Goodman v. Nationstar Mortg., LLC
| Decision Date | 09 April 2014 |
| Docket Number | NO. 3:13-1377,3:13-1377 |
| Court | U.S. District Court — Middle District of Tennessee |
| Parties | BETTY JO GOODMAN v. NATIONSTAR MORTGAGE, LLC, et al. |
By Order entered January 7, 2014 (Docket Entry No. 3), the Court referred this action to the Magistrate Judge to enter a scheduling order for the management of the case, to dispose or recommend disposition of any pretrial motions under 28 U.S.C. §§ 636(b)(1)(A) and (B), and to conduct further proceedings, if necessary, under Rule 72(b) of the Federal Rules of Civil Procedure and the Local Rules of Court.
Presently pending before the Court is the Defendants' motion to dismiss (Docket Entry No. 9), to which the plaintiff has filed a response. See Docket Entry Nos. 19-20.1 For the reasons set out below, the Court recommends that the motion be granted and this action be dismissed.
This pro se action was filed in forma pauperis on December 11, 2013, against Nationstar Mortgage, LLC ("Nationstar") and Shapiro & Kirsch, LLP ("Shapiro"). The plaintiff brings the action under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, as a result of the Defendants' attempts to collect a debt from her that she contends is not owed, is nonexistent, and about which she has no knowledge. In addition to her claims under the FDCPA, she refers to a claim for defamation of character and sets out claims for invasion of privacy and the negligent, wanton, and/or intentional hiring and supervision of incompetent employees or agents.
The plaintiff alleges that, "in response to dunning letters," she served Shapiro with a "notice to respond and demand" letter on or about October 9, 2013, requiring Shapiro to validate the alleged debt. See Complaint (Docket Entry No. 18), at 3. Although Shapiro responded on or about October 21, 2013, with a letter and copies of public documents, the plaintiff alleges that the proffered documents fail to prove the existence of the alleged debt and that Shapiro's response was not in the specific form that she requested and, thus, was a "non-response." Id. She further alleges that Nationstar sent her correspondence on November 18, 2013, which she likewise contends fails to prove the existence of the alleged debt. Id. The plaintiff generally alleges that the Defendants have repeatedly harassed her by attempts to collect the debt and that she has suffered significant economic harm as a result of the erroneous credit reporting by each Defendant. Id. at 2 and 4.
On February 17, 2014, the Defendants filed the pending motion to dismiss asserting two arguments for dismissal. First, the Defendants argue that the complaint is signed by "Eric Goodman, POA" and not by the named plaintiff. Therefore, the Defendants contend that thecomplaint was not properly signed by the plaintiff as required by Rule 11 of the Federal Rules of Civil Procedure and 28 U.S.C. § 1654 and is a nullity. Second, the Defendants argue that the complaint lacks factual allegations supporting the asserted claims and, thus, fails to state a claim upon which relief can be granted.
The plaintiff thereafter filed a motion (Docket Entry No. 16) for leave of court to correct the signing of her complaint. By Order entered March 19, 2014 (Docket Entry No. 24), the Court granted this motion and directed that the properly signed complaint (Docket Entry No. 18) she attached to her motion be considered the operative complaint in this action. The plaintiff also filed a motion (Docket Entry No. 22) for leave of the Court to allow her son, Eric Goodman, to file an appearance on her behalf and act as "next friend." By Order entered March 20, 2014 (Docket Entry No. 25), the Court denied this motion.2
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is reviewed under the standard that the Court must accept as true all of the allegations contained in the complaint, resolve all doubts in the plaintiffs' favor, and construe the complaint liberally in favor of the pro se plaintiffs. See Kottmyer v. Maas, 436 F.3d 684 (6th Cir. 2006); Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999); Morgan v. Church's Fried Chicken, 829 F.2d 10, 11-12 (6th Cir. 1987). However, although the complaint need not contain detailed factual allegations, the plaintiffs must provide the grounds for their entitlement to relief and this "requires more than labels andconclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). See also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
The factual allegations supplied must be enough to show a plausible right to relief. Twombly, 550 U.S. at 555-61. More than bare assertions of legal conclusions are required to withstand a motion to dismiss and the complaint must contain either direct or inferential allegations respecting all of the material elements to sustain a recovery under some viable legal theory. Id.; Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436-37 (6th Cir. 1988). The Court need not accept as true legal conclusions or unwarranted factual inferences. See Gregory v. Shelby Cnty., 220 F.3d 433, 446 (6th Cir. 2000), abrogated in part on other grounds, Buckhannon Bd. & Care Home, Inc. v. West Va. Dep't of Health & Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001). Although Rule 8 of the Federal Rules of Civil Procedure does not constitute a "hyper-technical, code-pleading regime," it "does not unlock the doors of discovery for a Plaintiff armed with nothing more than conclusions." Iqbal, 566 U.S. at 678-79. A complaint does not "suffice if it tenders 'naked assertions' devoid of 'further factual enhancement.'" Id. at 678 (quoting Twombly, 550 U.S. at 557).
After review of the parties' filings and the complaint, the Court finds that the motion to dismiss should be granted. Although the Court is required to construe the complaint liberallybecause of the plaintiff's pro se status, Boag v. McDougall, 454 U.S. 364, 365, 102 S.Ct. 700, 70 L.Ed.2d 551 (1982), and even though the plaintiff's factual allegations are construed as true when reviewing the motion to dismiss, the factual allegations must "do more than create speculation or suspicion of a legally cognizable cause of action; they must show entitlement to relief." League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citing Twombly, 550 U.S. at 555). The plaintiff has simply failed to satisfy this burden and has not asserted plausible legal claims based on the facts and claims set out in her complaint.
As the Sixth Circuit Court of Appeals explained in Federal Home Loan Mortg. Corp. v. Lamar, 503 F.3d 504, 508 (6th Cir. 2007):
Congress enacted the FDCPA in order "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). "Congress designed the [FDCPA] to 'eliminate the recurring problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid.'" Swanson v. S. Or. Credit Serv., Inc., 869 F.2d 1222, 1225 (9th Cir.1988) (quoting S.Rep. No. 95-382, at 4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699).
Although the plaintiff in her complaint contends that the defendants have violated several provisions of the FDCPA - 15 U.S.C. §§ 1692g, 1692d, 1692j, 1692f, and 1692(e)(8), see Complaint, at 7-8 - the only specific factual allegations made by the plaintiff are her brief and somewhat vague allegations related to the alleged violation of Section 1692g. She alleges that:1) she received "dunning letters" from the "Defendant(s)," letters which are not attached to the complaint; 2) she made a request for validation; 3) Shapiro responded with a letter and documents that the Plaintiff believes are insufficient; and 4) Nationstar also sent her a correspondence that she believes is insufficient.
15 U.S.C. § 1692g provides that a debt collector must provide a consumer with written notice of a debt, and, if a consumer disputes a debt, the debt collector must verify the debt before resuming collection activities. Specifically, Section 1692g provides:
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