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Davis v. Samuel I. White, P.C.

United States District Court, E.D. Virginia, Newport News Division

December 8, 2017

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


          Lawrence R. Leonard United States Magistrate Judge

         This case presents a claim under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. Before the Court is Defendant Samuel I. White, P.C.'s ("Defendant") Renewed Motion to Dismiss the First Amended Complaint, or in the Alternative, Motion for Summary Judgment and an accompanying memorandum, filed on August 11, 2017. ECF No. 43. Plaintiff Ronnie Davis ("Plaintiff) was required to file his Response by August 25, 2017.[1]On September 7, 2017 (thirteen days after the expiration of the August 25, 2017 deadline for timely filing) Plaintiff filed a "Consent Motion for Leave to File Out of Time Response to Defendant's Motion to Dismiss or for Summary Judgment, " ECF No. 45, and Brief in Support, ECF No. 46. On September 8, 2017, Plaintiff filed his "Opposition to Defendant's Motion to Dismiss or for Summary Judgment" and supporting exhibits.[2] ECF Nos. 47-58. On September 13, 2017 Defendant filed its Reply to Plaintiffs Opposition. ECF No. 59. On September 27, 2017, the Court granted Plaintiffs Consent Motion, and directed the Clerk to accept Plaintiffs Opposition for filing. ECF No. 60. Accordingly, the Motion is ripe for decision. The undersigned makes this ruling without a hearing pursuant to Fed.R.Civ.P. 78(b) and E.D. Va. Local Civ. R. 7(J). For the following reasons, Defendant's Renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment (ECF No. 43) is GRANTED.


         This matter concerns real property formerly owned by Plaintiff, located at 5614 Fairfield Lane, in Hayes, Gloucester County, Virginia (hereinafter "the Property"). On or about November 25, 1998, Plaintiff was honorably discharged from the United States Army.[3] Plaintiffs military service allowed him to obtain refinancing for his residential mortgage on the Property through the Veterans Administration.[4] As a result of this refinancing, Plaintiff executed a Promissory Note in favor of Bank of America (the original creditor), on or about December 10, 2012 in the amount of Two Hundred and Forty Four Thousand, One Hundred and Five Dollars ($244, 105.00). ECF No. 12 at 5, ¶ 11; ECF No. 56 (Promissory Note).[5] The same day (December 10, 2012), Plaintiff executed an accompanying Deed of Trust, which identified Bank of America as the Lender and Defendant as the Trustee. ECF No. 12 at 5, ¶ 11; ECF No. 13, attach. 6 (Exhibit E). Plaintiff concedes that he defaulted on the loan in October 2013, when he failed to make payments as they came due on October 1, 2013 and November 1, 2013. ECF No. 12 at 6, ¶ 13. Plaintiff made no further payments after his September 2013 payment. Plaintiff was advised of the default status by letter dated November 15, 2013, wherein Bank of America advised Plaintiff that if he failed to cure the default amount (plus additional regular monthly payment(s) and late fees) by December 25, 2013, then Bank of America would accelerate the loan payments, causing the full amount to become due and payable in full. ECF No. 12, attach. 2 (Exhibit B). By letter dated December 12, 2013, PennyMac Loan Services, LLC ("PennyMac") notified Plaintiff that effective December 3, 2013, servicing of Plaintiffs mortgage loan transferred from Bank of America to PennyMac. This December 12, 2013 letter specifically advised

We are pleased to inform you that the servicing of your mortgage loan has transferred from Bank of America to PennyMac Loan Services, LLC ("PennyMac") effective December 03, 2013. The transfer of servicing does not affect any other terms or conditions of the mortgage documents, other than terms directly related to the servicing of your loan.

Case No. 1:14-cv-02679-CAP ("Georgia Action"), ECF No. 25, attach. 2 (Exhibit B).[6] On or about April 21, 2014, Defendant sent a letter to Plaintiff, wherein Defendant asserted that it had been instructed to initiate foreclosure of the mortgage securing the Property. ECF No. 12, attach. 1 (Exhibit A). Defendant's letter further stated that "as of April 11, 2014 the amount of the debt is $248, 133.45" and that "[t]he creditor to whom the debt is owed is PennyMac Loan Services, LLC, " ECF No. 12, attach. 1 (Exhibit A), and that Defendant was providing such information pursuant to the Fair Debt Collection Practices Act, ECF No. 12, attach. 1 (Exhibit A). This April 21, 2014 letter is the complained of correspondence upon which Plaintiffs suit arises. Nonjudicial foreclosure of the property was effectuated in the Circuit Court for Gloucester County, Virginia on or about August 25, 2014. ECF No. 12 at 14, ¶ 42. See also ECF No. 43 at 5 ("On or about March 16, 2015, the Commissioner of Accounts advised the Gloucester County Circuit Court that he had stated his account as to the Property and the foreclosure sale was approved.").

