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Davis v. Samuel I White P.C.

United States District Court, E.D. Virginia

March 24, 2016

RONNIE DAVIS, Plaintiff,
v.
SAMUEL I. WHITE, P.C., Defendant.

MEMORANDUM OPINION

Richard D. Bennett United States District Judge

Plaintiff Ronnie Davis (“Plaintiff” or “Davis”) brings this putative class action against Defendant Samuel I. White, P.C. (“Defendant” or “White”), alleging various violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq. Specifically, Davis claims that Defendant misrepresented certain material matters when acting as a “debt collector” within the meaning of the FDCPA. Since White allegedly acted as a “debt collector” for “hundreds of customers, ” Davis seeks to add these individuals to the putative class action.

Presently pending are Defendant’s Motion to Dismiss for Failure to State a Claim (ECF No. 11) and Defendant’s Second Motion to Dismiss for Failure to State a Claim or to Strike First Amended Complaint (ECF No. 13). The parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2014). For the reasons stated herein, Defendant’s Motion to Dismiss for Failure to State a Claim (ECF No. 11) is MOOT[1] and Defendant’s Second Motion to Dismiss for Failure to State a Claim or to Strike First Amended Complaint (ECF No. 13) is GRANTED IN PART as to the transfer of venue and DENIED IN PART without prejudice as to the remaining arguments for dismissal, to be refiled in the transferee court. As Plaintiff has failed to allege any facts supporting adjudication of his claims in this Court, this case will be transferred to the United States District Court for the Eastern District of Virginia.

BACKGROUND

In ruling on a motion to dismiss, this Court accepts the factual allegations in the complaint as true and construes those facts in the light most favorable to the plaintiff. See, e.g., Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). This action arises from the alleged attempts by Defendant Samuel I. White, P.C. to collect on an unpaid debt owed by the Plaintiff, Ronnie Davis. Davis is a Virginia resident and occupant of the property at 5614 Fairfield Lane in Hayes, Virginia (the “Property”). First Amend. Compl. ¶ 2. White is a corporation organized under Virginia law, with its principal place of business also located in Virginia. Id. ¶ 4. White maintains a satellite office in Rockville, Maryland. Id.

On December 10, 2012, Davis signed a promissory note (the “Note”) in favor of Bank of America, N.A. (“Bank of America”) to refinance the mortgage on the Property.[2] Id. ¶ 11. To secure the Note, Davis also “granted” a Deed of Trust to Mortgage Electronic Registration Systems, Inc. (“MERS”), naming Bank of America as the lender. Id. After the creation of the Note and Deed of Trust, Plaintiff claims that Bank of America failed to deliver all material disclosures, as required by the Truth in Lending Act, 15 U.S.C. §§ 1601, et seq. Id. ¶ 12. This failure allegedly triggered “an extended three (3) year right to cancel the loan transaction and unilaterally void the Deed of Trust” pursuant to 15 U.S.C. § 1635(b). Id. ¶¶ 12, 14.

Davis defaulted on the mortgage in October 2013. Id. ¶ 13. On November 15, 2013, Bank of America notified Davis pursuant to ¶ 22 of the Deed of Trust that it had sold its interest to PennyMac Investment Trust (the “November 15 Letter”). Id. ¶¶ 27-28; see also First Amend. Compl. Ex. B, ECF No. 12-2 (Copy of the Deed of Trust). The letter also identified PennyMac Loan Services, LLC (“PennyMac”) as loan servicer. First Amend. Compl. ¶ 28. Plaintiff claims that, as of the November 15 Letter, Bank of America no longer possessed any interest in the Note or the Deed of Trust, and thus no right to enforce either instrument. Id. On March 1, 2014, he notified PennyMac and the United States Veterans Administration, an alleged creditor, [3] that he intended to exercise his alleged extended three-year right of recission. Id. ¶ 14.

On April 23, 2014, Plaintiff received a letter from Defendant White (the “April 23 Letter”) notifying him of the unpaid balance of the mortgage. Id. ¶ 15. He labels this letter an “initial communication letter and debt validation letter sent pursuant to 15 U.S.C. § 1692(g).” Id.; see also First Amend. Compl. Ex. A, ECF No. 12-1 (Copy of April 23 Letter). The April 23 Letter named PennyMac as creditor, yet Davis denies owing any debt to PennyMac. First Amend. Compl. ¶¶ 16-17. Rather, he claims that, via a communication in December 2013, PennyMac represented itself solely as the mortgage servicer acting on behalf of the creditor. Id. ¶ 18. The April 23 Letter concluded with the following statement:

THIS IS AN ATTEMPT TO COLLECT A DEBT[.] THIS IS A COMMUNICATION FROM A DEBT COLLECTOR[.] ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE[.]”

First Amend. Compl. Ex. A. at 2; First Amend. Compl. ¶ 19.

Plaintiff alleges that the April 23 Letter contained several discrepancies or issues. First, he claims that Defendant incorrectly identified the creditor to whom Davis owed the debt. Id. ¶ 21. Due to Defendant’s alleged misidentification of the creditor, Davis claims that he was forced to hire legal counsel to ascertain the true identity. Id. He alleges that PennyMac Investment Trust purchased the Note from Bank of America in November 2013, after Plaintiff had defaulted on the loan. Id. ¶ 22. PennyMac Investment Trust then entered into a contract with PennyMac to collect the debt. Id. Second, Plaintiff alleges that White misstated the total debt owed. Id. ¶ 23. Specifically, the April 23 Letter quoted the debt as of April 11, 2014, but the Letter was not mailed until April 21, 2014. Id. Any further accrued debt during the intervening ten days is thus missing. Plaintiff further denies that he owed the listed debt, $248, 133.45, on April 21, 2014, as “he was not liable for any finance or other charges that were wrongly included in the amount due.” Id. ¶ 24. Finally, the April 23 Letter stated that “[White] have been instructed to initiate foreclosure on the mortgage on your property.” Id. ¶ 25; First Amend. Compl. Ex. A., at 1.

Using Virginia’s non-judicial foreclosure provision, Defendant allegedly foreclosed on the Property on August 25, 2014. First Amend. Compl. ¶ 26. As a result of the foreclosure, Davis claims that he suffered damages including, inter alia, “legal fees, eviction, cost of moving and acquiring a new residence, travel expenses to attend numerous eviction hearings, time missed from work and the intentional infliction of emotion distress . . .” Id. ¶ 30.

Plaintiff first filed suit in the United States District Court for the Northern District of Georgia on August 19, 2014 (the “Georgia Action”).[4] Def.’s Second Mot. to Dismiss Ex. B, ECF No. 13-3. In that action, Davis asserted allegations identical to those of the present action, but named PennyMac as the defendant. Id. White was not a party to the Georgia Action. Id. Davis and PennyMac ultimately reached a settlement, a copy of which is filed under seal in the present action. See Amend. Mot. to Seal Settlement Agreement Ex. 1, ECF No. 21-1. On Davis and PennyMac’s joint motion, the district court dismissed Davis’s claims with prejudice. See Def.’s Mot. to Dismiss Ex. A.

Davis filed the present putative class action seeking redress for White alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692, et seq. After White moved to dismiss (ECF No. 11), Plaintiff filed a First Amended Complaint (ECF No. 12) addressing some of the alleged deficiencies cited by White as grounds ...


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