United States District Court, E.D. Virginia, Richmond Division
THEODORE M. AIKEN, Plaintiff,
OLD DOMINION TRUSTEES, INC., Defendant.
A. Gibney, Jr. United States District Judge.
15, 2016, the Court granted a motion to dismiss filed by the
defendant, Old Dominion Trustees, Inc. ("Old
Dominion"), but allowed the plaintiff, Theodore M.
Aiken, leave to file an amended complaint to elaborate on his
claim that Old Dominion violated the Fair Debt Collection
Practices Act ("FDCPA"). On July 6, 2016, Aiken
filed a motion to join Buonassissi, Henning & Lash, PC
("Buonassissi"), as a party to the case. Aiken also
filed an amended complaint. In response, Old Dominion opposed
the motion to join and filed a motion to dismiss. The motion
to dismiss included the required notice for pro se
plaintiffs, warning Aiken that he must respond within
twenty-one days, or the Court could dismiss the action based
on the motion. The response deadline passed on August 10,
2016, and, to date, Aiken has not filed a response.
case revolves around a home foreclosure. Old Dominion, as
substitute trustee under a deed of trust, sold Aiken's
home on behalf of Bank of New York Mellon ("BNYM"),
the beneficial owner of the deed of trust and note on the
home. Prior to the foreclosure, New Perm Financial, LLC,
d/b/a Shellpoint Mortgage Servicing ("Shellpoint"),
serviced the home loan for BNYM. Shellpoint retained
Buonassissi to attempt to collect on the loan and to conduct
the foreclosure. Buonassissi sent Aiken letters regarding his
home loan on December 30, 2014, February 5, 2015, and May 7,
2015; each letter identified BNYM as the owner of the loan
and identified Buonassissi as a debt collector.
first at Aiken's motion to join, Aiken seeks to join
Buonassissi pursuant to Rule 19 of the Federal Rules of Civil
Procedure. Rule 19 requires joinder of a party if:
(A) in that person's absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the subject of
the action and is so situated that disposing of the action in
the person's absence may:
(i) as a practical matter impair or impede the person's
ability to protect the interest; or
(ii) leave an existing party subject to a substantial risk of
incurring double, multiple, or otherwise inconsistent
obligations because of the interest.
Fed. R. Civ. P. 19(a). Neither situation exists in this case.
Any FDCPA claim that Aiken may have against Buonassissi has
no effect on any FDCPA claim that Aiken may have against Old
Dominion. Thus, the court can "afford complete relief
among" Aiken and Old Dominion in Buonassissi's
absence. The Court DENIES Aiken's motion to
to Old Dominion's motion to dismiss, a Rule 12(b)(6)
motion to dismiss tests the sufficiency of a complaint; it
does not resolve contested facts in the case or the factual
basis of a claim or defense. Republican Party of N.C v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992). In
considering the motion, a court must accept all allegations
in the complaint as true and must draw all reasonable
inferences in favor of the plaintiff. Nemet Chevrolet,
Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253
(4th Cir. 2009) (citing Edwards v. City of
Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)). The
plaintiffs allegations, however, must consist of sufficient
factual matter that, accepted as true, "state[s] a claim
to relief that is plausible on its face." Ashcraft
v. IqbaL 556 U.S. 662, 678 (2009) (quoting Bell All.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
amended complaint alleges a violation of the
FDCPA. To establish an FDCPA violation, the
plaintiff must prove that "(1) the plaintiff has been
the object of collection activity arising from consumer debt;
(2) the defendant is a debt collector as defined by the
FDCPA; and (3) the defendant has engaged in an act or
omission prohibited by the FDCPA." Ruggici v. Wash.
Mut., 719 F.Supp.2d 642, 647 (E.D. Va. 2010). Aiken does
not allege any "act or omission" by Old Dominion
that the FDCPA prohibits. Indeed, the only
"'collection activity" alleged in the amended
complaint was from Buonassissi. Accordingly, Aiken fails to
state a claim against Old Dominion for violation of the
FDCPA. Because this Court has already given Aiken a chance to
amend his complaint, the Court dismisses the case with
Court will enter the appropriate order.
Clerk send a copy of this Opinion to all counsel of record,
and to ...