         On August 19, 2014, Plaintiff, by and through counsel, filed suit against PennyMac in the Atlanta Division of the United States District Court for the District of Georgia in Case No. 1:14- cv-02679-CAP (hereinafter "Georgia Action").[7] Therein, Plaintiff asserted a personal suit and a class action suit against PennyMac for alleged violations of the Fair Debt Collection Practice Act. Eventually, the Georgia Action was dismissed on or about February 27, 2015 pursuant to a "Joint Stipulation of Dismissal with Prejudice" wherein Plaintiff stipulated to the dismissal with prejudice of all claims that were made or that "could have been made" by both Plaintiff individually and on behalf of the putative class members.[8] The parties entered into a Settlement Agreement in connection with this stipulated dismissal. Plaintiff provided a heavily redacted copy of this Settlement Agreement as an exhibit in support of his Opposition to Defendant's Motion to Dismiss. ECF No. 55. Of the limited portions that are not subject to redaction, one provision states "[a]ny and all claims that [Plaintiff] may have against [Defendant], the Dillon Law Group, PLC, and Vendor Resource Management are expressly retained." ECF No. 55 at 6, V.

         On April 18, 2015[9], Plaintiff filed suit against Defendant in the United States District Court for the District of Maryland in Case No. 1:15-cv-01108 (hereinafter "Maryland Action"). ECF No. 1. Defendant filed a Motion to Dismiss for Failure to State a Claim on May 12, 2015. ECF No. 11. In response, Plaintiff filed an Amended Complaint on June 5, 2015. ECF No. 12.[10]The Amended Complaint (hereinafter "the Complaint") consists of two (2) counts. Count I alleges that Defendant committed various violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq. against Plaintiff individually, by sending Plaintiff a written communication which misstated the amount of a debt owed, misidentified the creditor, and impermissibly threatened to initiate non-judicial foreclosure when no such right to possession existed; by actually foreclosing on the Property; and by recording a "void foreclosure deed" on the Property. See ECF No. 12 at ¶¶ 31-44. Count II alleges what Plaintiff describes as "Class Allegations" asserted on behalf of "Plaintiff and others similarly situated to him" pursuant to 15 U.S.C. § 1692k(a)(2)(B) for alleged violations of FDCPA by sending communications that misstated the amount of debt owed and misidentified the creditor. ECF No. 12 at ¶¶ 45-59. Defendant filed a Second Motion to Dismiss for Failure to State a Claim or to Strike First Amended Complaint on June 18, 2015. ECF No. 13. Ultimately, the Maryland Action was disposed of by the Honorable Richard D. Bennett's ("Judge Bennett") March 24, 2016 Memorandum Order and Opinion. ECF No. 23. Therein, Judge Bennett declined to issue a substantive ruling on the merits of Defendant's Second Motion to Dismiss (ECF No. 13), but ordered a transfer of venue to the United States Court for the Eastern District of Virginia, and instructed Defendant to refile its Motion to Dismiss.

         On or about March 24, 2016, the case was officially transferred to the Newport News division of the United States District Court for the Eastern District of Virginia, pursuant to Judge Bennett's Memorandum Order and Opinion. ECF No. 25. After several months of confusion as to the identity of Plaintiffs counsel, Mr. Harlan Miller, Plaintiffs former counsel in both the Maryland and Georgia Actions, managed to find local counsel with whom to associate, and was admitted to this Court pro hac vice. ECF Nos. 26-33. On July 19, 2016, Defendant consented to Magistrate Judge jurisdiction. ECF No. 34. On April 10, 2017, Plaintiff also consented to the same. ECF No. 38. Pursuant to the Rule 16(b) Scheduling Order (ECF No. 40), a jury trial was scheduled for November 8, 2017, however, upon Defendant's filing of the instant Motion in August that trial date was removed from the calendar with the proviso that it could be rescheduled pending resolution of the Motion. ECF No. 60.

         On August 11, 2017, Defendant filed a Renewed Motion to Dismiss, or in the Alternative, Motion for Summary Judgment. ECF No. 43. Therein, Defendant renewed and incorporated the arguments made in its previously filed Motion to Dismiss (ECF No. 13) and contends that Plaintiffs suit should be dismissed with prejudice pursuant to Fed.R.Civ.P. 12(b)(1), Rule 12(b)(6), or alternatively, as a matter of law pursuant to Rule 56. In support of this argument, Defendant contends that it is entitled to judgment as a matter of law for several reasons, including: the absence of a justiciable case or controversy; the bar imposed by collateral estoppel and issue preclusion; and Plaintiffs failure to establish a claim under the Fair Debt Collection Practices Act. Additionally, Defendant argues that Count IPs request for class action and class certification status is without basis and unwarranted. This Renewed Motion is the subject of the instant Opinion and Order.


