Anderson v. Deutsche Bank Nat'l Trust Co., CIVIL ACTION NO. 1:11-cv-4091-TWT-ECS
| Decision Date | 06 August 2012 |
| Docket Number | CIVIL ACTION NO. 1:11-cv-4091-TWT-ECS |
| Parties | MATTHEW ANDERSON, Plaintiff, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, As Trustee for the Holders of the First Franklin Mortgage Loan Trust 2006-FFI, Mortgage Pass-Through Certificates, Series 2006-FFI, BANK OF AMERICA, N.A., Defendants. |
| Court | U.S. District Court — Northern District of Georgia |
This matter is before the Court on (1) Plaintiff's motion for a permanent injunction and temporary restraining order ("TRO"), [Doc. 2]; (2) Defendants' motion to dismiss, [Doc. 3]; (3) Plaintiff's motion to amend his complaint, [Doc. 12]; (4) Plaintiff's amended motion to amend his complaint, [Doc. 14]; and (5) Defendants' motion for leave to file excess pages in support of their reply to the motion to dismiss, [Doc. 18].
For the reasons discussed herein, IT IS RECOMMENDED that Plaintiff's motion for a TRO, [Doc. 2], be DENIED. IT IS FURTHER RECOMMENDED that Defendants' motion to dismiss, [Doc. 3], be GRANTED. Further, Plaintiff's initial motion to amend his complaint, [Doc. 12], is DENIED as moot, in light of Plaintiff's filing of theamended motion to amend his complaint. Plaintiff's amended motion to amend his complaint, [Doc. 14], is DENIED as futile.1 Defendants' motion for leave to file excess pages in support of the reply brief, [Doc. 18], is GRANTED.
On October 19, 2005, Plaintiff Matthew Anderson ("Plaintiff") entered into a loan agreement with non-party mortgage company First Franklin to purchase a home. [Doc. 1-1 at ¶¶ 6-7]. First Franklin was also the servicer of the loan. [Doc. 1-1 at ¶ 13].
On November 21, 2008, First Franklin, through a corporate assignment, assigned "all of its rights, title, and interest" to the security deed to Defendant Deutsche Bank National Trust Company ("Deutsche"). [Doc. 19-1].2
During 2009, "due to the dramatic downturn in the housing market," Plaintiff's architect business "experienced a similardownturn in clients and related revenues." [Doc. 1-1 at ¶ 9].
In mid- to late 2009, Plaintiff, "in the hopes of maintaining his mortgage and home, . . . began his efforts to contact First Franklin in an effort to modify his home loan" through HAMP. [Doc. 1-1 at ¶ 11]. He alleges that he received "no reply either in the affirmative or negative as to his qualifying for the program." [Doc. 1-1 at ¶ 12].
In October of 2010, "Plaintiff was notified that First Franklin, as servicer of his loan was replaced by [Defendant] Bank of America, NA." [Doc. 1-1 at ¶ 13].
Plaintiff then "submitted a new application" to Defendant Bank of America ("BOA"), seeking a loan modification under HAMP, but "no response has been forthcoming." [Doc. 1-1 at ¶¶ 14, 17].
On September 16, 2011, a "Notice of Foreclosure Sale" was mailed by Pendergast & Associates, P.C. ("P&A"), on behalf of Defendant Deutsche. [Doc. 1-1 at ¶ 18]; [Doc. 1-1 at 84]. Plaintiff received the notice on September 24, 2011. [Doc. 1-1 at ¶ 18].
In pertinent part, the notice informed Plaintiff that a foreclosure sale of Plaintiff's home was scheduled for November 1, 2011, "[a]s a result of [Plaintiff's] failure to make payments on the [mortgage] Note." [Doc. 1-1 at 84]. Neither party has stated whether a foreclosure sale has occurred or is currently pending.
The notice also informed Plaintiff of the following:
Pursuant to O.C.G.A. § 44-14-162.2(a) [], the following individual or entity has the full authority to answer any questions and/or the full authority to negotiate, amend or modify the terms of your mortgage loan should the creditor choose to do so.
Bank of America, N.A.
Plaintiff alleges that he "endeavor[ed] to contact Ms. Balentine and called the number indicated," but was "notified that no such person existed at the number contacted or for that matter at Bank of America." [Doc. 1-1 at ¶ 20].
On October 26, 2011, Plaintiff filed a complaint against Defendants in the State Court of Fulton County, alleging violations of various Georgia state laws, the Fair Debt Collection Practices Act ("FDCPA" or "the Act"), 15 U.S.C. § 1692 et seq., and the Home Affordable Modification Program ("HAMP"). [Doc. 1-1]. Plaintiff's claims all arise out of the home loan and subsequent non-judicial foreclosure attempt on his property. [Id.].
