Davis v. Samuel I. White, P.C.

• Decision Date: 08 December 2017
• Docket Number: Case No.: 4:16-cv-18
• Parties: RONNIE DAVIS, Plaintiff, v. SAMUEL I. WHITE, P.C., Defendant.
• Court: U.S. District Court — Eastern District of Virginia

RONNIE DAVIS, Plaintiff, v. SAMUEL I. WHITE, P.C., Defendant.

Case No.: 4:16-cv-18

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Newport News Division

December 8, 2017

OPINION AND ORDER

This case presents a claim under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. Before the Court is Defendant Samuel I. White, P.C.'s ("Defendant") Renewed Motion to Dismiss the First Amended Complaint, or in the Alternative, Motion for Summary Judgment and an accompanying memorandum, filed on August 11, 2017. ECF No. 43. Plaintiff Ronnie Davis ("Plaintiff") was required to file his Response by August 25, 2017.¹ On September 7, 2017 (thirteen days after the expiration of the August 25, 2017 deadline for timely filing) Plaintiff filed a "Consent Motion for Leave to File Out of Time Response to Defendant's Motion to Dismiss or for Summary Judgment," ECF No. 45, and Brief in Support, ECF No. 46. On September 8, 2017, Plaintiff filed his "Opposition to Defendant's Motion to Dismiss or for Summary Judgment" and supporting exhibits.² ECF Nos. 47-58. On September 13, 2017 Defendant filed its Reply to Plaintiff's Opposition. ECF No. 59. On September 27, 2017, the Court granted Plaintiff's Consent Motion, and directed the Clerk to accept Plaintiff'sOpposition for filing. ECF No. 60. Accordingly, the Motion is ripe for decision. The undersigned makes this ruling without a hearing pursuant to Fed. R. Civ. P. 78(b) and E.D. Va. Local Civ. R. 7(J). For the following reasons, Defendant's Renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (ECF No. 43) is GRANTED.

I. FACTUAL/PROCEDURAL BACKGROUND

This matter concerns real property formerly owned by Plaintiff, located at 5614 Fairfield Lane, in Hayes, Gloucester County, Virginia (hereinafter "the Property"). On or about November 25, 1998, Plaintiff was honorably discharged from the United States Army.³ Plaintiff's military service allowed him to obtain refinancing for his residential mortgage on the Property through the Veterans Administration.⁴ As a result of this refinancing, Plaintiff executed a Promissory Note in favor of Bank of America (the original creditor), on or about December 10, 2012 in the amount of Two Hundred and Forty Four Thousand, One Hundred and Five Dollars ($244,105.00). ECF No. 12 at 5, ¶ 11; ECF No. 56 (Promissory Note).⁵ The same day (December 10, 2012), Plaintiff executed an accompanying Deed of Trust, which identified Bank of America as the Lender and Defendant as the Trustee. ECF No. 12 at 5, ¶ 11; ECF No. 13, attach. 6 (Exhibit E). Plaintiff concedes that he defaulted on the loan in October 2013, when he failed to make payments as they came due on October 1, 2013 and November 1, 2013. ECF No. 12 at 6, ¶ 13. Plaintiff made no further payments after his September 2013 payment. Plaintiff was advised of the default status by letter dated November 15, 2013, wherein Bank of America advised Plaintiff that if he failed to cure the default amount (plus additional regular monthly payment(s) and late fees) by December 25, 2013, then Bank of America would accelerate theloan payments, causing the full amount to become due and payable in full. ECF No. 12, attach. 2 (Exhibit B). By letter dated December 12, 2013, PennyMac Loan Services, LLC ("PennyMac") notified Plaintiff that effective December 3, 2013, servicing of Plaintiff's mortgage loan transferred from Bank of America to PennyMac. This December 12, 2013 letter specifically advised

We are pleased to inform you that the servicing of your mortgage loan has transferred from Bank of America to PennyMac Loan Services, LLC ("PennyMac") effective December 03, 2013. The transfer of servicing does not affect any other terms or conditions of the mortgage documents, other than terms directly related to the servicing of your loan.

Case No. 1:14-cv-02679-CAP ("Georgia Action"), ECF No. 25, attach. 2 (Exhibit B).⁶ On or about April 21, 2014, Defendant sent a letter to Plaintiff, wherein Defendant asserted that it had been instructed to initiate foreclosure of the mortgage securing the Property. ECF No. 12, attach. 1 (Exhibit A). Defendant's letter further stated that "as of April 11, 2014 the amount of the debt is $248,133.45" and that "[t]he creditor to whom the debt is owed is PennyMac Loan Services, LLC," ECF No. 12, attach. 1 (Exhibit A), and that Defendant was providing such information pursuant to the Fair Debt Collection Practices Act, ECF No. 12, attach. 1 (Exhibit A). This April 21, 2014 letter is the complained of correspondence upon which Plaintiff's suit arises. Non-judicial foreclosure of the property was effectuated in the Circuit Court for Gloucester County, Virginia on or about August 25, 2014. ECF No. 12 at 14, ¶ 42. See also ECF No. 43 at 5 ("On or about March 16, 2015, the Commissioner of Accounts advised the Gloucester County Circuit Court that he had stated his account as to the Property and the foreclosure sale was approved.").

