Brothers v. Saag

• Decision Date: 04 March 2014
• Docket Number: Case No.: 4:13-CV-466-VEH
• Parties: PASCHAL PAUL BROTHERS, and SHARON J. STARGELL BROTHERS, Plaintiffs, v. ANDY SAAG, Defendant.
• Court: U.S. District Court — Northern District of Alabama

PASCHAL PAUL BROTHERS, and SHARON J. STARGELL BROTHERS, Plaintiffs, v. ANDY SAAG, Defendant.

Case No.: 4:13-CV-466-VEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA MIDDLE DIVISION

DONE and ORDERED: March 4, 2014

MEMORANDUM OPINION AND ORDER

This is a civil action file by the pro se plaintiffs, Paschal Paul Brothers and Sharon J. Stargell Brothers, against the defendant, Andy Saag. (Doc. 1 at 1). The case comes before the court on the following motions:

- the defendant's "Motion to Dismiss Plaintiffs' Amended Complaint and to Strike the Affidavit of William McCaffrey" (doc. 13);

- the plaintiffs' petition to "Quash the Motion to Strike the Affidavit of William McCaffrey" (doc. 16 at 8-10);

- the plaintiffs' petition to strike Exhibit F attached to the defendant's motion to dismiss (doc. 16 at 10-13);- the plaintiffs' "Petition for Judicial Notice of Undisputed Facts and Plaintiff[s'] Petition to Strike the Defendant's Latest Reply Brief and the Attached Exhibits A, B, C, and D" (doc. 18); and

- the plaintiffs' "Petition to Strike the Defendant's Latest Pleading Entitled 'Notice of Additional Service of Exhibits to Defendant's Reply to Plaintiff[s'] Response to Defendant's Motion to Dismiss and Response to the Plaintiff[s'] Petition to Strike'" (doc. 21).

I. PROCEDURAL HISTORY

The original complaint was filed by the plaintiffs on March 8, 2013. (Doc. 1). It alleged that the defendant violated the Fair Debt Collection Practices Act, ("FDCPA"), 15 U.S.C. § 1692, et seq., in his communications with the plaintiffs. While the complaint contained separate "counts," some counts contained many different and inconsistent claims for violation of the FDCPA including: overshadowing; failure to include validation notice requirements in letters to the plaintiffs; the failure to validate the debt owed; the failure to cease collection attempts after the debt was disputed; false and misleading representation; unfair practices; and mental and physical aggravation.

On April 8, 2013, Saag filed a Motion to Dismiss, or in the Alternative for Summary Judgment. (Doc. 7). On May 20, 2013, the plaintiffs filed their ownMotion for Summary Judgment. (Doc. 9). On August 23, 2013, the court entered a memorandum opinion and order which struck the plaintiffs' motion for summary judgment. (Doc. 11 at 3). In that same opinion, the court treated the defendant's motion as a motion to dismiss only, denied the motion "to the extent that it attacks the plaintiffs' overshadowing claims," and granted the motion in all other respects. (Doc. 11 at 19). The court allowed the plaintiffs 30 days to amend their complaint to reallege "the False and Misleading Representation claims and Unfair Practices claims which are based upon communications regarding the foreclosure." (Doc. 11 at 19-20).

On September 23, 2013, the plaintiffs filed their amended complaint. (Doc. 12). The Amended Complaint alleges overshadowing (Count One), false and misleading misrepresentations "in violation of 15 U.S.C. § 1692e" (Count Two), and unfair practices in violation of 15 U.S.C. § 1692f¹ (Count Three).

Attached to the Amended Complaint are several exhibits, one of which is the Affidavit of William McCaffrey. (Doc. 12 at 14-19). On October 7, 2013, the defendant filed a "Motion to Dismiss Plaintiffs' Amended Complaint and to Strikethe Affidavit of William McCaffrey." (Doc. 13).² Attached to that motion were six exhibits labeled A, B, C, D, E, and F. (Doc. 13-1).

On October 29, 2013, the plaintiffs filed a document entitled "Answer to the Motion to Dismiss, Petition to Quash and Petition to Strike." (Doc. 16). Although not designated as a motion in the court's CM/ECF system, document 16 actually "petitions" the court to "quash" the Motion to Strike the Affidavit of William McCaffrey. (Doc. 16 at 8-10). It also petitions the court to strike Exhibit F attached to the defendant's motion to dismiss. (Doc. 16 at 10-13).

On November 8, 2013, the defendant filed a reply brief in support of his motion to dismiss with five exhibits, designated A, B, C, D, and E, attached. (Doc. 17; doc 17-1). Exhibits A, B, C, and D (doc. 17-1 at 2-21) are the same exhibits contained in Exhibit F to document 13 (doc. 13-1 at 16-31).

