Torres et al v. Nationstar Mortgage, LLC

Filing 15

MEMORANDUM AND ORDER granting 14 Motion to Dismiss. For the reasons stated herein, Nationstars motion to dismiss is granted to the extent thatthe FDCPA claims are dismissed with prejudice and the state law claims are dismissed without prejudice. The Clerk of Court is directed to close the file in this action. (Ordered by Judge Leonard D. Wexler on 11/2/2016.) (Fagan, Linda)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ELSIE TORRES AND
FRANCISCO TORRES,
Plaintiffs,
-against-

MEMORANDUM AND ORDER
CV 15-7015 (LDW) (ARL)

NATIONSTAR MORTGAGE LLC,
Defendant.
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Wexler, J.
Plaintiffs Francisco Torres (“Francisco”) and Elsie Torres (collectively,
“Plaintiffs”) bring this action against defendant Nationstar Mortgage LLC (“Nationstar”),
asserting claims for violations of (1) the federal Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. §§ 1692 et seq.; (2) the New York Fair Debt Collection Practices
Act (“NYFDCPA”), N.Y. Gen. Bus. Law §§ 600 et seq.; and (3) New York General
Business Law (“GBL”) § 349. Nationstar moves to dismiss the Complaint under Federal
Rule of Civil Procedure (“FRCP”) 12(b)(6). Plaintiffs oppose the motion.

I. BACKGROUND
For purposes of this decision, the background can be summarized as follows. On
April 19, 2006, Plaintiffs borrowed $405,000.00 from Wilmington Finance, Inc. (“WFI”)
to purchase a house in Inwood, New York (the “Loan”). Plaintiffs gave a mortgage to
Mortgage Electronic Registration Systems, Inc. (“MERS”), as nominee for WFI (the

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“Mortgage”). Sometime thereafter, MERS assigned the Mortgage to U.S. Bank National
Association (“US Bank”), as Trustee for the Holders of the Specialty Underwriting and
Residential Finance Trust, Mortgage Loan Asset-Backed Certificates, Series 2006-AB2.
Sometime before April 17, 2014, Plaintiffs defaulted on the Loan. After Plaintiffs’
default, the loan servicing was transferred to Nationstar. On April 17, 2014, US Bank
commenced a foreclosure action in Nassau County Supreme Court (the “Foreclosure
Action”). Plaintiffs served an answer in the Foreclosure Action, asserting various
defenses and counterclaims.
During the Foreclosure Action, Francisco sent “an inquiry” to Nationstar on
December 5, 2014 “for verification with respect to Plaintiffs’ mortgage debt.” Complaint
¶ 13. Plaintiffs made another “inquiry” of Nationstar on December 8, 2014 “for
verification with respect to Plaintiffs’ mortgage debt.” Complaint ¶ 12.
Nationstar responded to the December 5 and December 8 inquiries by two letters,
one dated December 11, 2014 (the “December 11 Letter”) and the other dated December
24, 2014 (the “December 24 Letter”) (collectively, the “December Letters”). The
December 11 Letter responded to the December 8 inquiry and was addressed to “Law
Offices of Darren Aronow C/O Francisco Torres,” in Hicksville, New York. The
December 11 Letter provided, in relevant part: “Nationstar Mortgage received your
request for information on 12/8/2014. The investor name is JP Morgan Chase as Trustee
for SURF 2006-AB2.” Complaint Exh. A. The December 24 Letter responded to the

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December 5 inquiry and was addressed to “Darren Aronow, Esq., The Law Offices of
Darren Aronow, P.C,” in Hicksville, New York. The December 24 Letter provided, in
relevant part: “[O]ur records indicate U.S. Bank National Association as Trustee for
SURF 2006-AB2 is the current owner of the Note.” Complaint Exh. B.
Plaintiffs commenced this action, alleging that Nationstar is a “debt collector” and
claiming that the December Letters violated the FDCPA, the NYFDCPA, and GBL § 349.
Nationstar moves to dismiss the Complaint.

II. DISCUSSION
A. Motion to Dismiss Standard
In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court held
that to avoid dismissal a plaintiff is required to plead enough facts “to state a claim for
relief that is plausible on its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662,
678-80 (2009). While heightened factual pleading is not required, Twombly holds that a
“formulaic recitation of the elements of a cause of action will not do.” Twombly, 550
U.S. at 555. On a motion to dismiss, the court must, as always, assume that all allegations
in the complaint are true and draw all reasonable inferences in favor of the nonmoving
party. Plair v. City of New York, 789 F. Supp. 2d 459, 463 (S.D.N.Y. 2011). However,
the court must ensure that the complaint sets forth “enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550 U.S. at 570; see Ruston v. Town Bd. for Town

