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Lloyd v. Pluese, Becker, & Saltzman, LLC

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

November 18, 2019

CAROL LLOYD, Plaintiff,

          CAROL LLOYD, pro se.

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



         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 Complaint pursuant to Fed.R.Civ.P. 12(b)(6), 12(d) and 56.” [Docket No. 26-4] The instant motion is PBS's second attempt to secure dismissal of this suit prior to the commencement of discovery. For the reasons stated herein, the motion will be granted in part, denied in part, and denied without prejudice in part.[1]


         The Court set forth the factual allegations of the operative pleading-- the First Amended Complaint [Docket No. 7]-- in its previous opinion of May 9, 2019 [Docket No. 23], see also, Lloyd v. Pluese, Becker, & Saltzman, LLC, No. CV 18-9420 (RMB/AMD), 2019 WL 2062438 at *1 (D.N.J. May 9, 2019). The Court incorporates herein the “Factual Background” section of that opinion. To summarize, Lloyd asserts that PBS, a law firm representing Lloyd's mortgage lender in a judicial foreclosure proceeding, violated various sections of the FDCPA when it filed a motion to reinstate the administratively dismissed foreclosure. According to Lloyd, PBS knew that a condition precedent to foreclosure-- specifically, a face-to-face meeting pursuant to the applicable federal regulations incorporated into the mortgage documents-- had not occurred, and therefore foreclosure was legally precluded.



         To withstand a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 662. “[A]n unadorned, the defendant-unlawfully-harmed-me accusation” does not suffice to survive a motion to dismiss. Id. at 678. “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)).

         In reviewing a plaintiff's allegations, the district court “must accept as true all well-pled factual allegations as well as all reasonable inferences that can be drawn from them, and construe those allegations in the light most favorable to the plaintiff.” Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012). Only the allegations in the complaint, and “matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case” are taken into consideration. Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citing Chester Cnty. Intermediate Unit v. Penn. Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990)).


         Summary judgment shall be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” only if it might impact the “outcome of the suit under the governing law.” Gonzalez v. Sec'y of Dept of Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012). A dispute is “genuine” if the evidence would allow a reasonable jury to find for the nonmoving party. Id.

         In determining the existence of a genuine dispute of material fact, a court's role is not to weigh the evidence; all reasonable inferences and doubts should be resolved in favor of the nonmoving party. Melrose, Inc. v. City of Pittsburgh, 613 F.3d 380, 387 (3d Cir. 2010).

         III. ANALYSIS

         PBS asserts: (A) it is not a “debt collector” as defined by the FDCPA; (B) the Amended Complaint fails to state a claim for violation of any section of the FDCPA; (C) the Court should abstain from adjudicating this suit; and (D) “Ms. Lloyd's ...

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