must amount to more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Iqbal at 678. Fed. R. Civ. P. 8(a)(2) also requires a complaint to be “plausible on its face.” Twombly, 550 U.S. at 570. Plaintiffs must allege sufficient facts to “nudge[ ] their claims across the line from conceivable to plausible.” Id. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal at 679. In resolving a motion pursuant to Rule 12(b)(6), the court must liberally construe pro se pleadings. See, e.g., Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Nonetheless, claims by pro se litigants may be dismissed under Federal Rule of Civil Procedure 12(b)(6) "if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d Cir.1996) (quotations omitted). In analyzing a motion to dismiss pursuant to Rule 12(b)(6), “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.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210-211 (3d Cir. 2009) (citing Iqbal at 678). “Second, a District Court must then determine Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 12 of 16Case 1:16-cv-02026-YK-SES Document 14 Filed 11/02/16 Page 10 of 14 7 whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.’” Id. at 211 (citing Iqbal at 679). The “plausibility” analysis is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 211 (citing Iqbal at 678). A claim is sufficiently plausible only if “plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Santiago v. Warminster Twp., 629 F.3d 121, 128 (3d Cir. 2010) (citing Iqbal at 1949). Plaintiff has failed to plausibly establish any cause of action against PHDJ or MJH. Plaintiff’s Complaint broadly alleges, without providing any factual or legal support, that PHDJ and MJH violated the FDCPA. It is crucial that a claim must show entitlement to relief with facts, rather than blanket assertions. Twombly, 550 U.S. at 555. A pleading that utilizes mere labels and conclusions fails to provide the grounds of entitlement to relief. Plaintiff merely claims that “newly discovered evidence” demonstrates FDCPA violations based upon forged documents. Under established Third Circuit precedent, in determining a motion to dismiss pursuant to Rule 12(b)(6), a court may consider documents that are attached to or submitted within the complaint as well as “matters incorporated by reference or integral to the claim, items subject to judicial notice, matters of public record, orders, [and] items appearing in the record of the case.” Buck v. Hampton Tp. School District, 452 F.3d 256, 260 (3d Cir. 2006). The documentation provided by Plaintiff fails to demonstrate that PHDJ or MJH committed any FDCPA violations. The documentation is also hearsay in violation of both the Pennsylvania Rules of Evidence and the Federal Rules of Evidence. See FRE 802, Pa. R. E. 802. Additionally, Plaintiff’s forensic document examination report is not self-authenticating. See FRE 902, Pa. R. E. 902. Plaintiff, in violation of both Federal Rule of Evidence 901 and Pennsylvania Rule of Evidence 901, has failed Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 13 of 16Case 1:16-cv-02026-YK-SES Document 14 Filed 11/02/16 Page 11 of 14 8 to authenticate his supposed forensic expert report. Notarization of the “document report” is insufficient to meet Plaintiff’s burden of authentication. Therefore, the Court cannot consider the report in ruling upon Plaintiff’s Complaint. In naming PHDJ and MJH as a Defendants, Plaintiff only alleges that PHDJ and MJH are debt collectors attempting to collect a debt. This statement is hardly sufficient to provide factual support for Plaintiff’s allegations. The purposes of the FDCPA is “to eliminate abusive debt collection practices by debt collectors, to ensure 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). “A threshold requirement for application of the FDCPA is that the prohibited practices are used in an attempt to collect a ‘debt.’” Stuart v. Udren Law Offices P.C., 25 F.Supp.3d 504, 506 (M.D. Pa. 2014) (citations omitted). To state a claim under the FDCPA, “a plaintiff must allege a communication by a defendant in furtherance of the collection of a debt.” Id. Here, Plaintiff’s Complaint fails to set forth any specific communications between PHDJ or MJH and Plaintiff. Rather, Plaintiff merely asserts that PHDJ and MJH have violated the FDCPA by “not proving the character, the legal amount and legal status of the alleged debt”. See Complaint, ¶ 56. Simply stated, Plaintiff’s Complaint does not allege any false or misleading representations made by PHDJ or MJH in its communication to Plaintiff that would give rise to liability under §1692e. Plaintiff has failed to state any plausible claim upon which relief can be granted and the Complaint should be dismissed with prejudice. Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 14 of 16Case 1:16-cv-02026-YK-SES Document 14 Filed 11/02/16 Page 12 of 14 9 C. The Statute of Limitations Set Forth in 15 U.S.C.S. §1692k(d) Bars Plaintiff’s Complaint Pursuant to 15 U.S.C.S. 1692k(d), a debtor may raise a claim for liability under the FDCPA “within one year from the date on which the violation occurs.” As the Complaint was filed on October 5, 2016, any alleged violations occurring before October 4, 2015 are time barred. This applies to Plaintiff’s allegations predicated on the allegedly fraudulent Mortgage and Promissory Note obtained in 2002. Here, the Foreclosure action was filed on October 20, 2014, and Plaintiff was personally served at the Property by the Sheriff of Perry County on October 23, 2014. Therefore, any claim asserted by Plaintiff of a FDCPA violation against PHJDJ or MJH is barred by the Statute of Limitations. D. The Statute of Limitations Set Forth in 42 Pa. C.S. §5524, Bars Plaintiff’s Complaint Under 42 Pa. C.S. §5524(7), the Statute of Limitations for fraud claims is two (2) years. “The statute of limitations begins to run as soon as the right to institute and maintain a suit arises…” Pocono Int’l Raceway, Inc. v. Pocono Produce, Inc. 468 A.2d 468, 471 (Pa. 1983). The Third Circuit has recognized a Defendant’s right to raise a Statute of Limitations violation in a Motion to Dismiss so long as the violation is evident on the face of the complaint. McArdle v. Verizon Communs., Inc., 567 Fed. App’x. 116, fn 4 (3d Cir. 2014). In this matter, Plaintiff generally attacks the validity of the Mortgage and Note executed in 2002. Therefore since the execution of the loan documents occurred over fourteen (14) years prior to the filing of the instant action, claims of fraud predicated on these documents are barred by the applicable Statute of Limitations. Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 15 of 16Case 1:16-cv-02026-YK-SES Document 14 Filed 11/02/16 Page 13 of 14 10 III. CONCLUSION For the foregoing reasons, Defendants Phelan Hallinan Diamond & Jones, LLP and Mario J. Hanyon, Esquire respectfully request that the Court grant its Motion to Dismiss Plaintiff’s Complaint with prejudice and award it such other relief as is just and proper. PHELAN HALLINAN DIAMOND & JONES, LLP Dated: November 2, 2016 By: /s/ Mario J. Hanyon, Esquire Mario J. Hanyon, Esquire PA ID No. 203993 PHELAN HALLINAN DIAMOND & JONES, LLP 1617 JFK Boulevard, Suite 1400 Philadelphia, PA 19103 215.563.7000, Ext. 31340 mario.hanyon@phelanhallinan.com Attorney for Defendants Phelan Hallinan Diamond & Jones, LLP and Mario J. Hanyon, Esquire Case 1:16-cv-02026-YK-SES Document 9 Filed 11/02/16 Page 16 of 16Case 1:16-cv-02026-YK-SES Document 14 Filed 11/02/16 Page 14 of 14