STRADER v. U.S. BANK NATIONAL ASSOCIATION et al
OPINION. Signed by Judge Mark R. Hornak on 2/7/18. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Civil Action No. 2: 17-cv-684
U.S. BANK NATIONAL ASSOCIATION et
Judge Mark R. Hornak
Mark R. Hornak, United States District Judge.
Pro se Plaintiff Vance Strader ("Plaintiff' or "Mr. Strader") initiated this action on May
26, 2017, against Defendants U.S. Bank National Association as Trustee for First Franklin ("US
Bank"); Richard Davis; Michael Bengtson; Nationstar Mortgage LLC ("Nationstar"); Jay Bray;
Salina Baca; Jessica Moore; Andrea Friedrich; William Viana; Sandelands Eyet LLP
("Sandelands LLP"); William Sandelands; Matthew Eyet; Alina Eyet; Mitchell Zipkin:. and Cara
Ann Murphy (collectively, "Defendants"). Defendants filed a Motion to Dismiss Complaint with
Prejudice, ECF No. 18 ("Motion"), on August 25, 2017. For the reasons that follow, the Motion
is granted in part and denied in part.
This is a an action for damages, asserting federal claims under the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and several state law claims.
Plaintiff filed a "Verified Claim" on May 26, 201 7, with his Motion for Leave to Proceed
informa pauperis ("IFP"). ECF No. 1-1 ("Complaint"), refiled at ECF No. 3. The Complaint
alleges FDCPA violations (Count 1), constitutional violations (Count 2), Unjust Enrichment
(Count 3), Abuse of Process (Count 4), Invasion of Privacy (Count 5), and Libel and Slander
(Count 6). This Court granted the Motion for Leave to Proceed IFP but dismissed without
prejudice all claims arising under the Constitution of the United States and all claims within the
Complaint brought on behalf of any individual plaintiff other than Plaintiff Vance Strader. May
31, 2017 Order, ECF No. 2, re-filed June 26, 2017, at ECF No. 7. Plaintiff filed a Motion for
Reconsideration, ECF No. 6, which the Court denied. ECF No. 8. On August 11, 2017, Plaintiff
filed an amendment to his Complaint, ECF No. 16, removing named Defendant Jessica Moore
and adding a "common law claim private right of action against all named defendants for
trespassing on my property without rights pursuant to the seventh amendment of the U.S.
Constitution." Notice to Amend, ECF No. 16, at 1. The Court interprets this to be a claim for
trespass under state law and the reference to the Seventh Amendment to be a demand for a jury
trial in accordance with Fed. R. Civ. P. 38. For clarity purposes, the trespass claim will be
referred to as ':Count 7."
The Complaint 1 is difficult to interpret, but this action appears to arise out of events
surrounding the foreclosure of a house located in Penn Hills, Pennsylvania (the "House").
Plaintiff, and family members Sandra Strader and Sonya Strader, appear to have resided in the
House when it was foreclosed upon. Compl.
7. The Complaint states that Defendant is an
executor and administrator for Sandra Strader's estate. Compl.
The Notice to Amend only pleads Count 7 and does not re-hash the allegations of the
Complaint. The Court therefore treats the Notice to Amend as a sort of addendum to the
Complaint, which contains the bulk of the facts.
Plaintiff also attached sixty-eight (68) pages of exhibits to his Complaint. Without any
substantive description of the exhibits set out in the Complaint, the Court best describes them as
Exhibit 1: (a) A copy of the recording of Sandra Strader's mortgage to US
Bank, showing a recorded date of August 25, 2015, in Allegheny County.
Nationstar is also listed on the document, and it is stamped "Certified from the
Record Allegheny County Dept. of Real Estate;" (b) A copy of a corporate
assignment of a mortgage executed by Sandra Strader assigning the mortgage
from Mortgage Electronic Registration Systems, Inc., as Nominee for First
Franklin Financial Corp. to US Bank, dated August 10, 2015; (c) A letter to "Mr.
Lance" (presumably, Plaintiff) in response to a request for a copy of a State of
Texas Notary Public application/bond, a copy of William Viana' s Application for
Appointment as Texas Notary Public, and a copy of Andrew Friedrich's
Application for Appointment as Texas Notary Public.
