Wallace v. Wash. Mut. Bank, F.A.

• Decision Date: 22 August 2012
• Docket Number: No. 10–3694.,10–3694.
• Citation: 683 F.3d 323
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: Betty WALLACE, Plaintiff–Appellant, v. WASHINGTON MUTUAL BANK, F.A.; Wells Fargo Bank N.A., Defendants, Lerner, Sampson & Rothfuss, Defendant–Appellee.

683 F.3d 323

Betty WALLACE, Plaintiff–Appellant,

v. WASHINGTON MUTUAL BANK, F.A.; Wells Fargo Bank N.A., Defendants,Lerner, Sampson & Rothfuss, Defendant–Appellee.

No. 10–3694.

United States Court of Appeals,Sixth Circuit.

June 26, 2012.

Rehearing and Rehearing En Banc Denied Aug. 22, 2012.

ON BRIEF:Andrew M. Engel, Moraine, Ohio, for Appellant. Rick D. DeBlasis, Kimberlee S. Rohr, Lerner, Sampson & Rothfuss, Cincinnati, Ohio, for Appellee.

Before: MERRITT and MOORE, Circuit Judges; MAYS, District Judge. ^*

OPINION

MERRITT, Circuit Judge.

Washington Mutual foreclosed on property before receiving an assignment and transfer of the promissory note and the delinquent home mortgage and before recording it in the Warren County, Ohio, Recorder's Office. Because Washington Mutual did not own the mortgage, the homeowner and mortgagor, plaintiff Betty Wallace, brought a lawsuit for an allegedly false claim of ownership under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq., against the law firm of Lerner, Sampson and Rothfuss, acting for the purported mortgagee, Washington Mutual, in the foreclosure action.¹ Plaintiff claims that defendant law firm violated the Act, the Ohio Consumer Sales Practices Act, and intentionally inflicted emotional distress on her under Ohio law when the foreclosure action was filed against her claiming that Washington Mutual was the holder of her mortgage, a fact plaintiff alleges was completely false at the time of the foreclosure filing because, as stated above, the mortgage had not been assigned or recorded at that time. The district court dismissed her complaint under Federal Rule of Civil Procedure 12(b)(6), finding that she did not state a claim under the Act. The district court then declined to exercise supplemental jurisdiction as to the state claims. The relevant portions of the complaint at issue are as follows:

11. On information and belief, at some point after April 2008, Wells Fargo sold or transferred the note and mortgage to WaMu. Although it transferred its ownership interest in the note and mortgage, Wells Fargo still serviced the loan on behalf of WaMu. This meant that Wells Fargo collected the payments and provided other services in managing the mortgage loan. It also made all decisions regarding the collection of the note and enforcement of WaMu's rights under the mortgage. At all times after the transfer of ownership of the note and mortgage, Wells Fargo acted as WaMu's agent with respect to the Plaintiff's loan.

The complaint then alleged that the law firm filed a foreclosure action containing false assertions when it claimed that Washington Mutual was the owner:

12. On July 11, 2008, WaMu, through its attorney, LSR, and based on the decision of Wells Fargo, instituted the Foreclosure Case. In the Complaint, WaMu asserted that it was the holder of the note. That assertion was false when made. It also asserted that the mortgage had been assigned to it and that it was the holder of the mortgage. Those assertions were false when made. The mortgage was actually assigned by Wells Fargo to WaMu on August 14, 2008 by an instrument recorded at Book 4731, Page 91 [sic—the actual page is 90] of the Warren County, Ohio Recorder's Office. At the time the Complaint was filed in the foreclosure case, all defendants knew that WaMu was not the holder of the note; that WaMu was not the holder of the mortgage; and that the mortgage had not been assigned to WaMu.

Complaint at ¶¶ 11–12 (emphasis added) (R. 2).

Plaintiff also sued other entities at the same time, but appealed the decision below only as to defendant law firm Lerner, Sampson & Rothfuss. Lerner, Sampson does not dispute that it is a “debt collector” under the Act. Plaintiff does not pursue her original claims against Washington Mutual and Wells Fargo on appeal. She appeals only the dismissal of Count III of her complaint, the claim that alleged that the law firm used “false, deceptive or misleading representations” in connection with the collection of any debt in violation of 15 U.S.C. § 1692e.

I.