         A. Motion to Dismiss - Lack of Subject Matter Jurisdiction

         "As 'subject-matter jurisdiction is a necessary prerequisite to any merits decision by a federal court, ' the [C]ourt must first address the Defendant's argument under Rule 12(b)(1)." Sullivan v. Perdue Farms, Inc., 133 F.Supp.3d 828, 833 (E.D. Va. 2015) (quoting Constantine v. Rectors & Visitors of Geo. Mason Univ., 411 F.3d 474, 480 (4th Cir. 2005) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 89-101 (1998))). A defendant may contest a court's subject matter jurisdiction in two ways under Fed.R.Civ.P. 12(b)(1). "First, a defendant may attack the complaint on its face, when the complaint 'fails to allege facts upon which subject matter jurisdiction can be based.' Wynne v. I.C. Sys., Inc., 124 F.Supp.3d 734, 738-39 (E.D. Va. 2015) (citing Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). In that event, the well-pleaded facts asserted in the complaint are assumed to be true and are construed in the light most favorable to the plaintiff. Wynne v. I.C. Sys., Inc., 124 F.Supp.3d 734, 739 (E.D. Va. 2015); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Alternatively, a defendant may challenge the existence of subject matter jurisdiction in fact, apart from anything alleged in the pleadings, and may proffer evidence outside the pleadings without converting the motion into one for summary judgment. Int'l Longshoremen's Ass'n, S.S. Clerks Local 1624, AFL-CIO v. Virginia Int'l Terminals, Inc., 914 F.Supp. 1335, 1338 (E.D. Va. 1996); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982); see also Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991) ("In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.").

         Regardless of whether the defendant challenges subject matter jurisdiction based on an attack on the complaint on its face, or an attack on the existence of subject matter jurisdiction apart from the pleadings, "the burden is on plaintiffs, as the party asserting jurisdiction, to prove that federal jurisdiction is proper." Int'l Longshoremen's Ass'n, 914 F, Supp. at 1338 (citing McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)). Moreover, the plaintiff must prove that subject matter jurisdiction exists by a preponderance of the evidence. United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009).

         B. Motion to Dismiss - Failure to State a Claim

         A motion filed under Fed.R.Civ.P. 12(b)(6) challenges the legal sufficiency of a complaint. Jordan v. Alternative Resources Corp., 458 F.3d 332, 338 (4th Cir. 2006). In considering this motion, the court must assume that the facts alleged are true, and view them in the light most favorable to the plaintiff. Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000); Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Rule 8(a) requires that "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). To be sufficient under Rule 8, the pleading must meet two basic requirements: it must contain sufficient factual allegations and those allegations must be plausible. Adiscov, LLC v. Autonomy Corp., 762 F.Supp.2d 826, 829 (E.D. Va. 2011) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). First, sufficient factual allegations include "more than labels and conclusions, and a formulaic recitation of the elements of the cause of action will not do;" rather, "factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Second, to "nudge[] their claims across the line from conceivable to plausible, " id. at 570, "plaintiff[s] [must] plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Indeed, to achieve factual plausibility, plaintiffs must allege more than "naked assertions... without some further factual enhancement." Twombly, 550 U.S. at 557. Otherwise, the complaint will "stop[] short of the line between possibility and plausibility of entitlement to relief." Id.

         Consequently, when considering a motion to dismiss, only those allegations which are factually plausible are "entitled to the assumption of truth." Iqbal, 556 U.S. at 679 (noting that legal conclusions must be supported by factual allegations). "At bottom, determining whether a complaint states on its face a plausible claim for relief and therefore can survive a Rule 12(b)(6) motion will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citations omitted).

         Additionally, Fed.R.Civ.P. 12(d) provides that if, on a motion brought under Fed.R.Civ.P. 12(b)(6), matters outside the pleadings are presented to the court, the motion must be treated as one for summary judgment under Fed.R.Civ.P. 56. However, an exception is made for authentic documents which are referred to in the complaint and upon which the plaintiff relies in bringing the action, as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic. Philips v. Pitt Cnty. Mem. Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see also Blankenship v. Manchin, 471 F.3d 523, 526 n.l (4th Cir. 2006).