Exhibit 2: (a) Notice of Intention to Take Default Under Pa.R.C.P 237.1 to
"Unknown Heirs, Successors, Assigns and All Persons, Firms, or Associates
Claiming Right, Title or Interest From or Under Sandra Strader, Deceased" in the
Court of Common Pleas, Civil Division, Allegheny County, in Case No. MG-15001358. The date of notice is July 6, 2016; (b) A letter dated January 6, 2016,
from Nationstar to Sandra Strader addressing some sort of request for
information; (c) A notice that the recipient has been sued in court without any
indication of the case number or the recipient but with language that "this law
firm is deemed to be a debt collector attempting to collect a debt." No law firm is
listed; (d) A notice in the Spanish language with the same debt collector
disclosure as the previous notice (also in English) and also with a list of "persons
to whom Rule 237.1 Notice Sent To," which includes Plaintiff. This notice is
dated July 6, 2016 and signed by Katherine M. Wolf, Shapiro & DeNardo LLC;
(e) A notice dated October 23, 2014, appearing to be from Sandra Strader and
Vance Strader to Nationstar with regard to an "Alleged Loan No. 61062073." The
notice states that it is "a notice of dispute pursuant to fdcpa l 5usc 1692 it has
Come to our attention that Nationstar does not have a mortgage assignment but
has been taking our money every month witch is clearly unjust enrichment." (f) A
twenty-one (21) page document appearing to be another notice from Sandra
Strader and Plaintiff. There is a date of February 25, 2016 on the first page. It
appears to be a form of notice to US Bank of the Straders' belief that "debt
collectors can't foreclose" and giving notice of dispute of the debt; (g) Finally, a
copy of a U.S. Postal Service Certified Mail Receipt, dated February 25, 2015,
related to a mailing from Sandra Strader to US Bank.
Exhibit 3: A copy of the "case search action screen" in US. Bank National
Association v. Strader, Case No. MG-15-001358. The document identifies the
litigants, including Plaintiff (who is identified as a defendant in that case), and
lists docket entries with filing dates ranging from September 29, 2015, to July 15,
Exhibit 4: (a) This two (2)-page document appears to be a service history
for Case No. MG-15-001358 from the Allegheny County Sheriff's website. (b) A
document with a letterhead stating "Legal Advertising Trib Total Media," titled
"Proof of Publication of Notice in Tribune-Review." The entire document is
difficult to read but appears to be a publication of notice regarding Sandra
Strader's mortgage with US Bank. (c) An affidavit relating to the Proof of
Publication of Notice in Exhibit 4(b).
Exhibit 5: A court document in Case No. MG-15-001358, titled,
"Plaintiff's Responses to Defendants' Requests for Admission." It includes a
certificate of service.
Exhibit 6: A letter from Sandelands Eyet LLP to Plaintiff dated September
Exhibit 7: A document from Sandra Strader, Plaintiff, and Sonya Strader
to Sandelands Eyet LLP and Mitchell Zipkin, dated September 12, 2016.
Exhibit 8: A letter from US Bank to Sandra Strader dated December 11,
2015, informing Sandra Strader that US Bank has no involvement with the
foreclosure process and directing Sandra Strader to Nationstar, as the servicer for
Exhibit 9: A completed Subpoena to Attend and Testify form from the
Court of Common Pleas of Allegheny County for Andrew Friedrich and William
ECF Nos. 1 & 3.
After review of the Complaint, the Notice to Amend, and the exhibits attached to the
Complaint, the Court believes that the Plaintiff alleges that the following occurred: Sandra
Strader obtained a mortgage for the House. At some point, Sandra Strader and Plaintiff began
contacting various entities related to the mortgage (a law firm, US Bank, etc.) challenging the
legitimacy of the mortgage. An action for mortgage foreclosure was brought in the Court of
Common Pleas in Allegheny County by US Bank NA C/O Nationstar Mortgage, No. MG-15001358 ("Foreclosure Action"). It appears the Foreclosure Action was brought after Sandra
Strader passed away, so the case was brought against her heirs, namely Plaintiff and Sonya
Turning to Plaintiffs allegations, Plaintiff pleads that the Defendants committed
numerous violations of the FDCP A and also violated state law. The factual allegations 2 giving
rise to these claims can best be summarized as follows:
On May 30, 2016, Nationstar "broke in and seized" the House. Compl.
locked Plaintiff and others out of the house without ever presenting a warrant or court order. Id.
7. The House had a sign that said "no trespassing," and Plaintiff was already "in court with
communication by mail."
7. Upon entering the house, Nationstar "went through every room
closets, drawers, cabinets, took pictures stole money and items in the house." Id.
called the Penn Hills police and a report was taken.
11. No copy of the police report was
attached to any of Plaintiffs' pleadings.
At some point, though it is unclear from the Complaint when, US Bank and Nationstar
communicated with numerous third parties, including a sheriff, property inspectors, neighbors,
15. US Bank and Nationstar also communicated with newspapers and placed
Plaintiff and others' names in the paper "saying [Plaintiff and family] owe a debt to a debt
15. US Bank and Nationstar, through its attorneys and employees, continued to
communicate with Plaintiff and his family despite never having Plaintiffs permission nor a court
order allowing them to contact the family. These communication attempts continued after the
debt was "in dispute" and after US Bank and Nationstar were told in writing to cease and desist.
19. "Defendants" filed "fraudulent deceptive forms and fraudulent affidavits in the county
Plaintiffs Complaint contains numerous recitations of statutes and legal definitions that this
Court disregards in its attempts to understand Plaintiffs factual allegations. See, e.g., Compl. ~ 5.
record." Id. ~ 20. Plaintiff does not specify which Defendants did so and does not describe the
"forms" or "affidavits." It is unclear if Plaintiff is referring to one of the many documents
attached as exhibits to the Complaint. Plaintiff also claims that "Defendants," again not
specifying which Defendants, misrepresented the debt as a foreclosure and misrepresented the
amount of the alleged debt when they filed "their deceptive forms" in state court. Id.
