United States District Court, D. New Jersey, Camden Vicinage
LLOYD, pro se
PLUESE, BECKER, & SALTZMAN, LLC, Stuart H. West, Esq.
Attorneys for Defendant
RENÉE MARIE BUMB UNITED STATES DISTRICT JUDGE
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.
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.(Id. ¶¶ 25-26)
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) 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. ¶
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).
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 (3d ed.
2007)). “A facial attack questions the sufficiency of
the pleading, and ...