Griesenauer v. Millsap and Singer, P.C.

Filing 24

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Millsap & Singer, P.C.'s Motion to Dismiss Plaintiff's First Amended Petition (ECF No. 13) is GRANTED. Count I of Plaintiff's Complaint is DISMISSED with prejudice and Count II of Plaintiff's Complaint is DISMISSED without prejudice. An appropriate Judgment is filed herewith. re: 13 MOTION to Dismiss Case filed by Defendant Millsap and Singer, P.C. Signed by District Judge Ronnie L. White on 5/4/15. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

)
)
)
)

DEBRA GRIESENAUER,
Plaintiff,

)

V.

MILLSAP AND SINGER, P.C.,
Defendant.

No. 4:14-CV-1391 RLW

)
)
)
)
)
)

MEMORANDUM AND ORDER

This matter is before the court on Millsap & Singer, P.C.'s Motion to Dismiss Plaintiffs
First Amended Petition (ECF No. 13). This matter is fully briefed and ready for disposition.
BACKGROUND 1

On April 5, 2005, Plaintiff Debra Griesenauer, then a married person, was the recipient of
a General Warranty Deed executed by Troy M. Brown and Donna M. Brown, as husband and
wife, to "Debra L. Griesenauer, A MARRIED PERSON". The Deed conveyed the property
located at 565 Mcintosh Hill Road, Foley, MO 63347 ("Property") to the Plaintiff. 2 On the same
day the General Warranty Deed was executed, Plaintiff separated from her husband and moved
1

When ruling on a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for failure to state
a claim, the Court must take as true the alleged facts and determine whether they are sufficient to
raise more than a speculative right to relief. Bell At!. Corp. v. Twombly, 550 U.S. 544, 555
(2007).
2

This public instrument is reviewable by this Court on a motion to dismiss. Stahl v. City of St.
Louis, Mo. , 687 F.3d 1038, 1039-40 (8th Cir. 2012) (citing Mulvenon v. Greenwood, 643 F.3d
653 , 656 (8th Cir. 2011) ("In addressing a motion to dismiss, we may consider 'the pleadings
themselves, materials embraced by the pleadings, exhibits attached to the pleadings, and matters
of public record. '")).

into the residence at 565 Mcintosh Hill Road.

(First Amended Complaint ("Complaint" or

"Compl."), ili115-16). On April 19, 2006, Plaintiff and her ex-husband, Gregory Griesenauer,
were divorced. (Compl. , i!l 8). Plaintiff was awarded the Property as her separate, non-martial
property.

(Compl. ,i!18).

Plaintiffs ex-husband has never been an owner of record of the

Property, has never lived at the Property, and has never been subject to any indebtedness
securing any interest in the Property. (Compl., i119). On or about December 21 , 2006, Plaintiff
signed a Note and Deed of Trust as A SINGLE PERSON to secure a loan on the Property in
favor of DAS Acquisition. (Compl. , i!i!5 , 20).

Sometime after January 25, 2007, DAS

Acquisition indorsed the Note over to JPMorgan Chase Bank. (Compl. , i121). Prior to May 28,
2014, Plaintiff defaulted on her Note and Deed of Trust and JPMorgan Chase turned the
defaulted debt to Defendant to enforce its security interest in the Property. (Compl., ii23).
On or about May 28, 2014, Defendant sent a foreclosure letter addressed to Plaintiffs exhusband regarding Plaintiffs default on her mortgage payments and pending foreclosure sale.
(Compl., i124). Defendant also informed a "Third Party" that the Property would be sold at a
foreclosure sale on June 27, 2014 at 11: 10 a.m. at the Troy Court House.

(Compl., i125).

Plaintiff resided at the Property until May 31, 2014, separate from her ex-husband. (Compl. ,
i126). Plaintiff alleges that this attempt to communicate with her ex-husband was a prohibited
communication with third parties under 15 U.S.C. §1692c(B), 1692d, 1692d(3), 1692e,
1692e(10), 1692f. (Compl. , i!27).
In its First Amended Complaint, Plaintiff alleged the following causes of action:
Violations of the Fair Debt Collection Practices Act ("FDCPA") (Count I), Invasion of Privacy
by Intrusion Upon Seclusion and by Revelation of Private Financial Facts to Third Party (Count
II).

-2-

STANDARD FOR MOTION TO DISMISS
In ruling on a motion to dismiss, the Court must view the allegations in the Complaint
liberally in the light most favorable to Plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806
(8th Cir. 2008) (citing Luney v. SGS Auto Servs., 432 F.3d 866, 867 (8th Cir. 2005)).
Additionally, the Court "must accept the allegations contained in the complaint as true and draw
all reasonable inferences in favor of the nonmoving party." Coons v. Mineta, 410 F.3d 1036,
1039 (8th Cir. 2005) (citation omitted).

To survive a motion to dismiss, a complaint must

contain "enough facts to state a claim to relief that is plausible on its face." Bell At!. Corp. v.

Twombly, 550 U.S. 544, 570 (2007) (abrogating the "no set of facts" standard for Fed. R. Civ. P.
12(b)(6) found in Conley v. Gibson, 355 U.S . 41 , 45-46 (1957)). While a complaint attacked by
a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs
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."

Twombly, 550 U.S. at 555; Huang v. Gateway Hotel Holdings, 520 F. Supp. 2d 1137, 1140 (E.D.
Mo. 2007).