Plaintiff claims the debt was "rescinded for fraud by us" in 2009. Id.
22. Defendants allegedly
sent communications to Plaintiff and his family that demanded fees and expenses that had yet to
be incurred, such as attorney fees, property inspection, and valuation fees. Plaintiff also alleges
that signatures on documents attached as Exhibit 1 to the Complaint are false, and Defendants
have refused to engage with Plaintiff on whether the signatures are genuine. Id.
Plaintiff alleges that specific Defendants US Bank, Mathew Eyet, Alina Eyet, William
Sandelands, Cara Ann Murphy, Mitchell E Zipkinand, and Sandeland Eyet LLP allegedly
communicated with Plaintiff but failed to disclose that they are debt collectors.
Plaintiff alleges that Matthew Eyet, Alina Eyet, William Sandelands, Cara Ann Murphy,
Mitchell E Zipkinand, and Sandeland Eyet LLP never provided Plaintiff with a "dunning letter"
that states his right to dispute a debt and informs Plaintiff that the Defendants are debt collectors.
State Court Foreclosure Action
Plaintiffs Complaint and attached exhibits reference the Foreclosure Action, filed on
September 29, 2015, by US Bank. Compl, Ex. 3. Vance Strader filed an answer in that case on
May 3, 2016. Foreclosure Action, Doc. 17. In that Answer, Plaintiff filed counterclaims against
US Bank, Richard Davis, Michael Bengtson, Nationstar, Jay Bray, Saline Baca, Jessica Moore,
Andrea Friedrich, William Viana, Shapiro and DeNardo, Katherine Wolf, and Sarah McCaffery
for claims under the FDCPA (Count 1), RICO (Count 2), unjust enrichment (Count 3), abuse of
process (Count 4), and invasion of privacy (Count 5). Id. Plaintiff amended his answer on May
23, 2016, to add additional counterclaims for Libel and Slander (Count 6) 3 and Fraud (Count 7). 4
Id. at Doc. 19. Plaintiff amended again on October 14, 2016, to add Sande lands Eyet LLP and
Mitchell E Zipkin as Defendants to the FDCP A counterclaim and the unjust enrichment
counterclaim. Id. at Doc. 40. US Bank filed Preliminary Objections to the counterclaims,
asserting, in part, that Plaintiffs pleadings failed to conform to applicable pleading rules, failed
to set forth a legally sufficient claim, and improperly asserted counterclaims related to the
servicing of a mortgage loan in an in rem foreclosure action. See id. at Doc. 41, iii! 14-20. In an
order dated November 17, 2016, Common Pleas Judge Robert Colville sustained US Bank's
Objections and dismissed Mr. Strader's counterclaims without prejudice. Id. at Doc. 47
("November 17 Order"). The November 17 Order states: 5
AND NOW, this 17 day of November, 2016, upon consideration of the Preliminary
Objections (the Objections") of plaintiff U.S. Bank National Association, as Trustee for
Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Asset-Backed Certificates,
Series 2007-4 ("U.S. Bank") and upon consideration of all papers filed in support of the
Objections, and any opposition thereto, it is hereby ORDERED and DECREED that
Plaintiffs Objections to plaintiff's 6 Amended Answer and Counterclaims filed 10114116 are
hereby SUSTAINED and Defendants' Counterclaims and paragraphs 10-19, 22-32, 35, 36,
40-43, 82, 103, and 104 of the Affirmative Defenses are DISMISSED. 'l>vith prejudice.
BY THE COURT
Defendant is granted leave to file a single an [sic] Amended Answer, Affirmative
Defenses and/or Counterclaims within 20 days if warranted. It is respectfully, but strongly,
In the Amended Answer, Plaintiff labels this as Count 5, but since there is already a Count 5,
the Court treats this as Count 6 of his Common Pleas Amended Answer.
In the Amended Answer, Plaintiff labels this as Count 6, but since the libel and slander claim is
considered Count 6, the Court treats this as Count 7 of his Common Pleas Amended Answer.
5 The normal styled font indicates type-written language, the italicized font indicates handwritten
language, and the stricken font indicates type-written language that was crossed out by hand.
[sic]. Mr. Strader, who filed the relevant amended answer is a defendant in the Foreclosure
recommended that Defendant[s] obtain legal counsel to assist in the preparation ojfuture
According to Allegheny County Department of Court Records as of the date of this
Opinion, this is the last docket entry in the case. 7
In this case, Defendants filed a Motion to Dismiss pursuant to both Fed. R. Civ. P.
12(b)(l) and 12(b)(6). Plaintiff filed objections to Defendants' Motion and a Brief in Support of
his Objections. ECF Nos. 22, 23. Defendants replied to Plaintiffs objections, and Plaintiff filed
another set of objections. ECF Nos. 22, 26. The Motion is now ripe for disposition.
