Behrens v. GMAC Mortg., LLC
| Decision Date | 21 November 2013 |
| Docket Number | 8:13-CV-72 |
| Parties | BRYAN BEHRENS, Plaintiff, v. GMAC MORTGAGE, LLC, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the Court on several documents filed by the plaintiff, Bryan Behrens. But more importantly, the matter is before the Court on its own initial preservice review of the plaintiff's complaint. In its Memorandum and Order of August 28, 2013 (filing 20), the Court noted defects in the plaintiffs' complaint calling the Court's jurisdiction into question. The Court gave the plaintiff until October 4, 2013, to file documents remedying the defects identified by the Court. See filing 20 at 3.
The plaintiff has responded by filing two effectively identical documents, one of which has been docketed as an amended complaint (filing 22) and the other of which has been docketed as a motion to amend (filing 23).1 The plaintiff has also filed a motion for status (filing 24), asking for a copy of the docket and summons issued in this case. The Court will grant the motion to amend, to the extent that the Court will consider the allegations and information contained in the plaintiff's supplementary filings in determining whether the plaintiff has stated a federal claim for relief. But as explained below, the Court finds that the plaintiff has not stated a federal claim for relief, and therefore will dismiss the plaintiff's complaints. The plaintiff's motion for status will be denied as moot, after the Court clarifies for the plaintiff the procedural posture of the case.
The plaintiff's motion for status reflects a misapprehension about the procedural posture of the case. The plaintiff's motion requests "a copy of the docket and also the summons that was issued by the Court. . . ." Filing 24 at 2. Summons has not been issued—as the plaintiff was informed by the Court's Memorandum and Order of August 28, 2013 (filing 20), it is the Court's practice to conduct an initial review of the complaint to determine if dismissal is appropriate pursuant to 28 U.S.C. § 1915(e). See also, e.g., Barnett v. Bryce's Bail Bonding, Inc., 2013 WL 5646058, at *1 (8th Cir. Oct. 17, 2013); Pomerenke v. Bird, 491 Fed. Appx. 778, 779 (8th Cir. 2012).
The plaintiff is asking for copies of documents that do not exist, because service of process is still pending preservice review.2 And, as will be explained below, the case will not survive preservice review. So, the plaintiff's motion for status will be denied as moot.
The Court's previous order on initial review, its Memorandum and Order of August 28, 2013 (filing 20), directed the plaintiff to address several defects in his pleading. The Court observed the likelihood that the plaintiff's request for injunctive relief was moot. Filing 20 at 1-2. The plaintiff has responded to that observation by requesting money damages. That, at least, is not moot. But the Court also directed the plaintiff to establish his standing to pursue his claims, and allege facts stating a claim for relief under the federal statutes identified in his complaint. Filing 20 at 2-3.
In response, the plaintiff's filings assert that the Court's jurisdiction "is invoked under 15 USC 1692k(d) and 28 USC 1331, 1343." Filing 22 at 2. 15 U.S.C. § 1692k is, as will be discussed below, part of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p. Title 28 U.S.C. § 1331, of course, is the basis for the Court's federal question jurisdiction. And 28 U.S.C. § 1343 provides for the Court's original jurisdiction in civil rights actions. In sum, the plaintiff contends that the Court has jurisdiction over his claims because he is claiming violations of federal law.3 So, the question is whether he has stated a claim for such a violation.
The Court is aware of its obligation to liberally construe pro se pleadings. See Whitson v. Stone County Jail, 602 F.3d 920, 922 n.1 (8th Cir. 2010). Liberally construed, the plaintiff's pleadings can be read to assert violations of three federal laws: (1) the FDCPA, (2) this Court's stay in case no. 8-cv-13, and (3) the plaintiff's constitutional rights as enforced pursuant to 42 U.S.C. § 1983. The Court will address each in turn.
In his original complaint, the plaintiff alleged that the defendant had violated the FDCPA by not notifying him of the pending sale of his mortgaged property. Filing 1 at 1-2. The Court previously observed that the FDCPA does not apply to a creditor attempting to collect its own debts, as opposed to a third party collection agency. See filing 20 at 2 ). In response, the plaintiff alleges that the defendant, as a mortgage servicer, is not attempting to collect its own debt. Filing 22 at 1.
