AMELIO v. MCCABE, WEISBERG & CONWAY, P.C. et al

Filing 28

MEMORANDUM OPINION re 2 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by MARC S. WEISBERG and MCCABE, WEISBERG & CONWAY, P.C. Signed by Chief Judge Joy Flowers Conti on 7/28/2015. (blr)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Alfonso AMELIO,
Plaintiff,
v.

Civil Action No. 14-1611

MCCABE, WEISBERG & CONWAY, P.C.
et al.,
Defendants.

MEMORADUM OPINION
CONTI, Chief Judge

I.

Introduction
Plaintiff Alfonso Amelio (“Amelio”) sued defendants McCabe, Weisberg &

Conway P.C., Marc S. Weisberg, Bank of America N.A., and John Does 1–10
(collectively “defendants”) for improperly filing and maintaining a mortgage foreclosure action against him. The complaint, filed pro se, contains three overlapping
counts asserting that defendants violated various provisions of the Fair Debt
Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692–1692p. Amelio alleged that
defendants filed the foreclosure complaint despite knowing they did not possess the
original promissory note as required by Pennsylvania’s Uniform Commercial Code,
13 PA. CONS. STAT. §§ 3101–3605.
McCabe, Weisberg & Conway and Marc S. Weisberg (the “law firm defendants”)
filed a motion to dismiss (ECF No. 2), arguing that Amelio’s claims are time barred.
(Mem. of Law 4, ECF No. 3.) Amelio subsequently filed a motion to vacate and strike
the law firm defendants’ motion to dismiss the complaint (ECF No. 9) and a motion
for a temporary restraining order (ECF No. 11). Amelio argued that the law firm
defendants violated 11 U.S.C. § 362 by filing their motion to dismiss after Amelio had
filed bankruptcy and was under the protection of the automatic litigation stay. (Mot.
to Vacate 4–5, ECF No. 9.) The court denied the motion to strike and vacate and the

motion for a temporary restraining order because the Bankruptcy Code’s automatic
stay provision only applies to proceedings against the debtor. (Order, ECF No. 15.)
Amelio was granted leave to file a substantive response to the motion to dismiss,
which he did. (ECF No. 16). In the response, Amelio alleged that the law firm
defendants committed a continuing violation that is not subject to the statute of
limitations, and that the law firm defendants’ motion to dismiss violates the
congressional intent of the FDCPA—to protect consumers from unfair debt
collection practices. (Id. at 36–38.) The court finds, based upon the complaint and
state-court litigation documents in the public record, that Amelio’s claims against the
law firm defendants are barred by the statute of limitations and must be dismissed.1

II.

Legal Standard
A motion to dismiss tests the legal sufficiency of the complaint. Kost v.

Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court
is not opining on whether the plaintiff will be likely to prevail on the merits; rather,
the court accepts as true all well-pleaded factual allegations in the complaint and
views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins,
281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual
allegations to survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a
complaint must provide more than labels and conclusions. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). A “formulaic recitation of the elements of a cause of action
will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual
allegations must be enough to raise a right to relief above the speculative level and
sufficient to state a claim for relief that is plausible on its face.” Id. “A claim has facial

1

Defendant Bank of America filed a motion to dismiss (ECF No. 24). Amelio
requested additional time to respond to Bank of America’s motion, and the court
granted him until August 31, 2015, to do so. This memorandum opinion addresses
only the law firm defendants’ motion to dismiss.

2

plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads
facts that are “merely consistent with” a defendant’s liability, it
“stops short of the line between possibility and plausibility of
‘entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 556-57) (citation omitted).
Two working principles underlie Twombly. Id. First, with respect to mere
conclusory statements, a court need not accept as true all the allegations contained in
a complaint. “Threadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555).
Second, to survive a motion to dismiss, a claim must state a plausible claim for relief.
Id. at 679. “Determining whether a complaint states a plausible claim for relief will …
be a content-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. “But where the well-pleaded facts do not permit
the court to infer more than the mere possibility of misconduct, the complaint has
alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (quoting
FED. R. CIV. P. 8(a)(2)).
A plaintiff whose claims are dismissed for failure to state a claim generally must
be given leave to file an amended complaint to cure the defective pleading. Alston v.
Parker, 363 F.3d 229, 235 (3d Cir. 2004). The court may dismiss a claim without leave
to amend on the grounds of bad faith, undue delay, prejudice, or futility. Id. An
amendment is futile where “the complaint, as amended, would fail to state a claim
upon which relief could be granted.” In re Burlington Coat Factory Sec. Litig., 114 F.3d
1410, 1434 (3d Cir. 1997).

