United States District Court, D. New Jersey, Camden Vicinage
LLOYD, pro se.
PLUESE, BECKER, & SALTZMAN, LLC By: 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 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
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.
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)).
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)).
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.
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).
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 ...