Motion to Dismiss Standards
A motion to dismiss pursuant to both Fed. R. Civ. P. 12(b)(l) and 12(b)(6) requires two
different legal standards. The Court may "grant a Rule 12 (b) (1) motion to dismiss for lack of
subject matter jurisdiction based on the legal insufficiency of a claim." Kehr Packages v.
Fide/car, Inc., 926 F.2d 1406, 1408-09 (3d Cir. 1991). Dismissal under 12(b)(l) for
insufficiency is only proper when "the claim 'clearly appears to be immaterial and made solely
for the purpose of obtaining jurisdiction or ... is wholly insubstantial and frivolous."' Id.
(quoting Bell v. Hood, 327 U.S. 678, 682 (1946)).
When reviewing a Rule l 2(b)( 6) motion, the Court must "accept all factual allegations as
true, construe the complaint in the light most favorable to the plaintiff, and determine whether,
under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Phillips v.
Cty. ofAllegheny, 515 F.3d 224, 233 (3d Cir. 2008). Plaintiffs factual allegations must "raise a
right to relief above the speculative level" and state a "plausible claim for relief' to survive a
Court records publically available at https://dcr.alleghenycounty.us/Civil/LoginSearch.aspx.
motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court need not
accept as true any unsupported conclusions, unsupported inferences, and "threadbare recitals of
elements of a cause of action." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 8
Typically, the Court "must assume jurisdiction over a case before deciding legal issues on
the merits." Kehr, 926 F.2d at 1408-09 (citing Bell, 327 U.S. at 682). Thus, the Court must first
find jurisdiction exists (thereby denying the 12(b)(l) motion) before it may address any merits of
a claim. While a claim must be wholly insubstantial to be dismissed under a motion pursuant to
Rule 12(b)( 1), more is required to withstand a motion brought under Rule 12(b)( 6) motion. Kehr,
926 F.2d at 1409.
Defendants argue the Complaint must be dismissed under both Rule l 2(b )( 1) for lack of
subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim. Defendants appear to
make two arguments. First, Defendants argue the federal claims, taken together, are immaterial,
made for the purpose of obtaining jurisdiction, and/or wholly insubstantial and frivolous. Thus,
the entire case should be dismissed as not involving any federal controversy, which deprives this
Court of any subject matter jurisdiction. Second, if the Complaint and Notice to Amend establish
a federal controversy, the sole federal claims arising under the FDCP A fail under the higher Rule
In Plaintiffs Objections to Dismiss Claim with Prejudice, ECF No. 22, Plaintiff claims that he
is held to a less stringent pleading standard. See ECF No. 22, ~ 13. It is true that prose plaintiffs
are not held to the same standard as lawyers when the Court analyzes formal pleadings, but any
pleading must still contain sufficient factual allegations that, when accepted as true, "state a
claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678; see also Fantone v. Latini,
780 F.3d 184, 193 (3d Cir. 2015) (recognizing that a pro se complaint must also satisfy Twombly
and Iqbal's pleading standard).
l 2(b )( 6) standard. If the FDCP A claims are dismissed, Defendants argue, this Court should
decline to exercise supplemental jurisdiction over any remaining state law claims.
Before the Court may reach the merits of the claims, the Court must address Defendants'
Motion pursuant to Rule l 2(b )( 1) first.
Rule 12(b)(l) Subject Matter Jurisdiction
Plaintiffs Complaint devotes significant attention to "Count l," the claims arising under
the FDCP A, a federal statute. "Before deciding that there is no jurisdiction, the District Court
must look to the way the complaint is drawn to see if it is drawn so as to claim a right to recover
under the Constitution and laws of the United States." Bell, 327 U.S. at 681. In that regard, it is
thus clear to this Court that Plaintiff does seek relief for Defendants' alleged violations of federal
law. Id. In Bell, the Supreme Court noted two exceptions to the general rule that a district court
must entertain a complaint drawn to seek recovery directly under the Constitution or federal law:
when federal law is invoked solely for obtaining jurisdiction or where such claim is wholly
insubstantial and frivolous. Id. at 682-83. Neither of these exceptions apply to Plaintiffs
First, Plaintiff does not appear to invoke the FDCP A merely to get his case into federal
court. While the merits of his FDCP A will be addressed later in this Opinion, it is plain that
Plaintiff seeks relief for allegedly improper debt collection practices. Defendants allege that
Plaintiff brings this case merely to collaterally attack the foreclosure proceeding in state court.
Plaintiff is not seeking any sort of injunctive relief. Rather, Plaintiff seeks money damages based
on the conduct of the Defendants in their alleged roles as debt collectors. It is not the foreclosure
itself that Plaintiff challenges; it is the conduct and behavior of the alleged debt collectors during
the events related to the foreclosure that give rise to Plaintiff's asserted claims. This is squarely
within the FDCP A and confers federal question subject matter jurisdiction on this Court, and if
those FDCP A claims survive, there is supplemental jurisdiction over the remaining state law
Second, Plaintiff's FDCP A claims are not "wholly insubstantial and frivolous." It may be
prolix in some places and scant in others, but Plaintiff goes to great lengths to describe specific
behavior he believes entitles him to relief. For example, Plaintiff alleges certain Defendants
broke into the House and stole his possessions. Compl.
police showing up at the scene and taking a report. Id.
communications by debt collectors. Id.
