Pinson v. JP Morgan Chase Bank, National Association et al

RESPONSE in Opposition Re: 58 Defendant's Motion to Dismiss Second Amended Verified Complaint with Prejudice and Memorandum of Law in Support

S.D. Fla.June 25, 2014

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA W EST PALM BEACH DIVISION CASE NO. 9:13-cv-80720-K AM FILCD by D.C. JUN 2 5 2014 STEVEN M LARIMQRE ct-Ea: tl b DisT. c'r. S.D. QF Fih. - w.RH. John Pinson, pro se Plaintiff JPM ORGAN CHASE BANK. N.A., et. aI. Defendants/ PLAINTIFF PR0 SE 'S RESPONSE IN OPPOSITION TO DEFENDANTS' M OTION TO DISM ISS SECOND AM ENDED VERIFIED COM PLAINT W ITH PREJUDICE AND M EMORANDUM OF LAW IN SUPPORT TO THE HONORABLE JUDGE OF THIS COURT: COM ES NOW the Plaintiff John Pinson,pr/ se% who hereby submits his rcsponse in opposition to the Motion To Dismiss Second Amended Verified Complaint With Prejudice And Memorandum Of Law ln Support (hereinafter d4MTD2') pursuant to FRCP Rule l2(b)(6) Gled by Defendants JpMorgan Chase Bank, N.A. (hereinafter ikchase''); CPCC Delaware Business Trust a/k/a CPCC Delaware Statutory Trust (hereinafter tECPCC''); and JpMorgan Chase & Co (hereinafter ICJPMC''), and states as follows: STATEM ENT OF FACTS l . On Aug. 27, 2013, Plaintiff flled amended verified complaint (:&AVC'') & appx (DE 06,6-11. 2. On Sep. 19, 2013, the clerks offke, for error, re-scanned the AVC as Docket Entry 9. 3. On Oct. 13, 2013 Marshall Watson (.dMW') sled a Motion to Dismiss (MTD) (DE 171. 4. On Oct. 24, 2013, Chase & CPCC filed ajoint Motion to Dismiss (MTD) (DE 241. 5. On Nov. 25, 2013. Plaintiff filed a responsc (DE 26) in opposition to thc MW MTD. 6. On Dec, 12, 2013 Plaintiff filcs a rcsponse kDE 331 in opposition to the Chase CPCC M TD. 7. On Jan. 6, 2014, Chase & CPCC filed a reply (DE 43J brief to Plaintiff's rcsponse. 8. On Jan.9, 2014, Plaintiff Gled a noticc of dismissal (DE 46q on party MW only. Plaintiff/rp ae's Rcgponse in Opposition to lkfcndants Chage, CPCC, and JPMC 's Votion to Dismiss - Pagu I 0f33 Case 9:13-cv-80720-KAM Document 62 Entered on FLSD Docket 06/26/2014 Page 1 of 33 9. On Jan. l4, 2014, the Court issued an Order (DE 471 dismissing MW with prejudice. l 0. On Mar. 24, 2014 the Court entered an Order (DE 491 Denying without prejudice the Chase CPCC MTD, and providing Siplaintiff may file a Second Amended Complaint'' (DE 491. l 1. On Apr. 22, 2014 Plaintiff flled a second amended verified complaint (DE 52) (û.SAC''). 12. On May 20, 2014, Chase, CPCC & JPMC Gled a motion to dismiss (DE 58) SAC. 13. 'This is an action brought for damages for violations of thc Fair Debt Collcction Practices Act (FDCPA) 15 U.S.C. j l 692 et seq.; and, for damages for violations of the Florida Consumer Collection Practices Act (FCCPA) FLA. STAT. 5559 (Part Vl); and for declaratory and injunctive relief.'' (DE 52 !11 14. kvupon belief and infonnation, Plaintiff pro se contends that many of these practices are widespread for some or al1 of the Defendants.' (DE 52 !2) Florida Bar records show that the managing attorney of M W , attorney Marshall C. W atson had his law license Suspended - 1 d found inwith Conditions on M ay 30, 20l 3, with a file reference number of 201 151042 an 2 It is Plaintiffs understanding that W atson'sFlorida Supreme Court CASE NO.: 5C12-2731 . suspension was due to actions sim ilar to those in his complaint. 