Brothers et al v. Saag

Filing 23

MEMORANDUM OPINION AND ORDER GRANTING IN PART and DENYING IN PART 13 MOTION to Dismiss Plaintiff's Amended Complaint, 13 GRANTING MOTION to Strike the Affidavit of William McCaffrey as to all conclusions stated in the affidavit. Those st atements are STRICKEN. The motion is otherwise DENIED. The plaintiffs' petition to "Quash the Motion to Strike the Affidavit of William McCaffrey" (doc. 16 at 8-10) is DENIED; The plaintiffs' petition to strike Exhibit F attache d to the defendants motion to dismiss (doc. 16 at 10- 13) is GRANTED. Exhibit F is STRICKEN; GRANTING IN PART and DENYING IN PART 18 MOTION for Judicial Notice of Undisputed Facts and GRANTING 21 Plaintiff's Petition to Strike the Defendant's Latest Reply Brief and the Attached Exhibits A,B and C. Signed by Judge Virginia Emerson Hopkins on 3/4/2014. (JLC)

FILED
2014 Mar-04 PM 01:16
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
PASCHAL PAUL BROTHERS, and )
SHARON J. STARGELL
)
BROTHERS,
)
)
Plaintiffs,
) Case No.: 4:13-CV-466-VEH
)
v.
)
)
ANDY SAAG,
)
)
Defendant.
)

MEMORANDUM OPINION AND ORDER
This is a civil action file by the pro se plaintiffs, Paschal Paul Brothers and
Sharon J. Stargell Brothers, against the defendant, Andy Saag. (Doc. 1 at 1). The
case comes before the court on the following motions:
–

the defendant’s “Motion to Dismiss Plaintiffs’ Amended
Complaint and to Strike the Affidavit of William McCaffrey”
(doc. 13);

–

the plaintiffs’ petition to “Quash the Motion to Strike the
Affidavit of William McCaffrey” (doc. 16 at 8-10);

–

the plaintiffs’ petition to strike Exhibit F attached to the
defendant’s motion to dismiss (doc. 16 at 10-13);

–

the plaintiffs’ “Petition for Judicial Notice of Undisputed Facts
and Plaintiff[s’] Petition to Strike the Defendant’s Latest Reply
Brief and the Attached Exhibits A, B, C, and D” (doc. 18); and

–

the plaintiffs’ “Petition to Strike the Defendant’s Latest Pleading
Entitled ‘Notice of Additional Service of Exhibits to Defendant’s
Reply to Plaintiff[s’] Response to Defendant’s Motion to Dismiss
and Response to the Plaintiff[s’] Petition to Strike’” (doc. 21).

I.

PROCEDURAL HISTORY
The original complaint was filed by the plaintiffs on March 8, 2013. (Doc. 1).

It alleged that the defendant violated the Fair Debt Collection Practices Act,
(“FDCPA”), 15 U.S.C. § 1692, et seq., in his communications with the plaintiffs.
While the complaint contained separate “counts,” some counts contained many
different and inconsistent claims for violation of the FDCPA including:
overshadowing; failure to include validation notice requirements in letters to the
plaintiffs; the failure to validate the debt owed; the failure to cease collection
attempts after the debt was disputed; false and misleading representation; unfair
practices; and mental and physical aggravation.
On April 8, 2013, Saag filed a Motion to Dismiss, or in the Alternative for
Summary Judgment. (Doc. 7). On May 20, 2013, the plaintiffs filed their own
2

Motion for Summary Judgment. (Doc. 9). On August 23, 2013, the court entered a
memorandum opinion and order which struck the plaintiffs’ motion for summary
judgment. (Doc. 11 at 3). In that same opinion, the court treated the defendant’s
motion as a motion to dismiss only, denied the motion “to the extent that it attacks the
plaintiffs’ overshadowing claims,” and granted the motion in all other respects. (Doc.
11 at 19). The court allowed the plaintiffs 30 days to amend their complaint to
reallege “the False and Misleading Representation claims and Unfair Practices claims
which are based upon communications regarding the foreclosure.” (Doc. 11 at 1920).
On September 23, 2013, the plaintiffs filed their amended complaint. (Doc.
12). The Amended Complaint alleges overshadowing (Count One), false and
misleading misrepresentations “in violation of 15 U.S.C. § 1692e” (Count Two), and
unfair practices in violation of 15 U.S.C. § 1692f1 (Count Three).
Attached to the Amended Complaint are several exhibits, one of which is the
Affidavit of William McCaffrey. (Doc. 12 at 14-19). On October 7, 2013, the
defendant filed a “Motion to Dismiss Plaintiffs’ Amended Complaint and to Strike

1

The plaintiffs state that the defendant “violated 1592f Section 808(6).” (Doc. 12 at 8)
(emphasis added). However, they clearly meant 1692f, as that is the section which addresses
“unfair practices.”
3

the Affidavit of William McCaffrey.” (Doc. 13).2 Attached to that motion were six
exhibits labeled A, B, C, D, E, and F. (Doc. 13-1).
On October 29, 2013, the plaintiffs filed a document entitled “Answer to the
Motion to Dismiss, Petition to Quash and Petition to Strike.” (Doc. 16). Although
not designated as a motion in the court’s CM/ECF system, document 16 actually
“petitions” the court to “quash” the Motion to Strike the Affidavit of William
McCaffrey. (Doc. 16 at 8-10). It also petitions the court to strike Exhibit F attached
to the defendant’s motion to dismiss. (Doc. 16 at 10-13).
On November 8, 2013, the defendant filed a reply brief in support of his motion
to dismiss with five exhibits, designated A, B, C, D, and E, attached. (Doc. 17; doc
17-1). Exhibits A, B, C, and D (doc. 17-1 at 2-21) are the same exhibits contained
in Exhibit F to document 13 (doc. 13-1 at 16-31).
On November 15, 2013, the plaintiffs filed a “Petition for Judicial Notice of
Undisputed Facts and Plaintiff[s’] Petition to Strike the Defendant’s Latest Reply
Brief and the Attached Exhibits A, B, C, and D.” (Doc. 18). On January 2, 2014, the
defendant filed a “Notice of Additional Service of Exhibits to Defendant’s Reply to
2

