Kagan v. Selene Fin. L.P.

• Decision Date: 28 September 2016
• Docket Number: Case No. 15-CV-5936 (KMK)
• Citation: 210 F.Supp.3d 535
• Parties: Helen Sue KAGAN, on behalf of Plaintiff and a class, Plaintiff, v. SELENE FINANCE L.P. and Selene Ventures GP, LLC, Defendants.
• Court: U.S. District Court — Southern District of New York

210 F.Supp.3d 535

Helen Sue KAGAN, on behalf of Plaintiff and a class, Plaintiff,

v.SELENE FINANCE L.P. and Selene Ventures GP, LLC, Defendants.

Case No. 15-CV-5936 (KMK)

United States District Court, S.D. New York.

Signed September 28, 2016

Tiffany N. Hardy, Esq., Edelman, Combs, Latturner & Goodwin, LLC, Chicago, IL, Counsel for Plaintiff.

Abraham Kleinman, Esq., Kleinman LLC, Uniondale, NY, Counsel for Plaintiff.

Jason E. Manning, Esq., Troutman Sanders LLP, Richmond, VA, Counsel for Defendants.

John C. Lynch, Esq., Troutman Sanders LLP, Virginia Beach, VA, Counsel for Defendants.

OPINION & ORDER

KENNETH M. KARAS, District Judge

Helen Sue Kagan ("Plaintiff") brings this Action, on behalf of herself and a class, alleging that Selene Finance L.P. ("Selene Finance") and Selene Ventures GP, LLC ("Selene Ventures," and collectively, "Defendants") engaged in unlawful credit and collection practices in violation of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. (Dkt. No. 1.) Before the Court is Defendants' Motion To Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (the "Motion"). (Dkt. No. 29.) For the following reasons, the Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts are drawn from Plaintiff's Complaint and are taken as true for the purpose of resolving the instant Motion.¹

Plaintiff is an individual who resides in a single-family home that she owns. (Compl. ¶ 4 (Dkt. No. 1).) Selene Finance is a limited partnership entity, (id. ¶ 5), and a "special servicer" of residential mortgages, (id. ¶ 6).² Selene Finance was established in October 2007 to service nonperforming and subperforming residential mortgage loans, i.e., to collect delinquent debts. (Id. ¶ 8.) By 2012, it expanded into servicing prime mortgage loans. (Id. ¶ 9.) Selene Finance regularly acquires delinquent loans, (id. ¶ 11), and then attempts to collect such loans through use of the mails and telephone system, (id. ¶ 12).³ Selene Ventures is a limited liability company and the general partner of Selene Finance. (Id. ¶ 14.)

Selene Finance has been attempting to collect from Plaintiff a residential mortgage debt incurred for personal, family, or household purposes. (Id. ¶ 15, 17.) The debt was in default at the time Selene Finance first became involved with it. (Id. ¶ 16.) On or about September 4, 2014, Selene Finance sent Plaintiff a letter regarding her debt, intended as the "Notice of Debt" required by § 1692g (the "Notice").

(Id. ¶¶ 18-20; see also id. Ex. A ("Notice").)⁴ Subsequently, on or about September 18, 2014, Selene Finance sent Plaintiff a letter seeking a loan modification. (Compl. ¶ 21; see also id. Ex. B (outlining loss mitigation and foreclosure alternative programs).) On September 30, 2014, Selene Finance sent Plaintiff another letter regarding her loan payments. (Compl. ¶ 22; see also id. Ex. C (advising Plaintiff to contact the Loan Resolution Department if she were having trouble making payments).) On or about October 1, 2014, Plaintiff submitted a written debt dispute. (Compl. ¶ 23; see also id. Ex. D.) Thereafter, Selene Finance acknowledged the receipt of Plaintiff's letter and provided a timeline for Selene Finance's response. (Compl. ¶ 24; see also id. Ex. E.) On or about October 28, 2014, Selene Finance sent Plaintiff a "Notice of Default and Intent to Accelerate." (Compl. ¶ 25; see also id. Ex. F.)⁵

Between June 8, 2015 and June 20, 2015, Plaintiff received the following voicemail messages from Selene Finance:

• "Hi this message is for Helen Sue Kagan. This is Maria from Selene Finance, if you could please return my call. 877-768-3759. Thank you." (Wednesday, 6:58 p.m.)