DISCUSSION
I.

FDCPA

"The FDCP A was enacted 'to eliminate abusive debt collection practices by debt collectors
[and] to insure that those debt collectors who refrain from using abusive debt collection practices
are not competitively disadvantaged."' Mc!vor v. Credit Control Servs., Inc., 773 F.3d 909, 913
(8th Cir. 2014) (citing 15 U.S.C. § 1692(e)). Under 15 U.S.C. §1692e, "[a] debt collector may
not use any false, deceptive, or misleading representation or means in connection with the

-3-

collection of any debt." The FDCPA further precludes communications with third parties unless
the creditor receives the express permission of the debtor or the Court:
Except as provided in section 1692b of this title, without the prior consent of the
conswner given directly to the debt collector, or the express permission of a court
of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment
judicial remedy, a debt collector may not communicate, in connection with the
collection of any debt, with any person other than the consumer, his attorney, a
conswner reporting agency if otherwise permitted by law, the creditor, the
attorney of the creditor, or the attorney of the debt collector.
15 U.S.C. §1692c(b).
Plaintiff alleges that Defendant violated the FDCPA by sending a "Notice of Trustee's
Sale" to her own address but to the attention of her ex-husband. Plaintiff argues in her briefing,
"[t]he fact that Plaintiffs ex-husband never actually received the illegal communication is
irrelevant." (ECF No. 18 at 14). However, the Court finds that the actual recipient of the
information is relevant to her claims.

Here, Plaintiff does not allege that her ex-husband

received the communication from Defendant. Rather, the recipient of Defendant's statement was
Plaintiff. For that basis alone, the Court does not believe that Plaintiff states a claim under the
FDCPA because it is undisputed that Plaintiffs ex-husband never received Defendant' s "Notice
of Trustee's Sale."

Moreover, Defendant never communicated any false, deceptive or

misleading financial information because Plaintiff, the true recipient of the communication,
could not have been misled by any information. See Mclvor, 773 F.3d at 913 (noting that "the
recipient of Credit Control's statement was TransUnion, not a conswner" and determining that
TransUnion could not have been "misled, deceived, or duped" by the communication).
Further, the Court finds that Plaintiff does not state a claim because Defendant's
communication was not "in connection with the collection of any debt." Plaintiff, relying on
authority from other circuits, maintains that mortgage foreclosure activity is debt collection to

-4-

which the FDCPA applies. (ECF No. 18 at 4 (citing Glazer v. Chase Home Fin. LLC, 704 F.3d
453, 461 (6th Cir. 2013); Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373, 376 (4th Cir.
2006); Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1218 (11th Cir. 2012)).
The Eighth Circuit, however, recently held that '" for a communication to be in
connection with the collection of a debt, an animating purpose of the communication must be to
induce payment by the debtor."' Mcivor, 773 F.3d at 914 (quoting Grden v. Leikin Ingber &
Winters PC, 643 F.3d 169, 173 (6th Cir. 2011)). Here, Defendant Millsap & Singer, P.C. was

acting as successive trustee and not as a debt collector. 3 The Court holds that Defendant was
acting to enforce a security instrument, i.e. , Plaintiffs Deed of Trust, and was not acting as a
debt collector as defined under the FDCP A. See also Dillon v. Chase Home Fin., LLC, No.
4:12CV817 HEA, 2014 WL 466212, at *3 (E.D. Mo. Feb. 5, 2014) (citing Warren v.
Countrywide Home Loans, Inc., 342 F.App'x 458, 460 (11th Cir. 2009) ("' The plain language of

the FDCP A supports the ... conclusion that foreclosing on a security interest is not debt
collection activity for purposes of§ 1692g. See id. § 1692a(6). Indeed, the statute specifically
says that a person in the business of enforcing security interests is a "debt collector" for the
purposes of§ 1692f(6), which reasonably suggests that such a person is not a debt

col~ector

for

purposes of the other sections of the Act. " '). Therefore, the Court, in keeping with other
precedent from this circuit, holds that a trustee foreclosing on a deed of trust is not a debt
collector under the FDCP A. Therefore, the Court dismisses Plaintiffs FDCP A claim:

3

Plaintiff alleges that Defendant is a debt "collection law firm" but that apparently refers to
Millsap & Singer, LLC, a separate entity. See ECF No. 14 at 5.
-5-

II.

Invasion of Privacy by Intrusion Upon Seclusion and by Revelation of Private
Financial Facts to Third Party
Plaintiff alleges subject matter jurisdiction under 28 U.S.C. § 1331 and pursuant to 15

U.S .C. §1692k(d), and pursuant to 28 U.S.C. §1367 for the state law claims. This Court has
dismissed Plaintiff's FDCP A claim.

Therefore, the Court declines to exercise supplemental

jurisdiction over Plaintiff's invasion of privacy claim pursuant to 28 U.S.C. § 1367 and dismisses
that claim without prejudice.
Accordingly,
IT IS HEREBY ORDERED that Millsap & Singer, P.C.'s Motion to Dismiss Plaintiff's
First Amended Petition (ECF No. 13) is GRANTED. Count I of Plaintiff's Complaint is
DISMISSED with prejudice and Count II of Plaintiff's Complaint is DISMISSED without
prejudice. An appropriate Judgment is filed herewith.
Dated this 4th day of May, 2015.

~Liddo
ONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

-6-