On August 19, 2014, Plaintiff, by and through counsel, filed suit against PennyMac in the Atlanta Division of the United States District Court for the District of Georgia in Case No. 1:14-cv-02679-CAP (hereinafter "Georgia Action").⁷ Therein, Plaintiff asserted a personal suit and a class action suit against PennyMac for alleged violations of the Fair Debt Collection Practice Act. Eventually, the Georgia Action was dismissed on or about February 27, 2015 pursuant to a "Joint Stipulation of Dismissal with Prejudice" wherein Plaintiff stipulated to the dismissal with prejudice of all claims that were made or that "could have been made" by both Plaintiff individually and on behalf of the putative class members.⁸ The parties entered into a Settlement Agreement in connection with this stipulated dismissal. Plaintiff provided a heavily redacted copy of this Settlement Agreement as an exhibit in support of his Opposition to Defendant's Motion to Dismiss. ECF No. 55. Of the limited portions that are not subject to redaction, one provision states "[a]ny and all claims that [Plaintiff] may have against [Defendant], the Dillon Law Group, PLC, and Vendor Resource Management are expressly retained." ECF No. 55 at 6, ¶ V.

On April 18, 2015⁹, Plaintiff filed suit against Defendant in the United States District Court for the District of Maryland in Case No. 1:15-cv-01108 (hereinafter "Maryland Action"). ECF No. 1. Defendant filed a Motion to Dismiss for Failure to State a Claim on May 12, 2015.ECF No. 11. In response, Plaintiff filed an Amended Complaint on June 5, 2015. ECF No. 12.¹⁰ The Amended Complaint (hereinafter "the Complaint") consists of two (2) counts. Count I alleges that Defendant committed various violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. against Plaintiff individually, by sending Plaintiff a written communication which misstated the amount of a debt owed, misidentified the creditor, and impermissibly threatened to initiate non-judicial foreclosure when no such right to possession existed; by actually foreclosing on the Property; and by recording a "void foreclosure deed" on the Property. See ECF No. 12 at ¶¶ 31-44. Count II alleges what Plaintiff describes as "Class Allegations" asserted on behalf of "Plaintiff and others similarly situated to him" pursuant to 15 U.S.C. § 1692k(a)(2)(B) for alleged violations of FDCPA by sending communications that misstated the amount of debt owed and misidentified the creditor. ECF No. 12 at ¶¶ 45-59. Defendant filed a Second Motion to Dismiss for Failure to State a Claim or to Strike First Amended Complaint on June 18, 2015. ECF No. 13. Ultimately, the Maryland Action was disposed of by the Honorable Richard D. Bennett's ("Judge Bennett") March 24, 2016 Memorandum Order and Opinion. ECF No. 23. Therein, Judge Bennett declined to issue a substantive ruling on the merits of Defendant's Second Motion to Dismiss (ECF No. 13), but ordered a transfer of venue to the United States Court for the Eastern District of Virginia, and instructed Defendant to refile its Motion to Dismiss.

On or about March 24, 2016, the case was officially transferred to the Newport News division of the United States District Court for the Eastern District of Virginia, pursuant to Judge Bennett's Memorandum Order and Opinion. ECF No. 25. After several months of confusion as to the identity of Plaintiff's counsel, Mr. Harlan Miller, Plaintiff's former counsel in both the Maryland and Georgia Actions, managed to find local counsel with whom to associate, and wasadmitted to this Court pro hac vice. ECF Nos. 26-33. On July 19, 2016, Defendant consented to Magistrate Judge jurisdiction. ECF No. 34. On April 10, 2017, Plaintiff also consented to the same. ECF No. 38. Pursuant to the Rule 16(b) Scheduling Order (ECF No. 40), a jury trial was scheduled for November 8, 2017, however, upon Defendant's filing of the instant Motion in August that trial date was removed from the calendar with the proviso that it could be rescheduled pending resolution of the Motion. ECF No. 60.

On August 11, 2017, Defendant filed a Renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. ECF No. 43. Therein, Defendant renewed and incorporated the arguments made in its previously filed Motion to Dismiss (ECF No. 13) and contends that Plaintiff's suit should be dismissed with prejudice pursuant to Fed. R. Civ. P. 12(b)(1), Rule 12(b)(6), or alternatively, as a matter of law pursuant to Rule 56. In support of this argument, Defendant contends that it is entitled to judgment as a matter of law for several reasons, including: the absence of a justiciable case or controversy; the bar imposed by collateral estoppel and issue preclusion; and Plaintiff's failure to establish a claim under the Fair Debt Collection Practices Act. Additionally, Defendant argues that Count II's request for class action and class certification status is without basis and unwarranted. This Renewed Motion is...