Popov v. Litton Loan Servicing, LP et al
Filing
28
Memorandum Opinion and Order granting defendants' motions to dismiss (Related Doc # 7 ); Motion to dismiss for failure to state a claim (Related Doc # 8 ). Plaintiff's claims are dismissed. Judge Donald C. Nugent(C,KA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
PAUL POPOV,
Plaintiff,
vs.
LITTON LOAN SERVICING, LP, et al.,
Defendants.
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Case No. 1:12 CV 169
JUDGE DONALD C. NUGENT
MEMORANDUM OPINION
This matter is before the Court on Defendant Lerner, Sampson & Rothfuss’s Motion to
Dismiss Plaintiff’s Complaint (ECF #7), and the Motion of Defendants Litton Loan Servicing, LP
and Ocwen Loan Servicing, LLC, to Dismiss Plaintiff’s Complaint (ECF #8). For the reasons that
follow, Defendants’ Motions to Dismiss are GRANTED.
PROCEDURAL AND FACTUAL BACKGROUND
On December 8, 2011, Plaintiff Paul Popov (“Plaintiff” or “Mr. Popov”), filed suit in the
Cuyahoga County Court of Common Pleas against Litton Loan Servicing, LP (“Litton”), Ocwen
Loan Servicing, LLC (“Ocwen”), and Lerner, Sampson & Rothfuss (“LSR”) (collectively,
“Defendants”), for Fair Debt Collections Practices Act and Ohio Consumer Sales Practices Act
violations. (Compl., ECF No. 1-1) The action was removed to this Court on January 24, 2012. (ECF
No. 1)
The events leading up to this case began in May of 2009 when LSR filed a foreclosure
complaint against Plaintiff on behalf of Deutsche Bank National Trust Company (“Deutsche”), as
Trustee under the Pooling and Servicing Agreement dated December 1, 2006, GSAMP Trust 2006-
FM3. (Compl., ¶¶ 6-7) See Deutsche Bank National Trust Co. v. Paul Popov, No. 09-cv-691971
(Cuyahoga County, Ohio filed May 6, 2009) (“State Court Action”). Prior to the foreclosure
complaint being filed, Shellie Hill, an employee of LSR, executed an assignment of Mr. Popov’s
mortgage to Deutsche, dated May 4, 2009. (Compl., ¶¶ 10-11) Despite this assignment, the note
attached to the complaint filed in the State Court Action indicated that Freemont Investment and
Loan was the holder of the note, not Deutsche. (Compl., ¶ 8) As such, on October 7, 2011,
Deutsche’s State Court Action was dismissed because Deutsche was not the real party in interest,
lacked standing to prosecute the case and thereby failed to invoke the jurisdiction of the Court.
(Compl., ¶ 9)
On December 8, 2011, Mr. Popov filed the instant suit against Defendants alleging violations
of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, and the Ohio Consumer
Sales Practices Act (“OCSPA”), O.R.C. § 1345.02. (Compl., ¶¶ 16-32) Plaintiff bases this action on
the fact that Deutsche did not own the Plaintiff’s note, and therefore had no right to enforce it, or
any other lien upon Plaintiff’s property. (Compl., ¶ 15) Defendants were the servicing agents, and
law firm representing Deutsche. (Compl., ¶¶ 2-4)
The Complaint contains two counts. In count one, Mr. Popov alleges that Defendants
violated the FDCPA by misrepresenting the character, amount and legal status of the Plaintiff’s debt.
(Compl., ¶ 22) Additionally, Plaintiff alleges Defendants violated the FDCPA by threatening to and
foreclosing on Plaintiff’s home, when Deutsche had no right to enforce the note or take possession
of the property. Id. In count two, Mr. Popov first alleges that Defendants violated the OCSPA by
committing an unfair or deceptive act or practice in connection with a consumer transaction.
(Compl., ¶¶ 27-30) Second, Mr. Popov alleges that Defendants violated the OCSPA by making false
or misleading representations to Plaintiff which were unfair and deceptive practices in violation of
O.R.C. 1345.02(B)(10). Id.
LAW AND ANALYSIS
I. STANDARD OF REVIEW
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) allows a defendant to
test the legal sufficiency of a complaint without being subject to discovery. See Yuhasz v. Brush
Wellman, Inc., 341 F.3d 559, 566 (6th Cir. 2003). In evaluating a motion to dismiss, the court must
construe the complaint in the light most favorable to the plaintiff, accept its factual allegations as
true, and draw reasonable inferences in favor of the plaintiff. See Directv, Inc. v. Treesh, 487 F.3d
471, 476 (6th Cir. 2007). However, “the tenet that a court must accept a complaint’s allegations as
true is inapplicable to threadbare recitations of a cause of action’s elements, supported by mere
conclusory statements.” Ashcroft v. Iqbal, 129 S.Ct. 1937,1940 (2009). See also Gregory v. Shelby
County, 220 F.3d 433, 446 (6th Cir. 2000) (court will not accept conclusions of law or unwarranted
inferences cast in the form of factual allegations.)