         C. Motion for Summary Judgment

         The entry of summary judgment pursuant to Fed.R.Civ.P. 56 is appropriate when the court, viewing the record as a whole and in the light most favorable to the nonmoving party, finds there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A court should grant summary judgment if the nonmoving party, after adequate time for discovery, has failed to establish the existence of an essential element of that party's case, on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

         To defeat a motion for summary judgment, the nonmoving party must go beyond the facts alleged in the pleadings and instead rely upon affidavits, depositions, or other evidence to show a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Conclusory statements, without specific evidentiary support, are insufficient. Causey v. Balog, 162 F.3d 795, 802 (4th Cir. 1998). Rather, "there must be evidence on which the jury could reasonably find for the [party]." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A party opposing summary judgment must present more than "a scintilla of evidence." Id. at 251.

         Importantly, under Rule 56 the evidence proffered, either in support of or in opposition to, the summary judgment motion, must be admissible. Sakaria v. Trans World Airlines, 8 F.3d 164, 171 (4th Cir. 1993); see also, Mitchell v. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993) holding modified by Stokes v. Westinghouse Savannah River Co., 206 F.3d 420 (4th Cir. 2000) (holding that, in opposing a defendant's motion for summary judgment, "[t]he summary judgment inquiry thus scrutinizes the plaintiffs case to determine whether the plaintiff has proffered sufficient proof, in the form of admissible evidence, that could carry the burden of proof of his claim at trial.").


         A. Subject Matter Jurisdiction (Rule 12(b)(1))

         Because "[a]nalysis necessarily begins with the question of subject matter jurisdiction, for absent such jurisdiction there is no power to adjudicate any issues, " the Court will commence its disposition of the Motion with arguments made pursuant to Fed.R.Civ.P. 12(b)(1). Biber v. Pioneer Credit Recovery, Inc., 229 F.Supp.3d 457, 464 (E.D. Va. 2017). Under the United States Constitution, the jurisdiction of federal courts is limited to the adjudication of actual controversies brought by plaintiffs with standing. U.S. Const., art. Ill. § 2. Defendant argues that Plaintiff lacks standing and therefore, the Court is divested of subject matter jurisdiction. It is axiomatic that subject-matter jurisdiction is a prerequisite to a federal court's exercise of jurisdiction in any case. See Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006) ("It is well established that before a federal court can decide the merits of a claim, the claim must invoke the jurisdiction of the court."). Defendant contends that because Plaintiff did not originally allege damages in his first Complaint, and only alleged general damages after being alerted to the deficiency via Defendant's First Motion to Dismiss, the damages now alleged in the operative complaint are a fabrication and fail to meet the requirement of an actual injury subject to redress. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). In support of this fabrication charge, Defendant cites as an example the fact that Plaintiff seeks recovery of relocation fees and eviction costs, yet the subject Property address and the alleged present address of Plaintiff (as reflected in the docket entries) are the same, leading to the conclusion that Plaintiff (despite having been in default since October 2013 and foreclosure having apparently been effectuated) continues to reside in the Property. Additionally, Defendant argues that because the state foreclosure proceedings are long since finalized, Plaintiff has been fully divested of any right of redemption to the subject Property, rendering the issue moot and leaving no active case in controversy, thus depriving this Court of subject matter jurisdiction. See In re Rivada Networks, 230 F.Supp.3d 467, 471 (E.D. Va. 2017) ("A case is moot if "the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome.") (quoting United States v. Hardy, 545 F.3d 280, 283 (4th Cir. 2008)).

         Defendant's arguments are misplaced. The fact that an amended complaint includes revisions that remedy errors raised by opposing counsel in a Motion to Dismiss does not automatically lead to the conclusion that such amendments are the product of fabrications. While that is certainly a possibility, in this case, an equally likely explanation is Plaintiff counsel's oversight. Moreover, Defendant's argument ignores the deferential standard of review this Court must apply to Plaintiffs claims when considering a Rule 12(b)(1) Motion to Dismiss based on a Defendant's attack on the complaint on its face, where the well-pleaded facts asserted in the complaint are assumed to be true and are construed in the light most favorable to the plaintiff. Wynne v. I.C. Sys., Inc., 124 F.Supp.3d 734, 739 (E.D. Va. 2015); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Here, Defendant attacks the complaint on its face by asserting that it fails to allege facts upon which federal subject matter jurisdiction could be based. The Court disagrees. "In this scenario, a court must assume the veracity of claims by the plaintiff." Medtronic, Inc. v. Lee, 151 F.Supp.3d 665, 671 (E.D. Va. 2016) (citing Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982))) (internal citations omitted). Assuming the truth of Plaintiff s factual allegations (as it must), the Court finds that Plaintiff has established that this Court possesses jurisdiction over Plaintiffs timely filed private cause of action, which is specifically authorized by federal law. See 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."); 15 U.S.C. § 1692k(d) ("An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.").