• "Please call Selene Finance at 877–768–3759. It is very important that you return our call within 24 hours. Our hours of operation are Monday thru Thursday 8 a.m. to 9 p.m. and Friday 8 a.m. to 5 p.m. Please call Selene Finance at 877–768–3759." (Friday, 11:53 a.m.)

• "Please call Selene Finance at 877–768–3759. It is very important that you return our call within 24 hours. Our hours of operation are Monday thru Thursday 8 a.m. to 9 p.m. and Friday 8 a.m. to 5 p.m. Please call Selene Finance at 877–768–3759." (Tuesday, 5:08 p.m.)

• "Hi this message is for Helen Sue Kagan. This is Maria from Selene Finance, if you could please return my call. 877-768-3759. Thank you." (Wednesday, 6:11 p.m.)

• "Please call Selene Finance at 877–768–3759. It is very important that you return our call within 24 hours. Our hours of operation are Monday thru Thursday 8 a.m. to 9 p.m. and Friday 8 a.m. to 5 p.m. Please call Selene Finance at 877–768–3759." (Friday, 11:25 a.m.)

(the "Voicemail Messages"). (Compl. ¶ 26.)

B. Procedural Background

Plaintiff commenced this putative Class Action against Defendants on July 29, 2015, alleging violations of the FDCPA. (Dkt. No. 1.) Pursuant to a briefing schedule adopted by the Court on November 30, 2015, (Dkt. No. 28), Defendants filed their Motion and supporting papers on January 12, 2016, (Dkt. Nos. 29–30). Plaintiff filed her opposition on February 23, 2016, (Dkt. No. 39), and Defendants filed their reply on March 4, 2016, (Dkt. No. 40).

II. Discussion

A. Applicable Law

1. Standard of Review

The Supreme Court has held that although a complaint "does not need detailed factual allegations" to survive a motion to dismiss, "a plaintiff's obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure"demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (alteration and internal quotation marks omitted). Rather, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Although "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563, 127 S.Ct. 1955, and a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face," id. at 570, 127 S.Ct. 1955, if a plaintiff has not "nudged [her] claims across the line from conceivable to plausible, the[ ] complaint must be dismissed," id. ; see also Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 ("Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ " (second alteration in original) (citation omitted) (quoting Fed. R. Civ. P. 8(a)(2) )); id. at 678–79, 129 S.Ct. 1937 (" Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").

"[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam); see also Aegis Ins. Servs., Inc. v. 7 World Trade Co., 737 F.3d 166, 176 (2d Cir. 2013) (explaining that a court "reviewing a dismissal pursuant to Rule 12(b)(6)" must "accept all factual allegations in the complaint as true" (alteration and internal quotation marks omitted)). Further, "[f]or the purpose of resolving [a] motion to dismiss, the [c]ourt ... draw[s] all reasonable inferences in favor of the plaintiff." Daniel v. T & M Prot. Res., Inc., 992 F.Supp.2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012) ).

Lastly, a court ruling on a Rule 12(b)(6) motion "may consider the complaint[,] ... any written instrument attached to the complaint as an exhibit [,] or any statements or documents incorporated in it by reference," as well as "matters of which judicial notice may be taken, and documents either in [the] plaintiffs' possession or of which [the] plaintiffs had knowledge and relied on in bringing suit." Kalyanaram v. Am. Ass'n of Univ. Professors at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 44 n.1 (2d Cir. 2014) (alterations and internal quotation marks omitted); see also Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) ("In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." (internal quotation marks omitted)); Wang v. Palmisano, 157 F.Supp.3d 306, 317 (S.D.N.Y. 2016) (same).

2. FDCPA

The purpose of the FDCPA is to eliminate abusive debt collection practices and establish "certain rights for consumers whose debts are placed in the hands of professional debt collectors for collection." Kropelnicki v. Siegel, 290 F.3d 118, 127 (2d Cir. 2002) (internal quotation marks omitted); see also Plummer v. Atl. Credit & Fin., Inc., 66 F.Supp.3d 484, 487 (S.D.N.Y. 2014) (same). "Debt collectors that violate the FDCPA are strictly liable, meaning that a consumer need not show intentional conduct by the debt collector to be entitled to damages." Easterling v. Collecto, Inc., 692 F.3d 229, 234 (2d Cir. 2012) (internal quotation marks omitted). Moreover, a single violation is...