Tucker v. McCurdy & Candler, LLC
Filing
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ORDER granting Defendant's 6 Motion to Dismiss. Signed by Judge Richard W. Story on 05/08/13. (sk)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
GEORGE M. TUCKER,
Plaintiff,
v.
McCURDY & CANDLER, LLC,
Defendant.
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CIVIL ACTION NO.
2:12-CV-00184-RWS
ORDER
This case is before the Court on Defendant’s Motion to Dismiss [6].
After reviewing the record, the Court enters the following Order.
Background
This dispute relates to property located at 2816 Legislative Lane, Buford,
Georgia 30519 (“Property”). To purchase the Property, Plaintiff took out a loan
and executed a promissory note (“Note”) in favor of Taylor, Bean & Whitaker
Mortgage (“Taylor Bean”) in the amount of $245,000.1 Under the terms of the
1
Unless otherwise noted, the facts are taken from the Complaint [5]. At this
stage, the Court accepts as true all well-pleaded facts in the Complaint. Bryant v.
Avado Brands, Inc., 187 F.3d 1271, 1273 n.1 (11th Cir. 1999). Where necessary for a
more complete statement of the facts giving rise to Plaintiff’s claims, the Court
references documents in the record.
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Note, failure to make any monthly payment on its due date would be declared a
default. To secure the loan, Plaintiff executed a Security Deed, which named
Mortgage Electronic Registration Systems, Inc. (“MERS”), solely as nominee
for Lender and Lender’s successors and assigns, as Grantee, and identified
Taylor Bean as the Lender. (Security Deed, Dkt. [6-1].)
Taylor Bean went out of business around August or September of 2009.
Plaintiff did not tender Note payments in August or September 2009 because
there was no method of payment available to Plaintiff (e.g., online, by
telephone, etc.). Cenlar FSB contacted Plaintiff by phone in October 2009 and
indicated that they were taking over management and servicing of Plaintiff’s
loan from Taylor Bean. Around February 2010, Plaintiff stopped making
mortgage payments. The record shows that on June 13, 2011, MERS, as
nominee for Taylor Bean, assigned the Security Deed to Cenlar FSB.
(Assignment, Dkt. [6-2].)
By letter dated March 30, 2012, apparently in response to an inquiry from
Plaintiff, Cenlar Central Loan Administration & Reporting notified Plaintiff:
•
Your loan is owned by the Federal Home Loan
Mortgage Corporation (“Freddie Mac”) and it is
the current holder of the note.
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•
Cenlar is not in possession of the original note.
The original note is in the possession of Freddie
Mac’s custodian and cannot be released for
viewing purposes.
•
Cenlar does not hold title to your property;
Cenlar services your loan on behalf of Freddie
Mac. . . .
•
Your loan is in a mortgage-backed security of
Freddie Mac; Cenlar has no further
information.
McCurdy & Candler, LLC (“McCurdy”), as counsel for Cenlar FSB, sent
two separate Notices of Foreclosure Sale, along with two Notices Pursuant to
Fair Debt Collection Practices Act, to Plaintiff. (Dkt. [5-1], Dkt. [5-2].) The
notices were dated April 20, 2011, and April 26, 2012. Both notices identified
Cenlar FSB as the creditor and Cenlar Central Loan Administration &
Reporting as the servicer and entity with the full authority to discuss, negotiate,
or change the terms of Plaintiff’s loan. Both notices contained the following
statement: “This law firm is acting as a debt collector and is attempting to
collect a debt and any information obtained will be used for that purpose.” It
does not appear from the record that a foreclosure sale has occurred.
Discussion
I.
Legal Standard - Motion to Dismiss
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Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
“short and plain statement of the claim showing that the pleader is entitled to
relief.” While this pleading standard does not require “detailed factual
allegations,” mere labels and conclusions or “a formulaic recitation of the
elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In
order to withstand a motion to dismiss, “a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
face.’” Id. (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its
face when the plaintiff pleads factual content necessary for the court to draw the
reasonable inference that the defendant is liable for the conduct alleged. Id.
“At the motion to dismiss stage, all well-pleaded facts are accepted as
true, and the reasonable inferences therefrom are construed in the light most
favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273
n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set
forth in the complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
(11th Cir. 2009) (citing Iqbal, 129 S. Ct. at 1949). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
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suffice.” Iqbal, 556 U.S. at 678. Furthermore, the court does not “accept as
true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
555.
“The district court generally must convert a motion to dismiss into a
motion for summary judgment if it considers materials outside the complaint.”
D.L. Day v. Taylor, 400 F.3d 1272, 1275-76 (11th Cir. 2005); see also Fed. R.
Civ. P. 12(d). However, documents attached to a complaint are considered part
of the complaint. Fed. R. Civ. P. 10(c). Documents “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, [the
court] may consider such a document,” provided it is central to the plaintiff’s
claim. D.L. Day, 400 F.3d at 1276. At the motion to dismiss phase, the Court
may also consider “a document attached to a motion to dismiss . . . if the
attached document is (1) central to the plaintiff’s claim and (2) undisputed.” Id.
