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Fariasantos v. Rosenberg & Assocs., LLC

United States District Court, E.D. Virginia, Richmond Division

March 10, 2014

CLAUDIO FARIASANTOS, on behalf of himself and all others similarly situated, Plaintiff,
v.
ROSENBERG & ASSOCIATES, LLC, Defendant

Page 814

For Claudio Fariasantos, on behalf of himself and others similarly situated, Plaintiff: Dale Wood Pittman, LEAD ATTORNEY, The Law Office of Dale W. Pittman, P.C., Petersburg, VA; Andrew Joseph Guzzo, Kristi Cahoon Kelly, Kelly & Crandall PLC, Fairfax, VA; Casey Shannon Nash, Janelle Mason Mikac, Matthew James Erausquin, Consumer Litgation Associates PC (Alex), Alexandria, VA; John Chapman Petersen, Surovell Isaacs Petersen & Levy PLC, Fairfax, VA; Leonard Anthony Bennett, Susan Mary Rotkis, Consumer Litigation Associates, Newport News, VA.

For Rosenberg & Associates, LLC, Defendant: John C. Lynch, Maryia Yrjeuna Jones, LEAD ATTORNEYS, Troutman Sanders LLP, Virginia Beach, VA.

OPINION

Page 815

Robert E. Payne, Senior United States District Judge.

MEMORANDUM OPINION

This matter is before the Court on defendant Rosenberg & Associates, LLC's (" Rosenberg" or " Defendant" ) MOTION TO DISMISS PLAINTIFF'S CLASS ACTION COMPLAINT (Docket No. 8) (" Motion to Dismiss" ). For the reasons set forth herein, the motion will be denied.

PROCEDURAL BACKGROUND

Plaintiff, Claudio Fariasantos (" Fariasantos" or " Plaintiff" ), on behalf of himself and all others similarly situated, brought this action against Defendant alleging violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et. seq. (" the FDCPA" ). An answer and the present Motion to Dismiss were filed by Rosenberg. Fariasantos responded, Rosenberg filed a reply, and this matter is ripe.

FACTUAL ALLEGATIONS AND CLAIMS AGAINST THE DEFENDANT

At this stage, the Court, as it must, " accept[s] all well-pleaded allegations in the plaintiff's complaint as true and draw[s] all reasonable factual inferences from those facts in the plaintiff's favor." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999); see also Trulock v. Freeh, 275 F.3d 391, 399 (4th Cir. 2001) (same). " The record on a motion to dismiss includes 'documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.'" Pham v. Bank of N.Y., 856 F.Supp.2d 804, 812 n.10 (E.D. Va. 2012) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)). With that in mind, the facts, which are derived from the Class Action Complaint (Docket No. 1) (" Class Compl." ), and Exhibit A to the Class Action Complaint, are alleged to be as set forth below.

Fariasantos alleges that Rosenberg violated the FDCPA " by using a form collection letter to make false and unintended threats to file civil actions in court in connection with the collection of home loan debt, and by compounding this misrepresentation by misdisclosing the FDCPA's cornerstone thirty day validation notice rights notice [sic] to Plaintiff and the class

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of consumers whom he represents by failing to make an accurate and truthful disclosure of the Act's 1692g(a)(3) provision that: 'unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector.' (Emphasis added)." (Class Compl. ¶ 1.)

Fariasantos is a consumer within the meaning of the FDCPA, as defined at 15 U.S.C. § 1692a(3). (Id. at ¶ 3.) Rosenberg, a law firm with the principal purpose of collecting debts, is a debt collector within the meaning of the FDCPA, as defined at 15 U.S.C. § 1692a(6). (Id. at ¶ ¶ 4-5.)

On or about December 4, 2012, Rosenberg mailed Fariasantos a letter, described as a " dunning letter." (Id. at ¶ 12 & Ex. A.) (" Defendant's Letter" ). " A 'dunning letter' is a letter demanding payment of a debt - i.e., a collection notice." Bicking v. Law Offices of Rubenstein and Cogan, 783 F.Supp.2d 841, 842 n.1 (E.D. Va. 2011). (Id. at ¶ 12, n.3.) Defendant's Letter, which was the first written communication by Rosenberg to Fariasantos, states that " Fariasantos borrowed money from Branch Banking and Trust Company and executed a Deed of Trust and Note secured by the above referenced property," referring to 2307 Raymond Court, Richmond, VA 23228. (Id. at ¶ 26 & Ex. A). Defendant's Letter also states: " Branch Banking and Trust Company [" BB& T" ] has referred the loan to this office for legal action based upon a default under the terms of the loan agreement." (Id. at Ex. A.) The Class Complaint alleges that Defendant's Letter " stated that the Defendant had been instructed to initiate foreclosure proceedings on Plaintiff's home." (Id. at ¶ 12.) (The Letter, in fact, did not make that precise statement.) The Class Complaint alleges that Defendant's Letter also stated: " Unless you dispute this debt or any part thereof, within 30 days after receiving this notice, the debt will be assumed as valid." (Id. at ¶ 28.) The Letter, in fact, did not make that precise statement but it does state: " If within thirty (30) days from receipt of this letter you fail to dispute all or part of the debt, the amount recited herein will be assumed as valid." Defendant's Letter also states, on the second page and in the final sentence of the body of the letter: " Your failure to contest the validity of the debt under the Act may not be construed by any Court as an admission of liability." In between the initial language about the assumption of debt and the final sentence was additional language about contesting the debt and providing written notice of a dispute.[1]

Virginia is a " nonjudicial foreclosure state," and thus, " foreclosure in Virginia does not require judicial intervention." (Id. at ¶ 16.) BB& T did not refer plaintiff's loan to Rosenberg for Rosenberg to

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file a lawsuit against plaintiff, and Rosenberg did not intend to file a lawsuit against plaintiff. (Id. at ¶ ¶ 18-19.)

Counts I, II, and III reflect federal claims brought for alleged violations of the FDCPA. Count I alleges:

By threatening to file civil actions in court in connection with the collection of home loan debt when it had no intent to file civil actions in court in connection with the collection of home loan debt, Defendant made the threat to take action that was not intended to be taken, and in so doing violated 15 U.S.C. § 1692e(5).

(Id. at ¶ 48.) Count II alleges:

By threatening to file civil actions in court in connection with the collection of home loan debt when it had no intent to file civil actions in court in connection with the collection of home loan debt, Defendant used false representation or deceptive means to collect or attempt to collect home loan debt, and in so doing violated 15 U.S.C. § 1692e(10).

(Id. at ¶ 51.) Count III alleges:

By failing to include " by the debt collector" or similar language in the required § 1692g(a)(3) component of the thirty day validation notice disclosure, Defendant failed to proved [sic] the required Validation Notice and it [sic] so doing violated 15 U.S.C. § 1692g.

(Id. at ¶ 54.)

The motion is ripe for review. The Court finds that the facts and legal contentions are adequately presented in the materials before the Court and that oral ...


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