FOH v. CHASE et al
Filing
35
MEMORANDUM OPINION AND ORDER signed by CHIEF JUDGE WILLIAM L. OSTEEN, JR on 09/09/2015, that the Motion to Dismiss filed by Defendants Margaret M. Chase, Michael C. Taliercio, and Rossabi Black Slaughter, PA, Attorneys at Law (Doc. 13 ) is DENIED. Defendants shall file their Answer or otherwise respond within 14 days of the issuance of this Memorandum Opinion and Order pursuant to Federal Rule of Civil Procedure 12(a)(4)(A).(Taylor, Abby)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MUNJE BETTY FOH,
Plaintiff,
v.
MARGARET M. CHASE,
MICHAEL C. TALIERCIO,
ROSSABI BLACK SLAUGHTER PA,
ATTORNEYS AT LAW, and
OAKBROOKE PROPERTY OWNERS
ASSOCIATION, INC.,1
Defendants.
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1:14CV928
MEMORANDUM OPINION AND ORDER
OSTEEN, JR., District Judge
Plaintiff Munje Betty Foh (“Plaintiff”) initiated this
action alleging violations of the federal Fair Debt Collection
Practices Act, codified as amended at 15 U.S.C. § 1692, et seq.
(“FDCPA”), and North Carolina statutes prohibiting certain
practices by collection agencies, N.C. Gen. Stat. § 58-70-90,
et seq. (“NCDCA”).
Presently before this court is a Motion to Dismiss filed by
Defendants Margaret M. Chase (“Defendant Chase”), Michael C.
Taliercio, and the law firm Rossabi Black Slaughter, PA,
1
Oakbrooke Property Owners Association, Inc. (“Oakbrooke
POA”) was also named as a defendant in this matter. However,
Plaintiff and Oakbrooke POA stipulated to the voluntary
dismissal of Oakbrooke POA from these proceedings. (Doc. 34.)
Attorneys at Law (“collectively Defendants”).
(Doc. 13.)
In
their motion, Defendants contend that this court lacks subject
matter jurisdiction, or in the alternative, that Plaintiff has
failed to state claim.
Plaintiff has responded to the motion
(Doc. 22), and Defendants have filed a reply (Doc. 23).2
Defendants’ motion to dismiss is now ripe for adjudication,
and for the reasons stated below, this court will deny
Defendants’ motion.
I.
BACKGROUND
Plaintiff asserts violations of the FDCPA and the NCDCA.
Defendants assert that this case should be dismissed pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure because
Plaintiff has not stated a claim upon which relief can be
granted and that this case should be dismissed pursuant to Rule
12(b)(1) of the Federal Rules of Civil Procedure because this
court does not have subject matter jurisdiction over this
matter.
For purposes of adjudicating the 12(b)(6) motion, this
court accepts the following allegations made by Plaintiff as
2
In a previous order, this court allowed Plaintiff leave to
amend her complaint (Doc. 28), and Plaintiff has filed her
Amended Complaint (Doc. 29). This court then allowed Defendants
to supplement their motion to dismiss based on Plaintiff’s
filing of her Amended Complaint, but Defendants have decided to
stand on their brief filed before Plaintiff’s Amended Complaint.
(See Defs.’ Br. in Opp’n to Pl.’s Mot. to Amend (Doc. 27) at 3.)
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true.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
For
purposes of adjudicating the 12(b)(1) motion, this court reviews
the following allegations as evidence on the issue but will also
look to matters outside of the pleadings when necessary.
Richmond, Fredericksburg & Potomac R. Co. v. United States, 945
F.2d 765, 768 (4th Cir. 1991).
Plaintiff owns residential property at 6007 Twin Brook Dr.,
Charlotte, NC 28269 (the “Property”). (Amended Complaint (“Am.
Compl.”) (Doc. 29) ¶ 5.)
Although Plaintiff lived on the
Property from 2005 to 2011, she has since relocated several
times, moving to Raleigh, North Carolina; then Landover,
Maryland; and then Silver Springs, Maryland.
currently rents the Property to tenants.