7, 10. This event gave rise to the
11. Plaintiff also alleges inappropriate
19. Plaintiff alleges deceptive forms, misrepresented
information about the debt, and demands for fees and costs not yet incurred. Id.
20, 21, 32.
While Defendants may challenge these accusations as failing to state a claim upon which relief
may be granted, Plaintiff's federal claims as stated are not so frivolous or insubstantial that this
Court should decline to reach the merits of the case on jurisdictional grounds.
Concluding that Plaintiff's Complaint and Notice to Amend at least facially properly
seeks relief under federal law, this Court exercises federal question subject matter jurisdiction
based on the FDCP A claims. Whether the Court will exercise supplemental jurisdiction over the
remaining state law claims depends on whether the FDCP A claims survive the Rule 12(b)( 6)
standard described above. The Court now turns to that issue.
Rule 12(b)(6) Failure to State Claims
Defendants argue Plaintiff's claims, both the FDCP A and state law claims, must be
dismissed for failure to state a claim based a number of theories. First, Defendants argue that all
the claims do not meet the adequate pleading requirements and run afoul of Federal Rule of Civil
Procedure 8. Second, Defendants argue that Plaintiff is precluded from litigating his claims in
this Court because they were already litigated to conclusion in the state foreclosure action. Third,
Defendants argue even if the claims are not precluded, this Court should abstain (decline to
exercise jurisdiction over this case) based on two abstention doctrines addressing parallel state
and federal cases. Defendants present additional arguments with respect to each claim, but the
Court begins with a brief discussion of these three defenses that Defendants assert span all the
claims. Then, the Court will address each of Plaintiffs claims and Defendant's corresponding
arguments in support of dismissal.
Failure to State a Claim and to Conform with Rule 8
Plaintiff must plead facts which permit the court to make a reasonable inference that the
Defendants are liable. Twombly, 550 U.S. at 556-57; Iqbal, 556 U.S. at 678. Leave to amend
"shall be freely given when justice so requires." Alvin v. Suzuki, 227 F .3d 107, 121 (3d Cir.
2000) (quoting Fed. R. Civ. P. 15).
As stated in Rule 8(a)(2), any complaint filed in federal court must contain "a short and
plain statement of [any] claim showing that the [Plaintiff] is entitled to relief." Despite the Rule's
instruction to keep it short and sweet, both the Court and the opposing parties must be able to
understand the nature of each individual claim. See Glover v. FDIC, 698 F.3d 139, 147 (3d Cir.
2012). This requires the Plaintiff to present his claims clearly to avoid others having to "forever
sift through its pages in search of the nature of' the claims. Id. (quoting Jennings v. Emry, 910
F.2d 1434, 1436 (7th Cir. 1990)). When a complaint becomes too confusing or unfocused, it fails
to give requisite fair notice to the Defendants, and the claims should be dismissed.
However, because cases are better off being decided on the merits, a plaintiff should be
allowed to amend his pleadings unless there is "undue delay, bad faith or dilatory motive on the
part of the movant; repeated failure to cure deficiencies by amendments previously allowed;
prejudice to the opposing party; [or] futility." Mullin v. Balicki, 875 F.3d 140, 149 (3d Cir.
2017). This Court will apply these principles as appropriate in each claim below.
Defendants aver that because Plaintiff brought counterclaims in the state court
foreclosure action that are "substantially similar" to Plaintiffs claims here, he cannot litigate
those issues again in federal court.
When a matter has been litigated and decided, preclusion issues arise, which can bar relitigation of certain matters. See Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 77
n.1 ( 1984 ). Here, the doctrine of issue preclusion (known as collateral estoppel) is alleged to bar
re-litigation of the counterclaims. "The purpose of precluding 'parties from contesting matters
that they have had a full and fair opportunity to litigate protects their adversaries from the
expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters
reliance on judicial action by minimizing the possibility of inconsistent decisions."' M&M Stone
Co. v. Pennsylvania, 388 F. App'x 156, 162 (3d Cir. 2010) (quoting Montana v. United States,
440 U.S. 147, 153-54 (1979)).
The Full Faith and Credit statute, 28 U.S.C. § 1738, requires this Court to give a prior
state judgment the same preclusive effect as would the adjudicating state; in this case,
Pennsylvania. Hill v. Barnacle, 598 F. App'x 55, 57 (3d Cir. 2015) (citing Exxon Mobil Corp. v.
Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005). Thus, Plaintiff is only precluded from
bringing his claims in this Court if he is precluded from bringing his claims in a Pennsylvania
court under Pennsylvania law. Hill, 598 F. App'x at 57.
