PITTS v. BAYVIEW LOAN SERVICING, LLC

Filing 7

MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 5/25/2017. (dmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

GENOVEVA PITTS,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 16-4501 (JBS/AMD)

v.
BAYVIEW LOAN SERVICING, LLC,

MEMORANDUM OPINION
Defendant.

SIMANDLE, Chief Judge:
In this action, pro se Plaintiff Genoveva Pitts alleges
Defendant illegally communicated with her regarding an attempt
to collect an alleged debt in violation of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.
[Docket Item 1 at 1.] Defendant Bayview Loan Servicing, LLC,
filed the instant motion to dismiss. [Docket Item 5.] Bayview
claims that Plaintiff has failed to state a claim under Fed. R.
Civ. P. 12(b)(6). Plaintiff has not filed any opposition.1 For
the reasons discussed below, the Court will grant Defendant’s
motion to dismiss.2 The Court finds as follows:

1

Plaintiff’s deadline to file opposition expired on October 24,
2016. Plaintiff has not filed any papers with this Court since
she filed the initial complaint on July 25, 2016.
2 Because Plaintiff asserts a claim under the Fair Debt
Collection Practices Act, the Court exercises jurisdiction over
this action pursuant to 28 U.S.C. §§ 1331 and 1337(a), as well
as 15 U.S.C. § 1692k(d).

1.

The facts of this case are, essentially, that

Defendant is alleged to have communicated with Plaintiff several
times between March 2, 2015 and May 20, 2016 in an attempt to
collect a debt. [Docket Item 1 at 3.] The debt relates to a
foreclosure action regarding the mortgage of Plaintiff’s home.
[Docket Item 5-1 at 6-7.] Defendant states that it is the
servicer of Plaintiff’s mortgage. [Docket Item 5-1 at 7.]
Plaintiff claimed that Defendant’s communications with her on
January 20, 2016; January 25, 2016; March 18, 2016; April 11,
2016; April 12, 2016; April 12, 2016; April 18, 2016, May 11,
2016; and May 20, 2016 occurred without prior written consent
from her and without permission from a court of competent
jurisdiction. [Docket Item 1 at 3.] She also alleged that the
communications from Defendant on March 18 and May 20 failed to
state that Defendant is a debt collector. [Docket Item 1 at 4.]
Plaintiff claims that she has suffered “mental anguish” and
“anxiety” as a result and seeks statutory damages in the amount
of $11,000; actual damages in the amount of $200,000; and fees
and costs. [Id. at 4-5.]
2.

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted under
Fed. R. Civ. P. 12(b)(6), a court must accept as true all wellpleaded allegations in the complaint and draw all reasonable
inferences in favor of the plaintiff. See Erickson v. Pardus,
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551 U.S. 89, 93-94 (2007) (per curiam). A pro se complaint in
particular should be construed liberally. Alston v. Parker, 363
F.3d 229, 234 (3d Cir. 2004); Dluhos v. Strasberg, 321 F.3d 365,
369 (3d Cir. 2003).
3.

A motion to dismiss may be granted only if the court

concludes that the plaintiff has failed to set forth sufficient
facts to state a claim for relief that is plausible on its face.
Ashcroft v. Iqbal, 556 U.S. 662 (2009); Fleisher v. Standard
Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). To determine if a complaint
meets this pleading standard, the Court must strip away
conclusory statements and “look for well-pled factual
allegations, assume their veracity, and then determine whether
they plausibly give rise to an entitlement of relief.” Bistrian
v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (internal quotation
marks omitted). Although the court must accept as true all wellpleaded factual allegations, it may disregard any legal
conclusions in the complaint. Fowler v. UPMC Shadyside, 578 F.3d
203, 210-11 (3d Cir. 2009).

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4.

After reviewing Plaintiff’s Complaint, the Court

agrees with Defendant’s argument that Plaintiff has failed to
state a cognizable cause of action for violating the FDCPA.
5.

A plaintiff seeking to state a claim under the FDCPA

“must establish that (1) he or she is a ‘consumer’ who is harmed
by violations of the FDCPA; (2) the ‘debt’ arises out of a
transaction entered into primarily for personal, family, or
household purposes; (3) the defendant collecting the debt is a
‘debt collector’; and (4) the defendant has violated, by act or
omission, a provision of the FDCPA.” Grant v. JPMorgan Chase
Bank, No. 12-cv-06248, 2013 WL 1558773, *2 (D.N.J. Apr. 10,
2013) (internal citations omitted).
6.