15. Defendant Chase was the subject to an investigation by 49 States Attorney's General (Oklahoma opted out) and several Federal Agencies into, among other issues, its servicing practiccs which rcsulted iithe largest consumer financial protection settlement in US '3 hat time. Specifically it stated ç'The agreement settles state and federalhistory , at t investigations Gnding that ... mortgage servicers routinely signed foreclosure related documents ... without really knowing whether the facts they contained were correct. '4 M it states , tsrfhis settlement does not seekBoth of these practices violate the Iaw. oreover to hold thcm responsible for a1l their wrongs over the years and the agreement and its release ''S h as this Plaintiff . (emphasis added)preserve Iegal options for others to pursue , suc 16. Additionally, on November 19, 2013, ûûltlhe Justice Department, along with federal and state partners, today announced a $13 billion settlemcnt with JpM organ - the largest settlemcnt 1 See http://www.ioridabar.or#names.nsf/o/czAF8 15DCA28947785256A2300792788?0pe* 0cument 2 http:/ww .ioridabar.oro lvADG e DisAct.nsfDisActFs?opevrameset&Frame=DisActToc&src=%zF DIVADM% 2F< %2F* DisAct.ns*42FdaToc!OpenForm%26AutoFOmed% 26W L%3DM arghaIl0A2520Craig% 2520Watson%26ICN%3D201 l 5l042%26DAD%3DSuspcndcd%2520-%2520with%2520Conditions 3 See hûp://- .nationalmodgageseûlement.com/about 4 See htp://ww .nationalmodgageseûlement.coe about 5 see hup://www .nationalmolgageseulement.cox about Plaintifrrr/ se's Response in Opposition to Defendants Chase, CPCC, and JPMC'S Motion to Dismiss - Page 2 of 33 Case 9:13-cv-80720-KAM Document 62 Entered on FLSD Docket 06/26/2014 Page 2 of 33 with a single entity in American history - to resolve federal and state civil claims'6 wherein ii q K Morgan acknowledged it made serious misrepresentations to the public'? and ultlhe settlem ent does not absolve JpM organ or its employees from facing any possible ,,8 jj sis added)criminal charges. (emp a 17. Chase indicated JPM C is its 1 00% owner in its FRCP Rule 7.1. 1 8. CPCC indicated that JPMC is its ultimate 100% owner in its FRCP Rule 7.1. ' hain ownership assertion is contrary to JPM C'S S.E.C. 10-K representations.g19 . CPCC s c 20. M orcover, in the M otion to Dism iss it refers to itself as CPCC Delaware Business Trust, yet 10 that entity is not listcd on Florida Division of Corporations website as registered to do business in Florida. but CPCC Delaware Statutory Trust is listed. This opens an intriguing question, are these two the same entities and is CPCC Delaware Business Trust properly registered and duly authorized to transact business in Florida, and is this the reason CPCC has never responded to Plaintiffs written debt validation requests? 21 . The facts set forth in the Courts M arch 26 Order relate only to the First Amended Complaint that subsequcntly was replaced by the SAC (DE 59J. 22. The aleged facts are set forth by Plaintiff in the SAC !!l -57 (DE 591. 23. Plaintiff pro se has made numerous efforts to ascertain the undisclosed identity of the alleged creditor and demanded proper validation under the FDCPA of any alleged debt, and i h tanding Plaintiffs written dispute.l 1defendants have not provided the same notw t s 24. Chase, CPCC, and JPMC by and through their attorneyts) Marshall Watson/ Choice attcmpted to collect and take a legal action they were not legally entitled to take. 25. Plaintiffrm se 's FDCPA and FCCPA claim is based on the wrongful actions of defendant, not whether or not a valid debt existed with defendants, which plaintiff denies. 