When a Rule 12(b)(6) motion raises issue preclusion concerns, and Plaintiff has not
included the relevant prior adjudications in his pleadings, the Court "must still consider the prior
adjudication in order to determine whether issue preclusion bars that plaintiff's claims." M & M
Stone Co., 388 F. App'x at 162. The Court may take judicial notice of the prior judicial opinion
as a public record at the motion to dismiss phase, but it only does so "to establish the existence of
the opinion, and not for the truth of the facts asserted in the opinion." Id. (citing Lum v. Bank of
Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004) ). Therefore, the Court takes judicial notice of the
November 17 Order.
Under Pennsylvania law, the following conditions must exist to invoke issue preclusion:
(1) the issue decided in the prior adjudication was identical with the one
presented in the later action;
(2) there was a final judgment on the merits;
(3) the party against whom the plea is asserted was a party or in privity with a
party to the prior adjudication; and
(4) the party against whom it is asserted has had a full and fair opportunity to
litigate the issue in question in a prior action.
M&M Stone Co., 388 F. App'x at 162. Here, the second element is clearly not met
because the November 11 Order was not a final judgment on the merits. The November 11 Order
crossed out the printed language "with prejudice" and granted Mr. Strader and his fellow
defendants the opportunity to amend their counterclaims. It even encouraged Mr. Strader to
obtain legal counsel in his pursuit of his counterclaims. This order is clearly a dismissal without
prejudice, and an order dismissed without prejudice does not affect one's rights to reassert claims
in further proceedings. In re Bell, 25 A.2d 344, 350 ( 1942). In other words, a dismissal without
prejudice is not a final judgment for purposes of preclusion. Id.; Fox v. Garzilli, 875 A.2d 1104
(Pa. Super. 2005). Thus, the Court denies Defendants' Motion with respect to issue preclusion.
Defendants argue the Younger doctrine requires this Court to abstain from exercising
jurisdiction because taking jurisdiction over this case would offend principles of comity by
interfering with the ongoing state foreclosure proceeding. Defendants cite to a three-part test
from Matusow v. Trans-County Title Agency, LLC, 545 F.3d 241, 248 (3d Cir. 2008) ("(l)
[T]here are ongoing state proceedings that are judicial in nature; (2) the state proceedings
implicate important state interests; and (3) the state proceedings afford an adequate opportunity
to raise federal claims.").
As a preliminary matter, an action for damages (as opposed to declaratory or injunctive
relief) should not be dismissed based on abstention. Quackenbush v. Allstate Ins. Co., 517 U.S.
706, 721 (1996) ("By contrast, while we have held that federal courts may stay actions
for damages based on abstention principles, we have not held that those principles support the
outright dismissal or remand of damages actions.").
Assuming Defendants would prefer a stay pending the outcome of the foreclosure action,
their cited test, at least by itself, is not the proper test for Younger abstention in light of the
Supreme Court's 2013 decision in Sprint Communications, Inc. v. Jacobs, 134 S. Ct. 584 (2013).
As both the Supreme Court explained in Sprint and our Court of Appeals explained in Hamilton
v. Bromley, 862 F.3d 329, 337 (3d Cir. 2017), Younger abstention only applies in three
exceptional 9 circumstances: (1) ongoing state criminal prosecutions; (2) certain civil enforcement
proceedings; and (3) pending civil proceedings involving orders uniquely in furtherance of a
state courts' ability to perform its judicial functions. 134 S. Ct. at 593 (quoting New Orleans
Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 368 (1989) ("NOPSI")). Only after the
Court finds the matter fits within one of those three categories should it apply the three factors
cited by Defendants in assessing whether Younger abstention is proper. Hamilton v. Bromley,
862 F.3d at 337.
Defendants have not shown that the state foreclosure proceedings belong to one of the
categories of proceedings to which Younger may apply. Their incomplete analysis of the
Younger doctrine leads this Court to conclude that the Court should not take the extraordinary
step to abstain from exercising jurisdiction over this case on Younger grounds. See Dowell v.
Bayview Loan Servs., LLC, No. 16-cv-02026, 2017 U.S. Dist. LEXIS 69149, at *24 (M.D. Pa.
May 4, 2017) ("Because the defendants do not address the threshold question of whether this
case falls within any of the three exceptional categories of cases that may warrant Younger
abstention, we conclude that they have not shown that the Court should abstain from exercising
To be sure, the Court undertook its own research on the matter, and is unpersuaded that
any of the three exceptional circumstances are met. The Foreclosure Action is certainly not a
criminal prosecution. It is not even quasi-criminal so as to be considered a civil enforcement
Post-Sprint cases reinforce the principle that this abstention doctrine is to apply only in
"exceptional" circumstances as an unusual deviation from the general rule that federal courts
must take cases that are within their jurisdiction. This is not a doctrine that should be invoked
merely because a pending state court proceeding involves the same subject matter. See Gonzalez
v. Waterfront Comm 'n of the N. Y Harbor, 755 F.3d 176 (3d Cir. 2014); Sprint, 134 S. Ct. at 588,
proceeding. 10 It is not a pending civil proceeding involving orders uniquely in furtherance of a
state courts' ability to perform its judicial functions. Plaintiff is not attacking state court judicial
decisions or functions. 11 "That category applies to such things as state courts' enforcement of
their contempt procedures and postjudgment collection procedures." Wells Fargo Bank, NA. v.
