Tutanji v. Bank of America
| Decision Date | 09 May 2012 |
| Docket Number | Civil Action No.: 12-887 (JLL) |
| Parties | ABEER TUTANJI, Plaintiff, v. BANK OF AMERICA, Defendant. |
| Court | U.S. District Court — District of New Jersey |
NOT FOR PUBLICATION
This matter comes before the Court by way of Defendant Bank of America ("Defendant")'s unopposed motion to dismiss Plaintiff Abeer Tutanji ("Plaintiff")'s civil complaint ("Complaint") for failure to state a claim upon which relief may be granted pursuant to Fed. R. Civ. P. 12(b)(6). [Docket Entry No. 10]. The Court has considered Defendant's submissions in support of the instant motion, and decides the motion on the papers pursuant to Fed. R. Civ. P. 78. For the reasons stated herein, Defendant's Motion to Dismiss Plaintiff's Complaint is granted.
Plaintiff is a resident of Woodside Park, New Jersey, and maintains a mortgage on her home. (Compl, ¶¶ 4, 7). Plaintiff makes a series of allegations against Defendant regarding its purported debt collection practices despite, on her account, being at no point late or otherwise delinquent on her mortgage with Defendant. (Id. ¶ 22). Plaintiff first claims that Defendant "telephoned [her] during all hours of the day and night," "communicated with [her] husband regarding the debt, without authorization or permission to do so," and "failed to inform [her] thatthe calls were from a debt collector, and that any information shared would be used for that purpose." (Id. ¶¶11-13). In addition to the calls, Plaintiff alleges that "numerous threatening letters" were sent "in an attempt to collect the debt," and that the "letters failed to inform [her] that the communications were from a debt collector," or "that any information shared would be used for that purpose." (Id. ¶¶ 14-15). Plaintiff also claims that Defendant did not send her a validation notice as required by the Fair Debt Collection Practices Act ("FDCPA"). (Id. ¶ 15).
Plaintiff additionally asserts claims relating to her representation by counsel and Defendant's false reporting. First, Plaintiff alleges that Defendant knew she was represented by counsel in connection with "the relevant debt," and despite this knowledge, "blatantly continued to contact and harass" her. (Id. ¶¶ 17-18). Even after Plaintiff's attorney contacted Defendant and informed Defendant that Plaintiff was represented by counsel, Plaintiff contends, "Defendant continued to contact and harass Plaintiff about the debt." (Id. ¶ 19). Second, Plaintiff states that Defendant told her that she owed debt for escrow payments, which was a false representation since Plaintiff owed no debts pursuant to any agreement or operation of law. (Id. ¶¶ 20-21). Defendant further purportedly falsely reported to the Credit Reporting Bureaus that Plaintiff was delinquent in her payments, causing Plaintiff to be denied credit and to suffer actual damages, consternation, anxiety and distress. (Id. ¶¶ 24-26).
Plaintiff filed her four-count Complaint against Defendant on February 10, 2012. [Docket Entry No. 1]. Plaintiff's first Count alleges violations of the FDCPA pursuant but not limited to the following provisions: 15 U.S.C. § 1692c(a)(l) (); 15 U.S.C. § 1692c(a)(2) (); 15 U.S.C. § 1692c(b) (); 15 U.S.C. § 1692d(5) (); 15 U.S.C. § 1692d(6) (); 15 U.S.C. § 1692e(10) (); 15 U.S.C. § 1692e(15) (); and 15 U.S.C. § 1692g (). (Compl., ¶¶ 28-29). Count Two of Plaintiff's Complaint asserts a Fair Credit Reporting Act ("FCRA") claim for falsely reporting that Plaintiff owed a debt and was delinquent in paying that debt to various credit reporting agencies. (Id. ¶ 32). Count Three asserts that Defendant misrepresented the terms of the loan to her in violation of the New Jersey Consumer Fraud Act ("NJCFA") when Defendant induced Plaintiff to take out the subject mortgage without telling her that an escrow account would be imposed on her. (Id. ¶¶ 39-40). Finally, Count Four alleges that Defendant's conduct constituted negligence and a breach of the duty of good faith in that Defendant owed a duty to Plaintiff to "not unlawfully impose additional terms of the loan upon her and to not unlawfully damage Plaintiff's credit rating," and that "Defendant breached its duty by imposing additional terms and damaging Plaintiff's credit rating." (Id. ¶¶ 43-44). Defendant filed the instant Motion on April 9, 2012. [Docket Entry No. 10]. Plaintiff has filed no opposition to Defendant's Motion.
