SCAFE v. WELLS FARGO HOME MORTGAGE et al
Filing
42
OPINION. Signed by Judge Robert B. Kugler on 9/22/2016. (tf,n.m.)
NOT FOR PUBLICATION
(Doc. Nos. 28, 30, 32)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
Sherri Y. Scafe aka NIN EL
:
Civil No. 15–5763 (RBK/KMW)
AMEEN BEY,
:
Plaintiff,
:
OPINION
:
v.
:
:
WELLS FARGO HOME MORTGAGE
:
WELLS FARGO BANK N.A.,
:
:
Defendants. :
___________________________________ :
Kugler, United States District Judge:
Presently before the Court is pro se Plaintiff Sherri Y. Scafe a/k/a Nin El Ameen Bey
(“Plaintiff”)’s Motion for Recusal (“Plaintiff’s Motion”) (Doc. No. 30) seeking that this Court
recuse itself from this proceeding, Plaintiff’s Motion for Writ of Mandamus (Doc. No. 32), and
Defendant Phelan Hallinan Diamond & Jones (“Defendant” or “PHD&J”)’s Motion to Dismiss
(Doc. No. 28). For the reasons expressed herein, the Court denies Plaintiff’s motions and grants
Defendant’s motion.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
In 2011, Plaintiff brought suit against John Stumpf, in which she attempted to file a
“registration of rights” rather than a complaint. El Ameen Bey v. Stumpf, 825 F. Supp. 2d 537,
539 (D.N.J. 2011). The submission, executed by a person referring to herself as “Nin El Ameen
Bey,” and whose official name appeared to be “Sherri Scafe,” was drafted in the style indicating
that the drafter was affected by or shared in “Moorish,” “Marrakush,” “Murakush” or akin
perceptions, which often coincide with “redemptionist” and/or “sovereign citizen” socio-political
1
beliefs. Id. at 539-47 (detailing various aspects of said position). This Court dismissed her
“complaint” without prejudice by its own motion for failure to comply with Federal Rules of
Civil Procedure. Id. at 561.
Subsequently on July 24, 2015, Plaintiff filed an entirely new and unrelated case against
Wells Fargo Home Mortgage, Wells Fargo Bank N.A., and Phelan Hallinan Diamond & Jones.
Compl. (Doc. No. 1). Plaintiff then filed her First Amended Complaint (“FAC”) on November
13, 2015. FAC (Doc. No. 13). In her FAC, Plaintiff alleged that Defendant Wells Fargo Home
Mortgage, and Wells Fargo Bank N.A., violated the Fair Debt Collection Practices Act
(“FDCPA”) and the Telephone Consumer Protection Act (“TCPA”). FAC ¶ 1. Plaintiff also
claimed that Phelan Hallinan Diamond & Jones had falsely represented their client’s identity as a
lender to Plaintiff and the state court. FAC ¶ 5. Plaintiff’s FAC contends that Defendants
“collectively engaged in deceptive debt collection practices by proffering documents that fail to
prove a ‘Consumer Household Transaction’ existed with either Defendant. FAC ¶ 4.
Plaintiff claimed that Wells Fargo Home Mortgage “knowingly reported false
information” and “misrepresented the past due balance” of Plaintiff’s debt to three major credit
bureaus: Transunion, Equifax, and Experian. FAC ¶ 2, 3. Plaintiff claimed that Defendants acted
“with reckless disregard and with malice and willful intent,” and that they knew or “had reason
to believe the information [they reported] was inaccurate.” FAC ¶ 3. Plaintiff claimed that as a
result of this alleged misrepresentation, she refrained from seeking credit for auto financing “due
to [my] recent accident and [the] insurance company determining [my] personal car was a total
loss.” FAC ¶ 3. Plaintiff also claimed that she “suffered from worry, embarrassment, and anxiety
to apply for credit because of the past due balance” that was reported on her file. FAC ¶ 3.
2
Plaintiff sought statutory damages pursuant to 15 U.S.C. § 1692k(a)(1), 15 U.S.C.
§ 1692k a(2)(a), costs and reasonable attorney’s fees, and “statutory damages and actual
damages pursuant to 47 U.S.C. § 227(B).” FAC ¶ 13.