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III.

Facts Alleged in the Complaint and Viewed as True for the
Purpose of Resolving the Motion to Dismiss
On July 26, 2006,2 Amelio executed a mortgage and promissory note to Bank of

America. (Compl. ¶ 16, ECF No. 1.) Defendants3 failed to examine the documents
prior to filing the security instrument with the Allegheny County Recorder of Deeds
to determine if Bank of America was in possession of the original promissory note
and original mortgage. (Id. ¶¶ 17–18.) Defendants are currently attempting to collect
upon fraudulently obtained notes because the original documents were never
produced and because the copies that were provided by defendants lack an
endorsement as to their authenticity. (Id. ¶ 19.) Defendants first threatened
foreclosure litigation, and then took foreclosure action against Amelio, while
knowingly lacking proper evidence. (Id. ¶¶ 20, 26.) The foreclosure complaint was
based upon an improper affidavit because the affiant lacked personal knowledge. (Id.
¶¶ 34k, 38.) The mortgage was securitized and Bank of America was not the holder
in due course or injured by the default. (Id. ¶¶ 45, 46.) Marc Weisberg knew or
should have known that the mortgage was securitized, but concealed this fact during
the foreclosure litigation. (Id. ¶ 46.)

IV.

Discussion
A. Subject-Matter Jurisdiction
The law firm defendants did not move to dismiss based upon a lack of subject-

matter jurisdiction, but the court has an independent duty to determine whether it
has jurisdiction to hear the case. Great W. Mining & Mineral Co. v. Fox Rothschild
LLP, 615 F.3d 159, 163 (3d Cir. 2010). Because this case is closely related to a

2

The complaint also identifies the date of the mortgage and promissory note as
March 3, 2004, and July 26, 2005. (Compl. ¶¶ 34m, 34n, 77, ECF No. 1.)

3

The allegations in the complaint primarily refer to “defendants” generally without
differentiating among the various defendants.

4

mortgage foreclosure action before a state tribunal, the court will examine whether
the Rooker-Feldman doctrine bars it from exercising jurisdiction.4 The RookerFeldman doctrine prohibits district courts from entertaining “cases brought by statecourt 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). The Rooker-Feldman doctrine applies if four requirements are met:
(1) the federal plaintiff lost in state court; (2) the plaintiff complains of injuries caused
by the state-court judgment; (3) the state court judgment was rendered before the
federal suit was filed; and (4) the plaintiff asks the district court to review and reject
the judgment of the state court. Great W., 615 F.3d at 166.
As best the court can determine from state-court documents in the public
record, Amelio lost in state court and the state court rendered its judgment before
Amelio filed this federal lawsuit.5 Amelio, however, does not complain about injuries
caused by the state-court judgment, and the Rooker-Feldman doctrine does not apply.
In this lawsuit, Amelio complains about violations of the FDCPA caused by
defendants filing the foreclosure action in state court. This alleged injury was caused
by the defendants—not the judgment of the state court—and Amelio is not seeking
appellate review of the of the state-court judgment. See id. at 169; Hersh v.
4

Bank of America raises the Rooker-Feldman doctrine in its motion to dismiss.
(ECF No. 24, at 6.)

5

The state trial court entered judgment for Bank of America and against Amelio in
the amount of $327,512.87 plus interest on February 10, 2012. Order, BAC Home
Loans Servicing v. Amelio, No. GD-09-010436 (Pa. Ct. Com. Pl. Feb. 10, 2012)
(Doc. No. 18). The state trial court denied Amelio’s motion to vacate on December
16, 2013. Id. (Doc. No. 33). The Superior Court of Pennsylvania dismissed Amelio’s
appeal on June 30, 2013. Bank of Am., Nat’l Ass’n v. Amelio, No. 202 WDA 2014
(Super. Ct. Pa. June 30, 2014) (per curiam). On November 13, 2014, The Supreme
Court of Pennsylvania denied Amelio’s petition for leave to file petition for
allowance of appeal nunc pro tunc. Bank of Am., Nat’l Ass’n v. Amelio, No. 68 WM
2014 (Pa. Nov. 13, 2014) (per curiam).