Generally, however, a mortgage servicer is not held to be a "debt collector" within the meaning of the FDCPA either. See, Carter v. AMC, LLC, 645 F.3d 840, 843 (7th Cir. 2011); Allen v. Bank of Am., N.A., 933 F. Supp. 2d 716, 729 (D. Md. 2013); Casault v. Fed. Nat'l Mortg. Ass'n, 915 F. Supp. 2d 1113, 1126 (C.D. Cal. 2012); Caraang v. PNC Mortg., 795 F. Supp. 2d 1098, 1123 (D. Haw. 2011); Ruggia v. Washington Mut., 719 F. Supp. 2d 642, 648 (E.D. Va. 2010). But the application of that proposition in this case is somewhat murkier, because of the possibility that the alleged current lienholder, U.S. Bank, acquired the plaintiff's mortgage after it was in default—raising the possibility that it (and by extension its agents) might be "debt collectors" within the meaning of the FDCPA. See Caraang, 795 F. Supp. 2d at 1123; see also Allen, 933 F. Supp. 2d at 729. And there is at least an open question as to whether mortgage foreclosure is debt collection within the meaning of the FDCPA. See generally Donnelly-Tovar v. Select Portfolio Servicing, Inc., 2013 WL 791153, at *6-7 (D. Neb. Mar. 4, 2013); but cf. James v. Ford Motor Credit Co., 47 F.3d 961, 962 (8th Cir. 1995).
That having been said, there is a more fundamental problem with the plaintiff's claim, and it is one that the Court has no reason to believe can beremedied: nowhere in the pleadings does he allege any conduct by the defendant that can even be liberally construed as violating the FDCPA. The FDCPA is intended to eliminate abusive debt collection practices. See 15 U.S.C. § 1692(c). To that end, the FDCPA imposes many limitations and requirements on debt collectors. It limits what a debt collector may reveal to third parties while trying to collect a debt. See 15 U.S.C. § 1692b. It prohibits harassing a consumer at work, or at unusual times or places. See 15 U.S.C. § 1692c. It prohibits abusive conduct by debt collectors, such as threatening violence, public shaming, or anonymous telephone calls. See 15 U.S.C. § 1692d. It bars false representations to the consumer in connection with debt collection. See 15 U.S.C. § 1692e. It prohibits "unfair or unconscionable" means to collect a debt, such as undisclosed fees, or threatening the nonjudicial seizure of collateral without a right of possession. See 15 U.S.C. § § 1692f. And it imposes requirements on what a debt collector must include when communicating with a consumer about a debt. See 15 U.S.C. § 1692g.
But what the FDCPA emphatically does not do is impose notice requirements on the foreclosure of a security interest. And the plaintiff's claim, repeatedly asserted, is that the plaintiff was purportedly not given proper notice of the foreclosure action on his real property. See filing 1 at 1-2; filing 22 at 3-5. He does not claim to have been misled or injured by any of the communications he did receive from the defendant.4 Even if the plaintiff was not provided with proper notice of the pending foreclosure, there is nothing in the FDCPA that regulates such conduct. Generally speaking, foreclosure on a security interest in real property is a matter left to state law. See Zajac v. Fed. Land Bank of St. Paul, 909 F.2d 1181, 1183 (8th Cir. 1990); see also McNeill v. Franke, 171 F.3d 561, 564 (8th Cir. 1999). The FDCPA does not change that in any way that is helpful to the plaintiff here.
The plaintiff does make repeated references to various sections of Title 12 of the United States Code. E.g. filing 22 at 6. He claims that "Federal foreclosure laws are all governed under title 12 as approved and enacted by Congress[.]" Filing 22 at 6. But, as in his initial complaint, he appears to be conflating the FDCPA with the Single Family Mortgage Foreclosure Act, 12 U.S.C. §§ 3751-3768. Compare filing 22 at 6 with filing 1 at 1. And as explained in the Court's previous order, that act only applies to foreclosureproceedings instituted by the Secretary of Housing and Urban Development on property held by or subject to a loan guaranteed by the Secretary. See filing 20 at 2 (citing 12 U.S.C. § 3752(10); Termarsch v. Homeq Servicing Co., 399 F. Supp. 2d 827, 829 (W.D. Mich. 2005)). There is nothing to suggest that the property at issue at this case is such a property.
In sum, the plaintiff has not stated a claim for relief under the FDCPA, nor is there any reasonable possibility that he could state such a claim. Whether the plaintiff received proper notice of the defendant's foreclosure action is determined under state law, not the FDCPA.
In its previous order, the Court questioned the plaintiff's standing to enforce the receivership stay. The Court explained that the stay was not entered for the plaintiff's benefit; rather, it was entered to protect the receivership's assets and preserve them for receivership purposes. As a result, the Court suggested that the receiver, not the plaintiff, was the real party in interest with respect to the real property at issue. See filing 20 at 2 (citing First State Bank of N. Cal. v. Bank of Am., N.T. & S.A., 618 F.2d 603, 604 (9th Cir. 1980)).
The plaintiff asserts several things in...
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