Almost six months later, Plaintiff filed the instant motions. Defendant filed their motion
to dismiss in April 2016. The Court now considers Plaintiff’s motion to have the Court recuse
itself pursuant to 28 U.S.C. § 144, Plaintiff’s motion for writ of mandamus, and Defendant’s
motion to dismiss.
II. STANDARD
i. Motion to Recuse
Although Plaintiff does not specify the legal grounds for her recusal demand, Plaintiff’s
Motion will be considered under 28 U.S.C. §§ 455 and 144, which establish the standard for
recusal of district court judges. Under § 455(a), “[a]ny justice, judge, or magistrate judge of the
United States shall disqualify himself in any proceeding in which his impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a). Additionally, under § 455(b)(1), a judge must
disqualify himself “[w]here he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding.” 28 U.S.C. § 455(b)(1).
“Under § 455(a), if a reasonable man, were he to know all the circumstances, would
harbor doubts about the judge’s impartiality under the applicable standard, then the judge must
recuse.” In re Prudential Ins. Co. of America Sales Practices Litig., 148 F.3d 283, 343 (3d Cir.
1998); see Mass. School of Law at Andover, Inc. v. Am. Bar Ass’n, 107 F.3d 1026, 1042 (3d Cir.
1997) (“The standard for recusal is whether an objective observer reasonably might question the
judge’s impartiality.”). Consequently, even where the judge is not “subjectively biased or
prejudiced,” he must recuse himself under § 455 “so long as he appears to be so.” In re Cmty.
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Bank of N. Va., 418 F.3d 277, 320 (3d Cir. 2005). Such disqualification is crucial to maintaining
“the public’s confidence in the judiciary, which may be irreparably harmed if a case is allowed to
proceed before a judge who appears to be tainted.” In re Sch. Asbestos Litig., 977 F.2d 764, 776
(3d Cir. 1992).
Pursuant to § 144, a judge shall be prohibited from proceeding in a matter “[w]henever a
party to any proceeding in a district court makes and files a timely and sufficient affidavit that
the judge before whom the matter is pending has a personal bias or prejudice against him . . . .”
28 U.S.C. § 144. “The affidavit shall state the facts and the reasons for the belief that bias or
prejudice exists . . . .” Id. “A party seeking recusal need not show actual bias on the part of the
court, only the possibility of bias.” In re Prudential Ins. Co. of Am. Sales Practices Litig., 148
F.3d 283, 343 (3d Cir. 1998).
To be “legally sufficient,” the reasons and facts in the affidavit must “give fair support to
the charge of a bent of mind that may prevent or impede impartiality of judgment.” Berger v.
United States, 255 U.S. 22, 33-34 (1921). “On such a motion it is the duty of the judge to pass
only on the legal sufficiency of the facts alleged to ascertain whether they support a charge or
bias of prejudice. Neither the truth of the allegations nor the good faith of the pleader may be
questioned, regardless of the judge’s personal knowledge to the contrary.” Mims v. Shapp, 541
F.2d 415, 417 (3d. Cir. 1976). Similar to the standard under § 455, “[t]he test is whether,
assuming the truth of the facts alleged, a reasonable person would conclude that a personal as
distinguished from a judicial bias exists.” Id.
“[G]enerally beliefs or opinions which merit recusal must involve an extrajudicial
factor.” United States v. Antar, 53 F.3d 568, 573–79 (3d Cir. 1995). Although in certain
instances opinions formed during a judicial proceeding may give rise to a duty to recuse,
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“[b]ecause the focus is on the source of the judge’s views and actions, judicial rulings alone
almost never constitute a valid basis for a bias or partiality motion because they almost never
arise from an extrajudicial source.” United States v. Bertoli, 40 F.3d 1384, 1412 (3d Cir. 1994).
“Opinions formed by the judge on the basis of facts introduced or events occurring in the
course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated favoritism or antagonism that would make
fair judgment impossible.” Liteky v. United States, 510 U.S. 540, 555 (1994). “[N]ot subject to
deprecatory characterization and ‘bias’ or ‘prejudice’ are opinions held by judges as a result of
what they learned in earlier proceedings. It has long been regarded as normal and proper for a
judge to sit in the same case upon its remand, and to sit in successive trials involving the same
defendant.” Id. at 551.
ii. Motion to Dismiss
Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss an action for failure
to state a claim upon which relief can be granted. Where, as here, a complaining party comes to
this Court pro se, the Court must construe the complaint liberally in that plaintiff's favor. Haines
v. Kerner, 404 U.S. 519, 520–21 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir.1992).