5

CitiMortgage, Inc., 16 F. Supp. 3d 556, 572 (W.D. Pa. 2014) (holding that the RookerFeldman did not apply because the plaintiffs were complaining about, among other
things, the initiation of an improper foreclosure action, and not the state-court
judgment). The state-court foreclosure action and this lawsuit are closely related,6 and
the decisions of the state court may have preclusive effect in this case, but that is not a
jurisdictional issue. See Exxon Mobil, 544 U.S. at 293 (“In parallel litigation, a federal
court may be bound to recognize the claim- and issue-preclusive effects of a statecourt judgment, but federal jurisdiction over an action does not terminate
automatically on the entry of judgment in the state court.”). The Rooker-Feldman
doctrine does not bar the court from hearing this case against the law firm
defendants.

B. Statute of Limitations Defense
The law firm defendants argue that Amelio’s claims of abusive, deceptive, and
unfair debt collection practices in violation of 15 U.S.C. § 1692 must be dismissed
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failing to state
claims for which relief could be granted because Amelio’s claims under the FDCPA
are time barred. The FDCPA requires a plaintiff to file his or her claim within one
year of the violation. 15 U.S.C. § 1692k(d) (“An action to enforce any liability created
by this subchapter may be brought in any appropriate United States district court
without regard to the amount in controversy or in any other court of competent

6

Prior to the Supreme Court’s decision in Exxon Mobil, courts—including the Court
of Appeals for the Third Circuit—found that the Rooker-Feldman doctrine applied
when the federal suit was “inextricably intertwined” with the state-court
adjudication. See, e.g., Walker v. Horn, 385 F.3d 321, 332 (3d Cir. 2004). After
Exxon Mobil, this is no longer an independent method of analyzing RookerFeldman issues. Great W., 615 F.3d at 169–70 (“Although the term ‘inextricably
intertwined’ was used twice by the Supreme Court in Feldman, reliance on this
term has caused lower federal courts to apply Rooker-Feldman too broadly. The
phrase ‘inextricably intertwined’ does not create an additional legal test or expand
the scope of Rooker-Feldman beyond challenges to state-court judgments.”).

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jurisdiction, within one year from the date on which the violation occurs.”). A statute
of limitations defense is an affirmative defense, which is generally to be stated in a
responsive pleading. FED. R. CIV. P. 8(c). In the Third Circuit, however, defendants
are permitted to raise a limitations defense in a Rule 12(b)(6) motion, but “‘only if the
time alleged in the statement of a claim shows that the cause of action has not been
brought within the statute of limitations.’” Schmidt v. Skolas, 770 F.3d 241, 249 (3d
Cir. 2014) (quoting Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002)). Thus, “‘[i]f
the bar is not apparent on the face of the complaint, then it may not afford the basis
for a dismissal of the complaint under Rule 12(b)(6).’” Id. (quoting Robinson, 313
F.3d at 135). In addition to the complaint, the court may also consider “‘exhibits
attached to the complaint and matters of public record’” in deciding a motion to
dismiss. Id. (quoting Pension Benefit Gaur. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993)). Matters of public record include, among other things,
“publicly available records and transcripts from judicial proceedings ‘in related or
underlying cases which have a direct relation to the matters at issue.’” Twp. of S.
Fayette v. Allegheny Cnty. Hous. Auth., 27 F. Supp. 2d 582, 594 (W.D. Pa. 1998)
(quoting In re Am. Cont’l/Lincoln Sav. & Loan Sec. Litig., 102 F.3d 1524, 1537 (9th Cir.
1996)).
Where an FDCPA claim arises from an allegation of improper debt collection
litigation, courts have held that the statute of limitations begins to run either on the
date the debt collection complaint is filed, Naas v. Stolman, 130 F.3d 892, 893 (9th Cir.
1997), or the date complaint is served, Johnson v. Riddle, 305 F.3d 1107, 1113 (10th
Cir. 2002). See Simard v. LVNV Funding, LLC, No. CIV. A. 10-11009-NMG, 2011 WL
4543956, at *4 (D. Mass. Sept. 28, 2011) (“Generally, if a plaintiff ’s FDCPA claim
arises from a debt collection suit filed in state or municipal court, the statute of
limitations runs from the day the complaint is filed or the day the plaintiff is served
with a copy of the complaint.”).