On October 14, 2013, the defendant filed an “Amended Certificate of Service” for
document 13, and stated that “the Certificate of Service [for document 13] only indicated that the
Motion would be served electronically via the CM/ECF system [and since] [t]he [p]laintiffs’ are
pro se [they] likely would not receive service only through CM/ECF.” (Doc. 14 at 1). Document
14 stated that the defendant would send a copy of document 13 to the plaintiffs via overnight
mail.
4

the Plaintiff[s’] Response to Defendant’s Motion to Dismiss and Response to the
Plaintiffs’ Petition to Strike.” (Doc. 19). On January 24, 2014, the plaintiffs moved
to strike document 19. (Doc. 21).
II.

MATTERS OUTSIDE THE PLEADINGS
A.

The Exhibits Attached to the Defendant’s Motion To Dismiss Do Not
Convert It to a Motion for Summary Judgment

The defendant attaches exhibits to his motion. “If, on a motion under Rule
12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the
court, the motion must be treated as one for summary judgment under Rule 56.” Fed.
R. Civ. P. 12(d); see also, Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005)
(“The district court generally must convert a motion to dismiss into a motion for
summary judgment if it considers materials outside the complaint.”). However,
the court may consider a document attached to a motion to dismiss
without converting the motion into one for summary judgment if the
attached document is (1) central to the plaintiff's claim and (2)
undisputed. In this context, “undisputed” means that the authenticity of
the document is not challenged. Id. Our prior decisions also make clear
that a document need not be physically attached to a pleading to be
incorporated by reference into it; if the document's contents are alleged
in a complaint and no party questions those contents, we may consider
such a document provided it meets the centrality requirement[.]
Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005).
Attached to the defendant’s motion to dismiss are six (6) exhibits labeled A,

5

B, C, D, E, and F. (Doc. 13-1). The court will address each in turn,
1.

Exhibits A, B, C, and E

Exhibits A, B, C, and E are also attached to the Amended Complaint. (Doc. 12
at 10-12).3 They are referenced in the Amended Complaint (doc. 12 at 1, 2, 3), and
are the basis for some of the plaintiffs’ claims. The documents are therefore central
to those claims. No party disputes the authenticity of these documents. They may be
considered without converting the motion.
2.

Exhibit D

Exhibit D to the motion to dismiss is a February 1, 2013, letter from Bank of
America, which is a non-party. It is provided as evidence that the debt was verified
by Bank of America. (Doc. 13 at 4). As no claims for failure to verify remain, this
document is not central to any of the plaintiffs’ current claims, and it is not relevant
to the instant motion. Exhibit D will be EXCLUDED, and the motion will not be
converted to a motion for summary judgment as a result of that document being
attached.
3.

3

Exhibit F; the Plaintiffs’ Petition to Strike Exhibit F Attached
to the Defendant’s Motion to Dismiss (Doc. 16 at 10-13); and
the Plaintiffs’ Petition for Judicial Notice of Undisputed Facts
and Plaintiffs’ Petition to Strike the Defendant’s Latest Reply
Brief and the Attached Exhibits A, B, C, and D (Doc. 18)

The Amended Complaint only attaches the first page of Exhibit B.
6

Exhibit F to the motion purports to be a Mortgage, executed on December 20,
2004, by: 1) the plaintiffs; 2) Mortgage Electronic Registration Systems, Inc.
(“MERS”), the mortgagee; and 3) Countrywide Home Loans, Inc. (“Countrywide”),
the lender. (Doc. 13-1 at 16-27). Also attached is a document which purports to be
a Note, also executed by the plaintiffs on December 20, 2004. (Doc. 13-1 at 30-31).
Exhibit F also includes a document dated March 2, 2010, which purports to be an
“Assignment of Mortgage” by MERS, “acting solely as nominee for Lender,” of the
plaintiffs’ mortgage to BAC Home Loans Servicing, Inc. (Doc. 13-1 at 28). Finally,
Exhibit F includes a purported “Corrective Assignment of Mortgage,” dated
November 14, 2012, which changes the name of the assignee to Bank of America,
N.A. (Doc. 13-1 at 29). As noted above, these same documents comprise Exhibit A,
B, C, and D to the defendant’s reply to the motion to dismiss. (Doc. 17; doc. 17-1 at
2-21).
The plaintiff moves to strike Exhibit F stating that it “contain[s] an uncertified,
un-sworn[,] and un-authenticated copy of a purported note, mortgage[,] and
assignment. These alleged copies were not properly introduced into the record by
affirmation as true and correct copies.” (Doc. 16 at 11). Further, the plaintiffs state
that these documents are “inadmissible hearsay.” (Doc. 16 at 13). In support of their