         Defendant's argument also ignores the distinction between what allegedly transpired in the context of the state court proceeding and the current action, as well as the legislative purpose of the statute under which the case is brought. While the disposition of the non-judicial foreclosure proceeding in state court is not entirely unrelated to the alleged FDCPA violations, the fact that Plaintiff can no longer exercise a right of redemption to the subject Property does not automatically foreclose his ability to seek monetary damages (and other relief) pursuant to the FDCPA. See Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 389 (4th Cir. 2014) ("Debt collectors that violate the FDCPA are liable to the debtor for actual damages, costs, and reasonable attorney's fees. . . . The FDCPA also provides the potential for statutory damages up to $1, 000 subject to the district court's discretion.") (citing 15 U.S.C. § 1692k(a)(1), (a)(3), (a)(2)(A)) (internal citations omitted). The FDCPA applies with equal force to consumer transactions and debt beyond foreclosures of residential properties. To adopt Defendant's interpretation of the statute would run afoul of the FDCPA's stated legislative purpose. See Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 577 (2010) ("Congress enacted the FDCPA in 1977 ... to eliminate abusive debt collection practices, to ensure that debt collectors who abstain from such practices are not competitively disadvantaged, and to promote consistent state action to protect consumers.") (citing 15 U.S.C. § 1692(e)). Thus, a defendant may successfully foreclose on a home mortgage and dispossess a debtor of his or her real property in full accordance with applicable state law, but in doing so, incur civil liability for its conduct under FDCPA. See Goodrow v. Friedman & MacFadyen, P.A., 788 F.Supp.2d 464, 471 (E.D. Va. 2011) (explaining that "a debt collector must comply with the FDCPA while complying with a state foreclosure law."). In fact, the Fourth Circuit has explicitly held that a debtor need not dispute his or her debt before maintaining a cause of action under the FDCPA. See Russell v. Absolute Collection Servs., Inc., 763 F.3d 385, 394 (4th Cir. 2014) (concluding that "a pre-suit validation requirement is unfounded in the text of the statute, contrary to the remedial nature of the FDCPA, and inconsistent with the FDCPA's legislative purpose of eradicating abusive collection practices. We therefore hold that a debtor is not required to dispute his or her debt pursuant to § 1692g as a condition to filing suit under § 1692e."). Accordingly, and pursuant to the enunciated standard provided by Fed.R.Civ.P. 12(b)(1), the Court finds that the operative Complaint sufficiently establishes the existence of subject matter jurisdiction.

         B. Collateral Estoppel

         Defendant argues that collateral estoppel prohibits the instant suit because of the final disposition of the Georgia Action. As explained herein, the Court disagrees because the requisite elements of collateral estoppel are not present.

         "Collateral estoppel, or issue preclusion, provides that once a court of competent jurisdiction actually and necessarily determines an issue, that determination remains conclusive in subsequent suits, based on a different cause of action but involving the same parties, or privies, to the previous litigation." Weinberger v. Tucker, 510 F.3d 486, 491 (4th Cir. 2007) (citing Montana v. United States, 440 U.S. 147, 153 (1979) (quoting S. Pac. R. Co. v. United States, 168 U.S. 1, 48-49 (1897) ("[A] 'right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction ... cannot be disputed in a subsequent suit between the same parties or their privies ....' ")) (omissions in original); Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n.5 (1979)). Under Fourth Circuit law, collateral estoppel requires the following five elements be established[11]

(1) the issue sought to be precluded is identical to one previously litigated; (2) the issue actually must have been determined in the prior proceeding; (3) determination of the issue was a critical and necessary part of the decision in the prior proceeding; (4) the prior judgment must be final and valid; and (5) the party against whom preclusion is asserted must have had a full and fair opportunity to litigate the issue in the prior proceeding.

Wilson v. Johnson, No. 1:07CV165 LMB/IDD, 2011 WL 570264, at *3 (E.D. Va. Feb. 14, 2011) (citing Eddy v. Waffle House, Inc., 482 F.3d 674, 679 (4th Cir. 2007)). "Collateral estoppel, however, 'only bars relitigation of issues actually resolved in a previous suit.'" Powell v. Palisades Acquisition XVI, LLC, 782 F.3d 119, 125-26 (4th Cir. 2014) (quoting Bethel World Outreach Ministries v. Montgomery Cnty. Council, 706 F.3d 548, 554 n.2 (4th Cir. 2013) (citing Colandreav. Wilde Lake Community Ass'n, 361 Md. 371, 761 A.2d 899, 907 (2000))).[12]

         The Court finds that the issues sought to be determined by the Georgia Action, though related, are not identical to those engendered by the current suit. Indeed the essential element of the FDCPA cause of action, the "communication from a debt collector, " in the Georgia Action is the December 12, 2013 letter from PennyMac (ECF No. 50; Georgia Action, ECF No. 25, attach. 2), whereas the "communication from a debt collector" in the instant matter is the April 21, 2014 letter from Defendant (ECF No. 12, attach. 1). As alleged in the Georgia Action complaint,

On or about December 15th, [sic] 2013, while the loan was still in default, Plaintiff received an initial communication and debt validation letter sent pursuant to 15 U.S.C. § 1692(g) in the mail from Defendant (hereinafter "Letter"). A true and correct copy of the Letter is attached hereto as Exhibit "A".