(Id.)
(Id.)
Plaintiff
The Property is
situated within the Oakbrooke subdivision, and Oakbrooke POA is
a homeowners association that has been organized to serve the
subdivision.
(Id. ¶ 9.)
Defendants served as counsel for
Oakbrooke POA and regularly engage in debt collection activity
on behalf of clients.
(Id. ¶¶ 6-8.)
Plaintiff admits that she did not pay homeowners
association dues and fees levied by Oakbrooke POA (“HOA fees”),
believing that she was not required to pay such fees because she
purchased her home “either prior to [Oakbrooke POA’s] existence
or prior to the existence of assessment fees.”
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(See id. ¶¶ 14,
20.)
In May 2013, Oakbrooke POA’s vice president called
Plaintiff to inform her that she was delinquent on her HOA fees
and that Oakbrooke POA had assigned someone to collect on those
fees.
(Id. ¶¶ 16, 20.)
Oakbrooke POA, represented by
Defendants, filed a claim of lien against the Property on
June 4, 2013, and initiated foreclosure proceedings in
Mecklenburg County Superior Court on June 25, 2013, pursuant to
N.C. Gen. Stat. § 47F-3-116, which gives homeowners associations
the right to file a claim of lien for unpaid assessments and
enforce that lien through foreclosure.
id., Ex. H (Doc. 29-8) at 7-14.)
(See id. ¶ 30; see also
On August 26, 2013, the
Assistant Clerk of Superior Court issued an order of foreclosure
(Defs.’ Mot. to Dismiss, Ex. A (Doc. 13-1)), and on November 26,
2014, the superior court affirmed the foreclosure on appeal.
(Defs.’ Reply, Ex. 1 (Doc. 23-1).)
The same official from Oakbrooke POA who had notified
Plaintiff of her delinquency called Plaintiff on November 29,
2013 to ensure that Plaintiff knew the Property was in
foreclosure.
(Am. Compl. (Doc. 29) ¶ 21.)
Plaintiff claims
that this is the first time she had received notice of the
foreclosure.
(Id. ¶¶ 21-22.)
On December 2, 2013, Plaintiff
called Defendants’ office, and during the call, Defendants’
phone system played a recording, informing Plaintiff that
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Defendants engage in debt collection.
(Id. ¶¶ 25-28.)
Plaintiff informed Defendant Chase that she would be retaining
counsel during the phone call (id. ¶ 28), and on December 4,
Plaintiff hired attorney Roger McCalman (“Plaintiff’s counsel”).
(Id. ¶ 29.)
On December 5, Plaintiff’s counsel informed
Defendants that he would be representing Plaintiff in the
matter.
(Id. ¶ 34.)
Plaintiff contends there were several irregularities in the
communication between Plaintiff and Defendants.
First,
Plaintiff alleges that some statements made in Oakbrooke POA’s
affidavit concerning service, particularly that the Property was
Plaintiff’s last known address, were not made in good faith
because Defendants knew Plaintiff had relocated elsewhere.
¶¶ 30-33.)
(Id.
Second, Plaintiff contends that, even though
Defendants were aware that Plaintiff was represented by counsel,
Defendants continued to mail communications directly to
Plaintiff, including the Notice of Postponement of Foreclosure
Sale delivered on December 10, 2013; a subsequent notice mailed
on January 13, 2014; and the report of the foreclosure sale on
February 25, 2014.
(Id. ¶¶ 35-38; Exs. J, K and L.)
Third,
Plaintiff contends Defendants conducted the foreclosure sale on
January 13, 2014, without Plaintiff’s knowledge, despite their
assurance on the same day that the foreclosure sale would be
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postponed until February 24, 2014, to allow time for further
negotiations between Defendants and Plaintiff.
(Id. ¶ 38.)
Fourth, Defendants allegedly misled Plaintiff by offering to
settle the matter after the upset bid period had already
concluded.