7

argument, the plaintiffs include a block quote from Coleman v. BAC Servicing, 104
So. 3d 195, 202-03 (Ala. Civ. App. 2012), cert. denied (Sept. 7, 2012), which deals
whether evidence submitted on a summary judgment motion complied with Rule
56(e) of the Alabama Rules of Civil Procedure. That rule states:
Supporting and opposing affidavits shall be made on personal
knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein. Sworn or certified copies of all
papers or parts thereof referred to in an affidavit shall be attached
thereto or served therewith.
ALA. R. CIV. P. 56(e). The plaintiffs’ also provide similar block quotes from Allred
v. Shirley, 598 So. 2d 1347, 1348 (Ala. 1992) (appeal from a summary judgment in
favor of the defendant), and Alabama Power Co. v. Tatum, 293 Ala. 500, 508, 306 So.
2d 251, 258 (1975) (whether trial Court erred in admitting documents at trial).
Of course, the Alabama Rules of Civil Procedure do not apply in federal court.
However, Rule 56(c)(4) of the Federal Rules of Civil Procedure contains the
following similar provision: “An affidavit or declaration used to support or oppose
a motion must be made on personal knowledge, set out facts that would be admissible
in evidence, and show that the affiant or declarant is competent to testify on the
matters stated.” Fed. R. Civ. P. 56(c)(4). The Eleventh Circuit Court of Appeals has
held:

8

To be admissible in support of or in opposition to a motion for summary
judgment, a document must be authenticated by and attached to an
affidavit that meets the requirements of Rule 56(e) and the affiant must
be a person through whom the exhibits could be admitted into evidence.
Saunders v. Emory Healthcare, Inc., 360 F. App'x 110, 113 (11th Cir. 2010)
(emphasis added) (citing 10 A Charles Alan Wright, Arthur R. Miller & Mary Kay
Kane, FEDERAL PRACTICE AND PROCEDURE: CIVIL § 2722, at 382-84 (3d ed.1998))
(“Because the exhibits were not properly authenticated, the district court was not
required to consider them in opposition to Emory's motion for summary judgment.”).
In this case, the documents in Exhibit F to document 13 (doc. 13-1 at 16-31) and
Exhibits A, B, C, and D to document 17 (doc. 17-1 at 2-21) are not authenticated.
Accordingly, if the motion is converted to a motion for summary judgment, they
cannot be considered.
Of course, the instant motion is not a motion for summary judgment governed
by Rule 56 of the Federal Rules of Civil Procedure. It is a motion to dismiss
governed by Rule 12(b)(6) of the Federal Rules of Civil Procedure. However, the
plaintiffs’ motions to strike are challenges to the authenticity of these documents.4
They therefore are not “undisputed.” If the motion remains a motion to dismiss, the

4

The motions do not state that the documents are not authentic. They take no position
on their authenticity. Still, the motions are fairly construed to be a challenge to the authenticity
of the documents, especially as the plaintiffs are proceeding pro se.
9

documents must be excluded. If the court converts the motion to a motion for
summary judgment, they must be stricken because they are not authenticated. Either
way, the documents will not be considered at this time. The plaintiffs’ petition to
strike Exhibit F (doc. 16 at 10-13) will be GRANTED. The plaintiffs’ “Petition for
Judicial Notice of Undisputed Facts and Plaintiff[s’] Petition to Strike the
Defendant’s Latest Reply Brief and the Attached Exhibits A, B, C, and D” (doc. 18),
will be GRANTED to the extent it seeks to strike exhibits A, B, C, and D to
document 17. It will be DENIED in all other respects.5
B.

The Defendant’s Motion To Strike the McCaffrey Affidavit (Doc.
13); The Plaintiffs’ Petition To Quash the Motion To Strike the
Affidavit of William McCaffrey (Doc. 16 at 8-10)

The McCaffrey affidavit6 poses a different problem which the parties have not

5

The motion also asks the court to take judicial notice of all “undisputed facts presented
herein.” (Doc. 18 at 13). To the extent that facts stated therein are indeed “undisputed,” they
will be considered by this court as such. There is no need to “judicially notice” them. Further,
the motion provides no valid grounds for its request that the court strike the defendant’s reply
brief.
6

The affidavit was not attached to the original complaint. It made its appearance as an
attachment to the amended complaint after the court’s order of August 23, 2014, which stated in
part:
[E]ven though not contained in the [False and Misleading Representation]
count itself, the complaint alleges elsewhere that the defendant “falsely represented
to the [plaintiffs] that his client had standing to foreclose therefore using false and
misleading practices in an attempt to collect a purported debt.” (Doc. 1 at 3). Such
actions might fall under 15 U.S.C. § 1692e which specifically prohibits “[t]he threat
to take any action that cannot legally be taken,” and “[t]he use of any false
representation or deceptive means to collect or attempt to collect any debt or to
10

addressed–whether consideration of the affidavit, attached to the complaint, requires
the court to convert the motion.7 “A copy of a written instrument that is an exhibit
to a pleading is a part of the pleading for all purposes.” Fed. R. Civ. P. 10(c). That
“necessarily includes Rule 12(b)(6) motions.” Thaeter v. Palm Beach Cnty. Sheriff's
Office, 449 F.3d 1342, 1352 n. 7 (11th Cir. 2006). However, affidavits are not
typically the types of written instruments considered to be part of the complaint. As
has been noted:

obtain information concerning a consumer.” 15 U.S.C. § 1692e(5), (10). However,
the plaintiffs provide no factual support in their complaint for why the defendant
could not legally foreclose. Any claim based on this conduct is due to be dismissed.
However, the court will allow the plaintiffs to amend their complaint to state, if they
can, facts which support this claim.
(Doc. 11 at 16-17). The court also wrote:
The complaint alleges a violation of [the Act’s prohibition against unfair practices]
by the defendant . . . threatening foreclosure when the defendant had no standing to
do so. (Doc. 1 ¶¶ 41-43). Again, however, no facts are alleged which support such
a claim. Any claim based upon this portion of the Act will be dismissed with leave
to amend.
(Doc. 11 at 18).
7