Georgia Action, ECF No. 25 (Amended Complaint), attach. 1 (Exhibit A). This December 2013 letter, attached as an exhibit to the Georgia Action complaint, has also been provided by Plaintiff in the current suit as an exhibit in support of Plaintiffs Opposition to Defendant's Motion to Dismiss. See ECF No. 50. A cursory comparison of this December 12, 2013 letter (ECF No. 50) with the April 21, 2014 letter (ECF No. 12, attach. 1) makes it clear that these are two different communications, sent to Plaintiff by two different entities, on two different dates. Thus, the requisite elements to warrant the application of collateral estoppel are not established, and Defendant's Motion to Dismiss cannot be granted on this basis.

         C. Failure to State a Claim (Rule 12(b)(6))

         In evaluating Plaintiffs claims, the Court has considered both documents attached to the operative Complaint and certain documents proffered by Plaintiff in opposition to Defendant's dispositive motion. "A court 'may consider official public records, documents central to a plaintiffs claim, and documents sufficiently referred to in the complaint, so long as the authenticity of these documents is not disputed, ' without converting the motion into a motion for summary judgment." Jeffrey J. Nelson & Assocs., Inc. v. LePore, No. 4:11cv75, 2012 WL 2673242, at *4 (E.D. Va. July 5, 2012) (citation omitted). The documents considered by the Court are integral to Plaintiffs complaint, and, since he proffered them, are not contested as to authenticity. Thus the Court considers them without converting Defendant's Rule 12(b)(6) motion into a Rule 56 motion for summary judgment.

         1. Elements of private FDCPA action

         To successfully mount a claim under the FDCPA a plaintiff must show that: "(I) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debtor collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA." Dikun v. Streich, 369 F.Supp.2d 781, 784-85 (E.D. Va. 2005) (citations omitted). For the purposes of clarity, the Court will separately address each of the aforementioned elements.

         a. Collection activity arising from consumer debt

         It is axiomatic that for there to be collection activity arising from a consumer debt, "there must first be a 'debt.'" Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373, 375-76 (4th Cir. 2006). The FDCPA defines a "debt" as "any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment." 15 U.S.C. § 1692a(5). The Act also provides that "[t]he term 'consumer' means any natural person obligated or allegedly obligated to pay any debt. 15 U.S.C. § 1692a(3). Taken together, it is clear that Plaintiff, a natural person, is a consumer who incurred a consumer debt as defined by the operative statute. Thus, the first element is satisfied.

         b. Debt Collector

         With respect to the second element, Defendant asserts that it is not a debt collector under the FDCPA. The operative statute defines a debt collector as "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6). As the Fourth Circuit recently noted, this definition "excludes 'any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity . . . is incidental to a bona fide fiduciary obligation.'" McCray v. Fed. Home Loan Mortg. Corp., 839 F.3d 354, 359 (4th Cir. 2016) (quoting 15 U.S.C. § 1692a(6)(F)(i)).

         "The Fourth Circuit has held that a trustee acting in connection with a foreclosure can be a 'debt collector' under the FDCPA. Moreover, 'it is well-established that the Act applies to lawyers who regularly engage in consumer-debt-collection activity, even when that activity consists of litigation."' Blick v. Wells Fargo Bank, N.A., No. 3:11-CV-00081, 2012 WL 1030137, at *7 (W.D. Va. Mar. 27, 2012), aff'd, 474 Fed.Appx. 932 (4th Cir. 2012) (quoting Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373, 378-80 (4th Cir. 2006))[13] (internal citations omitted). Here, Defendant is a law firm who apparently attempted to collect debt on behalf of another and/or foreclose on an outstanding secured obligation as substitute trustee using non-judicial foreclosure processes in state/commonwealth courts. This puts Defendant in a different position than PennyMac, creditor and/or loan servicer of Defendant's loan (and the former defendant in the Georgia Action) because in this District, courts have held that "creditors, mortgag[ees], and mortgage servicing companies are not debt collectors and are statutorily exempt from liability under the FDCPA." Ruggia v. Wash. Mut, 719 F.Supp.2d 642, 647-48 (E.D. Va. 2010), aff'd 442 Fed.Appx. 816 (4th Cir. 2011) (per curiam).[14]