(Id. ¶¶ 43, 45.)
Fifth, Plaintiff claims that
Defendants misled her into believing that the property would be
taken away from her but that Oakbrooke POA never intended to
take over title on the Property.
II.
(Id. ¶¶ 52-53.)
ANALYSIS
Plaintiff seeks relief under the FDCPA and the NCDCA,
alleging that Defendants violated the statutes in attempting to
collect unpaid HOA fees and eventually initiating foreclosure
proceedings.
Defendants argue that Plaintiff has not stated a
claim due to several legal defects in Plaintiff’s pleadings and
assert that this court may not adjudicate Plaintiff’s claims
without improperly reviewing the prior foreclosure order entered
in state court.
This court disagrees and finds that Defendants’
motion should be denied.
A.
Rooker-Feldman Doctrine
Defendants make the argument that Plaintiff’s claim should
be barred by the Rooker-Feldman doctrine, because this court
cannot review the findings of the state court who ordered
foreclosure of Plaintiff’s property or take action that would
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render that state court judgment moot or ineffectual.
(Br. in
Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem.”) (Doc. 14) at
3-5.)3 This court agrees that the Rooker-Feldman doctrine
prevents Plaintiff from claiming injuries sustained as a result
of the foreclosure of her property, but the Rooker-Feldman
doctrine does not prevent this court from hearing and
determining Plaintiff’s claims based on Defendants’ alleged
violations of the FDCPA and the NCDCA.
The Rooker-Feldman doctrine provides that courts do not
have subject matter jurisdiction to hear “cases brought by
state-court losers complaining of injuries caused by state-court
judgments rendered before the district court proceedings
commenced and inviting district court review and rejection of
those judgments.”
Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005).
Based on this precedent, the
Fourth Circuit has explained that this court must:
[E]xamine whether the state-court loser who files suit
in federal district court seeks redress for an injury
caused by the state-court decision itself. If he is
not challenging the state-court decision, the Rooker–
Feldman doctrine does not apply. See, e.g.,
Washington v. Wilmore, 407 F.3d 274, 280 (4th Cir.
2005) (holding, post-Exxon, that the Rooker–Feldman
All citations in this Memorandum Opinion and Order to
documents filed with the court refer to the page numbers located
at the bottom right-hand corner of the documents as they appear
on CM/ECF.
3
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doctrine did not apply because “[the plaintiff's]
claim of injury rests not on the state court judgment
itself, but rather on the alleged violation of his
constitutional rights [by the defendant]”). If, on the
other hand, he is challenging the state-court
decision, the Rooker–Feldman doctrine applies.
Davani v. Virginia Dep't of Transp., 434 F.3d 712, 718-19 (4th
Cir. 2006) (footnote omitted).
In this case, Plaintiff, a “state-court loser” because of
the foreclosure of her property, does not claim injury based on
the foreclosure that was ordered by the state court.
Instead,
Plaintiff claims that Defendants violated the FDCPA and NCDCA
through their actions before and during the foreclosure
proceeding and their communications with Plaintiff.
The state
court may have reached the conclusion that Defendants’
communication with Plaintiff provided sufficient notice of the
foreclosure proceeding, but this finding does not strip this
court of jurisdiction to hear arguments that any communication
between the parties was in violation of federal or state debt
collection laws.
See Davani, 434 F.3d at 719.
Even if this
court found that Defendants made a material misrepresentation to
the state court in an attempt to show adequate notice, (see Am.
Compl. (Doc. 29) ¶¶ 64, 82-83), - a decision that would be
somewhat at odds with the state court’s finding of adequate
notice - such a finding by this court would relate to
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Defendants’ conduct, not the judgment of the state court.
The
same would be true for the issue of whether Defendants
misrepresented as to the amount or the validity of certain parts
of the debt at issue in the foreclosure proceeding, (see id.
¶¶ 65-68, 78-80), even though the state court determined that
the amount claimed by Oakbrooke POA constituted a valid debt.