The defendant’s motion to strike attacks the affidavit only on the issue of whether it is
“admissible.” (Doc. 13 at 6). The parties do not discuss whether the affidavit may be considered
as part of a motion to dismiss, as opposed to part of a converted motion for summary judgment.
While this may seem to be a distinction without a difference, it is not. Rule 56 of the Federal
Rules of Civil Procedure, which governs affidavits submitted on motions for summary judgment,
requires that “[a]n affidavit or declaration used to support or oppose a motion must . . . set out
facts that would be admissible in evidence [.]” Rule 12(b)(6), which governs motions to
dismiss, has no such requirement. Accordingly, the issue of conversion bears on the motion to
strike. Further, if the motion is not converted, and the affidavit is still considered, the facts stated
in the affidavit should be taken as true.
11

[a] “written instrument” within the meaning of Rule 10(c) “is a
document evidencing legal rights or duties or giving formal expression
to a legal act or agreement, such as a deed, will, bond, lease, insurance
policy or security agreement.” Murphy v. Cadillac Rubber & Plastics,
Inc., 946 F.Supp. 1108, 1115 (W.D.N.Y.1996) (citing Black's Law
Dictionary 801, 1612 (6th ed.1990)). The documents that satisfy this
definition “consist largely of documentary evidence, specifically,
contracts, notes, and other writings on which a party's action or defense
is based[.]” Rose v. Bartle, 871 F.2d 331, 339 n. 3 (3d Cir.1989)
(internal quotations and alteration omitted).
DeMarco v. DepoTech Corp., 149 F. Supp. 2d 1212, 1220 (S.D. Cal. 2001) (emphasis
added).
Complicating the matter further is the fact that the McCaffrey affidavit is not
made by a party or fact witness to the case. It is an expert affidavit. On its face, the
affidavit states that McCaffrey offers his “observations, analysis, opinions, and
testimony.” (Doc. 12 at 14) (emphasis added). He states that he has “personal
knowledge and experience in the topic area,” and discusses his “personal experience.”
(Doc. 12 at 14-15). He also states where he has been “qualified to testify,” and where
he has “served as an Expert Witness.” (Doc. 12 at 15). He identifies the property
which was the subject of the foreclosure, identifies facts which pertain to the
disposition of the mortgage and note after its execution, and then states that his
“research” reveals, among other things: that Bank of America cannot foreclose on the
property (doc. 12 at 16-17); that Bank of America is not a holder in due course on the

12

loan (doc. 12 at 17); that Bank of America has suffered no financial loss because of
the loan (doc. 12 at 17); and that Bank of America does not possess legal standing to
foreclose (doc. 12 at 18).
The court has found no case where the Eleventh Circuit has addressed whether
an affidavit, attached to the complaint, and containing facts and expert conclusions,
meets the definition of a “written instrument” under Rule 10(c). However, this very
issue has been addressed very persuasively by the Fifth Circuit in Fin. Acquisition
Partners LP v. Blackwell (“Blackwell”), 440 F.3d 278, 285-86 (5th Cir. 2006), a
securities fraud case. The facts of that case, as set out by the district court, are as
follows:
Deloitte filed a motion to strike the affidavit of Mr. Victor C.
Moore, whom Plaintiffs have retained as an expert in connection with
this litigation. Plaintiffs attached [to their Second Amended Complaint]
an affidavit authored by Mr. Moore in which he gives his opinion that
Deloitte violated generally accepted accounting principles (“GAAP”) by
failing to represent that AMRESCO's 10-K for the year ending
December 31, 2000 misrepresented the value of its assets and by failing
to issue a “going concern” qualification regarding AMRESCO's viability
as a corporation in its audit opinion of AMRESCO's financial
statements. Deloitte argues that Mr. Moore's affidavit improperly brings
in matters outside the four corners of Plaintiffs' Second Amended
Complaint, while Plaintiffs argue that the affidavit is properly included
with the pleading under Federal Rule of Civil Procedure 10c), which
allows a party to attach a “written instrument” to a pleading.
FED.R.CIV.P. 10c).
Fin. Acquisition Partners, LP v. Blackwell, CIV.A.3:02-CV-1586-K, 2004 WL
13

2203253 at *4 (N.D. Tex. Sept. 29, 2004) aff'd, 440 F.3d 278 (5th Cir. 2006)
(Kinkeade, J.). The district court wrote:
In another securities fraud case, DeMarco v. Depotech
Corporation, 149 F.Supp.2d 1212 (S.D.Cal.2001), the court held that it
had to disregard the affidavit of an expert in considering the defendant's
motion to dismiss because considering the opinion of an expert included
in an affidavit on a motion to dismiss forces a district court to confront
a “myriad of complex evidentiary issues not generally capable of
resolution at the summary judgment stage.” Id. at 1221. That court stated
that considering the expert affidavit would put the court in the position
of essentially considering a motion for summary judgment, which is
improper at the motion to dismiss stage of a securities fraud case. Id.
However, despite striking the affidavit, the court did say that a plaintiff
could include an expert's “nonconclusory assertions within specific
paragraphs in the complaint.” Id. at 1222.
Blackwell, 2004 WL 2203253 at * 4. The district court found the DeMarco rationale
persuasive, and granted the motion to strike only
insofar as the Court will not consider any conclusions reached by Mr.
Moore in making its decision on the Defendants' motions to dismiss.
However, the Court DENIES Deloitte's motion to the extent it seeks an
order striking those nonconclusory, factual portions of Mr. Moore's
affidavit found in Plaintiffs' Second Amended Complaint.
Id. at *5. The Fifth Circuit affirmed, citing with approval the above quoted language
from the DeMarco opinion. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006).8
8