26. The Plaintiff pro se denies having any contractual agreement for credit, loans or sew ices relationship with the Defendants. STANDARD OF QEVIEW 6 See htp://- .justice-gov/opipr/zol3movember/l3-ag-lzq7.h%l 1 See http:/ww .justice-gov/opipr/zol3N ovcmber/l3-ag-lz37.html ' See hlp:/- -justice-gov/opipr/zol3movember/l3-ag-lz37.h% l 9 s:e hups://w w.sec.gov/edgr/searchedgar/companysearch.html 10 see http:/sunbiz.org/ 11 See DE 52 & 54 generaly. Plaintifrrr/ se% Response in Opposition to Defcndant.s Chaqe, CPCC, and JPMC'S Moticm to Dismiss - Page 3 of 33 Case 9:13-cv-80720-KAM Document 62 Entered on FLSD Docket 06/26/2014 Page 3 of 33 27. Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests.' BellAtlantic Corp. v. Twomblv, 550 U.S. 544, 555 (2007), quoting Conlev v. Gibsonb 355 U.S. 41, 47 (1957), '(A) complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,' Id. At 555, '(W)e do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.' 1d. At 570. 28. The complaint must only include 'suffk ient factual allegations to provide the grounds on which the claim rests'. Friends of L ake F/cw School District v. Beebe, 578 F.3d 753, 762 (8th Cir. 2009). While 'mere Iabels and conclusions' will not satisfy a plaintifps burden. there is no need for detailed factual allegation or specific facts that dcscribc the evidence to be presented. ld. A plaintiff satisfies their burden if they allege facts sufscient to allow a court to infer 'more than the mere possibility of misconductb'. Ashcroft v. lqbal, 1 29 W .Ct, 1937, 1950 (2009). 29. W ell-pleadcd allegations of fact and every inference fairly deducible therefrom are accepted as true for purposes of a motion to dismiss. Erickson v. Pardus, 55l U.S. 89, 93-94 (2007). '(A) well-pleaded complaint may proceed even if it strikes a savvyjudge that actual proof of those facts is improbable, and 'that recovery is very remote and unlikely.' Twomblvb 550 U.S. at 556. V GUM ENTS AND AUTHORITIES 30. W hen considering a defendant's motion to dismiss, a court must construe thc factual allcgations in the complaint in the light most favorable to the plaintiff. Barker v. Riverside fln/ .v. Olflce t?f Educ., 584 F.3d 821, 824 (9th Cir, 2009); see Bell Atl. Corv. v. Twomblvk 550 U.S. 544, 555-56 (2007). lf the complaint provides fair notice of the claim and the factual allegations are sufticient to show that the right to relief is plausible, a court should deny the defendant's motion. See Ashcroft v. lqbal, 556 U.S. 662, 678 (2009); Twomblv, 550 U.S. at 555-569 Brooks v. Rosss 578 F.3d 574. 581 (7th Cir. 2009). 31. To bring these matters in controversy beforc thc Court, the Plaintiffrro .%e did f5le his second amended verified complaint (DE 52) outlining statcments of fact that point to documents that are appended IDE 54) to his verified complaint and which documents the defendant fails to allege as being untrue. Plaintiff/zw .%e% Respensc in Opmsition to Dcfcndants Chase, CPCC, and JPMC'S Motion to Dismiss - Page 4 of 33 Case 9:13-cv-80720-KAM Document 62 Entered on FLSD Docket 06/26/2014 Page 4 of 33 1,32: lVl4heir'MTDz, !h4 Defendatltj cpmp'lai.p.'avyjlrpubse ti,vç idygpktwiçs i: Pl#ipyifrs SAC, but faits ib refute of àety aày z iàz,àppinded docum4nty as fkii iskepçe, Alleaed Substantive Deficiencics A. Defendants Allege incorporation of irrelevant allegations of count 1. into count Il. 33. First, Defendants allege tEplaintiff has incorporated the irrelevant allegations of tlrst count into the second count'' See MTD2 !8. Defendants allege dirrelevant allegations' but Plaintiff pro se argues this is baseless as Defendants identify SAC !58, but fail to state how it might be irrelevant since it incorporated relevant factual