As such, this court can find that Defendants made material
misrepresentations to Plaintiff and the state court and find
that these misrepresentations violated the FDCPA and the NCDCA
without finding that the foreclosure ordered by the state court
caused Plaintiff’s injuries.4
Thus, the Rooker-Feldman doctrine
4
The Fourth Circuit, in Davani, points to a helpful
illustration from the Second Circuit:
“Suppose a plaintiff sues his employer in state court
for violating . . . anti-discrimination law and . . .
loses. If the plaintiff then brings the same suit in
federal court, he will be seeking a decision from the
federal court that denies the state court's conclusion
that the employer is not liable, but he will not be
alleging injury from the state judgment. Instead, he
will be alleging injury based on the employer's
discrimination. The fact that the state court chose
not to remedy the injury does not transform the
subsequent federal suit on the same matter into an
appeal, forbidden by Rooker-Feldman, of the statecourt judgment.”
Davani, 434 F.3d at 719 (quoting Hoblock v. Albany County Bd. of
Elections, 422 F.3d 77 (2d Cir. 2005)) (alteration in original).
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does not strip this court of jurisdiction to adjudicate these
issues.
Defendants rely on two unpublished decisions from the
Western and Eastern Districts of North Carolina, Shaw v. Harris
and Radisi v. HSBC Bank USA, but this court does not find these
cases persuasive on the present facts.
(See Defs.’ Mem. (Doc.
14) at 4-5 (citing Shaw v. Harris, No. 5:12-CV-804-BR, 2013 WL
5371183 (E.D.N.C. Sept. 24, 2013); Radisi v. HSBC Bank USA, Nat.
Ass'n, No. 5:11CV125-RLV, 2012 WL 2155052 (W.D.N.C. June 13,
2012), aff'd sub nom. Radisi v. HSBC Bank USA, N.A., 479 Fed.
Appx. 468 (4th Cir. 2012)).)
In both cases, the plaintiffs made
claims under the FDCPA after their homes were foreclosed, as
Plaintiff has done here.
However, despite a similar procedural
posture, the plaintiffs’ claims in the cited cases differ from
Plaintiff’s claims in at least one significant way: the Shaw and
Radisi plaintiffs also made outright challenges of the
foreclosure action alongside their FDCPA claims.
WL 5371183, at *3; Radisi, 2012 WL 2155052, at *4.
See Shaw, 2013
In fact, the
plaintiff in Shaw requested that the court provide the plaintiff
with a warranty deed for the home that was foreclosed upon,
indicating to the court that the plaintiff was “directly
challenging the state court decision concerning ownership of the
real property at issue.”
See Shaw, 2013 WL 5371183, at *3.
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Plaintiff, in this case, merely seeks monetary damages that
resulted from alleged violations of the FDCPA and the NCDCA.
(See Am. Compl. (Doc. 29) ¶¶ 61, 74, 88.)
Based on their
claims, the Shaw and Radisi plaintiffs complained that the
foreclosure caused the alleged injury, whereas Plaintiff, in
this case, alleges she was injured by Defendants’ actions and
their communications with Plaintiff.
As a result, this court
does not find the cases cited by Defendants persuasive.
Defendants argue that Plaintiff’s FDCPA and NCDCA claims
are “inextricably intertwined” with the state foreclosure
proceeding, making it impossible for this court to hear
Plaintiff’s claims without reviewing the state court decision.
(See Defs.’ Mem. (Doc. 14) at 5.)
However, the Fourth Circuit
has explained:
Under Exxon . . . , Feldman's “inextricably
intertwined” language does not create an additional
legal test for determining when claims challenging a
state-court decision are barred, but merely states a
conclusion: if the state-court loser seeks redress in
the federal district court for the injury caused by
the state-court decision, his federal claim is, by
definition, “inextricably intertwined” with the statecourt decision, and is therefore outside of the
jurisdiction of the federal district court.
Davani, 434 F.3d at 719.