In order to survive a motion to dismiss, a
complaint must provide the grounds of the entitlement to relief, which requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). That is,“[f]actual allegations must be enough to raise a right
to relief above the speculative level, on the assumption that all the allegations in the complaint are
true (even if doubtful in fact).” Id. (internal citation omitted); see Association of Cleveland Fire
Fighters v. City of Cleveland, No. 06-3823, 2007 WL 2768285, at *2 (6th Cir. Sept. 25, 2007)
(recognizing that the Supreme Court “disavowed the oft-quoted Rule 12(b)(6) standard of Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed.2d 80 (1957)”). Accordingly, the claims set
forth in a complaint must be plausible, rather than conceivable. See Twombly, 550 U.S. at 570.
On a motion brought under Rule 12(b)(6), the court’s inquiry is limited to the content of the
complaint, although matters of public record, orders, items appearing in the record of the case, and
exhibits attached to the complaint may also be taken into account. See Bassett v. Nat’l Collegiate
Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008); Amini v. Oberlin College, 259 F.3d 493, 502 (6th
Cir. 2001).
II. ANALYSIS
The issue in this case is whether the applicable statutes of limitations to Mr. Popov’s claims
have been surpassed. For the reasons stated below, the Court finds that the applicable statutes of
limitations have been surpassed, and Plaintiff’s claims should be dismissed.
A. Paul Popov’s FDCPA Claims are Time-Barred.
Popov alleges two violations of the FDCPA. First, Popov alleges a violation of 15 U.S.C.§
1692(e), which provides:
“A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt.
[including, without limitation]... (2) The false representation of– (A)
The character, amount, or legal status of any debt.
15 U.S.C. §1692(e).
Second, Popov alleges that Defendants violated 15 U.S.C. §1692(f), which provides:
A debt collector may not use unfair or unconscionable means to
collect or attempt to collect any debt [including without limitations]
(1) The collection of any amount (including any interest, fee, charge,
or expense incidental to the principal obligation) unless such amount
is expressly authorized by the agreement creating the debt or
permitted by law...
15 U.S.C. §1692(f).
Plaintiff alleges in his complaint that “Defendants violated the FDCPA by misrepresenting
the character, amount and legal status of the Plaintiff’s debt, and by threatening to and foreclosing
on the Plaintiff’s home...” (Compl., ¶ 3) Specifically, Plaintiff alleges that Defendants violated the
FDCPA when they filed a foreclosure action against Plaintiff. (Compl., ¶22) The foreclosure action
was filed May 6, 2009, and service was perfected on May 19, 2009. Deutsche Bank National Trust
Co. v. Paul Popov, No. 09-cv-691971 (Cuyahoga County, Ohio filed May 6, 2009).
Claims under the FDCPA must be brought “within one year from the date on which the
violation occurs.” 15 U.S.C. §1692k(d). The Sixth Circuit has not yet “answer[ed] whether the
FDCPA’s one-year clock started when [the defendant] filed its suit or when it served [the plaintiff].”
Ruth v. Unifund CCR Partners, 604 F.3d 908, 914 (6th Cir. 2010). The answer of this question has
no impact on the instant action however, as the State Court Docket indicates that the complaint was
filed on May 6, 2009, and service was perfected on Paul Popov, on May 19, 2009. Deutsche Bank
National Trust Co. v. Paul Popov, No. 09-cv-691971 (Cuyahoga County, Ohio filed May 6, 2009).
The instant action was not filed until December 8, 2011, and therefore, both the date of the filing
of the complaint, and the date of service fall outside of the one year statute of limitations.