In a later unpublished opinion, the Fifth Circuit, in Malik v. Cont'l Airlines Inc., 305 F.
App'x 165, 166 n. 2 (5th Cir. 2008) stated that “[w]e properly consider the [plaintiff’s] affidavit
[attached to the complaint] in ruling on [the] motion to dismiss for failure to state a claim.” In
doing so, it took as true the facts alleged therein. Malik, 305 Fed. Appx. at 166 (“In her second
amended complaint and attached affidavit, Malik alleges the following facts which we must take
as true in ruling on Continental's motion to dismiss for failure to state a claim.”) (footnote
14

The court is persuaded by these district court and Fifth Circuit opinions.
Although Blackwell and DeMarco were securities fraud cases, the rationale for the
decisions in each was not based upon that fact. Indeed, in nearly all cases, including
this one, considering expert opinions at the pleading stage is inappropriate.
The motion to strike will be GRANTED as to all opinions stated in the
affidavit. It will be DENIED as to factual statements contained therein. In
accordance with, and subject to the guidelines set out by Twombly and Iqbal,9 nonconclusory factual averments in the affidavit will be taken as true for purposes of the
court’s ruling on the motion to dismiss. The plaintiff’s Petition to Quash the Motion
to Strike the Affidavit of William McCaffrey (doc. 16 at 8-10) will be DENIED.
III.

THE PLAINTIFFS' "PETITION TO STRIKE THE DEFENDANT'S
LATEST PLEADING ENTITLED ‘NOTICE OF ADDITIONAL
SERVICE OF EXHIBITS TO DEFENDANT'S REPLY TO
PLAINTIFF[S'] RESPONSE TO DEFENDANT'S MOTION TO DISMISS
AND RESPONSE TO THE PLAINTIFF[S'] PETITION TO STRIKE'"
(DOC. 21)

omitted). Malik does not overrule Blackwell. First, in the Fifth Circuit, “[u]npublished opinions
issued on or after January 1, 1996, are not precedent.” 5th Cir. R. 47.5.4. Further, Malik’s later
panel could not overrule the prior panel decision in Blackwell. See, F.D.I.C. v. Abraham, 137
F.3d 264, 268 (5th Cir. 1998) (“[O]ne panel of this court cannot disregard, much less overrule,
the decision of a prior panel.”). Further, Malik is distinguishable as the affidavit in Malik was a
fact affidavit, not an expert affidavit filled with opinions and conclusions like the one in
Blackwell. Both cases actually agree that the proper procedure is always to adopt facts stated in
affidavits attached to the complaint.
9

Discussed at section IV, infra.
15

In this motion, the plaintiffs seek to strike document 19, which is the
defendant’s “Notice of Additional Service of Exhibits to Defendant’s Reply to the
Plaintiff’s Response to Defendant’s Motion to Dismiss and Response to the Plaintiffs’
Petition to Strike.” In document 19, the defendant states that when he filed document
17, his reply to the motion to dismiss, he attached five exhibits labeled A, B, C, D,
and E. (Doc. 19 at 1). The defendant notes that the plaintiffs, in their motion to strike
exhibits A, B, C, and D (doc. 18), state that “Mr. Saag failed to attach a copy of the
purported documents that he is referencing as Exhibit[s] A, B, C, or D to his Reply
Pleading.” (Doc. 19 at 2) (quoting doc. 18 at 11). Saag states that although he
believes that he served the documents on the plaintiffs with the copy of the reply
brief, he sent them again after they said that they did not receive them. (Doc. 19 at
2). He also argues that the plaintiffs suffered no prejudice as a result of the alleged
omission. (Doc. 19 at 2-3).
The plaintiffs argue that this document should be stricken because it mistakenly
states that the reason the plaintiffs have tried to strike the documents is because they
were not initially served on them. (Doc. 21 at 1). They also reargue their other
reasons that the documents should be stricken. (Doc. 21 at 1-7). This motion will be
DENIED. The court sees the defendant’s filing as merely a notice that the documents
were sent to the plaintiffs at some point. Further, whether the document states the
16

correct grounds for the motions to strike or not, the court can, and has, discerned for
itself the basis for, and legitimacy of, the motions.
IV.

THE MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
(DOC. 13)
A.

Standard of Review

The defendant moves to dismiss this case pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. “[A] court should only grant a motion to dismiss
[under Rule 12(b)(6)] where the defendant demonstrates that the plaintiff cannot
prove any set of facts in support of his claim which would entitle him to relief.” Am.
United Life Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007). “Moreover,
when ruling on a motion to dismiss, a court must view the complaint in the light most
favorable to the plaintiff and accept all of the plaintiff's well-pleaded facts [and
reasonable inferences drawn from those facts] as true.” Id. (emphasis added). A
court looks to the facts alleged in the plaintiff's complaint, and not its merely
conclusory statements, when ruling on a motion to dismiss. Thus, to survive a motion
to dismiss for failure to state a claim, “a plaintiff's obligation to provide the grounds
of his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1964–65, 167 L. Ed. 2d 929 (2007)

17

(quotations omitted). “Factual allegations must be enough to raise a right to relief
above the speculative level.” Id. at 1965. Mere conclusory statements in support of
a threadbare recital of the elements of a cause of action will not suffice. Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009).
B.