For purposes of the motion to dismiss the complaint, we take the following facts as true. In 1999, plaintiff purchased a home in Waynesville, Ohio, with a mortgage originating with Norwest Mortgage. Plaintiff signed a promissory note in the amount of $66,000 and gave a mortgage to Norwest to secure the note. Norwest and Wells Fargo later merged and plaintiff began making her payments to Wells Fargo. In March or April 2008, Wells Fargo notified plaintiff that she was delinquent on her mortgage, although she was not yet delinquent at that time. Complaint at ¶ 10.(R.2). On August 14, 2008, Wells Fargo transferred and recorded the note and the delinquent mortgage to Washington Mutual. On July 11, 2008, more than a month before the transfer and assignment, Washington Mutual, through its attorneys, Lerner, Sampson & Rothfuss, filed a foreclosure action against plaintiff in the Warren County Court of Common Pleas in Ohio, asserting that Washington Mutual was the holder of the note and the mortgage.

The problem in this case arises from the fact that the recordation and transfer of ownership of the note and mortgage to Washington Mutual did not occur until August 14, 2008, a little more than a month after Washington Mutual filed the foreclosure action asserting that it owned the mortgage. An Ohio appellate court has so found. Washington Mutual Bank, F.A. v. Wallace, 194 Ohio App.3d 549, 559, 2011–Ohio–4174, 957 N.E.2d 92, 99 (Ohio Ct.App.) (“[I]t is undisputed that [Washington Mutual] became the real party in interest in the foreclosure action 34 days later on August 14, 2008, when ... Wells Fargo executed a written assignment of Wallace's note and mortgage to [Washington Mutual]”.), appeal allowed by130 Ohio St.3d 1493, 2011–Ohio–6556, 958 N.E.2d 956 (2011) (briefing stayed pending resolution of Fed. Home Loan Mortg. Corp. v. Schwartzwald, 194 Ohio App.3d 644, 2011–Ohio–2681, 957 N.E.2d 790 (Ohio Ct.App.), motion to certify and appeal allowed by129 Ohio St.3d 1488, 2011–Ohio–5129, 954 N.E.2d 661 (Ohio Oct. 5, 2011)). Plaintiff did not respond to the foreclosure notice, and a default judgment was entered against her on August 20, 2008. A sheriff's auction of her home was scheduled for December 8, 2008. When plaintiff learned of the sale, she contacted Lerner, Sampson and tried to arrange to pay off the loan. When her attempts to work out the loan were unsuccessful, plaintiff contacted Pro Seniors, an organization that provides free legal services to senior citizens. She was able to get the sale postponed. On December 15, 2008, defendants petitioned the state court to set another sale date, which it did for late February or early March 2009. It appears from the docket sheet in the foreclosure action that plaintiff's home has since been sold at auction. Journal Entry Confirming Sale in Washington Mutual Bank v. Wallace, 08–cv–71941 (Warren Cnty. [Ohio] Ct. of Common Pleas Jan. 24, 2011) (found at http:// www. co. warren. oh. us/ clerkofcourt/ search).

Plaintiff filed her complaint in this action in July 2009, alleging that Lerner, Sampson and the banks violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., as well as the Ohio Consumer Sales Practices Act, Ohio Rev.Code § 1345.01 et seq., when Lerner, Sampson filed the foreclosure complaint against plaintiff in state court on behalf of Washington Mutual. The district court found that plaintiff failed to state a claim under the Fair Debt Collection Practices Act because the failure to record an Assignment of Mortgage before filing a foreclosure action is not a deceptive practice under the Act. The single issue before us is whether the filing of foreclosure action by the law firm claiming ownership of the mortgage by its client Washington Mutual constitutes a “false, deceptive or misleading representation” under the Fair Debt Collection Practices Act when the bank has not received a transfer of the ownership documents. We hold that the complaint states a valid claim and reverse the dismissal of the case.

II.

The Fair Debt Collection Practices Act prohibits a debt collector from the use of “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. Section 1692k of the statute allows the consumer to recover statutory or actual damages for violations of the Act. In order to establish a claim under § 1692e: (1) plaintiff must be a “consumer” as defined by the Act; (2) the “debt” must arises out of transactions which are “primarily for personal, family or household purposes;” (3) defendant must be a “debt collector” as defined by the Act; and (4) defendant must have violated § 1692e's prohibitions. Whittiker v. Deutsche Bank Nat'l Trust Co., 605 F.Supp.2d 914, 926 (N.D.Ohio 2009). Only the fourth element is at issue.

Whether a debt collector's actions are false, deceptive, or misleading under § 1692e is based on whether the “least sophisticated consumer” would be misled by defendant's actions. Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir.2006). In addition, in applying this standard, we have also held that a statement must be materially false or misleading to violate Section 1692e. See Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596–97 (6th Cir.2009) (applying a materiality standard to a Section 1692e claim that was based on alleged misstatements in legal pleadings). The materiality standardsimply means that in addition to being technically false, a statement would tend to mislead or confuse the...