Carnell, No. 3:16-cv-130, 2017 U.S. Dist. LEXIS 62695, at *12 (W.D. Pa. Apr. 25, 2017). It is
the state court's November 11 Order itself that allows Plaintiff the opportunity to take his claims
out of state court and into federal court. There is nothing here that hinders the "state courts'
ability to perform their judicial functions." 134 S. Ct. at 591.
This conclusion is in line with other post-Sprint cases in our Circuit that have declined to
apply Younger abstention when the underlying state action is a foreclosure action absent a
request to enjoin state proceedings 12 because it does not fall into any of the three categories. See
Dowell, 2017 U.S. Dist. LEXIS 69149 (collecting cases in the Third Circuit).
A state civil enforcement proceeding must be "quasi-criminal" in nature, which carries
characteristics such as an action commenced by the State in its sovereign capacity, initiated to
sanction the plaintiff for some wrongful act, or any other similarity to a criminal action. Aera
Tur/Club, Ltd. Liab. Co. v. Zanzuccki, 748 F.3d 127, 138 (3d Cir. 2014); Sprint, 134 S. Ct. at
Cases in the third category typically involve a state court's attempt to effectuate its orders. See,
e.g., Juidice v. Vail, 430 U.S. 327, 335-36 (1977) (civil contempt order). Moreover, these types
of cases involve a federal plaintiff asking a federal court to enjoin a state proceeding. See Devlin
v. Kalm, 594 F.3d 893, 894-95 (6th Cir. 2010). That is not the case here.
See, e.g., Calizaire v. Mortg. Elec. Registration Sys., No. 14-cv-1542, 2017 U.S. Dist. LEXIS
31436, at *7-8 (E.D.N.Y. Mar. 6, 2017). In Calizaire, the plaintiff demanded injunctive and
declaratory reliefrelated to the same property that was the subject matter of the underlying
foreclosure action in state court. The plaintiff asked the federal court to set aside foreclosure
proceedings and the sale of the subject property and to determine the rights and obligations of the
parties with respect to the subject property currently under the jurisdiction of the state court.
Thus, the case fell within the third category, and abstention was appropriate over the claims for
injunctive and declaratory relief. However, the Court did not abstain from claims for money
Defendants' argument even fails its own incomplete three-factor test because the
Foreclosure Action does not afford or continue to afford Plaintiff a full and fair opportunity to
litigate all of his claims. Defendants sought dismissal of Plaintiffs counterclaims in the
Foreclosure Action, in part on the basis that his claims for damages were inappropriate because
the Foreclosure Action was an in rem proceeding. See Foreclosure Proceeding, Doc. 41, ~~ 1820. It is true that, in Pennsylvania, "[a]n action in mortgage foreclosure is strictly an in rem
proceeding, and the purpose of a judgment in mortgage foreclosure is solely to effect a judicial
sale of the mortgaged property." N. Y Guardian Mortg. Corp. v. Dietzel, 524 A.2d 951, 953 (Pa.
Super. 1987). Claims seeking money damages based on consumer protection laws cannot be
asserted in the foreclosure action. Id. Such claims, therefore, do not and cannot in any way
interfere with the state court's ability to assess and enforce one's rights to foreclose on a
property. For Defendants to now assert that Plaintiffs Complaint as a whole "fall[s] squarely
within the purview of the state court proceeding" 13 is disingenuous at best. 14 It is true that some
of the state law claims, despite seeking money damages, allege liability on the basis of bringing a
foreclosure action without the legal right to do so. However, Defendants have failed to show how
a possible damages award for Plaintiff would interfere with the state action, especially with
respect to claims that are no longer pending in state court. The Court will not abstain on the basis
Defendants also argue this Court should exercise its discretion to abstain on the basis of
the Colorado River doctrine. "The general rule regarding simultaneous litigation of similar issues
Defs. Br. in Supp., ECF No. 19, at 22.
Defendants assert throughout their papers that Plaintiffs pleadings are merely a collateral
attack on the actual foreclosure and suggest Plaintiff is seeking rescission. The Court does not
detect any genuine requests for injunctive relief in the Complaint.
in both state and federal courts is that both actions may proceed until one has come to judgment,
at which point that judgment may create a res judicata or collateral estoppel effect on the other
action." Univ. of Md. v. Peat Marwick Main & Co., 923 F.2d 265, 275-76 (3d Cir. 1991). In
extremely narrow circumstances, a federal court may stay or dismiss "a federal suit due to the
presence of a concurrent state proceeding for reasons of wise judicial administration," including
conservation of judicial resources, but such refraining is "considerably more limited than the
circumstances appropriate for abstention." Colo. River Water Conservation Dist. v. United
States, 424 U.S. 800, 818 (1976).