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In order to determine whether Amelio’s claims are time barred, this court must
look to the date defendants filed the mortgage foreclosure action or the date the
Amelio was served with the mortgage foreclosure complaint. Amelio’s complaint
contains two conflicting statements about when defendants filed the mortgage
foreclosure action. Amelio first alleges that Bank of America and the law firm
defendants filed the mortgage foreclosure complaint on May 28, 2014. (Compl. ¶ 69,
ECF No. 1) Three paragraphs later, Amelio states that Bank of America and the law
firm defendants filed the mortgage foreclosure complaint on August 15, 2008. (Id.
¶ 72.) According to the publically available docket of the Court of Common Pleas for
Allegheny County, of which the court can take judicial notice, the mortgage
foreclosure complaint was filed on June 8, 2009, and reinstated on October 13, 2009.
BAC Home Loans Servicing v. Amelio, No. GD-09-010436 (Pa. Ct. Com. Pl. June 8,
2009) (Doc. Nos. 1, 4). Amelio was served with the complaint by regular and certified
mail on October 14, 2009, and by posting the complaint at the mortgage premises on
October 19, 2009. Id. (Nov. 11, 2009) (Doc. No. 7).
While the court accepts all well-pleaded factual allegations in the complaint as
true, it need not accept allegations that are internally inconsistent or contradict
matters of public record. See, e.g., Kaempe v. Myers, 367 F.3d 958, 963 (D.C. Cir. 2004)
(“Nor must we accept as true the complaint’s factual allegations insofar as they
contradict exhibits to the complaint or matters subject to judicial notice.”); Sprewell v.
Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (“The court need not … accept as
true allegations that contradict matters properly subject to judicial notice or by
exhibit.”), opinion amended by 275 F.3d 1187 (9th Cir. 2001); 5C CHARLES ALAN
WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1363 (3d ed.
2004) (“The district court will not accept as true pleading allegations that are
contradicted by facts that can be judicially noticed or by other allegations or exhibits
attached to or incorporated in the pleading.” (footnote omitted)).

8

In this case, the statute of limitations began to run in 2009, when the mortgage
foreclosure suit was filed and served. Because Amelio did not file this suit until 2014,
the FDCPA claims asserted against the law firm defendants were not timely filed.

C. Continuing Violation Theory
Amelio contends that the filing of the foreclosure action should not be
recognized as a stand-alone violation outside of the statute of limitations. (ECF No.
16, ¶ 78.) Instead, Amelio argues that the totality of defendants’ acts “constitute a
persistent and intentional” continuing violation of the FDCPA. (Id.)
Several district courts have applied the continuing violation doctrine in the
context of FDCPA claims and found that the statute of limitations did not bar claims
outside the one-year limitations period when the contact was part of a pattern of
violations extending into the limitations period. See Tucker v. Mann Bracken, LLC,
Civil No. 08-1677, 2009 WL 151669 (M.D. Pa. Jan. 21, 2009); Joseph v. J.J. Mac Intyre
Companies., L.L.C., 281 F. Supp. 2d 1156, 1160 (N.D. Cal. 2003). Both these decisions
are distinguishable. In Tucker, the complaint contained factual allegations about a
series of harassing debt collection phone calls, including at least ten within the
limitations period. Tucker, 2009 WL 151669, at *4. Because these calls were part of
continuing pattern of conduct that began before the limitations period, the court
concluded that calls outside the one-year limitations period were not barred. Id. It
was irrelevant that a debt collection lawsuit was filed outside the limitations period
because the FDCPA claims were based upon the phone calls, not the lawsuit. Id.
Joseph also involved a series of debt collection phone calls occurring both during and
before the limitations period. Joseph, 281 F. Supp. 2d at 1161–62. The court denied
the debt collector’s motion for summary judgment based upon the statute of
limitations because approximately seventy-five calls were within the limitations
period, and the court could consider calls outside the period under the continuing
violation theory. Id. at 1162. The Joseph case did not involve an underlying debt
collection lawsuit. Other district courts have held that “under a continuing violation