B. Paul Popov’s OCSPA Claims are Time-Barred
Plaintiff alleges that Defendants were the servicing agents and law firm that represented
Deutsche. (Compl., ¶¶ 2-4) Plaintiff then alleges that Deutsche did not own Plaintiff’s note and
therefore, had no right to enforce Plaintiff’s note, or any lien upon Plaintiff’s property. (Compl., ¶
15) As such, Popov alleges two violations of the OCSPA. First, Mr. Popov alleges a violation of
O.R.C. 1345.02 by Defendants for use of an unfair or deceptive act or practice before, during or after
a consumer transaction. (Compl., ¶ 27) Second, Mr. Popov alleges that Defendants violated
O.R.C.§1345.02(B)(10), by falsely representing to the Plaintiff that a legal obligation existed to
Defendants’ clients. (Compl., ¶ 29)
Claims under the OCSPA “may not be brought more than two years after the occurrence of
the violation which is the subject of suit...” O.R.C. §1345.10(C). In his complaint, Plaintiff fails to
state with specificity, exactly when he alleges the violation took place. However, Plaintiff does
make the following claims in his Opposition Briefs:
Defendant LSR made the false statement in the foreclosure
complaint that its client was the ‘holder’ of Paul Popov’s note.
Opposition EFC No. 13 at p. 2. Emphasis added.
The false statement in the foreclosure complaint that the trust was
the ‘holder’ of Paul Popov’s note is actionable under both the Fair
Debt Collection Practices Act and Ohio Consumer Sales Practices
Act. Defendants made this false statement in the attempt to collect
a debt that was not owed to the trust and that Defendant Litton Loan
Servicing, LP had no right to collect payments on.
Opposition EFC No. 14 at p 3. Emphasis added.
It is clear that Plaintiff is alleging that the violation occurred at the time of the filing of the
State Court Action, May 6, 2009. Deutsche Bank National Trust Co. v. Paul Popov, No. 09-cv691971 (Cuyahoga County, Ohio filed May 6, 2009). The instant action was filed December 8,
2011, more than two years after the alleged violation.
C. The Statute of Limitations is Not Tolled for Popov’s Claims
Generally, Courts have held that a governing statute of limtiations is not to be extended “by
even a single day.” Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561
(6th Cir. 2000). There are certain narrowly tailored exceptions to this rule however, which allow a
statute to be tolled so as to prevent inequity. Pace v. DiGuglielmo, 554 U.S. 408, 418 (2005); Ruth
v. Unifund CCR Partners, 2009 U.S. Dist. WL 585847 at *7.
In the instant case, Mr. Popov contends that the prosecution of the lawsuit, and all the
proceedings therein, amount to a continuing violation, and thus should toll the statutes of limitations.
Specifically, Popov contends that the filing of a Brief in Opposition to Popov’s motion to dismiss,
which asserted the same claim as the initial complaint, constituted a new violation.
Popov, however, fails to cite any case or authority that would support the proposition that
the regular prosecution of the State Court Action amounted to a new FDCPA or OCSPA violation
for purposes of tolling the statute of limitations. Specifically, Mr. Popov fails to argue that the Brief
in Opposition filed by Defendants, which he alleges constitutes a continuing violation, contained
any new or unique misrepresentation, that would amount to a violation under the FDCPA or
OCSPA, separate from what was previously misrepresented in the initial complaint.
The Court addressed a factually similar situation in McNerney v. Mortgage Electronic
Registration Systems, Inc., 09-CV-2625, 2010 U.S. Dist. WL 3222044 (N.D. Ohio Aug. 13, 2010).
The Court in McNerney found that merely “maintaining a lawsuit (as distinct from instituting one)
is not, in and of itself, a continuing violation....” Id. at *7. The only date within the statute of
limitations that Plaintiff offers is the date Defendants filed a Brief in Opposition to a Motion to
Dismiss. Clearly, the filing of a Brief in Opposition amounts to nothing more than merely
maintaining a lawsuit. With no additional facts of a continual violation, the Court finds that a
continuing violation theory does not apply to Plaintiff’s claims.
Therefore, assuming the facts as alleged in the complaint are true, both the FDCPA and the
OCSPA violations occurred either when the State Court Action was filed on May 6, 2009, or when
it was properly served on May 19, 2009. The instant action was filed December 8, 2011, more than
two years after any alleged violation. Accordingly, the FDCPA and OCSPA claims are barred by
their respective statutes of limitations. See 15 U.S.C. §1692(k), and, O.R.C. §1345.10(C).
III. CONCLUSION
Plaintiff’s complaint pursues causes of action pursuant to the FDCPA and the OCSPA. Both
causes of action were filed outside of the applicable statutes of limitations. Accordingly, Plaintiff’s
claims are time-barred and Defendants’ Motion to Dismiss for Failure to State a Claim Upon Which
Relief can be Granted pursuant to Fed. R. Civ. P 12(b)(6) is GRANTED. Plaintiff’s claims are
DISMISSED. IT IS SO ORDERED.
__Donald C. Nugent
____
DONALD C. NUGENT
UNITED STATES DISTRICT JUDGE
DATE:_October 30, 2012______
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