RHODES v. US BANK NATIONAL ASSOCIATION et al
MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE CYNTHIA M. RUFE ON 2/28/17. 2/28/17 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(ti, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 15-5135
US BANK NATIONAL ASSOCIATION, :
February 27, 2017
Plaintiff has filed suit alleging that Defendants, U.S. Bank, N.A. and KML Law Group,
P.C. (“KML”), violated the Fair Debt Collection Practices Act (“FDCPA”)1 in connection with a
foreclosure action brought in Pennsylvania state court based on a mortgage on Plaintiff’s
property. U.S. Bank had been assigned the mortgage; KML represented U.S. Bank in the state
court action. Defendants have moved to dismiss Plaintiff’s Amended Complaint. For the
following reasons, the motions will be granted.
Although the Amended Complaint contains much that is commentary and references
many sections of the FDCPA that do not appear relevant to the claims, Plaintiff does include
certain specific allegations that Defendants violated the FDCPA by sending her the following
documents: (1) a December 31, 2014 response to interrogatories that Ms. Rhodes had served in
the state court action and that Plaintiff alleges lacked the disclosure mandated by the FDCPA; (2)
a May 27, 2015 response to a notice of dispute and debt verification request that Ms. Rhodes had
sent to KML, that Plaintiff alleges was confusing and false because KML represented that it was
15 U.S.C. § 1692, et seq.
both a debt collector and a law firm entitled to attorney’s fees; (3) a June 18, 2015 letter from
KML to Plaintiff seeking Plaintiff’s agreement to a consent judgment in the state lawsuit that
lacked the disclosure mandated by the FDCPA; (4) a July 2, 2015 letter from KML to Plaintiff
again seeking Plaintiff’s agreement to a consent judgment in the state lawsuit that lacked the
disclosure mandated by the FDCPA; and (5) an August 25, 2015 letter from KML to Plaintiff
that lacked the disclosure mandated by the FDCPA stating that Ms. Rhodes and an attorney from
KML had discussed the possibility of a consent judgment in the state lawsuit but that the attorney
had not received the signed form. Plaintiff has attached these documents to the Amended
Complaint. Defendants argue that the claims are barred by the statute of limitations and by
principles of preclusion, and that they fail to state a claim upon which relief may be granted.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissal of a complaint for failure
to state a claim upon which relief can be granted is appropriate where a plaintiff’s “plain
statement” lacks enough substance to show that he is entitled to relief.2 In determining whether a
motion to dismiss should be granted, the court must consider only those facts alleged in the
complaint, accepting the allegations as true and drawing all logical inferences in favor of the
non-moving party.3 Courts are not, however, bound to accept as true legal conclusions couched
as factual allegations.4 Something more than a mere possibility of a claim must be alleged; a
plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.”5 The
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).
ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); Fay v. Muhlenberg Coll., No. 07-4516, 2008
WL 205227, at *2 (E.D. Pa. Jan. 24, 2008).
Twombly, 550 U.S. at 555, 564.
Id. at 570.
complaint must set forth “direct or inferential allegations respecting all the material elements
necessary to sustain recovery under some viable legal theory.”6
Statute of Limitations
To the extent that Plaintiff may be attempting to assert claims based on the pursuit of the
debt-collection litigation itself, such claims are time-barred. Plaintiff filed this action on
September 14, 2015, and the state court action was filed and served on Plaintiff in March of
2013. Claims under the FDCPA must be brought within one year,7 and the statute begins to run
at the filing or service of process of the “underlying collection action.”8 Therefore, any claims
under the FDCPA with regard to Defendants’ filing or pursuit of the state court action are timebarred.
Alternatively, to the extent that certain claims may not be barred by the statute of
limitations, Defendants argue that they have been litigated in the state action and Plaintiff is
precluded from raising them here. A plaintiff’s claims may be precluded based on the doctrine
of res judicata if the following elements are present: “(1) a final judgment on the merits in a
prior suit involving (2) the same parties or their privies and (3) a subsequent suit based on the
same cause of action.”9 “Res judicata applies not only to claims actually litigated, but also to
claims which could have been litigated during the first proceeding if they were part of the same
Id. at 562 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)) (internal
quotation mark omitted).
15 U.S.C. § 1692k(d) (“An action to enforce any liability created by this title . . . may be brought in any
appropriate United States district court without regard to the amount in controversy, or in any other court of
competent jurisdiction, within one year from the date on which the violation occurs.”).
Schaffhauser v. Citibank (S.D.) N.A., 340 Fed. App’x 128, 130-31 (3d Cir. 2009).