(citing Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002)). “‘Undisputed’
means that the authenticity of the document is not challenged.” Id.
Additionally, because Plaintiff is acting pro se, his “pleadings are held to
a less stringent standard than pleadings drafted by attorneys and will, therefore,
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be liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998). “This leniency, however, does not require or allow courts to
rewrite an otherwise deficient pleading in order to sustain an action.” Thomas
v. Pentagon Fed. Credit Union, 393 F. App’x 635, 637 (11th Cir. 2010).
II.
Analysis
Plaintiff’s Complaint contains a single count: violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1601, et seq. Defendant
moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure
(“Rule”) 12(b)(6). For the reasons stated below, Defendant’s motion is
GRANTED.
Plaintiff alleges that McCurdy “violated the FDCPA by failing to identify
the actual creditor in debt collection communications covered by the FDCPA
and by falsely stating that Cenlar FSB . . . was the creditor of Plaintiff when in
fact Cenlar was not the creditor of Plaintiff, but was only the servicer, and in
fact itself a debt collector (as defined in the FDCPA), of the Plaintiff’s
mortgage debt for Federal National Mortgage Association . . . .” (Complaint,
Dkt. [5] ¶ 1.) Specifically, Plaintiff claims that Defendant violated §§ 1692e
and 1692g(2) of the FDCPA. (Id. ¶¶ 25-29.) Defendant argues that Plaintiff’s
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claim fails for two reasons: (1) no provision of the FDCPA was breached or
could have been breached by Defendant because foreclosure of real property is
not a debt collection activity under the FDCPA and Defendant is not a “debt
collector” under the FDCPA; and (2) Cenlar FSB was properly identified as the
creditor in the foreclosure notices. (Def.’s MTD, Dkt. [6] at 6-12.) Plaintiff’s
response brief does not address these contentions. (See generally, Pl.’s Resp.
Br., Dkt. [11].)
To prevail on a FDCPA claim, Plaintiff must show: “(1) [he] has been the
object of collection activity arising from a consumer debt; (2) the defendant
attempting to collect the debt qualifies as a ‘debt collector’ under the Act; and
(3) the defendant has engaged in a prohibited act or has failed to perform a
requirement imposed by the FDCPA.” Frazier v. Absolute Collection Serv.,
Inc., 767 F. Supp. 2d 1354, 1363 (N.D. Ga. 2011). Under the FDCPA, a “debt
collector” is defined as: “any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is the
collection of any debts, or who regularly collects or attempts to collect, directly
or indirectly, debts owed or due or asserted to be owed or due another. . . .” 15
U.S.C. § 1692a(6).
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The only activity that forms the basis of Plaintiff’s FDCPA claim is
Defendant’s work as foreclosure counsel. (See generally, Complaint, Dkt. [5].)
As Defendant notes, “foreclosing on a security interest is not debt collection
activity for purposes of § 1692g.” Warren v. Countrywide Home Loans, Inc.,
342 Fed. App’x 458, 460 (11th Cir. 2009). In fact, “[n]early every court that
has addressed the question has held that foreclosing on a mortgage is not debt
collection activity for the purposes of the FDCPA.” Acosta v. Campbell, No.
6:04CV761 ORL28DAB, 2006 WL 3804729, at *4 (M.D. Fla. Dec. 22, 2006)
(citations omitted). The Eleventh Circuit has concluded, “if a person enforcing
a security interest is not a debt collector, it likewise is reasonable to conclude
that enforcement of a security interest through the foreclosure process is not
debt collection for purposes of the Act.”2 Warren, 342 Fed. App’x at 460; see
also Acosta, 2006 WL 3804729, at *4 (“Security enforcement activities fall
2
There is one exception under the FDCPA, which is not applicable here.
Section 1692f(6) makes it unlawful to take or threaten to take “any nonjudicial action
to effect dispossession or disablement of property if – (A) there is no present right to
possession of the property claimed as collateral through an enforceable security
interest; (B) there is no present intention to take possession of the property; or (C) the
property is exempt by law from such dispossession or disablement.” Plaintiff has not
raised a claim under § 1692f(6). Therefore, the general rule that enforcement of
security interests is not a debt collection activity under the FDCPA applies.
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outside the scope of the FDCPA because they are not debt collection
practices.”) (citations omitted).
Therefore, the Court agrees with Defendant that Plaintiff has not stated a
claim for relief under the FDCPA because Defendant’s actions as Cenlar FSB’s
foreclosure counsel (i.e., attempting to enforce its client’s security interest) do
not constitute debt collection activities under the FDCPA and Defendant is not
a “debt collector” under the Act.
Conclusion
Based on the foregoing, Defendant’s Motion to Dismiss [6] is
GRANTED.
SO ORDERED, this 8th day of May, 2013.
_______________________________
RICHARD W. STORY
UNITED STATES DISTRICT JUDGE
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