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Lloyd v. Pluese, Becker & Saltzman, LLC

United States District Court, D. New Jersey, Camden Vicinage

May 9, 2019

CAROL LLOYD, Plaintiff,
v.
PLUESE, BECKER, & SALTZMAN, LLC, Defendant.

          CAROL LLOYD, pro se

          PLUESE, BECKER, & SALTZMAN, LLC, Stuart H. West, Esq. Attorneys for Defendant

          OPINION

          RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE

         Pro se Plaintiff, Carol Lloyd, brings this suit alleging that the law firm which represents her mortgage lender in the underlying state foreclosure action, Defendant Pluese, Becker, Saltzman, LLC (“PBS”), violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”), by filing a motion with the court in the foreclosure action. Before the Court is PBS's “Motion to Dismiss Amended Frivolous Action pursuant to Fed.R.Civ.P. 11, 12(b)(6), 12(d) and 56.” [Docket No. 8-2] For the reasons stated herein, the motion will be denied in part and denied without prejudice in part.

         I. FACTUAL BACKGROUND

         The Amended Complaint alleges the following. Lloyd purchased the property at issue in 1996 and has lived there ever since. (Amend. Compl. ¶ 6) Lloyd's mortgage lender, New Jersey Housing and Mortgage Finance Agency (“HMFA”) contends that Lloyd has been in default on her mortgage for over nine years. (Id. ¶¶ 16, 24) “[A]round July 2013, ” HMFA allegedly “gave the case to [PBS] to litigate”--i.e., “to file [a] foreclosure complaint.” (Id. ¶¶ 25, 36) Lloyd alleges HMFA did this even though it knew that it had not complied with 24 C.F.R. § 203.604(b), which requires a face-to-face meeting between the lender and the borrower prior to bringing a foreclosure action.[1](Id. ¶¶ 25-26)

         The Amended Complaint explains, “[a]fter a period of time and numerous pleadings, [PBS] failed to take any action in the case for one year, at which point the court twice dismissed the state foreclosure action for lack of prosecution. [The case] currently stands dismissed.” (Amend. Compl. ¶ 37)[2] On May 19, 2017, after the case was dismissed for the first time, PBS, on behalf of HMFA, filed a “Motion to Reinstate the Foreclosure.” (Amend. Compl. Ex. E) Lloyd bases her various FDCPA claims on the filing of this motion. (Id. ¶ 61) (“Plaintiff states the Counts below [are] based on Plaintiff's receipt of litigation papers dated and filed with the state court on May 19, 2017[.]”) (See also Id. ¶¶ 1, 2, 69-71, 74, 76) Specifically, Lloyd alleges that “[a]t all times herein mentioned, [PBS] was a ‘debt collector' as defined in 15 U.S.C. § 1692a(6)” (Id. ¶ 10)[3], and that PBS's filing of the Motion to Reinstate the Foreclosure violated the following sections of Title 15:

• § 1692d (prohibiting harassing, oppressive, or abusive conduct by debt collectors);
• § 1692e(2), (5) and (10) (prohibiting debt collectors from using any false, deceptive, or misleading representation or means in connection with the collection of any debt, including falsely representing the legal status of a debt, threatening to take any action that cannot legally be taken or that is not intended to be taken, and using any false representation or deceptive means to collect or attempt to collect any debt);
• § 1692f and (1) (prohibiting debt collectors from using unfair or unconscionable means to collect or attempt to collect any debt, including collecting any amount not authorized by the agreement creating the debt); and
• § 1692f(6) (prohibiting debt collectors from taking or threatening to take any nonjudicial action to effect dispossession or disablement of property).

         II. LEGAL STANDARDS

         A.

         Rule 12(b)(1) motions may challenge subject-matter jurisdiction based upon the complaint's face or its underlying facts. Pittman v. Metuchen Police Dept., No. 08-2373, 2009 WL 3207854, *1 (D.N.J. Sept. 29, 2009) (citing James Wm. Moore, 2 Moore's Federal Practice § 12.30[4] (3d ed. 2007)). “A facial attack questions the sufficiency of the pleading, and ...


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