Allen v. United Student Aid Funds, Inc. et al
Filing
36
OPINION & ORDER re: 31 MOTION for Reconsideration re; 30 Clerk's Judgment filed by Hepzibah Z. Allen. For the foregoing reasons, Plaintiff's motion for relief from the 9/28/18 O&O is DENIED. The Clerk of Court is respectfully directed to terminate the motion pending at Docket Entry 31 and to close the case. SO ORDERED. (Signed by Judge Vernon S. Broderick on 9/26/2019) (rro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
HEPZIBAH Z. ALLEN,
:
:
Plaintiff,
:
:
- against :
:
UNITED STUDENT AID FUNDS, INC.,
:
et al.,
:
:
Defendants. :
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9/26/2019
17-CV-8192 (VSB)
OPINION & ORDER
Appearances:
Hepzibah Z. Allen
New York, New York
Pro Se Plaintiff
Silvia L. Serpe
Serpe Ryan LLC
New York, New York
Counsel for Defendant United Student Aid Funds, Inc.
Dustin Peter Mansoor
Houser & Allison, APC
New York, New York
Counsel for Defendant Navient Solutions, LLC
Eric Matthew Hurwitz (Cherry Hill, New Jersey)
Jacqueline Marie Aiello (New York, New York)
Stradley Ronon Stevens & Young, LLP
Counsel for Defendants Navient Solutions, LLC, Pioneer Credit Recovery, Inc., and Navient
VERNON S. BRODERICK, United States District Judge:
Before me is pro se Plaintiff Hepzibah Allen’s motion pursuant to Federal Rule of Civil
Procedure 60(b) for relief from my September 28, 2018 Opinion & Order (the “9/28/18 O&O,”
Doc. 29), dismissing Plaintiff’s complaint with prejudice. (Doc. 31.) Because I find that there is
no basis for me to reconsider my 9/28/18 O&O, Plaintiff’s motion is DENIED.
Background and Procedural History 1
Plaintiff filed this action against Defendants Navient Solutions, LLC (“NSL”), Navient, 2
Pioneer Credit Recovery, Inc. (“Pioneer,” and collectively with NSL and Navient, the “Navient
Defendants”), and United Student Aid Funds, Inc. (“USAF”) on October 24, 2017, alleging
violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. (See
generally Compl.) 3
Plaintiff’s claims relate to a student loan (the “Loan”) that Plaintiff obtained under the
Federal Family Education Loan Program on January 21, 2003. (Compl. Ex. B.) From the time
of origination, NSL serviced Plaintiff’s Loan and USAF acted as guarantor. (See id. Exs. A, B,
D.) After Plaintiff defaulted on the Loan on October 14, 2016, USAF purchased the Loan and
began to undertake collection efforts. (See id. Exs. A, C, D.) Plaintiff then filed suit, alleging,
among other things, that Defendants improperly assigned her debt, misrepresented the amount
owed, and engaged in improper wage garnishment.
On September 28, 2018, I granted the motions to dismiss filed by the Navient
Defendants, (Doc. 15), and USAF, (Doc. 16). (See 9/28/18 O&O.) In the 9/28/18 O&O, I
determined that Plaintiff had failed to state a claim upon which relief could be granted because
Defendants did not qualify as “debt collectors” within the meaning of the FDCPA. With respect
to the Navient Defendants, I determined that the Complaint contained no non-conclusory
allegations that either Navient or Pioneer was a debt collector or had engaged in any debt
collection activity. (See 9/28/18 O&O 9–10.) With regard to NSL, I determined that because it
1
For purposes of this Opinion & Order, I assume familiarity with the factual and procedural background of the
action, and incorporate by reference the background summarized in my 9/28/18 O&O.
2
The Navient Defendants explain that Navient Corporation, the parent company of NSL and Pioneer, has been
misidentified by Plaintiff as Navient, an entity that does not exist. (See 9/28/18 O&O 1 n.1.)
3
“Compl.” refers to Plaintiff’s complaint (“Complaint”), filed October 24, 2017. (Doc. 1.)
2
had serviced Plaintiff’s Loan since origination, it also did not qualify as a “debt collector” under
the FDCPA. (See id.; see also Vallecastro v. Tobin, Melien & Marohn, No. 3:13 cv 1441 (SRU),
2014 WL 7185513, at *3 (D. Conn. Dec. 16, 2014) (“When a loan servicer obtains an account
prior to its default, that loan servicer operates as a creditor, not a debt collector, for the purposes
of the FDCPA.”).) I also concluded that USAF did not qualify as a “debt collector” because, as a
guarantor, USAF had a bona fide fiduciary obligation to the United States Department of
Education, and its collection activity was incidental to that fiduciary obligation. (See 9/28/18
O&O 10–11; see also 15 U.S.C. § 1692a(6)(F) (exempting “any person collecting or attempting
to collect any debt owed or due or asserted to be owed or due another to the extent such activity
. . . is incidental to a bona fide fiduciary obligation”).)
On October 11, 2018, Plaintiff filed the instant motion for reconsideration, along with an
affidavit and exhibits in support. (Doc. 31.) On December 10, 2018, the Navient Defendants
and USAF both submitted oppositions to Plaintiff’s motion. (Docs. 34, 35.) Plaintiff did not file
a reply.