For a complaint to survive dismissal, it "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Tqbal, 129 S. Ct. 1937, 1949 (2009) ). Theplausibility standard is not akin to a '"probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully"; mere consistency with liability is insufficient. 14 In evaluating the sufficiency of a complaint, the Court must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable inferences in favor of the non-moving party. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). But, Iqbal, 129 S.Ct. at 1949. The burden of proof for showing that no claim has been stated is on the moving party. Hedges v. U.S., 404 F.3d 744, 750 (3d Cir. 2005)). During a Court's threshold review, "[t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." In re Rockefeller Ctr. Props., Inc., 311 F.3d 198, 215 (3d Cir. 2002). In accordance with the adoption of the new Iqbal standard by the Supreme Court, the Third Circuit held that the "no set of facts" standard set forth in Conley v. Gibson, 33 U.S. 41, 45-46 (1957) no longer applied to federal complaints. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) District courts now reviewing complaints for failure to state a claim must engage in a two-part analysis:
First, the factual and legal elements of a claim should be separated. . . .Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief."
Id. (citations omitted).
Fraud claims must meet a heightened pleading standard under Fed. R. Civ. P. 9(b), which requires that "in all averments of fraud or mistake, the circumstances constituting fraud ormistake shall be stated with particularity." Fed. R. Civ. P. 9(b). "To satisfy this heightened standard, the plaintiff must plead or allege the date, time and place of the alleged fraud or otherwise inject precision or some measure of substantiation into a fraud allegation." Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007)(citing Lum v. Bank of Am., 361 F.3d 217, 224 (3d Cir. 2004)). The plaintiff must also allege "who made the purported misrepresentations and what specific misrepresentations and what specific misrepresentations were made." Id. With this framework in mind, the Court turns now to Defendant's motion.
Plaintiff asserts a minimum of eight FDCPA violations against Defendant on the basis of telephone calls and written communications made by Defendant relating to her mortgage. (Compl., ¶¶ 28-29). Defendant first argues that the FDCPA does not apply to it since Bank of America is not a "debt collector" under the FDCPA and was not acting as a debt collector with respect to Plaintiff's mortgage. (Def. Br., at 1). Defendant does not deny that it is the servicer of Plaintiff's mortgage, but claims that it is exempt from the FDCPA except under limited circumstances not alleged by Plaintiff. (Id. at 2).
Under the FDCPA, the term "debt collector" means "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). That term does not include: "any person collecting or attempting to collect any debt owed or dueanother to the extent such activity (i) is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; (ii) concerns a debt which was originated by such person; [or] (iii) concerns a debt which was not in default at the time it was obtained by such person. . . ." 15 U.S.C. § 1692a(6)(F). Therefore, the servicers of residential mortgages have been consistently found by courts not to be "debt collectors" under the FDCPA if the loan in question is not in default when acquired by the servicer. See Stolba v. Wells Fargo & Co., 2011 U.S. Dist. LEXIS 87355, at * 5-6 (D.N.J. Aug. 8, 2011); Siwulec v. Chase Home Fin.. LLC, 2010 U.S. Dist. LEXIS 12894, at * 3 (D.N.J. Dec. 7, 2010); Dawson v. Dovenmuehle Mortg., Inc., 2002 U.S. Dist. LEXIS 5688, at * 5 (E.D. Pa. Apr. 3, 2002). The law is thus "well settled ... that... mortgage servicing companies are not debt collectors and are statutorily exempt from liability under the FDCPA." Stolba, 2011 U.S. Dist. LEXIS...
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