9

theory, each new communication begins a fresh statute of limitations period for the
claim.” Nutter v. Messerli & Kramer, P.A., 500 F. Supp. 2d 1219, 1223 (D. Minn. 2007).
“However, ‘[n]ew communications … concerning an old claim … [do] not start a
new period of limitations.’” Id. at 1223 (quoting Campos v. Brooksbank, 120 F. Supp.
2d 1271, 1274 (D.N.M. 2000)).
Unlike in Tucker and Joseph, the factual allegations in the complaint in this case
do not show an ongoing pattern of wrongful conduct. Amelio urges the court to “look
at the whole picture” (ECF No. 16, ¶ 78), but the activities Amelio points to in the
complaint as constituting a continuing violation—threatening improper litigation and
filing improper litigation based upon a fraudulent affidavit—occurred at the time the
mortgage foreclosure suit was filed or before. (See, e.g., Compl. ¶¶ 18–20, 26–28, 34,
37–38, 43, 49–54, 55–57, 60–69, 72, ECF No. 1.) Mere participation in ongoing debt
collection litigation does not constitute a continuing violation of the FDCPA. See
Schaffhauser v. Citibank (S.D.) N.A., 340 F. App’x 128, 131 (3d Cir. 2009) (declining to
extend the continuing violation doctrine when the plaintiffs “offer[ed] no support for
their contention that participation in ongoing debt collection litigation qualifies as a
‘continuing violation’ of the FDCPA”); Naas, 130 F.3d at 893 (“We hold that the statute
of limitations began to run on the filing of the complaint . . . .”); Kimmel v. Phelan
Hallinan & Schmieg, PC, 847 F. Supp. 2d 753, 767–68 (E.D. Pa. 2012) (“Our Court of
Appeals’s jurisprudence … suggests only that participation in debt collection
litigation does not qualify as a continuing violation under the FDCPA; it does not
hold that the continuing violations doctrine is inapplicable to all FDCPA claims.”).
Because the complaint contains no allegations of a pattern of conduct that could be
considered an ongoing violation or new communications unrelated to the ongoing
action, the violations alleged in the complaint as a matter of law occurred no later
than the time the lawsuit was served upon Amelio. Amelio’s complaint is time barred
and subject to dismissal for failure to state a claim.

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D. Dismissal with Prejudice
The details in this case demonstrate that any attempt to amend the complaint
with respect to the FDCPA claims against the law firm defendants would be futile.
Amelio makes additional allegations against the law firm defendants in his response
to the motion to dismiss. For example, Amelio argues that the law firm defendants
instructed him “not to file any responsive pleading because of the loan modification
that was going to be issued” to him. (ECF No. 16, ¶ 34.) Amelio asserts that the law
firm defendants subsequently sought a default judgment against him. (Id.) The state
trial court entered judgment against Amelio in 2012—outside the limitations period
of November 25, 2013, to November 25, 2014—and an amended complaint
containing these additional allegations would be futile. See Cowell v. Palmer Twp., 263
F.3d 286, 296 (3d Cir. 2001) (holding that district court did not abuse its discretion in
denying leave to amend where additional factual allegations in plaintiff ’s memorandum in opposition would not have overcome the statute of limitations). For this
reason, the FDCPA claims against the law firm defendants will be dismissed with
prejudice.7

V.

Conclusion
The law firm defendants’ motion to dismiss Amelio’s claims of abusive, deceptive,

and unfair debt collection practices in violation of the FDCPA will be granted.
Amelio’s FDCPA claims against the law firm defendants will be dismissed with
prejudice. An appropriate order will be entered.
Dated: July 28, 2015

7

/s/ Joy Flowers Conti
Joy Flowers Conti
Chief United States District Judge

Amelio also argues in his response that Bank of America’s conduct constitutes wire
fraud, mail fraud, and a violation of the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §§ 1961–1968. (ECF No. 16, ¶¶ 32, 67–76.)
The complaint contains no claims or factual allegations referencing wire fraud,
mail fraud, or RICO violations.

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