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Cynthia A. Siwulec, On Behalf of Herself and All Others Similarly Situated v. Opinion Chase Home Finance

December 7, 2010

CYNTHIA A. SIWULEC, ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
OPINION CHASE HOME FINANCE, LLC, DEFENDANT.



The opinion of the court was delivered by: Wolfson, United States District Judge:

*NOT FOR PUBLICATION

Plaintiff Cynthia A. Siwulec ("Plaintiff") brings this putative class action on behalf of others similarly situated against Defendant Chase Home Finance LLC (hereinafter "Defendant" or "Chase") for violation of the Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (hereinafter "FDCPA"). In the present matter, Defendant moves to dismiss Plaintiff's Amended Complaint on the basis that Plaintiff fails to state a FDCPA claim because she did not plead sufficiently that Chase is a "debt collector" under the FDCPA. Because the Court finds that Plaintiff has not sufficiently plead that Defendant is a "debt collector," for the reasons given below, Plaintiff's Complaint is dismissed without prejudice.

I. Background

The following facts are derived from the Amended Complaint and taken as true for the purposes of this motion. Plaintiff asserts that in January 2003, she entered into a mortgage loan with "WAMU" (a.k.a. Washington Mutual). Compl., ¶ 12. Thereafter, Chase began servicing the loan. See Compl., ¶¶ 7-8. Plaintiff alleges that on December 7, 2009, Chase sent her a written notice, which was attached to the Amended Complaint, notifying Plaintiff that she was in default of her mortgage (the "Notice"). See Letter-Notice dated December 7, 2009. Based upon the Notice, Plaintiff alleges, without more, that in sending the letter Chase was acting as a "debt collector" under the FDCPA, that Chase "is regularly engaged in the collection of debts allegedly owed by consumers," and, "[u]pon information and belief, [Chase] purchased the debt at a time when the debt was alleged to be in default." Id. In that regard, Plaintiff stresses that the Notice includes the following language: "We are a debt collector. This is an attempt to collect a debt, and any information obtained will be used for that purpose." See Id. The Notice also states that it is a "DEBT VALIDATION NOTICE" and ends by stating: "THE INFORMATION ABOVE IS PROVIDED IN COMPLIANCE WITH THE FEDERAL FAIR DEBT COLLECTION PRACTICES ACT." Id.

Plaintiff purports to bring two FDCPA claims based upon alleged improprieties with the December 7, 2009 Notice. Specifically, Plaintiff alleges that the written notice failed to include the required notice under the FDCPA and this omission was in violation of §1692(a)(5), which requires a debt collector to give 30-day notice within five days of its communication with the consumer. Id. at ¶ 24. Plaintiff also avers that Chase violated §1692(e) of the FDCPA by falsely suggesting in the Notice that the consumer would be required to pay unspecified charges as well as accrued interest in order to reinstate the loan. Id. at ¶ 23. The only basis for the motion to dismiss, however, is that Plaintiff has not properly pled that Defendant is a "debt collector" under the purview of the statute.

II. Standard of Review

When reviewing a motion to dismiss on the pleadings, courts "accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (citation and quotations omitted). In Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), the Supreme Court clarified the 12(b)(6) standard. Specifically, the Court "retired" the language contained in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 1968 (quoting Conley, 355 U.S. at 45-46). Instead, the factual allegations set forth in a complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. As the Third Circuit has stated, "[t]he Supreme Court's Twombly formulation of the pleading standard can be summed up thus: 'stating ... a claim requires a complaint with enough factual matter (taken as true) to suggest' the required element. This 'does not impose a probability requirement at the pleading stage,' but instead 'simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips, 515 F.3d at 234 (quoting Twombly, 127 U.S. at 1965).

In affirming that Twombly standards apply to all motions to dismiss, the Supreme Court recently explained the principles. First, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1948-49, 173 L.Ed.2d 868 (2009). Second, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. Therefore, "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Id. at 1949. Ultimately, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir.2009).

Moreover, in deciding a motion to dismiss, the Court may consider the allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of Plaintiffs' claim. Lum v. Bank of Am., 361 F.3d 217, 222 n. 3 (3d Cir.2004).

The Third Circuit recently reiterated that "judging the sufficiency of a pleading is a context-dependent exercise" and "[s]ome claims require more factual explication than others to state a plausible claim for relief." West Penn Allegheny Health System, Inc. v. UPMC, --- F.3d ----, 2010 WL 4840093, *8 (3d Cir., Nov. 29, 2010). This means that, "[f]or example, it generally takes fewer factual allegations to state a claim for simple battery than to state a claim for antitrust conspiracy." Id. That said, the Rule 8 pleading standard is to be applied "with the same level of rigor in all civil actions." Id. at *7 (quoting Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868 (2009)).

III. Discussion

The FDCPA was enacted to "eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.SC. § 1692(e). As a threshold requirement, a plaintiff seeking relief under the FDCPA must assert that the defendant is a "debt collector." See Pollice v. National Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000); F.T.C. v. Check Investors, Inc., 502 F.3d 159, 171 (3d Cir.2007). The Act defines "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" or "any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts." 15 U.S.C. § 1692(a)(6). By contrast, a creditor is a person or business who "offers or extends to offer credit creating a debt or to whom a debt is owed." Id. As noted by the Third Circuit, absent from the definition of "debt collector" is a creditor seeking to collect its own debt. See Pollice, 225 F.3d at 403 (citation omitted). In Aubert v. American General Financial, Inc., the Seventh Circuit elaborated on why creditors are excluded from the FDCPA's enforcement provisions:

Creditors who collect in their own name and whose principal business is not debt collection ... are not subject to the Act....Because creditors are generally presumed to restrain their abusive collection practices out of a desire to protect their corporate goodwill, their debt collection activities are not subject to the Act unless they collect under a name other than their own. 137 F.3d 976, 978 (7th Cir.1998). In turn, courts have declined to extend FDCPA liability to those creditors who place debts in collection with a collection agency. Challenger v. Experian Information Solutions, Inc., 2007 WL 895774, at *2 (D.N.J. Mar. 22, 2007) (finding that a defendant "may 'place [its] ... debts in collection[ ],' as [Plaintiff's] complaint alleges, without becoming a debt collector") (citation omitted); Jones v. Select Portfolio Servicing, Inc., 2008 WL 1820935, at *7 (E.D. Pa. Apr. 22, 2008).

On the other hand, while courts have held that "an assignee of an obligation is not a 'debt collector' if the obligation is not in default at the time of the assignment," an assignee "may be deemed a 'debt collector' if the obligation is already in default when it is assigned." Pollice, 225 F.3d at 403. In other words, in the context of this case, a creditor may be considered a debt collector under the FDCPA if that creditor begins financing a debt at a time when the debt is already in default. In addition to asserting that the defendant is a "debt collector" under the Act, a plaintiff must also show, as ...


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