For the reasons set forth above, this
court finds that Defendants are incorrect that Plaintiff’s
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federal claims are “inextricably intertwined” with the state
foreclosure proceeding.
Although this court finds that the Rooker-Feldman doctrine
does not prevent Plaintiff from seeking damages based on
Defendants’ alleged violations of the FDCPA and the NCDCA, (see,
e.g., Am. Compl. (Doc. 29) ¶¶ 61, 74, 88), this court notes that
some of Plaintiff’s allegations have complained of injuries
sustained due to the imposition of the state court’s judgment in
the foreclosure proceeding.
For instance, in her original
Complaint, Plaintiff listed the “entry of judgment against
Plaintiff before she had notice or opportunity to respond, [and
the] expenditure of attorney’s fees and costs in [an] effort to
set aside the judgment that was entered before she was aware of
the action” as injuries she sustained.
(“Compl.”) (Doc. 2) ¶ 86.)
(See Complaint
This allegation asserts that the
judgment entered by the state court caused her injury - an
allegation that would be barred by Rooker-Feldman.
Possibly for this reason, Plaintiff removed direct
reference to the state court judgment in her Amended Complaint
and instead lists “attorney’s fees, [and] time lost from work
drafting a temporary restraining order in response to
Defendant[s’] threat to take possession of her home” as the
injuries she sustained based on alleged NCDCA violations.
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(See
Am. Compl. (Doc. 29) ¶ 87.)
This revised allegation asserts
that Defendants’ violation of the statute - not the valid state
court judgment - caused the injury.
Therefore, this claim can
and will be heard and determined here.
Defendants have not
cited specific allegations that are barred by the Rooker-Feldman
doctrine, and this court has not found any in its own review of
the pleadings.
Of course, Defendants may raise this argument
again if Plaintiff attempts to use injuries sustained as a
result of the foreclosure as a basis for relief in this action.
However, because Plaintiff’s Amended Complaint does not ask
this court to review the propriety of the foreclosure or award
damages based on the entry of that foreclosure, this court has
jurisdiction to hear Plaintiff’s claims.
B.
Preclusion
Although this court has found that the Rooker-Feldman
doctrine does not strip this court of jurisdiction, this court
must determine whether the preclusion doctrine requires that
this court dismiss Plaintiff’s Amended Complaint for failure to
state a claim.
This court finds it does not have sufficient
facts before it to determine whether Plaintiff’s claims are
precluded by the earlier state court judgment.
Preclusion is an affirmative defense. See Fed. R. Civ. P.
8(c) (listing res judicata as an affirmative defense); Rodgers
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Builders, Inc. v. McQueen, 76 N.C. App. 16, 30, 331 S.E.2d 726,
735 (1985) (“The defense of res judicata . . . .”).
“is not a jurisdictional matter.”
As such, it
Exxon Mobil, 544 U.S. at 293.
However, the Full Faith and Credit Act, 28 U.S.C. § 1738,
requires that courts “give the same preclusive effect to a
state-court judgment as another court of that State would give.”
Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523
(1986).
Under North Carolina law, “[t]he companion doctrines of
res judicata (claim preclusion) and collateral estoppel (issue
preclusion) have been developed by the courts for the dual
purposes of protecting litigants from the burden of relitigating
previously decided matters and promoting judicial economy by
preventing needless litigation.”
Strates Shows, Inc. v.
Amusements of Am., Inc., 184 N.C. App. 455, 460, 646 S.E.2d 418,
423 (2007).
For a party to be precluded from stating a claim based on
the doctrine of res judicata, courts must find: “(1) a final
judgment on the merits in an earlier suit, (2) an identity of
the cause of action in both the earlier and the later suit, and
(3) an identity of parties or their privies in the two suits.”
Hogan v. Cone Mills Corp., 315 N.C. 127, 135, 337 S.E.2d 477,
482 (1985) (internal quotation marks omitted).
The doctrine of
res judicata “bars every ground of recovery or defense which was
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actually presented or which could have been presented in the
previous action.”