         Ultimately, the question as to whether Defendant is a debt collector under the FDCPA has already been answered by the Fourth Circuit with respect to this very Defendant.[15] In McCray, an action under the FDCPA presenting claims similar to those brought by Plaintiff here, the Fourth Circuit specifically "h[e]ld that McCray's complaint adequately alleges that the [Samuel I.] White firm and the Substitute Trustees were debt collectors and that their actions in pursuing foreclosure constituted a step in collecting debt and thus debt collection activity that is regulated by the FDCPA." McCray v. Fed. Home Loan Mortg. Corp., 839 F.3d 354, 361 (4th Cir. 2016). Accordingly, because the Court finds that Defendant was acting as a debt collector when it sent the April 21, 2014 Letter to Plaintiff, the second element is satisfied.

         c. Actions or omissions prohibited by the FDCPA

         The third element of an FDCPA claim is where the claims asserted in Plaintiffs suit meet their demise. Generally speaking, the FDCPA prohibits a debt collector from "us[ing] any false, deceptive, or misleading representation or means in connection with the collection of any debt, " 15 U.S.C. § 1692e, or "us[ing] unfair or unconscionable means to collect or attempt to collect any debt, " 15 U.S.C. § 1692f. See also Lembach v. Bierman, 528 Fed.Appx. 297, 304 (4th Cir. 2013) (observing that "the courts use § 1692f to punish conduct that FDCPA does not specifically cover."). The FDCPA also requires that debt collectors send the consumer a written notice validating the debt by providing certain information about the debt. 15 U.S.C. § 1692g. When considering whether a violation of Section 1692e, Section 1692f, or 1692g has occurred, "Fourth Circuit precedent requires this Court to adopt the objective 'least sophisticated consumer' standard" when considering whether a debt collector has violated the various subsections. Kelley v. Nationstar Mortg., LLC, No. 3:13-CV-00311-JAG, 2013 WL 5874704, at *3 (E.D. Va. Oct. 31, 2013) (applying the standard to § 1692(e) [sic]) (citing Creighton v. Emporia Credit Serv., Inc., 981 F.Supp. 411, 414 (E.D. Va. 1997) (applying standard to 15 U.S.C. § 1692g claim) (citing United States v. Nat'l Fin. Servs. Inc., 98 F.3d 131, 135-36, 138- 39 (4th Cir. 1996) (adopting this standard in the context of 15 U.S.C. § 1692e))). See also Biber v. Pioneer Credit Recovery, Inc., 229 F.Supp.3d 457, 472 (E.D. Va. 2017) (applying the standard to Section 1692f) (citing United States v. Nat'l Fin. Servs., Inc., 98 F.3d 131, 138 (4th Cir. 1996)). It is with this element in mind that the Court examines Plaintiffs individual claims.

         2. Count I - Alleged Violations of FDCPA (Plaintiffs Individual Claims)

         The allegations presented in the Complaint assert Defendant's violations of three different subsections of the FDCPA: Section 1692e, Section 1692f, and Section 1692g.[16]

         Section 1692e prohibits a debt collector from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Plaintiff claims that Defendant violated "Section 1692(e) [sic]" in the following ways: "[b]y misidentifying the creditor in the Letter, " ECF No. 12 at ¶ 33, "misstated the total amount of debt due in the Letter, " id. at ¶ 34, "threatened and/or implied in the Letter it was going to foreclose, " id. at ¶ 35, "purported to exercise the power of sale in the void Deed of Trust and recorded a void foreclosure deed on the Plaintiffs property, " id. at ¶ 36. However, Plaintiff does not specifically identify which of the sixteen (16) specific numbered subsections of Section 1692e were violated. See Kelley v. Nationstar Mortg., LLC, No. 3:13-CV-00311-JAG, 2013 WL 5874704, at *2 (E.D. Va. Oct. 31, 2013) ("Most of the sixteen sub-sections that follow this language prohibit various forms of false representation . . ."). Accordingly, the Court is left to divine which theory of FDCPA violation under Section 1692e Plaintiff intended to assert.