Allegations in the Complaint

On January 24, 2013, the defendant sent the plaintiffs a letter, the full text of
which reads:
RE:

NOTICE OF ACCELERATION OF PROMISSORY NOTE AND
MORTGAGE

YOU ARE HEREBY NOTIFIED that the terms of the Promissory Note
and Mortgage for the above referenced loan dated the 20th day of
December, 2004, are in default. By virtue of default in the terms of said
Note and Mortgage, Bank of America, N.A., hereby accelerates to
maturity the entire remaining unpaid balance of the debt, including
attorney’s fees, accrued interest, and other lawful charges. The amount
due and payable as of the date of this letter is $43,533.46. This payoff
amount will change on a daily basis. If you wish to pay off your
mortgage, please call our office at [phone] to obtain an updated
figure. Additionally, if you are interested in foreclosure alternatives,
please contact your servicer, Bank of America at 1-800-699-6650.
We are at this time commencing foreclosure under the terms of the
Mortgage, and enclosed is a copy of the foreclosure notice. Please note
that the foreclosure sale is scheduled for February 28, 2013. For further
information regarding this matter, please call [phone].
If you have received a discharge of this debt in bankruptcy or are
currently in a bankruptcy case, this notice is not intended as an attempt
to collect a debt. Our client has a security interest in the property and
18

will only exercise its rights as against the property.
We will assume this debt to be valid unless it is disputed within thirty
days after you receive this letter. If you do dispute this debt or any
portion thereof, we will obtain and mail you a verification of the debt or
a copy of any judgment if you send us a written request within this
thirty-day period. Also, upon written request within this thirty-day
period, we will provide you with the name and address of the original
creditor, if different from the current creditor. This communication is an
attempt to collect a debt and any information obtained will be used for
that purpose.
(Doc. 12 at 10) (emphasis in original). The amended complaint alleges that the letter
violated 15 U.S.C. § 1692g by “overshadowing” the plaintiffs’ “right to dispute the
debt or request the name and address of the original creditor.” (Doc. 12 at 2). The
plaintiffs state that after they received this letter they “were left confused as to
whether they actually had 30 days in which to dispute the debt. [They] were left with
the impression that they [sic] would be of no avail to dispute the purported debt as
foreclosure had already begun.” (Doc. 12 at 2).
Upon receipt of the defendant’s letter, the plaintiffs mailed an undated “Notice
of Impending Injury From Andy Sagg Notice of Liability” to the defendant. (Doc.
12 at 2, 11; doc. 13-1 at 4-7). In that notice, the plaintiffs requested verification of
the debt owed. (Doc. 12 at 2). In a January 31, 2013, letter responding to the
plaintiffs, the defendant wrote:
Re:

Property Address: 370 Gamble Road, Horton, AL 35980
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Our Client: Bank of America, N.A.
Loan Number: 83658532
This letter is to acknowledge receipt of your letter received in my office
on January 29, 2013, disputing the above-referenced debt. I have
forwarded a copy of your letter to Bank of America for its review. Please
note that we have ceased foreclosure proceedings until written debt
verification is provided to you.
Please do not hesitate to contact my office at [phone] should you
have any questions.
This communication is from a debt collector.
(Doc. 12 at 12). On February 25, 2013, the defendant again wrote the plaintiffs
stating:
The terms of the Promissory Note and Mortgage loan with Bank of
America, N.A. are currently in default. Due to the default in the terms of
the Note and Mortgage, we have been instructed to foreclose the
property described in the enclosed revised publication notice.
The foreclosure sale is scheduled for March 28, 2013. If you are
interested in foreclosure alternatives, please contact your servicer, Bank
of America at 1-800-669-6650.
For further information regarding this matter, please contact our office
at [phone].
If you have received a discharge of this debt in bankruptcy or are
currently in a bankruptcy case, this notice is not intended as an attempt
to collect a debt. Our client has a security interest in the property and
will only exercise its rights as against the property.
This communication is from a debt collector.

20

(Doc. 12 at 13).
The amended complaint states that the defendant “falsely represented to the
Brothers [sic] that his client had standing to foreclose therefore using false and
misleading practices in an attempt to collect a purported debt.” (Doc. 12 at 3). The
plaintiffs also claim that the defendant “has not produced proper documentation
demonstrating that his client possessed an original obligation at the time of
foreclosure and therefore did not have authority to claim a security interest in the
[plaintiffs’] property.” (Doc. 12 at 5).
The plaintiffs allege that the defendant “was attempting to take an action based
upon a false security interest in the [plaintiffs’] property therefore [the defendant] has
threatened to take action that ‘legally cannot be taken’ by his client.” (Doc. 12 at 6).
The amended complaint also alleges that the defendant “represented to the [plaintiffs]
that [Bank of America] held a security interest in [the plaintiffs’] property when in
fact no such agreement was possessed by his client.” (Doc. 12 at 6).
The following facts appear in the McCaffrey affidavit and are taken as true for
the purposes of this motion:
The subject property: 370 GAMBLE ROADHORTON, AL 35980
was secured in favor of COUNTRYWIDE HOME LOANS INC.
DECEMBER 20, 2004. The corresponding Mortgage has a Mortgage
Identification Number (“MIN”) of 1001337-0000256507-8.

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[T]he loan has been securitized which is the process of
aggregating a large number of Notes in what is called a mortgage pool
and then selling security interests in that pool of mortgages to investors.
These sales have fractionalized possession of the Note over many
different investors.
The subject NOTE or Loan of said property was bundled with
many other loans, sold to investors and ultimately placed into a
COUNTRYWIDE RESECURITIZATIONS COUNTRYWIDE TRUST
(“CWT08034") referred to as the ISSUING ENTITY and formed
pursuant to the Trust Agreement among the Seller, Depositor, Servicer,
the Trust Oversight Manager and the Trustee. HERE, the Depositor is
CWALT SECURITIES and the Trust has a closing date of March 25,
2008.
The Trust is also a REAL ESTATE MORTGAGE INVESTMENT
CONDUIT (REMIC) within the meaning of 860D of the Internal
Revenue Code as amended in 1986 (The Code), which governs the rules
of the subject trust. BANK OF AMERICA Acts as current servicer of
the mortgage loans and BANK OF NEW YORK MELLON acts as
Trustee of the Trust on behalf of the investors.
(Doc. 12 at 16) (capitalization in original).
C.

