United States District Court, E.D. Virginia, Newport News Division
OPINION AND ORDER
Lawrence R. Leonard United States Magistrate Judge
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.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. 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.
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. Plaintiffs military service allowed him
to obtain refinancing for his residential mortgage on the
Property through the Veterans Administration. 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). 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
Case No. 1:14-cv-02679-CAP ("Georgia Action"), ECF
No. 25, attach. 2 (Exhibit B). 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
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"). 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. 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.
April 18, 2015, 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.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
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.
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
STANDARDS OF REVIEW
Motion to Dismiss - Lack of Subject Matter
'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
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).
Motion to Dismiss - Failure to State a Claim
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
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).
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).
Motion for Summary Judgment
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).
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.
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.").
Subject Matter Jurisdiction (Rule 12(b)(1))
"[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.
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
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.
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.
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
(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))).
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.
Failure to State a Claim (Rule 12(b)(6))
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.
Elements of private FDCPA action
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.
Collection activity arising from consumer debt
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.
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. §
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)) (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).
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. 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
Actions or omissions prohibited by the FDCPA
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
Count I - Alleged Violations of FDCPA (Plaintiffs Individual
allegations presented in the Complaint assert Defendant's
violations of three different subsections of the FDCPA:
Section 1692e, Section 1692f, and 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
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
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).
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 ¶¶
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.
Misstating Total Amount of Debt
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.
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 ...