On November 15, 2013, the plaintiffs filed a "Petition for Judicial Notice of Undisputed Facts and Plaintiff[s'] Petition to Strike the Defendant's Latest Reply Brief and the Attached Exhibits A, B, C, and D." (Doc. 18). On January 2, 2014, the defendant filed a "Notice of Additional Service of Exhibits to Defendant's Reply tothe Plaintiff[s'] Response to Defendant's Motion to Dismiss and Response to the Plaintiffs' Petition to Strike." (Doc. 19). On January 24, 2014, the plaintiffs moved to strike document 19. (Doc. 21).

II. MATTERS OUTSIDE THE PLEADINGS

A. The Exhibits Attached to the Defendant's Motion To Dismiss Do Not Convert It to a Motion for Summary Judgment

The defendant attaches exhibits to his motion. "If, on a motion under Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d); see also, Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005) ("The district court generally must convert a motion to dismiss into a motion for summary judgment if it considers materials outside the complaint."). However,

the court may consider a document attached to a motion to dismiss without converting the motion into one for summary judgment if the attached document is (1) central to the plaintiff's claim and (2) undisputed. In this context, "undisputed" means that the authenticity of the document is not challenged. Id. Our prior decisions also make clear that a document need not be physically attached to a pleading to be incorporated by reference into it; if the document's contents are alleged in a complaint and no party questions those contents, we may consider such a document provided it meets the centrality requirement[.]

Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005).

Attached to the defendant's motion to dismiss are six (6) exhibits labeled A,B, C, D, E, and F. (Doc. 13-1). The court will address each in turn,

1. Exhibits A, B, C, and E

Exhibits A, B, C, and E are also attached to the Amended Complaint. (Doc. 12 at 10-12).³ They are referenced in the Amended Complaint (doc. 12 at 1, 2, 3), and are the basis for some of the plaintiffs' claims. The documents are therefore central to those claims. No party disputes the authenticity of these documents. They may be considered without converting the motion.

2. Exhibit D

Exhibit D to the motion to dismiss is a February 1, 2013, letter from Bank of America, which is a non-party. It is provided as evidence that the debt was verified by Bank of America. (Doc. 13 at 4). As no claims for failure to verify remain, this document is not central to any of the plaintiffs' current claims, and it is not relevant to the instant motion. Exhibit D will be EXCLUDED, and the motion will not be converted to a motion for summary judgment as a result of that document being attached.

3. Exhibit F; the Plaintiffs' Petition to Strike Exhibit F Attached to the Defendant's Motion to Dismiss (Doc. 16 at 10-13); and the Plaintiffs' Petition for Judicial Notice of Undisputed Facts and Plaintiffs' Petition to Strike the Defendant's Latest Reply Brief and the Attached Exhibits A, B, C, and D (Doc. 18) Exhibit F to the motion purports to be a Mortgage, executed on December 20, 2004, by: 1) the plaintiffs; 2) Mortgage Electronic Registration Systems, Inc. ("MERS"), the mortgagee; and 3) Countrywide Home Loans, Inc. ("Countrywide"), the lender. (Doc. 13-1 at 16-27). Also attached is a document which purports to be a Note, also executed by the plaintiffs on December 20, 2004. (Doc. 13-1 at 30-31). Exhibit F also includes a document dated March 2, 2010, which purports to be an "Assignment of Mortgage" by MERS, "acting solely as nominee for Lender," of the plaintiffs' mortgage to BAC Home Loans Servicing, Inc. (Doc. 13-1 at 28). Finally, Exhibit F includes a purported "Corrective Assignment of Mortgage," dated November 14, 2012, which changes the name of the assignee to Bank of America, N.A. (Doc. 13-1 at 29). As noted above, these same documents comprise Exhibit A, B, C, and D to the defendant's reply to the motion to dismiss. (Doc. 17; doc. 17-1 at 2-21).

The plaintiff moves to strike Exhibit F stating that it "contain[s] an uncertified, un-sworn[,] and un-authenticated copy of a purported note, mortgage[,] and assignment. These alleged copies were not properly introduced into the record by affirmation as true and correct copies." (Doc. 16 at 11). Further, the plaintiffs state that these documents are "inadmissible hearsay." (Doc. 16 at 13). In support of theirargument, the plaintiffs include a block quote from Coleman v. BAC Servicing, 104 So. 3d 195, 202-03 (Ala. Civ. App. 2012), cert. denied (Sept. 7, 2012), which deals whether evidence submitted on a summary judgment motion complied with Rule 56(e) of the Alabama Rules of Civil Procedure. That rule states:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

ALA. R. CIV. P. 56(e). The plaintiffs' also provide similar block quotes from Allred v. Shirley, 598 So. 2d 1347, 1348 (Ala. 1992) (appeal from a summary judgment in favor of the defendant), and Alabama Power Co. v. Tatum, 293 Ala. 500, 508, 306 So. 2d 251, 258 (1975) (whether trial Court erred in admitting documents at trial).

Of course, the Alabama Rules of Civil Procedure do not apply in federal court. However, Rule 56(c)(4) of the Federal Rules of Civil Procedure contains the following similar...