Williams v. Peabody, 217 N.C. App. 1, 7, 719
S.E.2d 88, 93 (2011) (internal quotation marks omitted).
In this case, this court finds that there is not sufficient
identity between the cause of action in the state foreclosure
proceeding and the causes of action under the federal and state
debt collection statutes to preclude Plaintiff’s claims in this
action.
The parties have not litigated Plaintiff’s allegations
of FDCPA and NCDCA violations, nor could they have litigated
these issues in the foreclosure proceeding because Defendants
were representing Oakbrooke POA and were not a party to the
litigation.
Furthermore, this court does not have a factual
record before it at this stage of the proceeding to consider
such an affirmative defense.
Therefore, this court finds that
Plaintiff’s claims should not be dismissed based on Defendants’
arguments concerning res judicata.
For a party to be precluded from raising an issue in
subsequent litigation based on collateral estoppel, courts must
also find “identity” between the issues, meaning:
(1) the issues must be the same as those involved in
the prior action, (2) the issues must have been raised
and actually litigated in the prior action, (3) the
issues must have been material and relevant to the
disposition of the prior action, and (4) the
determination of the issues in the prior action must
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have been necessary and essential to the resulting
judgment.
State v. Summers, 351 N.C. 620, 623, 528 S.E.2d 17, 20 (2000).
“A very close examination of matters actually litigated must be
made in order to determine if the underlying issues are in fact
identical; if they are not identical, then the doctrine of
collateral estoppel does not apply.”
Williams v. Peabody, 217
N.C. App. 1, 6, 719 S.E.2d 88, 93 (2011) (internal quotations
and alterations omitted).
In this case, it does not appear from the face of
Plaintiff’s Amended Complaint that the state court considered
whether Defendants violated federal and state debt collection
statutes in their communication with Plaintiff as it considered
whether to order foreclosure.
Under North Carolina law, before
issuing an order allowing a foreclosure to proceed, the clerk of
court must examine the proffered evidence and find the existence
of, in relevant part: (1) a valid debt; (2) default; (3) the
right to foreclosure under the instrument; and (4) notice.
N.C. Gen. Stat. § 45–21.16(d).
See
Under the FDCPA and NCDCA, this
court must determine whether the communications between
Defendant and Plaintiff violate the statute.
require different inquiries.
The proceedings
As a result, Defendants have not
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shown sufficient “identity” of the issues presented in each
proceeding to establish collateral estoppel.
Again, to the extent Plaintiff seeks to re-litigate an
issue, such as whether notice was proper and sufficient, (see
Am. Compl. (Doc. 29) ¶ 33 (challenging several statements made
in Defendants’ “Affidavit of Service, Posting, Military Service,
Record Ownership and Efforts of Loss Mitigation” as not made in
good faith)), this court does not, at this point, have a
sufficient factual record before it to consider such an
affirmative defense.
Therefore, this court finds that
Plaintiff’s claims should not be dismissed based on collateral
estoppel.
C.
Statute of Limitations
Defendants argue that Plaintiff’s claims under the FDCPA
are barred by the one-year statute of limitations set out in
15 U.S.C. § 1692k.
(See Defs.’ Mem. (Doc. 14) at 7.)
Plaintiff’s initial complaint was filed on November 5, 2014, and
Plaintiff has made allegations under the FDCPA that fall within
the limitations period.
(See Am. Compl. (Doc. 29) ¶ 36
(alleging direct communication with Plaintiff on December 10,
2013, despite knowing that Plaintiff was represented by
counsel).
Therefore, this court finds that Plaintiff has stated
a timely claim under the FDCPA.
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To the extent Defendants ask this court to identify
time-barred bases for Plaintiff’s FDCPA claim, this court will
not do so at this time.
Defendants claim that the one-year
statute of limitations generally begins to run on the date of
the alleged violation, even if the plaintiff was unaware of the
violation at the time, and cites several courts from within this
circuit for that proposition.