information into the count. M oreover. since the FCCPA mirrors the FDCPA, and since the Plaintiffs FCCPA claims m irror plaintiff s FDCPA claim s, it is relevant that the FCCPA allegations and factual allegations were restated under FDCPA in full. 34. The FCCPA unequivocally states its goal- to provide the consumer with the most protection possiblc undcr cithcr thc statc or fcdcral statutc. See FLA. STAT. j 559.552 ('ln the event of any inconsistency. . . the provision which is more protective of the consumer or debtor shall prevail.') Further, the fact that the FCCPA deemed its remedies cumulative reveals that the Florida legislature contemplated dual enforcement--that a(1 '... debt collector' could quitc possibly be subject to the sanctions and enforcement provisions of both of the various states or the FDCPA. See L eBlanc v. Unifund CCR Partners. 601 F. 3d 1 185 (1 1th Cir. 20101. B. Defendants Allege failure to set forth exactly what CPCC or JPM C did in violation. 35. Sccond, Dcfcndants complain that téplaintiff has not sct forth any allcgations about what CPCC or ... JPMC did in violation of the law' See MTD2 !9. Defendants fail to recognize Plaintiffs facts at SAC !:23-57. Specifically Plaintiff has identiGed the relation between Defendants at SAC 1551-55. Plaintiff has clearly identified Defendants as eidebt collectors'' see SAC !512-22. 'Wt all times material to the allegations of this Complaint, Defendants were acting as debt collectors with respect to collection of Plaintiff s alleged debt but nonexistent debt with Defendants'' (SAC !221. These statements are not mere legal conclusions; they are specic factual allcgations. but Plaintiff seeks discovery to plead with greater specificity on the corporate Defendants actions. 36. sfills v. Foremost Ins. t7o.. 51 1 F.3d 1 300. l 303 ( l 1th Cir.2008). 'While a complaint attacked by a Rule 12(b)(6) motion to dismiss docs not nccd ddailcd factual allegations, ... a plaintifps obligation to provide the Ngrounds' of his Aentitlelmentl to relief requires more than Plaintifrpr/ se's Response in Opposition to Defendants Chase, CPCC. and JPMC'S Motion to Dismiss - Page 5 of 33 Case 9:13-cv-80720-KAM Document 62 Entered on FLSD Docket 06/26/2014 Page 5 of 33 labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.' ld. (quoting Bell gtt Corp. v. Twomblv. 550 U.S. 544. 127 S.Ct. 1955, 1 964-65. 167 L.Ed.2d 929 (2007) (citations omittedl). 'Furthermore, the plaintifps factual allegations, when assumed to be true, hmust be enough to raise a right to relief above the speculative 1evel.'' M. (same). 37. Here, consumer Plaintiff was the object of colection activities including the receipt of communications 'in connection with the collection of any debt'. Plaintiff has not argued that the comm unications received were limited to those fsled as exhibits to his complaint or to thc facts relatcd to those actions of W olf and M W . û-f'he communications in question here are alI related to the collection of a consumer debt'' (SAC !271. ':llefendants are IGdebt collectors' as defined in the FDCPA' (SAC !211. tICHASE communicated an alleged involvement of CPCC such that it appears CHASE was promptcd to act by CPCC'' (SAC !311. Plaintiff has in fact received other communications from SilpM organchase & Co. JpMorgan Chase Bank, N .A.'' that state explicitly SCW E ARE DEBT COLLECTORS'' and that some or al1 defendants would already possess. It is reasonable to conclude that Defendants were acting within the scope of their corporate structure and relationships, when S