COHEN v. SPECIALIZED LOAN SERVICING et al

Filing 25

OPINION FILED. Signed by Judge Robert B. Kugler on 2/16/17. (js)

NOT FOR PUBLICATION

(Doc. No. 10)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
___________________________________
:
Noel P. COHEN, III,
:
Civil No. 16-4234 (RBK/JS)
:
Plaintiff,
:
Opinion
:
v.
:
:
SPECIALIZED LOAN
:
SERVICING, et al.,
:
:
Defendant(s).
:
___________________________________ :
KUGLER, United States District Judge:
This matter comes before the Court on pro se Plaintiff Noel P. Cohen, III’s (“Plaintiff”)
Complaint against Defendants Specialized Loan Servicing (“SLS”) and Phelan Hallinan &
Diamond, P.C. (“PHDJ”) (collectively, “Defendants”) for violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Currently before the Court is SLS’s Motion
to Dismiss the claim under 15 U.S.C. § 1692g(b) (Doc. No. 10), which the Court converted to a
motion for summary judgment pursuant to Federal Rule of Civil Procedure 12(d) (Docs. No. 22,
23). For the reasons stated herein, SLS’s Motion is GRANTED.
I.

BACKGROUND
A.

Facts

The Court provides the facts relevant to the claim under 15 U.S.C. § 1692g(b). Plaintiff
took out a mortgage loan on October 20, 2006. Compl. ¶ 9. U.S. Bank National Association
subsequently initiated foreclosure proceedings in the Superior Court of New Jersey, Hudson
County on December 2, 2013 and obtained a judgment. See generally Def.’s Br., Ventura Decl.

Exs. 2–3. Plaintiff alleges that SLS failed to verify the debt after Plaintiff sent a cease and desist
letter disputing the debt. Compl. ¶ 12.
B.

Procedural History

Plaintiff brought a Complaint on July 11, 2016, asserting multiple violations of the
FDCPA (Doc. No. 1). SLS filed a Motion to Dismiss on August 23, 2016 (Doc. No. 10). The
Court issued an Opinion and Order regarding the Motion on January 20, 2017 that converted the
Motion to Dismiss the claim under 15 U.S.C. § 1692g(b) to one for summary judgment (Docs.
No. 22, 23). The Court provided the parties twenty-one days to present relevant materials.
II.

LEGAL STANDARD
The Court should grant a motion for summary judgment when the moving party “shows

that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter the
outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (“Where the
record taken as a whole could not lead a rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.’”) (quoting First Nat’l Bank of Az. v. Cities Serv. Co., 391
U.S. 253, 289 (1968)). In deciding whether there is any genuine issue for trial, the court is not to
weigh evidence or decide issues of fact. Anderson, 477 U.S. at 248. Because fact and credibility
determinations are for the jury, the non-moving party’s evidence is to be believed and
ambiguities construed in its favor. Id. at 255; Matsushita, 475 U.S. at 587.
Although the movant bears the burden of demonstrating that there is no genuine issue of
material fact, the non-movant likewise must present more than mere allegations or denials to

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successfully oppose summary judgment. Anderson, 477 U.S. at 256. The non-moving party must
at least put forth probative evidence from which the jury might return a verdict in his favor. Id. at
257. Where the non-moving party fails to “make a showing sufficient to establish the existence
of an element essential to that party’s case, and on which that party will bear the burden of proof
at trial,” the movant is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986).
III.

DISCUSSION
The FDCPA provides a cause of action to consumers who have been subjected to “the

use of abusive, deceptive, and unfair debt collection practices.” 15 U.S.C. § 1692(a). Because the
FDCPA is a remedial statute, courts construe it broadly. Lesher v. Law Offices of Mitchell N.
Kay, PC, 650 F.3d 993, 997 (3d Cir. 2011). Courts should analyze “[l]ender-debtor
communications potentially giving rise to claims under the FDCPA” under the “least
sophisticated debtor” standard. Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008)
(quoting Brown v. Card Serv. Ctr., 464 F.3d 450, 454 (3d Cir. 2006)). This is not a standard of
reasonableness, because “a communication that would not deceive or mislead a reasonable
debtor might still deceive or mislead the least sophisticated debtor.” Brown, 464 F.3d at 454.
Although the standard is low, it still “prevents liability for bizarre or idiosyncratic interpretations
of collection notices by preserving a quotient of reasonableness and presuming a basic level of
understanding and willingness to read with care.” Wilson v. Quadramed Corp., 225 F.3d 350,
354–55 (3d Cir. 2000) (quoting United States v. Nat’l Fin. Servs., Inc., 98 F.3d 131, 136 (4th Cir.
1996)).
Section 1692g(b) provides:
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 shall
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cease collection of the debt, or any disputed portion thereof, until the debt
collector obtains verification of the debt . . . and a copy of such verification . . . is
mailed to the consumer by the debt collector.
Thus, once a consumer exercises the statutory right to dispute the debt, the debt collector must
cease collection activities until it supplies verification of the debt. See, e.g., Zaborac v. Phillips
& Cohen Assoc., Ltd., 330 F. Supp. 2d 962, 966 (N.D. Ill. 2004). A verification is sufficient if it
informs the debtor of “the amounts of his debts, the services provided, and the dates on which
the debts were incurred.” Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991).
SLS submits that it sent Plaintiff verification of the debt after it received Plaintiff’s cease
and desist letter. SLS attaches a letter dated July 2, 2016 that encloses the promissory note, deed
of trust, notice of servicing transfer, and payment history. See Def.’s Br., Ventura Decl. Ex. 5.
These documents suffice to inform Plaintiff of the amount, nature, and date of the debt at issue.
Plaintiff does not otherwise allege that SLS engaged in collection activities between his cease
and desist letter and SLS’s verification letter. As such, the Court dismisses the claim under §
1692(a).
IV.

CONCLUSION
For the reasons expressed above, Defendant’s Motion to Dismiss the claim under 15

U.S.C. § 1692g(b), which the Court converted to a motion for summary judgment, is
GRANTED.

Dated:

2/16/2017

s/ Robert B. Kugler
ROBERT B. KUGLER
United State District Judge

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