When evaluating a motion to dismiss, “courts accept all factual allegations as true, construe the
complaint in the light most favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224,
233 (3d Cir. 2008)). A complaint survives a motion to dismiss if it contains sufficient factual
matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007). It is not for courts to decide at this point whether
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the non-moving party will succeed on the merits, but “whether they should be afforded an
opportunity to offer evidence in support of their claims.” In re Rockefeller Ctr. Props., Inc. Sec.
Litig., 311 F.3d 198, 215 (3d Cir. 2002). While “detailed factual allegations” are not necessary, 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; see also Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009).
In making this determination, the court conducts a three-part analysis. Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). First, the court must “tak[e] note of the
elements a plaintiff must plead to state a claim.” Id. (quoting Iqbal, 556 U.S. at 675). Second, the
court should identify allegations that, “because they are no more than conclusions, are not
entitled to the assumption of truth.” Id. (quoting Iqbal, 556 U.S. at 679).1 “[T]hreadbare recitals
of the elements of a cause of action, supported by mere conclusory statements,” do not suffice.
Id. at 131 (quoting Iqbal, 556 U.S. at 678). Finally, “where there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they plausibly give
rise to an entitlement for relief.” Id. (quoting Iqbal, 556 U.S. at 679). This plausibility
determination is a “context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679. A complaint cannot survive a motion to
dismiss where a court can only infer that a claim is merely possible rather than plausible. Id.
III. DISCUSSION
i. Motion to Recuse
Although the law demands recusal both where a reasonable man would question the
judge’s fair mindedness and where a party files an affidavit setting forth specific allegations of
1
Even under the liberal pleading standards afforded a pro se plaintiff, the Court need not credit an unrepresented
party's “bald assertions” or “legal conclusions.” Haines, 404 U.S. at 520–21; Day, 969 F.2d at 42.
6
partiality from which a reasonable person would conclude a personal bias exists, Plaintiff has
provided no facts suggesting a bias or prejudice that would merit recusal. See FAC (Doc. No.
13). The thrust of Plaintiff’s request for recusal appears to be her belief that the Court’s actions
in the adjudication of Plaintiff’s case will be tainted by bias. Id. To support her accusations of
bias, Plaintiff points to the Court’s opinion dismissing Plaintiff’s amended complaint in her
previous case. See El Ameen Bey v. Stumpf, 825 F. Supp. 2d 537 (D.N.J. 2011).
Although the possibility of bias in the judicial system is not to be taken lightly, Plaintiff’s
dissatisfaction with the disposition of her previous lawsuit is not grounds for recusal. As the
Third Circuit observed, “[b]ecause the focus is on the source of the judge’s views and actions,
‘judicial rulings alone almost never constitute a valid basis for a bias or partiality [recusal]
motion.’” Bertoli, 40 F.3d at 1412 (quoting Liteky, 510 U.S. at 541). Without a “deep-seated
favoritism or antagonism that would make fair judgment impossible,” opinions or events
occurring in Plaintiff’s prior proceedings do not constitute a basis for a bias or partiality motion.
Liteky, 510 U.S. at 555. Plaintiff has identified no facts indicative of a personal, racial, religious,
or other malevolent motivation or bias by the Court, nor has she set forth any fact suggesting that
this Court has treated her case differently than it would treat any other case under the
circumstances. Rather, by assigning Plaintiff’s case to the current Judge, this Court has acted in
accordance with the Third Circuit’s assertion that it “has long been regarded as normal and
proper for a judge to sit in the same case upon its remand, and to sit in successive trials involving
the same defendant.” Id. at 551.
Plaintiff contends that this Court has acted with “bias and impartiality,” and that those
acts have “made a great impact on the rights and liberties of [her] and her heirs by denying equal
protection and due process fundamentals to which the Judge has taken an oath to uphold.” FAC
7
¶ 7. Accepting the truth of such allegations, Plaintiff’s affidavit falls short of supporting a
“charge of a bent of mind that may prevent or impede impartiality of judgment.” Berger, 255
U.S. at 33-34. Plaintiff again provides nothing to support her allegations except for the Court’s
opinion dismissing Plaintiff’s amended complaint in her previous case. See El Ameen Bey, 825 F.
