Thompke v. Fabrizio & Brook, P.C.

• Decision Date: 14 August 2017
• Docket Number: Case Number 17–10369
• Citation: 261 F.Supp.3d 798
• Parties: Jason C. THOMPKE, and Melissa J. Thompke, Plaintiffs, v. FABRIZIO & BROOK, P.C., Defendant.
• Court: U.S. District Court — Eastern District of Michigan

261 F.Supp.3d 798

Jason C. THOMPKE, and Melissa J. Thompke, Plaintiffs,

v.FABRIZIO & BROOK, P.C., Defendant.

Case Number 17–10369

United States District Court, E.D. Michigan, Southern Division.

Signed August 14, 2017

Brian P. Parker, Law Offices of Brian P. Parker, P.C., West Bloomfield, MI, for Plaintiffs.

Jesse Louis Roth, Kathleen H. Klaus, Maddin, Hauser, Roth & Heller, P.C., Southfield, MI, for Defendant.

OPINION AND ORDER DENYING MOTION TO DISMISS

DAVID M. LAWSON, United States District Judge

Plaintiffs Jason and Melissa Thompke allege in an amended complaint that defendant Fabrizio & Brook, P.C. violated the Fair Debt Collection Practices Act (FDCPA) and Michigan's Regulation of Collection Practices Act (RCPA) in two ways: by sending them a letter to collect their mortgage debt purporting to be from a lawyer, when the person who signed the letter was not a lawyer and the letter was not reviewed by one in any meaningful way; and by publishing a foreclosure notice that contained more information than was legally required by Michigan's foreclosure by advertisement statute. Fabrizio has moved to dismiss the case, arguing that there is no subject matter jurisdiction because the plaintiffs have not alleged a concrete and particularized injury and therefore have no standing under Article III, and the conduct alleged does not violate the FDCPA and therefore the amended complaint fails to state a claim. The Court heard oral argument on June 13, 2017.

The plaintiffs have filed an affidavit that documents their injuries, which satisfies the requirements of Article III. The assertions in that affidavit do not appear in the amended complaint, but the Court may consider that affidavit in a motion challenging subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). The plaintiffs would do well to amend their complaint again to include them, however. The plaintiffs' two claims make out violations of the FDCPA. The Court will deny the motion to dismiss.

I. Facts

It appears that the plaintiffs obtained a residential mortgage from Bank of America, or some other institution that assigned the mortgage to Bank of America. They fell behind on their payments. They allege in their amended complaint that defendant Fabrizio, a law firm that handles mortgage foreclosures, sent them a letter on January 19, 2017 that read:

Dear Borrower(s),

BANK OF AMERICA. N.A. has retained our law firm to begin foreclosure proceedings on the above referenced property. As of the date of this letter, you owe $70,544.10. Because of interest, late charges and other charges that may vary from day to day, the amount due on the day you pay may be greater, and an adjustment may be necessary after our client receives your payment.

Unless you notify this office within 30 days after receiving this notice that you dispute the validity of the debt or some portion of it, this office will assume that the debt is valid. If you notify this office in writing within 30 days of receiving this notice, this office will obtain verification of the debt or a copy of a judgment and mail a copy of it to you. If you request in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor if different from the current creditor.

Thank you for your attention to this matter.

Very truly yours,s/ Devara WaltonReal Estate Default TeamFABRIZIO & BROOKS, P.C.

The following statement appeared on the bottom of the letter:

FABRIZIO & BROOK, P.C. IS THE CREDITOR'S ATTORNEY AND IS ATTEMPTING TO COLLECT A

DEBT ON ITS BEHALF. ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE, HOWEVER, IF YOU ARE IN BANKRUPTCY OR HAVE BEEN DISCHARGED IN BANKRUPTCY, THIS LETTER IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT INTENDED AS AN ATTEMPT TO COLLECT A DEBT OR AS AN ACT TO COLLECT, ASSESS, OR RECOVER ALL OR ANY PORTION OF THE DEBT FROM YOU PERSONALLY.

On January 25, 2017, the Fabrizio law firm sent the Thompkes another letter, which read:

Dear Borrower(s),

This law firm represents BANK OF AMERICA, N.A. We are hereby providing notice that your mortgage is being foreclosed on pursuant to the terms of your mortgage and note. The foreclosure sale is currently scheduled to take place on March 2, 2017 at 10:00 AM at the public lobby of the Calhoun County Sheriff Department Administration Offices, Battle Creek. Said sale date is subject to change.

If you are actively enlisted in the military, please contact our office and forward a copy of your enlistment papers to the address listed below.