Analysis
1.

Count One – Overshadowing

The plaintiffs argue that the defendant committed a violation of the FDCPA’s
provisions against “overshadowing” in his January 24, 2013, letter. (Doc. 12 at 7).
To understand “overshadowing,” one must understand the FDCPA’s validation
notice requirements. The FDCPA statute provides, in pertinent part:
Within five days after the initial communication with a consumer in
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connection with the collection of any debt, a debt collector shall, unless
the following information is contained in the initial communication or
the consumer has paid the debt, send the consumer a written notice
containing–
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt
of the notice, disputes the validity of the debt, or any portion thereof, the
debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing
within the thirty-day period that the debt, or any portion thereof, is
disputed, the debt collector will obtain verification of the debt or a copy
of a judgment against the consumer and a copy of such verification or
judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the
thirty-day period, the debt collector will provide the consumer with the
name and address of the original creditor, if different from the current
creditor.
28 U.S.C. § 1692g(a) (emphasis in original). “Paragraphs 3 through 5 of section
1692g(a) contain the validation notice—the statements that inform the consumer how
to obtain verification of the debt and that he has thirty days in which to do so.”
Wilson v. Quadramed Corp., 225 F.3d 350, 353-54 (3d Cir. 2000). Collection
activities and communications may continue during the 30-day period referenced
above, but such activities “may not overshadow or be inconsistent with the disclosure
of the consumer’s right to dispute the debt or request the name and address of the
23

original creditor.” 15 U.S.C. § 1692g(b) (emphasis added).
“Courts in the Eleventh Circuit use the ‘least sophisticated consumer’ standard
when analyzing overshadowing claims. As a general matter, language is
overshadowing if it would make the least sophisticated consumer uncertain as to his
or her rights.” Shimek v. Weissman, Nowack, Curry & Wilco, P.C., 323 F. Supp. 2d
1344, 1349 (N.D. Ga. 2003) aff'd, 374 F.3d 1011 (11th Cir. 2004) (citing Jeter v.
Credit Bureau, Inc., 760 F.2d 1168, 1175–76 (11th Cir.1985), and Russell v. Equifax
A.R.S., 74 F.3d 30, 35 (2d Cir.1996));10 see also, Russell v. Equifax A.R.S., 74 F.3d
30, 35 (2d Cir. 1996) (“A notice is overshadowing or contradictory if it would make
the least sophisticated consumer uncertain as to her rights.”). “[T]he determination
of whether language overshadows the validation notice is a question of law.” Shimek,
323 F. Supp. 2d at 1349.
The amended complaint states that the letter “confused [the plaintiffs] and
overshadowed their right to dispute the debt.” (Doc. 12 at 7).11 Importantly, however,

10

The Eleventh Circuit stated held the district court’s decision was “affirmed based on
the well-reasoned order of the district court.” Shimek v. Weissman, Nowack, Curry & Wilco,
P.C., 374 F.3d 1011, 1013 (11th Cir. 2004).
11

Attached to the plaintiff’s response to the motion to dismiss are the affidavits of the
plaintiffs. (Doc. 16 at 21-24). In the affidavits, each plaintiff states that they “concluded that if
we dispute the debt, we will be required to make full and immediate payment, be forced out of
our home, and in order to regain possession bring suit. This conclusion, in my opinion, makes as
much sense as Mr. Saag’s letter.” (Doc. 16 at 22, 24). Because this is a motion to dismiss, these
documents have been EXCLUDED, and have not been considered by the court.
24

“ ‘The least sophisticated consumer’ can be presumed to possess a
rudimentary amount of information about the world and a willingness
to read a collection notice with some care.” Clomon, 988 F.2d at 1319.
However, the test has an objective component in that “[w]hile protecting
naive consumers, the standard also prevents liability for bizarre or
idiosyncratic interpretations of collection notices by preserving a
quotient of reasonableness ....” Nat'l Fin. Servs., Inc., 98 F.3d at 136
(citing Clomon, 988 F.2d at 1319); Barany–Snyder v. Weiner, 539 F.3d
327, 333 (6th Cir.2008) (“least-sophisticated consumer” standard is an
objective test); Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85
(2nd Cir.2008) (same).
LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193-94 (11th Cir. 2010).
Everything required by 28 U.S.C. § 1692g(a) appears in the letter of January
24, 2013. (Doc. 13-1 at 2). The language is set off in its own paragraph at the end
of the letter. Nothing anywhere else in the letter expressly conflicts with the
information required to be provided by paragraphs 3 through 5 of section 1692g(a).
Still, in the amended complaint, the plaintiffs set out the following language
of the letter in their overshadowing claim:
Bank of America, N.A., hereby accelerates to maturity the entire
remaining unpaid balance of the debt, including attorney’s fees, accrued
interest, and other lawful charges.
We are at this time commencing foreclosure under the terms of the
Mortgage, and enclosed is a copy of the foreclosure notice.
We will assume this debt to be valid unless it is disputed within thirty
days after you receive this letter.
(Doc. 12 at 7) (quoting doc. 12 at 10). The court assumes that the plaintiffs are
25

