United States District Court, E.D. Virginia, Norfolk Division
THOMAS W. LOVEGROVE, Plaintiff,
BROCK & SCOTT, PLLC, Defendant.
OPINION & ORDER
Coke Morgan, Jr. Senior United States District Judge
matter is before the Court on two related motions. Plaintiff
Thomas W. Lovegrove ("Lovegrove" or
"Plaintiff') filed a Motion to Reconsider This
Court's Opinion and Order Dated January 17, 2017
("Motion to Reconsider"), Doc. 30, and a Motion to
Amend Complaint ("Motion to Amend"), Doc. 29. For
the reasons set forth herein, the Court DENIES both Motions.
action arises out of a foreclosure letter that Defendant
Brock & Scott, PLLC ("Defendant") sent to
Plaintiff regarding the property at 70 Homeplace Circle,
Moneta, Virginia. Doc. 1, Ex. B. Defendant is a law firm
organized under the laws of North Carolina that maintains an
office in Virginia Beach, Virginia. Id. ¶ 4.
"The principal purpose of [Defendant]'s business is
the collection of debts for its clients, creditors to whom
debts are allegedly owed by consumers." Id.
¶ 5. Defendant also owns and operates Trustee Services
of Virginia, L.L.C., which performs foreclosures in Virginia.
Id. ¶ 22.
filed a three-count Class Action Complaint against Defendant
on July 7, 2016. Doc. 1. The Complaint alleged violation of
Sections 1692g(b) and 1692e(10) of the Fair Debt Collection
Practices Act ("FDCPA") (Counts One and Two) and
fraud (Count Three). Id. Plaintiff included the
description of three (3) classes in the Complaint: (1) the
"Main Class" eligible for relief under Count Three
consisting of all persons nationwide who received foreclosure
letters with identical debt dispute language from Defendant,
attempted to dispute the debt, but did not receive mailed
verification of the debt from Defendant; (2) the "First
Subclass" eligible for relief under Count Two consisting
of members of the Main Class to whom Defendant sent the same
Foreclosure Letter in the year preceding the filing of the
Complaint; and (3) the "Second Subclass" eligible
for relief under Count One consisting of members of the Main
Class to whom Defendant sent the same Foreclosure Letter in
the year preceding the filing of the Complaint and against
whom Defendant pursued collection prior to verifying the
debt. Id. ¶ 31.
Court DISMISSED the Complaint on January 17, 2017. Doc. 26.
The Court dismissed the FDCPA claims because Plaintiffs debt
was "undisputedly discharged in Plaintiffs prior
bankruptcy proceedings" and thus "Defendant's
contacts with Plaintiff were not an attempt to collect a debt
under the FDCPA." Id. at 8. The Court dismissed
the fraud claim because Defendant's promises to comply
with the FDCPA were immaterial to its dealings with
Plaintiff, who no longer had the debt at issue. Id.
filed the instant Motion to Reconsider on February 14, 2017.
Doc. 30. He filed the instant Motion to Amend on the same
day. Doc. 29.
MOTION TO RECONSIDER
Rule of Civil Procedure 59(e) allows the Court "to alter
or amend a judgment" if a motion is filed within
twenty-eight (28) days after entry. Fed.R.Civ.P. 59(e). In
order to alter a judgment, the moving party must show
"either (1) an intervening change in the controlling
law, (2) new evidence that was not available at trial, or (3)
that there has been a clear error of law or a manifest
injustice." Robinson v. Wix Filtration Corp.
LLC. 599 F.3d 403, 407 (4th Cir. 2010). Mere
disagreement as to how legal standards are applied will not
support a motion under Rule 59(e). See United States ex
rel. Becker v. Westinghouse Savannah River Co.. 305 F.3d
284, 290 (4th Cir. 2000) (quoting Hutchinson v.
Stanton. 994 F.2d 1076, 1082 (4th Cir. 1993)). Further,
Rule 59(e) "provides for an extraordinary remedy that
should not be awarded except under exceptional
circumstances." Mayfield v. Nat'l Ass'n for
Stock Car Auto Racing. Inc.. 674 F.3d 369, 378 (4th Cir.
argument for reconsideration is little more than mere
disagreement with the Court's ruling. He challenges the
Court's holding on fraud, where the Court found that
Defendant's statement that it would verify Plaintiffs
debt if challenged was not material to its dealings
with Plaintiff. Doc. 30 at 1; Doc. 28 at 2-3. Plaintiff
contends that Defendant's statement was fraudulent
regardless of whether it was required by the FDCPA.
is often a mixed question of law and fact, and thus it is a
question that the court decides. See Breault v. Berkshire
Life Ins. Co., 821 F.Supp. 410, 414 (E.D. Va. 1993)
(citing Fidelity & Guaranty Co. v. Haywood, 211
Va. 394 (1970)). Plaintiff does not demonstrate any clear
error in the Court's reasoning on materiality, let alone
a resulting manifest injustice that would justify
reconsideration. He offers a "thought experiment"
to challenge the Court's reasoning, but he offers no
authority in support of his argument that Defendant's
statement was material to his dealings with Defendant. See
Doc. 28 at 2.
promises to verify debts were immaterial because both Parties
knew that there was no debt attributable to Plaintiff. See
Doc. 26 at 12. Defendant's foreclosure letter discussed
proving debts attributable to Plaintiff as part of
Defendant's debt collection effort. Id.
Plaintiff knew that that he had discharged the debt listed in
the letter in bankruptcy and that the letter could not be a
debt collection effort. Id. Furthermore, the letter
also stated that "IF YOU HAVE RECEIVED A DISCHARGE IN A
CHAPTER 7 BANKRUPTCY, WE ARE AWARE THAT YOU ARE NOT
PERSONALLY OBLIGATED FOR THIS DEBT." Doc. 1, Ex. A. A
promise to verify debts might be actionable in some contexts,
as Plaintiff ...