Supp. 2d at 537. Plaintiff’s allegations appear to be mere conjecture that would not inspire a
reasonable person to “harbor doubts” of the Court’s impartiality. See In re Prudential, 148 F.3d
at 343.
It is unreasonable for one to conclude that there either exists or may exist a “personal
bias” against the Plaintiff by this Court. Mims v. Shapp, 541 F.2d at 417; See In re Prudential,
148 F.3d at 343. Because there is no bias or prejudice against the Plaintiff by this Court, the
judge does not “appear tainted” and can maintain “the public’s confidence in the judiciary.” In re
Sch. Asbestos Litig., 977 F.2d at 776.
Finally, Plaintiff makes some arguments regarding her recusal motion in her Motion for
Writ of Mandamus (“Mandamus Mot.”) (Doc. No. 32). Plaintiff claims that she “does not seek
the recusal” based on this Court’s dismissal of El Ameen Bey, but then claims that this Court’s
opinion in El Ameen Bey was an extrajudicial action demonstrating bias.2 Mandamus Mot. at 1-2.
This argument misunderstands the meaning of “extrajudicial” and is wholly without merit.
Plaintiff’s Motion for Recusal is denied.
ii. Motion for Writ of Mandamus
“The extraordinary remedy of mandamus under 28 U.S.C. § 1361 will issue only to
compel the performance of a ‘clear nondiscretionary duty.’” Pittston Coal Group v. Sebben, 488
2
Plaintiff also uses her Motion for Writ of Mandamus to claim that the Court’s opinion in El Ameen Bey excluded
her “Right to a Nationality and the Right of Religious Freedom” in an extrajudicial manner. Mandamus Mot. at 3.
The Court does not consider these arguments which teeter on the edge of incomprehensible.
8
U.S. 105, 121 (1988) (quoting Heckler v. Ringer, 466 U.S. 602, 616 (1984)). “A party seeking
the issuance of the writ of mandamus must ‘have no other adequate means to attain the relief he
desires,’ and must show that the ‘right to the issuance of the writ is clear and indisputable.”
Volcy v. United States, 469 F. App'x 82, 83 (3d Cir. 2012) (per curiam) (citing Stehney v. Perry,
101 F.3d 925, 934 & n.6 (3d Cir. 1996) (quoting Allied Chemical Corp. v. Daiflon, Inc., 449 U.S.
33, 35 (1980))). “To have a ‘clear and indisputable’ right to the issuance of the writ under
§ 1361, the petitioner must show that he is owed ‘a legal duty which is a specific, plain
ministerial act devoid of the exercise of judgment or discretion.” Id. at 84 (quoting Richardson v.
United States, 465 F.2d 844, 849 (3d Cir.1972) (en banc), rev'd on other grounds, 418 U.S. 166
(1974)). “Even where this burden is met, the court has discretion to deny the writ, ‘even when
technical grounds for mandamus are satisfied.” Bango v. Green–Allen, No. 10–6180, 2011 WL
9500, at *3 (D.N.J. Jan.3, 2011) (quoting Coombs v. Staff Attorneys, 168 F.Supp.2d 432, 434–35
(E.D. Pa. 2001)).
The instant motion for mandamus appears to request that the Chief Judge of this Court
direct the Court to grant Plaintiff’s recusal motion. Granting a motion is not a “plain ministerial
act devoid of the exercise of judgment or discretion.” Volcy, 469 F. App’x at 83. The Court may
exercise its judgment by either granting or denying the motion. Accordingly, Plaintiff’s Motion
for Writ of Mandamus is denied.
iii. Motion to Dismiss
The FDCPA, 15 U.S.C. § 1692 et seq., provides a cause of action to consumers who have
been subject to “abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. § 1692(a).
To state a claim under the FDCPA, a plaintiff must establish that “(1) she is a consumer; (2) the
defendant is a debt collector, (3) the defendant's challenged practice involves an attempt to
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collect a ‘debt’ as the Act defines it, and (4) the defendant has violated a provision of the
FDCPA in attempting to collect the debt.” Jensen v. Pressler & Pressler, 791 F.3d 413, 417 (3d
Cir. 2015) (quoting Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014)).