Duhaney v. Attorney Gen. of U.S., 621 F.3d 340, 347 (3d Cir. 2010).
cause of action.” 10 In this regard, the Court may consider the documents relating to the state
court action that Defendants have attached to the motions.11 The state trial court entered
judgment against Plaintiff on October 27, 2015 (before the Amended Complaint was filed), and
the Pennsylvania Superior Court affirmed the trial court’s ruling on July 11, 2016.12 Any
questions as to the accuracy of the amounts sought or the validity of the debt properly were
litigated in state court, and the final judgment resolves any claims relating to such issues. Thus,
res judicata bars Plaintiff from relitigating such claims in this Court.13
Failure to State a Claim
The judgment in the state court did not necessarily resolve the question of whether certain
communications sent while that action was pending violated the FDCPA.14 To the extent that
such claims are not barred by res judicata, Plaintiff has failed to state a claim upon which relief
may be granted.15
Debt collectors must abide by certain requirements when communicating with
consumers. Section 1692e(3) prohibits “the false representation or implication that any
Turner v. Crawford Square Apartments III, L.P., 449 F.3d 542, 548 (3d Cir. 2006) (quoting Balent v.
City of Wilkes–Barre, 669 A.2d 309, 313 (Pa. 1995)).
Lewis v. O’Donnell, No. 16-2820, 2017 WL 35711, at * 2 (3d Cir. Jan. 4, 2017).
See Doc. No. 23-1 (non-precedential Superior Court opinion).
Easley v. New Century Mortg. Corp., 394 F. App’x 946, 949 (3d Cir. 2010) (holding that the plaintiff’s
claims were barred by res judicata because they were “intimately tied to the creation of the mortgage and
subsequent foreclosure” and thus could have been brought as counterclaims in the state foreclosure proceeding).
The Court does not hold, as argued by Defendants, that the Rooker-Feldman doctrine applies in this case, as Plaintiff
does not appear to seek to redress an injury caused by the state court judgment, as the doctrine requires. See Lewis
v. Citibank, N.A., 179 F. Supp. 3d 458, 462 (E.D. Pa. 2016).
See Kaymark v. Bank of America, N.A., 783 F.3d 168, 179 (3d Cir. 2015) (holding that FDCPA claims
may be asserted in federal court parallel to state court foreclosure proceedings).
Although Plaintiff cites many sections of the FDCPA, none except those discussed below are potentially
relevant to the allegations of the Amended Complaint. For example, there are no allegations that Defendants
communicated with Plaintiff at an improper time or place, 15 U.S.C. § 1692c(a), with third parties, 15 U.S.C.
§ 1692c(b), or in a harassing or oppressive manner, 15 U.S.C. § 1692d.
individual is an attorney or that any communication is from an attorney.”16 Section 1692e(11)
addresses “[t]he failure 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 the failure to disclose in subsequent communications that the
communication is from a debt collector, except that this paragraph shall not apply to a formal
pleading made in connection with a legal action.”17
The communications at issue do not violate the FDCPA as a matter of law, as all of the
communications were sent while the state court proceedings were pending, and Ms. Rhodes, who
represented herself in that litigation, cannot have been unaware that U.S. Bank was attempting to
collect a debt by foreclosing on the mortgage and that KML represented U.S. Bank. Formal
pleadings in legal actions need not include the notice, and although the response to the
interrogatories that Ms. Rhodes sent “does not constitute a ‘pleading’ . . . the responses at issue
were solicited by Plaintiff in the context of state court discovery and do not constitute the type of
‘communication’ contemplated by § 1692e(11).”18 Similarly, the communications regarding the
proposed consent judgment directly related to and were an attempt to resolve the state court
litigation. That the documents came from KML and referenced the state court action served as
adequate notice that the documents related to the debt.19 Plaintiff has failed to state a cause of
action in the Amended Complaint.
15 U.S.C. § 1692e(3).
15 U.S.C. § 1692e(11).
Hairston v. Green Tree Servicing LLC, No. CV 14-6810, 2015 WL 9302865, at *4 (E.D. Pa. Dec. 22,
Barrows v. Chase Manhattan Mortg. Corp., 465 F. Supp. 2d 347, 360 (D.N.J. 2006) (holding that
“where a law firm clearly represents a mortgagee in a foreclosure action against a mortgagor, and has previously
issued the required ‘mini-Miranda’ warnings in writing, its subsequent communications with the debtor need not
identify the law firm as a debt collector so long as the communication clearly and directly relates to the pending
For the reasons explained above, the motions to dismiss will be granted. Because
Plaintiff filed the Amended Complaint in response to earlier motions to dismiss, and it appears
any amendment (which has not been requested) would be futile, the Amended Complaint will be
dismissed with prejudice.20 An appropriate order will be entered.
See Shah v. United States, 540 F. App’x 91, 95 (3d Cir. 2013).
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