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of Skaneateles, 610 F.3d 55, 57 (2d Cir. 2010). A pleading that does nothing more than
recite the elements of a claim, supported by mere conclusory statements, is insufficient to
“unlock the doors of discovery.” Iqbal, 556 U.S. at 678. Rather, “only a complaint that
states a plausible claim for relief survives a motion to dismiss.” Id. at 679. Although a
motion under FRCP 12(b)(6) is directed only to the sufficiency of the pleading, the court
may consider written documents attached to the complaint as well as documents
incorporated therein by reference and those of which plaintiff had knowledge and relied
upon in commencing the action. See Brass v. Amer. Film Techn., Inc., 987 F.2d 142, 150
(2d Cir. 1993).
B. FDCPA Claims
In opposing Nationstar’s motion, Plaintiffs assert that the December Letters are
sufficient to state claims for violations of FDCPA § 1692e(2)(A), (5), and (10) because
the letters “identified different owners” and therefore “contained false information.”
Memorandum of Law in Opposition to Defendant Nationstar Mortgage LLC’s Motion to
Dismiss (“Plaintiffs’ Mem.”), at 12-15; see 15 U.S.C. § 1692e(2)(A) (prohibiting “[t]he
false representation of . . . the character . . . of any debt”); id. § 1692e(5) (prohibiting
“[t]he threat to take any action that cannot legally be taken or that is not intended to be
taken”); id. § 1692e(10) (prohibiting “[t]he use of any false representation or deceptive
means to collect or attempt to collect any debt”). Nationstar’s primary argument for
dismissal of these FDCPA claims is that the December Letters are not actionable under

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the FDCPA because they were addressed and sent solely to Plaintiffs’ attorney. This
Court agrees that Plaintiffs’ FDCPA claims are not actionable.1
Where an alleged communication is directed solely to a debtor’s attorney, there is
persuasive support for the proposition that such a communication is not actionable under
the FDCPA. In this respect, dictum from the Second Circuit’s decision in Kropelnicki v.
Siegel, 290 F.3d 118 (2d Cir. 2002), is relevant and instructive. In Kropelnicki, a putative
debtor alleged, inter alia, that a creditor’s attorney and the attorney’s office manager
made misrepresentations to the debtor’s attorney that they would not advance a state court
debt-collection action without first contacting him. Id. at 123-27. The debtor claimed
that the misrepresentation to her attorney violated § 1692e. Id. The Second Circuit
dismissed the action for lack of subject matter jurisdiction, id. at 129, but first commented
on this claim:
We would have grave reservations about concluding that this
sort of claim is actionable under the FDCPA. . . . A review of
the FDCPA’s purpose, . . . and this Court’s treatment of the
FDCPA in other cases leads us to believe that alleged
misrepresentations to attorneys for putative debtors cannot
constitute violations of the FDCPA.
The FDCPA was passed to protect consumers from
deceptive or harassing actions taken by debt collectors. . . .
Where an attorney is interposed as an intermediary between a
debt collector and a consumer, we assume the attorney, rather

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The Complaint also references claims for violations of FDCPA § 1692g(a)(2) and § 1692j.
Complaint ¶ 19; Plaintiffs’ Mem. at 8. Defendants argue for dismissal of these claims as well. Plaintiffs
do not argue in support of these claims. Accordingly, they are dismissed.

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than the FDCPA, will protect the consumer from a debt
collector’s fraudulent or harassing behavior.
Id. at 127-28 (emphasis in original). Faced with claims that a fax message sent by a debt
collector to a debtor’s attorney violated § 1692e, Judge Hurley relied on Kropelnicki in
concluding that “[p]laintiff has no cause of action under the FDCPA where a
communication was solely directed to her attorney and no threat was made regarding
contact with the debtor herself.” Tromba v. M.R.S. Assocs., Inc., 323 F. Supp. 2d 424,
425-28 (E.D.N.Y. 2004); see also Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 93639 (9th Cir. 2007) (“The [FDCPA’s] purposes are not served by applying its strictures to
communications sent only to a debtor’s attorney. . . . Congress seems to have
contemplated the type of actions that would intimidate unsophisticated individuals and
which . . . would likely disrupt a debtor’s life. When an individual is represented by
counsel who fields all communications relevant to the debt collection, these concerns
quickly evaporate. Attorneys possess exactly the degree of sophistication and legal
wherewithal that individual debtors do not.” (citations and internal quotation marks
omitted)).
This Court similarly agrees that Kropelnicki supports the determination that
Plaintiffs have no actionable claim under the FDCPA. Not only were the December
Letters addressed and sent solely to Plaintiffs’ attorney, who represented them in the
Foreclosure Action, but no threat was made regarding contact with Plaintiffs.
Presumably, Plaintiff’s attorney was fully able to protect Plaintiffs from the alleged

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inconsistency in the December Letters. Accordingly, the FDCPA claims are dismissed
with prejudice.
C. NYFDCPA and GBL 349 Claims
Given the dismissal of the FDCPA claims–the only federal claims in this
action–the Court declines to exercise supplemental jurisdiction over the state law claims
for violations of the NYFDCPA and GBL § 349. See 28 U.S.C. § 1367(c)(3) (district
court may decline to exercise supplemental jurisdiction if it has dismissed all claims over
which it has original jurisdiction); see also Carnegie-Mellon Univ. v. Cohill, 484 U.S.
343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated
before trial, the balance of factors to be considered under the pendent jurisdiction
doctrine–judicial economy, convenience, fairness, and comity–will point toward declining
to exercise jurisdiction over the remaining state-law claims.”). Accordingly, the state law
claims are dismissed without prejudice.

III. CONCLUSION
For the above reasons, Nationstar’s motion to dismiss is granted to the extent that
the FDCPA claims are dismissed with prejudice and the state law claims are dismissed

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without prejudice. The Clerk of Court is directed to close the file in this action.
SO ORDERED.
_____________/s/_________________
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated:Central Islip, New York
November 2, 2016