Thank you for your attention to this matter.

That letter also posted the name "Devara Walton" in the signature block and included the same debt-collector legend at the bottom.

Beginning January 27, 2017 and continuing through February 17, 2017, the defendant published a notice in the Detroit Legal News and on the Internet announcing a foreclosure sale of the plaintiffs' home. The notice began with this declaration:

AS A DEBT COLLECTOR, WE ARE ATTEMPTING TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. NOTIFY US AT THE NUMBER BELOW IF YOU ARE IN ACTIVE MILITARY DUTY.

The notice then identified the plaintiffs by name in capital letters as the "Mortgagors," stated that they were in default on their mortgage and the amount due, and described the details of the intended foreclosure sale.

The Thompkes take issue with each of these communications. They allege that the letters are confusing because, although the letters are sent by a law firm that represents their creditor, the letters were signed by non-attorney Devara Walton. The letters, they say, are computer generated, mass produced, and sent by Fabrizio's Real Estate Foreclosure Team. And they allege that Fabrizio attorneys did not review the plaintiffs' file before allowing Walton to send out the letters on the law firm's letterhead threatening to foreclose on behalf of Bank of America.

The plaintiffs criticize the foreclosure notice because, they say, it includes more information than the Michigan foreclosure-by-advertisement statute requires, and it publicized their private and protected information. They alleged in their amended complaint that the publication is a prohibited tactic of shaming them into paying their debt, and as a result they have suffered deep, personal embarrassment and shame from their personal debt information being publicized in the community.

In an effort to generalize their claims as applicable to a broad class of debtors, the Thompkes allege that Fabrizio has a policy and practice of sending written and computerized collection communications en masse as part of its collection tactics without any meaningful lawyer involvement.

The plaintiffs filed their complaint on February 6, 2017. On March 20, 2017, the defendant filed a motion to dismiss. The plaintiffs responded with an amended complaint, a prolix document rife with legal citations and quotes from statutes and caselaw that fails to honor the spirit and letter of Federal Rule of Civil Procedure 8(a)(2) (requiring that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief") (emphasis added). The defendant followed with a new motion to dismiss alleging, among other thing, that the plaintiffs lacked standing under Article III of the Constitution because they failed to allege an injury in fact. The plaintiffs responded to the motion with an affidavit from Jason Thompke describing additional facts that are not alleged in the amended complaint.

Jason Thompke avers in his affidavit that although the plaintiffs were behind on their mortgage, they delivered full payment to Fabrizio on January 30, 2017. He says that even though the plaintiffs paid off their overdue balance in full, Fabrizio continued its publications in the newspaper. He alleges that they continued to hear from neighbors, friends, and family in the community concerned about the Thompkes' financial problems. He says that Fabrizio sent people to take pictures of them and their property even though the mortgage was current. Jason Thompke avers that people now treat him and his wife differently and will continue to do so because the information is forever publically available.

II. Standing

The defendant brings its motion under Federal Rule of Civil Procedure 12(b)(1) and (6). Federal Rule of Civil Procedure 12(b)(1)"provides for the dismissal of an action for lack of subject matter jurisdiction." Cartwright v. Garner , 751 F.3d 752, 759 (6th Cir. 2014). "A Rule 12(b)(1) motion for lack of subject matter jurisdiction can challenge the sufficiency of the pleading itself (facial attack) or the factual existence of subject matter jurisdiction (factual attack)." Ibid. (citing United States v. Ritchie , 15 F.3d 592, 598 (6th Cir. 1994) ). "A facial attack goes to the question of whether the plaintiff has alleged a basis for subject matter jurisdiction, and the court takes the allegations of the complaint as true for purposes of Rule 12(b)(1) analysis," but "[a] factual attack challenges the factual existence of subject matter jurisdiction." Ibid.

"In the case of a factual attack, a court has broad discretion with respect to what evidence to consider in deciding whether subject matter jurisdiction exists, including evidence outside of the pleadings, and has the power to weigh the evidence and determine the effect of that evidence on the court's authority to hear the case." Id. at 759–60. The "[p]laintiff bears the burden of establishing that subject matter jurisdiction exists." Id. at 760 (citing DLX, Inc. v. Commonwealth of Kentucky , 381 F.3d 511, 516 (6th Cir. 2004) ).

Fabrizio argues that the Court does not have subject matter jurisdiction because the plaintiffs have not alleged facts to establish standing to sue. The defendant reasons that at most, the amended complaint alleges a technical violation of 15 U.S.C. § 1692c(b), without any associated actual, concrete harm. A statutory violation...