Robey v. Shapiro, Marianos & Cejda, L.L.C.

• Decision Date: 30 September 2004
• Docket Number: No. 02-CV-584-PC.,02-CV-584-PC.
• Citation: 340 F.Supp.2d 1062
• Court: U.S. District Court — Northern District of California
• Parties: Richard ROBEY, in behalf of himself and others similarly situated, Plaintiff, v. SHAPIRO, MARIANOS & CEJDA, L.L.C.; Theresa Marianos; Kirk J. Cejda; Gerald Shapiro; and Mortgage Electronic Registration Systems, Inc., Defendants.

340 F.Supp.2d 1062

Richard ROBEY, in behalf of himself and others similarly situated, Plaintiff, v. SHAPIRO, MARIANOS & CEJDA, L.L.C.; Theresa Marianos; Kirk J. Cejda; Gerald Shapiro; and Mortgage Electronic Registration Systems, Inc., Defendants.

No. 02-CV-584-PC.

United States District Court, N.D. California.

September 30, 2004.

Lawrence AG Johnson, Johnson & Swenson, Tulsa, OK, for Plaintiff.

Richard C. Ford, Crowe & Dunlevy, Oklahoma City, OK, Victor Eric Morgan, Gerald Lee Jackson, Crowe & Dunlevy, Tulsa, OK, Melvin R. McVay, Jr., Heather

L. Hintz, Phillips McFall McCaffrey McVay & Murrah, Oklahoma City, OK, for Defendants.

ORDER

AGUILAR, District Judge.

This matter comes before the Court on Defendants' Motions to Dismiss filed September 23, 2002 (Docket Entry Nos. 11 and 12). Also coming on for consideration is Plaintiff's Application to Supplement Plaintiff's Response to Motions for Summary Judgment (sic) filed January 15, 2003 (Docket Entry # 20). All of these motions are at issue. Upon review and consideration of these documents, this Court renders this ruling.

As an initial matter, this Court has considered Plaintiff's request to supplement his response by including various documents from an unrelated foreclosure action filed in the District Court in and for Tulsa County, Oklahoma. Plaintiff's requested supplementation of the record does nothing to further the resolution of the pending motions; indeed, the inclusion of these irrelevant documents only serves to clutter an already cumbersome record. Therefore, the request will be denied.

On July 23, 2002, Plaintiff initiated this potential class action, filing a First Amended Complaint on August 28, 2002. In this action, Plaintiff contends Defendant Shapiro, Marianos & Cejda, LLC, a law firm, and the individual attorneys in that firm, Theresa Marianos, Kirk Cejda and Gerald Shapiro (collectively referred to as "Shapiro"), entered into agreements with various mortgage companies to handle foreclosure actions for a flat fee. Plaintiff asserts the flat fee contract was concealed from the courts in which the foreclosures were pending as well as the mortgagors and Shapiro "unlawfully [took] judgments against mortgagors for attorney fees in amounts in excess of said flat fee, and charging mortgagors who redeem or reinstate their mortgages for fees in excess of said flat fees," in violation of the Fair Debt Collection Practices Act ("FDCPA").

Plaintiff asserts a claim against Defendant Mortgage Electronic Registration Systems, Inc. ("MERS") for falsely claiming that they were the holder of the promissory note in each foreclosure. Rather, Plaintiff contends MERS is neither the holder nor the beneficial interest holder in the notes at issue.

As for the claims specific to Plaintiff, he states that on December 11, 2001, Plaintiff was served with a summons in a foreclosure action on his home pending in the District Court in and for Tulsa County, Oklahoma by MERS. MERS alleged it was due an attorney fee in an amount in excess of the flat fee it agreed to pay Shapiro. Plaintiff claims the individual Defendants signed the pleadings claiming the fees. Plaintiff seeks certification of a class, being those individuals who were sued by MERS in a foreclosure action where the amount claimed for attorney fees exceeded the flat fee contract MERS had with the attorneys filing the foreclosure actions. Plaintiff then seeks damages for violation of the FDCPA, as well as state law claims.

Through their requests for dismissal, Shapiro contends (1) Plaintiff lacks standing to assert a claim since he has not suffered an injury in fact under Fed.R.Civ.P. 12(b)(1); (2) Plaintiff fails to state a claim upon which relief can be granted because attorney's fees are authorized under Oklahoma law and the various mortgages subject to foreclosure under Fed.R.Civ.P. 12(b)(6); and (3) Plaintiff cannot recover on his pendent state law claims. MERS asserts essentially the same bases for dismissal in its motion.

Typically, an action should not be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure unless "the plaintiff can prove no set of facts in support of the claims that would entitle him to relief." Reynolds v. School District No. 1, Denver, Colorado, 69 F.3d 1523, 1536 (10th Cir.1995) citing Coosewoon v. Meridian Oil Co., 25 F.3d 920, 924 (10th Cir.1994). In reviewing the sufficiency of the complaint, a court "presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.1996) citing Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). The "[g]ranting [of] defendant's motion to dismiss is a harsh remedy which must be cautiously studied ... to protect the interests of justice." Bangerter v. Orem City Corp., 46 F.3d 1491, 1502 (10th Cir.1995). "The threshold of sufficiency that a complaint must meet to survive a motion to dismiss for failure to state a claim is exceedingly low." Quality Foods v. Latin American Agribusiness Development, 711 F.2d 989, 995 (11th Cir.1983). Generally, a request for dismissal for the failure to state a claim "is viewed with disfavor, and is rarely granted." Lone Star Industries, Inc. v. Horman Family Trust, 960 F.2d 917, 920 (10th Cir.1992) citing Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir.1981). However, when a plaintiff cannot prevail as a matter of law, dismissal is appropriate. Gillihan v. Shillinger, 872 F.2d 935, 938 (10th Cir.1989); Hydro-Tech Corp. v. Sundstrand Corp., 673 F.2d 1171, 1173 (10th Cir.1982).

Under the FDCPA, "[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt." 15 U.S.C. § 1692f. "Unfair or unconscionable" is defined to include "[t]he collection of any amount (including any interest, fee, charge or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law." 15 U.S.C. § 1692f(1).

In this case, Shapiro brings the foreclosure action on behalf of MERS and includes in the prayer for relief a request for the award of "a reasonable attorney's fee." Shapiro also makes letter demand for payment on behalf of MERS prior to instituting the foreclosure action, which also includes a request for a reasonable attorney's fee. Plaintiff, in a rather rambling and confusing argument, summarizes his claims as follows:

The gist of Plaintiff's claim under the FDCPA is the Defendants, in their pleadings and their letter demand were attempts to collect a debt "not permitted by law." Oklahoma by statute (5 O.S. § 9) makes it clear the contractual rate governs the attorney's claim. Ethics makes it clear that only reasonable amounts can be claimed by an attorney. Supreme Court decisions in Oklahoma make it clear the rubric "reasonable attorney fee" under the so-called Burk factors do not apply where there is a contractual agreement between the attorney and the client setting a flat fee. Ethics rules make it clear there is a burden of candor toward the tribunal to inform the court there is a flat fee contract extant. Criminal law in Oklahoma (thus enunciating a rule of public policy) makes it a crime for...