The Court finds that the Complaint, viewed in the

light most favorable to Plaintiff, fails to allege adequately in
what respect the communications at issue violated any specific
provision of the FDCPA.
7.

Plaintiff alleges that she received nine

communications from Defendant from January through May of 2016
that purportedly violated the FDCPA because they were sent
“without prior written consent from Plaintiff” and/or “without
express permission of a court of competent jurisdiction” in
violation of 15 U.S.C. § 1692c. [Docket Item 1 at ¶¶ 8-9, 1820.] Plaintiff also alleges that Defendant’s specific
communications to her on March 18, 2016 and May 20, 2016 failed
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to notify Plaintiff that Defendant is a debt collector, in
violation of 15 U.S.C. § 1692e(11). Id. at ¶ 22.
8.

Section 1692c(a) provides generally that a debt

collector may not communicate with a consumer (without his or
her prior consent or without express permission from a court of
competent jurisdiction): at an unusual time or place or one
known to be inconvenient; if the debt collector knows that the
consumer is represented by an attorney; or at the consumer’s
place of employment. Here, Plaintiff alleges only that Bayview,
a debt collector, communicated with her without her consent and
without permission from an appropriate court, but does not
allege that Bayview communicated with her at an unusual or
inconvenient time or place, while she was represented by an
attorney, or at her place of employment. Plaintiff has therefore
not validly stated a claim for a violation of § 1692c(a).
9.

Section 1692c(b), subtitled “Communication with third

parties,” states that a debt collector may not, without consent
from the consumer or permission of an appropriate court,
communicate with anyone other than a consumer, his or her
attorney, or other limited parties. Plaintiff has not alleged
that Defendant communicated with a forbidden third party under
this subsection. Accordingly, she fails to state a claim for a
violation of § 1692c(b). Section 1692c(c) limits the
communications a debt collector may make when a consumer has
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directed the debt collector to cease contacting him or her;
Plaintiff, here, does not allege that she directed Defendant to
cease contacting her at any time. Plaintiff has therefore not
validly stated a claim against Bayview for a violation of
§ 1692c.
10.

Section 1692e of the FDCPA states that a “debt

collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any
debt.” Subsection (11) provides that it is a violation of that
section to fail “to disclose in the initial written
communication with the consumer . . . that the debt collector is
attempting to collect a debt and that any information obtained
will be used for that purpose” and to fail “to disclose in
subsequent communications that the communication is from a debt
collector.”
11.

Plaintiff attached the communications she alleges to

have violated § 1692e(11) as Exhibit 3 to the Complaint. [Docket
Item 1-6.] The communication dated March 16, 2016 is titled
“Bankruptcy Notice” and states in its first paragraph: “Our
records reflect that you are presently a debtor in an active
bankruptcy case or you previously received a discharge in
bankruptcy. This statement is being sent to you for
informational purposes only. It should not be construed as an
attempt to collect a debt against you personally.” [Docket Item
6

1-6 at 3.] The communication dated May 16, 2016 also has the
same title and opening paragraph, but concludes that paragraph
with only the following sentence in addition: “However, we
retain our rights under the security instrument, including the
right to foreclose our lien.” [Docket Item 1-6 at 9.]
12.

Given the unambiguous language of § 1692e, which

states that unlawful false, deceptive, or misleading
representations prohibited by the statute are those which are
made “in connection with the collection of any debt,” and the
similarly unambiguous statements in the March and May
communications that they were informational only and did not
represent attempts to collect any debt, the Court finds that
Plaintiff has not adequately alleged that those communications
violate 15 U.S.C. Sec. 1692e(11). See Gregory v. Nationstar
Mortgage, LLC, No. 2:13-6952, 2014 WL 1875167, at *3-*4 (D.N.J.
May 9, 2014); Bailey v. Security Nat’l Sev. Corp., 154 F.3d 384
(7th Cir. 1998). Plaintiff has not made any additional factual
allegations that would support a claim that Defendant violated
15 U.S.C. § 1692e(11) by those two communications.
13.

Accordingly, the Court will grant the unopposed motion

to dismiss by Defendant. The accompanying Order will be entered.

May 25, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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