Only the fourth element is at issue here.
Plaintiff alleges violations of §§ 1692e(2)(A), (5), (8), (10), § 1692f(1), and § 1692(j).
Section 1692e(2)(A) prohibits the false representation of “the character, amount or legal status of
any debt.” Section 1692e(5) prohibitions “[t]he threat to take any action that cannot legally be
taken or that is not intended to be taken.” Section 1692(e)(8) prohibits “[c]ommunicating or
threatening to communicate to any person credit information which is known or which should be
known to be false, including the failure to communicate that a disputed debt is disputed.” Section
1692e(10) prohibits a debt collector from using “any false representation or deceptive means to
collect or attempt to collect any debt or to obtain information concerning a consumer.” Section
1692f(1) prohibits the “collection of any amount . . . unless such amount is expressly authorized
by the agreement creating the debt or permitted by law.” Finally, section 1692j addresses the use
of forms that would “create the false belief in a consumer that a person other than the creditor of
such consumer is participating in the collection of or in an attempt to collect a debt . . . when in
fact such person is not so participating.”
Plaintiff’s specific allegations against Defendant claim that Defendant made false and
misleading representations in state court foreclosure proceedings by representing their client as a
lender rather than a debt collector. See FAC ¶ 20-28. Plaintiff alleges that Defendant’s use of
“state law definitions that are opposed to the definitions within the FDCPA.” Id. at 28. As a
matter of law, these allegations do not even barely plead the elements for a claim under
10
§§ 1692e(2)(A), (5), (8), or § 1692f(1). Accordingly, Plaintiff has failed to state a claim upon
which relief is granted on these counts.
Plaintiff appears to have plead the bare elements for §§ 1692e(10) and 1692j based on the
alleged false and misleading representations made in the state court proceedings and the
documents associated with those proceedings. Plaintiff does not, however, make any further
factual allegations to support her claims. Plaintiff merely states that “neither of the defendants
are creditors, lenders, nor mortgagees, neither (sic) of the defendants provided credit or services
to Plaintiff” which means that any communication referring to Defendant’s client as anything
other than a debt collector were false and misleading. FAC at ¶¶ 23, 27. The bulk of Plaintiff’s
argument against Defendant is a bald assertion that their actions have caused confusion and that
Defendant has misstated their clients’ status as lenders/creditors. Id. at ¶¶ 20-27, 30. Plaintiff
does not refer to specific facts which establish that Defendant made false or misleading
statements. Plaintiff relies solely on conclusions based on her understanding of the law.
Defendant further argues that the entire matter must be dismissed for lack of subject
matter jurisdiction under New Jersey’s Entire Controversy Doctrine.3 The Entire Controversy
Doctrine is codified in New Jersey Rule 4:30A, which states “[n]on-joinder of claims required to
be joined by the Entire Controversy Doctrine shall result in the preclusion of the omitted claims
to the extent required by the Entire Controversy Doctrine, except as otherwise provided by R.
4:64-5 (foreclosure actions) . . . .” The Entire Controversy Doctrine applies where: 1) the
judgment in the first action is valid, final, and on the merits; 2) the parties in the later action are
identical to or in privity with those in the previous action; and 3) the claim in the later action
3
It should be noted that the Entire Controversy Doctrine’s application is an affirmative defense, not a doctrine
which defeats a federal court’s subject matter jurisdiction as Defendant’s motion claims. See Rycoline Prods. Inc. v.
C&W Unlimited, 109 F.3d 883, 886 (3d Cir. 1997).
11
arises from the same transaction or occurrence as the claim in the earlier action. See Watkins v.
Resorts. Int’l Hotel & Casino, Inc., 124 N.J. 398, 412, 591 A.2d 592, 599 (1991). Furthermore,
the Third Circuit has held that the Entire Controversy Doctrine “applies to bar claims in federalcourt when there was a previous state-court action involving the same transaction.” Bennun v.
Rutgers State Univ., 941 F.2d 154, 163 (3d Cir. 1991) (performing an entire controversy analysis
for § 1981 and Title VII claims).4 The Entire Controversy Doctrine bars a party from
“withhold[ing] part of a controversy for separate later litigation even when the withheld
component is a separate and independently cognizable cause of action.” Paramount Aviation
Corp. v. Agusta, 178 F.3d 132, 137 (3d Cir. 1999) (citing DiTrolio v. Antiles, 142 N.J. 253, 662
A.2d 494, 502 (1995)).