         Section 1692f provides that "[a] debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt." 15 U.S.C. § 1692f. Plaintiff contends that Defendant violated Section 1692f(6)(A) and Section 1692f generally by stating that it was "instructed to initiate foreclosure on the mortgage on your property" when the Deed of Trust was cancelled pursuant to the Truth in Lending Act and also before the Lender in the Deed of Trust complied with a condition precedent to foreclosure. ECF No. 12 at ¶¶ 40-44. According to Plaintiff, because there was no present right to possession of property (since the Deed of Trust had been cancelled), Defendant was not allowed to take or threaten to take any non-judicial action to effectuate Plaintiffs dispossession or disablement of the Property. Plaintiff avers that Defendant improperly foreclosed upon the Property on or about August 25, 2014 using the Virginia non-judicial foreclosure laws despite the fact that the Deed of Trust was cancelled pursuant to Plaintiffs rescission under the Truth in Lending Act. Further, Defendant purported to exercise the power of sale in the void Deed of Trust and recorded a void foreclosure deed on Plaintiff s property. ECF No. 12 at ¶¶ 40-43. The Court notes that

it is axiomatic that a § 1692f cause of action may not be based on the "same alleged misconduct that undergirds [a] § 1692e claim." . . . Thus, courts routinely dismiss § 1692f claims where the plaintiff "does not allege any conduct in [a § 1692f claim] separate from the conduct that forms the basis of the § 1692e claims."

Biber v. Pioneer Credit Recovery, Inc., 229 F.Supp.3d 457, 474 (E.D. Va. 2017) (quoting Lembach v. Bierman, 528 Fed.Appx. 297, 304 (4th Cir. 2013); Penn v. Cumberland, 883 F.Supp.2d 581, 594 (E.D. Va. 2012)) (internal citations omitted).

         Section 1692g requires a debt collector to provide the debtor with written validation of the debt "[w]ithin five days after the initial communication with a consumer in connection with the collection of any debt . . . unless the following information [was] contained in the initial communication or the consumer has paid the debt." 15 U.S.C. § 1692g. Plaintiff also alleges that Defendant violated Section 1692g(a)(1)-(2) by misstating the total amount of debt due in the subject letter and by failing to identify the true creditor in the Letter. ECF No. 12 at ¶¶ 38-39.[17]

         Because the allegedly improper actions of Defendant identified by Plaintiff, if true, would violate more than one subsection of Section 1692, the Court will address each of the allegedly impermissible actions rather than repetitively address whether the same conduct constitutes a separate and discrete violation of each subsection of the statute.[18]

         a. Misstating Total Amount of Debt

         As previously recounted, Plaintiff alleges that Defendant violated Sections 1692e and 1692g(a)(1) by misstating the total amount of debt due in the subject letter. ECF No. 12, ¶ 38. Section 1692e(2)(A) prohibits the debt collector from making a "false representation of. . . the character, amount, or legal status of any debt." 15 U.S.C. § 1692e(2)(A). Section 1692g(a)(1) requires a debt collector's to send to a debtor "a written notice containing ... the amount of the debt." 15 U.S.C. § 1692g(a)(1). According to Plaintiff, Defendant violated Section 1692e and Section 1692g(a)(1) because the subject letter is dated April 21, 2014, yet states that the amount of the debt is as of April 11, 2014. See ECF No. 12, attach. 1 (Exhibit A). The Court disagrees.

         Even accepting Plaintiffs assignment of error as true, the amount of the debt as stated in the April 21, 2014 letter comports with the requirement of Section 1692g(a)(1) which requires simply that the communication state "the amount of the debt." See Kelley v. Nationstar Mortg., LLC, No. 3:13-CV-00311-JAG, 2013 WL 5874704, at *6 (E.D. Va. Oct. 31, 2013) (declining to find a violation of Section 1692g(a)(1) where "[t]he sentence states the total amount of debt on a specific date. This sentence clearly informs the debtor of the 'amount of the debt.'"). Thus, as is the circumstance in the instant case, "a collection letter which states either the amount due as of the date of the letter ox as of a specific date is in compliance with § 1692g." Kelley v. Nationstar Mortg, LLC, No. 3:13-CV-00311-JAG, 2013 WL 5874704, at *5 (E.D. Va. Oct. 31, 2013) (citation omitted) (emphasis added). See also Davis v. Segan, No. 1:15-CV-1091-GBL-IDD, 2016 WL 254388, at *3 (E.D. Va. Jan. 19, 2016) (observing with approval that other courts in this division have "acknowledged the difficulty in conveying an amount due on a future date ' [b]ecause of the nature of loans with daily compounding interest charges, in order to state the correct amount of the debt, the debt collect must state is as of a specific day."') (quoting Kelley v. Nationstar Mortg, LLC, No. 3:13-CV-00311-JAG, 2013 WL 5874704, at *5 (E.D. Va. Oct. 31, 2013)). In contrast, courts have found sufficiently pleaded facts to support an FDCPA action for an incorrect statement of debt where a creditor or debt collector provides the debtor with inconsistent debt amounts. See Carter v. Countrywide Home Loans, Inc., No. CIV. 3:07CV651, 2008 WL 4167931, at *10 (E.D. Va. Sept. 3, 2008) ("Plaintiffs support their contention that ...

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