On November 28, 2011, Defendants removed the case to this Court. [Doc. 1]. On December 5, 2011, Defendants filed the instant motion to dismiss Plaintiff's complaint. [Doc. 3]. Other motions have been filed, [Docs. 2, 12, 14, 18], and have been listed above. These motions are addressed herein.
Defendants seek permission to file 19 pages in support of their reply to the motion to dismiss, rather than the 15 pages permitted by Local Rule 7.1D, N.D. Ga. [Doc. 18]. Defendants' motion is unopposed, Plaintiff's having failed to respond within the time permitted under Local Rule 7.1B, N.D. Ga.
Upon consideration, Defendants' motion, [Doc. 18], is GRANTED, nunc pro tunc.3
Under Federal Rule of Civil Procedure 12(b)(6), a motion to dismiss should be granted if the plaintiff does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007). When considering such a motion, a court must accept the allegations in the plaintiff's complaint as true and construe them in the light most favorable to the plaintiff. M.T.V. v. DeKalb Cnty. Sch. Dist., 446 F.3d 1153, 1156 (11th Cir. 2006) (citation omitted);Fuller v. Johannessen, 76 F.3d 347, 349-50 (11th Cir. 1996). Although the complaint need not provide detailed factual allegations, the basis for relief in the complaint must state "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Further, "[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Id.
In the fifth count of his complaint,4 Plaintiff alleges that Defendants violated sections 1692e, 1692e(5), and 1692f(6) of the FDCPA by "making false, deceptive, and misleading representations in connection with the collection of a debt, threatening to take action that [they] could not legally take, and taking or threatening to take possession unlawfully of consumer's property." [Doc. 1-1 at 13]. Plaintiff also alleges that the September 16, 2011, foreclosure notice sent by the law firm P&A on behalf of Defendant Deutsche "did not provide for nor direct the Plaintiff that he had a right underthe [FDCPA] . . . to dispute the debt and the amount owed." [Id. at 7]. He alleges that he "did indeed dispute the debt and the amount and requested verification of the amount and the note holder" by sending P&A a letter on October 17, 2011, but that "[n]o response has been forthcoming." [Id.]. He asserts that he "has received NO notice of his rights" under the Act. [Id.].5
Defendants argue that Plaintiff's complaint fails to state a claim for relief under the FDCPA because Defendants, who Defendants allege are mortgage servicers, are not "debt collectors" under any part of the FDCPA so long as the debt was not in default at the time it was assigned. [Doc. 3 at 15]. Defendants also argue that foreclosure proceedings do not constitute "debt collection" activity under the FDCPA. [Id. at 15].
The FDCPA imposes liability on debt collectors who "fail to comply with [FDCPA] provisions when collecting a debt." Buckman v.Am. Bankers Ins. Co. of Fla., 115 F.3d 892, 894-95 (11th Cir. 1997). Thus, to prevail on a claim under the FDCPA, a plaintiff must show, among other things, that the defendant was a debt collector as defined by the FDCPA and that the challenged conduct is related to debt collection. Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, slip op. at 5 (11th Cir. 2012). Under the FDCPA, "the term 'debt collector' does not include . . . any person collecting or attempting to collect any debt to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person." 15 U.S.C. § 1692a(6)(F). Thus, a consumer's creditors, a mortgage servicing company, or an assignee of a debt are not considered "debt collectors" so long as the debt was not in default at the time it was assigned. 15 U.S.C. § 1692a(6)(F)(iii). See also Lacosta v. BAC Home Loan Serv., LP, 2011 WL 166902 at *6 (N.D. Ga. Jan. 18, 2011).
In this case, Plaintiff's complaint does not allege that the loan assignment occurred after he was in default on his loan obligation. His complaint alleges that "[d]uring the year of 2009, due to the dramatic downturn in the housing market," Plaintiff's business "experienced a similar downturn in clients and related revenues." [Doc. 1-1 at 5]. Nor does he argue in response to the motion to dismiss that the assignment occurred before the default. In fact, the record shows that Defendant Deutsche obtained theassignment on November 21, 2008. [Doc. 19-1]. Accordingly, Plaintiff has failed to allege that Defendant Deutsche is a "debt collector" within the meaning of the FDCPA. See Lacosta, 2011 WL 166902 at *6.6
Even if Plaintiff had alleged that the assignment occurred after Plaintiff defaulted on his loan obligation, Plaintiff's complaint must "plausibly allege[] that [Defendants are] . . . 'debt collector[s]' within the meaning of the FDCPA." Reese, 678 F.3d 1211, slip op. at 5; accord Birster v. Am. Home Mortg. Serv., Inc., 2012 WL 2913786 at *4 (11th...
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