Legal Standard
Federal Rule of Civil Procedure 60(b) and Local Civil Rule 6.3 allow reconsideration or
reargument of a court’s order in certain limited circumstances. “Rule 60(b) provides
‘extraordinary judicial relief’ and can be granted ‘only upon a showing of exceptional
circumstances.’” Kubicek v. Westchester Cty., No. 08 Civ. 372(ER), 2014 WL 4898479, at *1
(S.D.N.Y. Sept. 30, 2014) (quoting Nemaizer v. Baker, 793 F.3d 58, 61 (2d Cir. 1986)). This
necessarily means that the standard for reconsideration “is strict, and reconsideration will
generally be denied unless the moving party can point to controlling decisions or data that the
court overlooked—matters, in other words, that might reasonably be expected to alter the
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conclusion reached by the court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).
A motion for reconsideration is “neither an occasion for repeating old arguments previously
rejected nor an opportunity for making new arguments that could have been previously
advanced.” Associated Press v. U.S. Dep’t of Def., 395 F. Supp. 2d 17, 19 (S.D.N.Y. 2005). Nor
is a motion for reconsideration a time to “advance new facts, issues or arguments not previously
presented to the Court.” Polsby v. St. Martin’s Press, Inc., No. 97 Civ. 690 (MBM), 2000 WL
98057, at *1 (S.D.N.Y. Jan. 18, 2000) (citation omitted).
The decision of whether to grant or deny a motion for reconsideration is “within ‘the
sound discretion of the district court.’” Premium Sports Inc. v. Connell, No. 10 Civ. 3753(KBF),
2012 WL 2878085, at *1 (S.D.N.Y. July 11, 2012) (quoting Aczel v. Labonia, 584 F.3d 52, 61
(2d Cir. 2009)). Generally, a party seeking reconsideration must show either “an intervening
change of controlling law, the availability of new evidence, or the need to correct a clear error or
prevent manifest injustice.” In re Beacon Assocs. Litig., 818 F. Supp. 2d 697, 702–03 (S.D.N.Y.
2011) (quoting Catskill Dev., L.L.C. v. Park Place Entm’t Corp., 154 F. Supp. 2d 696, 701
(S.D.N.Y. 2001)).
Discussion
Plaintiff fails to present the “exceptional circumstances” required to meet her burden on
her motion for reconsideration. Instead, Plaintiff rehashes arguments set forth in her original
motion papers in support of her contention that Defendants qualify as “debt collectors” under the
FDCPA. Plaintiff’s only support for this proposition is found in letters attached to Plaintiff’s
motion for reconsideration. (See Allen Aff. Ex. A.) 4 However, several of these letters were also
attached to Plaintiff’s Complaint and were therefore already considered in conjunction with my
4
“Allen Aff.” refers to Plaintiff’s Affidavit in Support, filed October 11, 2018. (Doc. 31.)
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ruling on Defendants’ motions to dismiss. (Compare Compl. Ex. C (April 30, 2017 letter from
USAF), with Allen Aff. Ex. A, at 8 (same); Compl. Ex. A (June 26, 2017 letter from NSL), with
Allen Aff. Ex. A, at 13 (same); Compl. Ex. D (June 15, 2017 letter from NSL), with Allen Aff.
Ex. A, at 11 (same).) The remaining letters are not materially different from those attached to
the Complaint. (Compare, e.g., Compl. Exs. A, D (June 2017 NSL letters), with Allen Aff. Ex.
A, at 1 (May 2017 NSL letter).)
In any event, each of these letters predates the filing of Plaintiff’s Complaint on October
24, 2017. (See generally Allen Aff. Ex. A.) Plaintiff has offered no explanation for her failure
to submit these documents earlier. The same is true of two 2015 news articles which Plaintiff
attached to her motion for reconsideration and which refer to Pioneer broadly as a “private
collection agenc[y].” (Id. Ex. B.) Because Plaintiff is not permitted on a motion for
reconsideration to “advance new facts, issues or arguments” that could have been but were not
previously presented to the Court, I find no grounds to reconsider the conclusions set forth in the
9/28/18 O&O on the basis of these documents. Polsby, 2000 WL 98057, at *1 (internal
quotation marks omitted). Moreover, as I noted in the 9/28/18 O&O, the fact that certain of the
Defendants attempted to collect on Plaintiff’s defaulted loan does not, without more, indicate
that they satisfy the FDCPA’s definition of a “debt collector.” (See 9/28/18 O&O 10.)
Separately, Plaintiff’s assertion that Defendants’ efforts to collect Plaintiff’s debt were
“incidental to [their] declared fiduciary obligation,” (Allen Aff. ¶¶ 6, 8), in fact supports the
conclusion that they are not debt collectors under the FDCPA. The FDCPA expressly exempts
from the definition of “debt collector” “any person collecting or attempting to collect any debt
owed or due or asserted to be owed or due another to the extent such activity . . . is incidental to
a bona fide fiduciary obligation.” 15 U.S.C. § 1692a(6)(F).
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Because Plaintiff has failed to demonstrate any intervening change of controlling law, the
availability of any new evidence, or the need to correct a clear error or prevent manifest injustice,
her motion for reconsideration is denied.
Conclusion
For the foregoing reasons, Plaintiff’s motion for relief from the 9/28/18 O&O is
DENIED. The Clerk of Court is respectfully directed to terminate the motion pending at Docket
Entry 31 and to close the case.
SO ORDERED.
Dated: September 26, 2019
New York, New York
______________________
Vernon S. Broderick
United States District Judge
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