Plaintiff claims that this court
should adopt a discovery rule, such that the statute of
limitations should run from the date Plaintiff learned of or
should have learned of the violation.
Neither party has cited
binding precedent on this point, nor has this court found
binding precedent in its own research.
This court finds it
inappropriate to decide such a matter at this stage of the
proceeding.
As such, this court will not dismiss Plaintiff’s
FDCPA claim based on statute-of-limitation grounds.
D.
Notice Requirements under Foreclosure Procedures
Defendants argue that Plaintiff has not stated a claim
under the FDCPA by alleging that Defendants contacted Plaintiff
directly in violation of 15 U.S.C. § 1692c(a)(2), because under
state law Defendants were required to serve the record owner of
the property with notice of the foreclosure proceeding.
(See
Defs.’ Mem. (Doc. 14) at 8 (citing N.C. Gen. Stat. §§ 45-21.16;
45-21.17; 45-21.21).)
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As support for this proposition, Defendants cite Vitullo v.
Mancini, a case from the Eastern District of Virginia where the
court dismissed the FDCPA allegations against a debt collector
because the plaintiff had not complied with state law in
notifying relevant parties of where they should send
notifications concerning acceleration and foreclosure.
See
Vitullo v. Mancini, 684 F. Supp. 2d 747, 759 (E.D. Va. 2010).
Because the plaintiff had not complied with state law, the
Vitullo court found that the defendants had correctly followed
state law requirements in contacting the plaintiff directly, and
the plaintiff’s complaint was insufficient because it did not
address this issue.
See id.
This court finds this case is not
persuasive for two reasons.
First, at least one court has rejected this view and found
that the language of 15 U.S.C. § 1692c(a)(2), allowing direct
communication with a represented party based on “express
permission of a court of competent jurisdiction,” does not
excuse a debt collector who is using state notification
requirements as a defense.
See McDermott v. Marcus, Errico,
Emmer & Brooks, P.C., 911 F. Supp. 2d 1, 83-84 (D. Mass. 2012),
amended in part, 969 F. Supp. 2d 74 (D. Mass. 2013), aff'd in
part, rev'd in part and remanded, 775 F.3d 109 (1st Cir. 2014).
Moreover, the Fourth Circuit has confirmed that “actions
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surrounding [a] foreclosure proceeding [are] attempts to collect
[a] debt” within the meaning of the FDCPA, see Wilson v. Draper
& Goldberg, P.L.L.C., 443 F.3d 373, 376 (4th Cir. 2006),
indicating that the notice requirements accompanying the
foreclosure proceedings in this case could serve as the basis
for Plaintiff’s FDCPA claim.
This court is unsure how it would
ultimately resolve this issue but finds that it cannot and
should not rule on such a contested issue at the motion-todismiss stage.
Second, this case is factually distinguishable from
Vitullo. Defendants do not argue that Plaintiff failed to comply
with state law as the plaintiff did in Vitullo or that her
pleading is insufficient as a result of some failure to comply
with state law on Plaintiff’s part.
Instead, Defendants merely
point to the notice requirements under North Carolina law to
excuse their communication with Plaintiff.
This court finds
that, unlike Vitullo, there is no clear defect in Plaintiff’s
allegations under 15 U.S.C. § 1692c(a)(2). It may be that
Defendants’ conduct is excused by the state notice requirements,
but because of the limited scope of the record at this stage,
this court will not reach that conclusion at this time.
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III. CONCLUSION
IT IS THEREFORE ORDERED that the Motion to Dismiss filed by
Defendants Margaret M. Chase, Michael C. Taliercio, and Rossabi
Black Slaughter, PA, Attorneys at Law (Doc. 13) is DENIED.
Defendants shall file their Answer or otherwise respond
within 14 days of the issuance of this Memorandum Opinion and
Order pursuant to Federal Rule of Civil Procedure 12(a)(4)(A).
This the 9th day of September, 2015.
_______________________________________
United States District Judge
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