claiming that the first two sentences somehow overshadow the third, since the last
sentence is required by the statute to appear in the letter. 28 U.S.C. § 1692g(a)(3).
The first two sentences merely give the plaintiffs notice that collection
procedures will continue. This is not a violation of the statute, nor is it inconsistent
with the plaintiffs’ rights. See, Durkin v. Equifax Check Servs., Inc., 406 F.3d 410,
416 (7th Cir. 2005) (noting that the validation period “is not a grace period: a debt
collector is ‘perfectly free’ to demand payment and pursue collection efforts,
including an appropriate lawsuit against the debtor, within the validation period.”).
“The mere fact, then, that the collection letter mentions actions that will be taken
within those 30 days does not mean the letter is necessarily confusing.” Omaraie v.
A. Alliance Collection Agency, Inc., 06 C 1727, 2007 WL 2409794 at *4 (N.D. Ill.
Aug. 21, 2007). Instead, “[c]ourts have generally found contradiction or apparent
contradiction of the printed § 1692g notice where payment is demanded in a concrete
period shorter than the 30–day statutory contest period.” Peter v. GC Servs. L.P., 310
F.3d 344, 349 (5th Cir. 2002) (emphasis added). There is nothing in defendant’s
statements indicating the necessity of, or requiring action by, the plaintiffs earlier than
30 days. There is no overshadowing. Count One will be DISMISSED.
2.

Counts Two and Three – False
Misrepresentation; Unfair Practices

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and

Misleading

In these counts the plaintiffs allege that the defendant falsely and unfairly
alleged that his client had a security interest in the property and standing to foreclose.
(Doc. 12 at 7-8). The defendant moves to dismiss these counts stating:
BANA is the owner and holder of a mortgage and note with regard to
the Plaintiffs’ property. A copy of the Mortgage, Assignment of
Mortgage, and Promissory Note are attached as Exhibit F.
30. As BANA’s attorney, Mr. Saag had a right to seek possession
of the property claimed as collateral through an enforceable security
interest represented by the Mortgage and Promissory Note, both of
which were provided to the Plaintiffs when they received the debt
verification letter of February 1, 2013 from BANA. See Speleos v. BAC
Home Loans Servicing, L.P., 824 F. Supp. 2d 226, 233 (D. Mass. 2011)
(holding that where BAC Home Loan Servicing’s right to foreclose was
established by the original loan documents, its attorney did not violate
the FDCPA by filing a foreclosure action against the homeowners after
a default). Moreover, Mr. Saag did not make any misrepresentations
regarding BANA’s security interest in the Plaintiffs’ property because
BANA in fact holds a security interest in the Plaintiffs’ property. It is
axiomatic that a representation cannot be a misrepresentation if it is true.
31. More importantly, the Plaintiffs have not alleged any admissible
facts that support the notion that BANA did not have an enforceable
security interest. Both Count 2 and Count 3 rely heavily on the
information contained in the Affidavit of William McCaffrey, but none
of the information contained in McCaffrey’s affidavit is admissible.
Even if the Affidavit were admissible, McCaffrey’s conclusory and
unsupported statements do not change the fact that BANA holds an
enforceable Promissory Note and Mortgage. For those reasons, the
Plaintiffs’ Counts 1 and 2 are due to be dismissed.
(Doc. 13 at 11-12).
As noted above, the documents contained in Exhibit F to the motion to dismiss
27

will be stricken. Despite the defendant’s claim that the same documents were
attached to the original letter found on page 11 of document 13-1 (the February 1,
2013, validation letter from Bank of America), they are not attached to that document
in the record.12 Accordingly, there is no document which the court may consider at
this stage which shows that the defendant was accurately representing his client’s
right to enforce a security interest against the plaintiff’s property.
As to the argument that McCaffrey’s affidavit is “inadmissible,” the court has
already noted that it will strike the conclusions therein, while allowing the factual
statements. The defendant makes no further attack on the plausibility of the counts
except to state that McCaffrey’s affidavit “do[es] not change the fact that BANA
holds an enforceable Promissory Note and Mortgage.” (Doc. 13 at 12). However,
since the proof of that argument will be excluded, it also fails.
V.

CONCLUSION
Based on the foregoing, it is hereby ORDERED, ADJUDGED, and

DECREED as follows:
1.

The defendant’s “Motion to Dismiss Plaintiffs’ Amended Complaint
(doc. 13) is GRANTED as to Count One, and DENIED in all other

12

Further, the court has already held that the letter will be excluded. See supra section

II.A.2.
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respects. Count One of the Amended Complaint is DISMISSED;
2.

The defendant’s Motion to Strike the Affidavit of William McCaffrey
(doc. 13) is GRANTED as to all conclusions stated in the affidavit.
Those statements are STRICKEN. The motion is otherwise DENIED;

3.

The plaintiffs’ petition to “Quash the Motion to Strike the Affidavit of
William McCaffrey” (doc. 16 at 8-10) is DENIED;

4.

The plaintiffs’ petition to strike Exhibit F attached to the defendant’s
motion to dismiss (doc. 16 at 10-13) is GRANTED. Exhibit F is
STRICKEN;

5.

The plaintiffs’ “Petition for Judicial Notice of Undisputed Facts and
Plaintiff[s’] Petition to Strike the Defendant’s Latest Reply Brief and the
Attached Exhibits A, B, C, and D” (doc. 18) is GRANTED to the extent
that it seeks to strike Exhibits A, B, C, and D to document 17 (doc. 17-1
at 2-21). Those Exhibits are STRICKEN. The motion is DENIED in
all other respects; and

6.

The plaintiffs’ “Petition to Strike the Defendant’s Latest Pleading
Entitled ‘Notice of Additional Service of Exhibits to Defendant’s Reply
to Plaintiff[s’] Response to Defendant’s Motion to Dismiss and
Response to the Plaintiff[s’] Petition to Strike’” (doc. 21) is DENIED.
29

DONE and ORDERED this 4th day of March, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

30