New Jersey Rule 4:64-5 limits the Entire Controversy Doctrine’s application in the
foreclosure context to “germane” counterclaims. The Rule states that “[o]nly germane
counterclaims and cross-claims may be pleaded in foreclosure actions without leave of court.”
N.J.R. 4:64-5. “Claims are considered to be germane to a foreclosure action if they arise out of
the mortgage that is the basis of the foreclosure action.” Coleman v. Chase Home Fin., LLC. 446
Fed. App’x 469, 472 (3d Cir. 2011) (citing Leisure Tech.-Northeast, Inc. v. Klingbeil Holding
Co., 137 N.J. Super. 353, 356-57 (N.J. Super. Ct. App. Div. 1975)). New Jersey courts have
specifically stated that germane counterclaims to foreclosure actions include those relating to
“payment and discharge . . . [and] incorrect computation of the amounts due.” LaSalle Nat’l
Bank v. Johnson, 2006 WL 551563, at *2 (N.J. Super. Ct. Ch. Div. Mar. 3, 2006). The Supreme
Court of New Jersey has explained that the key issue is determining “whether a sufficient
4
See also Greenleaf v. Garlock, Inc., 174 F.3d 352, 257 (3d Cir. 1999) (“To determine the preclusive effect of [the
plaintiff’s] prior state action [the court] must look to the law of the adjudicating state.”); Rycoline Prods., 109 F.3d
at 887 (“A federal court hearing a federal cause of action is bound by New Jersey’s Entire Controversy
Doctrine . . .”).
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commonality of facts undergirds each set of claims to constitute essentially a single controversy
that should be the subject of only one litigation.” DiTrolio, 662 A.2d at 497 (1995).
Here, Plaintiff’s FDCPA claims against Defendant are barred by the Entire Controversy
Doctrine as they arise from “the mortgage that is the basis of the foreclosure action,” for which a
final judgment was entered. Coleman, 446 Fed App’x at 472. An FDCPA action may be brought
in either federal or state court. 15 .U.S.C. § 1692(k). Therefore, Plaintiff could have brought her
FDCPA claims as counterclaims in state court. While Plaintiff has recast the underlying facts to
claim that Defendant and their clients engaged in false or misleading behavior in an attempt to
collect a debt, the real fact at issue appears to be whether Defendant’s client had standing to
foreclose on Plaintiff’s home. Plaintiff’s response to the instant motion tellingly refers to the
“alleged mortgage” at issue, which indicates her belief that Wells Fargo could not foreclose on
her home. Pl’s Opp’n Mot. at 5 (Doc. No. 29).5 The propriety of Wells Fargo bringing the
foreclosure action against Plaintiff certainly arose out of the mortgage that was the basis of the
2014 foreclosure action and would therefore be germane to the foreclosure action. See Coleman,
446 Fed. App’x at 472. Because Plaintiff’s FDCPA claims against PHD&J were germane to the
state foreclosure action and were not joined in that action, the claims are now precluded by the
Entire Controversy Doctrine.
Because Plaintiff has failed to satisfy the Entire Controversy Doctrine or make factual
allegations that lay out a plausible grounds for relief on her FDCPA claims, Defendant’s motion
to dismiss is granted.
5
Plaintiff is mistaken on this issue, as evidenced by the final judgment of foreclosure granted to Wells Fargo on
June 9, 2014 in state court. See Def. Mot., Ex. J (Doc. No. 28-2). Despite this, Plaintiff insists that Wells Fargo and
PHD&J have engaged in deceptive conduct by referring to Wells Fargo as a lender and/or creditor in
communications and the state foreclosure proceeding. See, e.g., Compl. at ¶¶ 25(a), 27, 85.
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IV. CONCLUSION
Plaintiff’s Motion for Recusal is DENIED. Plaintiff’s Motion for Writ of Mandamus is
DENIED. Defendant’s Motion to Dismiss is GRANTED. Plaintiff’s claims that Defendant
PHD&J violated 15 U.S.C. § 1692 are DISMISSED WITH PREJUDICE.
Dated:09/22/2016
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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