The Colorado River doctrine is a two-part test. First, the Court must determine whether
there is a parallel state proceeding that raises "substantially identical claims, raising nearly
identical allegations and issues." Yang v. Tsui, 416 F.3d 199, 204 n.5 (3d Cir. 2005) (internal
quotation and citation omitted). "If the proceedings are parallel, courts then look to a multi-factor
test to determine whether 'extraordinary circumstances' meriting abstention are present."
Nationwide Mut. Fire Ins. Co. v. George V Hamilton, Inc., 571 F.3d 299, 307-08 (3d Cir. 2009)
(quoting Spring City Corp. v. Am. Bldgs. Co., 193 F.3d 165, 172 (3d Cir. 1999). The Court need
not delve into the second factor because the first factor is clearly not satisfied.
Plaintiff brought various counterclaims in the Foreclosure Action which undoubtedly
overlap with most of the claims at issue in this case. However, all Plaintiffs counterclaims were
dismissed without prejudice and are no longer pending in state court. This case and the
Foreclosure Action are not parallel proceedings. See Dowell, 2017 U.S. Dist. LEXIS 69149, at
*36-39 (explaining parallelism and concluding state foreclosure action and federal action not
parallel). Generally, cases are parallel when they involve the same parties and claims. Ryan v.
Johnson, 115 F.3d 193, 196 (3d Cir. 1997). This case and the Foreclosure Action do not involve
the same claims because the state court dismissed the claims that are now pending before this
Court. "[W]hen a federal court case involves claims that are distinct from those at issue in a state
court case, the cases are not parallel and do not justify Colorado River abstention." Trent v. Dial
Med., 33 F.3d 217, 224 (3d Cir. 1994). The Court need not address the second factor and will not
apply Colorado River abstention.
With these "big picture" defenses discussed (and preclusion and abstention arguments
disposed of), the Court now turns to Plaintiffs individual claims.
FDCP A Claims
Plaintiff alleges numerous claims under the FDCP A. Defendants argue all claims under
the FDCP A should be dismissed with prejudice pursuant to any combination of the statute of
limitations, the fact that a foreclosure action itself is not a collection of debt under the FDCP A,
attorney immunity, and a general failure to comply with Rule 8(a) and to plead sufficient factual
matter to state a claim to relief that is plausible on its face. The Court will briefly address each of
Defendants' FDCP A defenses and then tum to Plaintiffs FDCP A claims.
Foreclosure action as a collection of debt
Defendant argues that the filing of a foreclosure action cannot be a collection of debt
under the FDCP A. Defendants argue that "federal courts nationwide have expressly recognized
that the FDCPA does not apply to enforcement of security interests against property." Br. in
Supp., ECF No. 19, at 10. Defendants contend that Plaintiff is barred from raising claims
involving the Foreclosure Action because such claims do not involve a collection of debt, as
required by the FDCP A. But, Defendants then cite to Glazer v. Chase Home Finance LLC, 704
F.3d 453 (6th Cir. 2013) for support. Glazer held the opposite and explicitly rejected the rational
that the enforcement of a security interest is not debt collection. Id. at 461. The Court of Appeals
concluded that "every mortgage foreclosure, judicial or otherwise, is undertaken for the very
purpose of obtaining payment on the underlying debt, either by persuasion (i.e., forcing a
settlement) or compulsion (i.e., obtaining a judgment of foreclosure, selling the home at auction,
and applying the proceeds from the sale to pay down the outstanding debt)." Id. The Court of
Appeals could not have been more clear: "Accordingly, mortgage foreclosure is debt collection
under the FDCP A." Id.
Regardless, Glazer is a Sixth Circuit decision. Despite Defendants' omission of any Third
Circuit authority, it is well-settled in our Third Circuit that "foreclosure meets the broad
definition of 'debt collection' under the FDCP A." Kaymark v. Bank ofAm., NA., 783 F.3d 168,
179 (3d Cir. 2015). 15 To hold otherwise would "create an enormous loophole in the FDCPA by
immunizing any debt from coverage if that debt happened to be secured by a real property
interest and foreclosure proceedings were used to collect the debt." Id. (quoting Wilson v. Draper
& Goldberg, P.L.L.C., 443 F.3d 373, 376 (4th Cir. 2006)). The Court will follow Third Circuit
Defendants argue that litigants and their attorneys are immune from challenges to
statements and allegations of falsified filings made in the Foreclosure Action because
communications made in the course of judicial proceedings are absolutely privileged. For
support, Defendants cite to Smith v. Griffiths, 476 A.2d 22, 24 (Pa. 1984), and Pawlowski v.
Smorto, 588 A.2d 36, 41 (Pa. Super. 1991). Both deal with defamation suits. Pennsylvania does
Defendants do not cite to any cases in the Third Circuit, so they offer no reason the Court
should deviate from well-settled Circuit precedent.
provide immunity for statements made by litigants and attomies in judicial proceedings with
respect to defamation claims. Pawlowski, 588 A.2d at 41. While Plaintiff makes references to
unflattering publications (that issue is addressed more fully below), Defendants seek to use the
state judicial proceedings privilege to bar more than issues possibly related to defamation.
Defendants seek immunity from any allegations of false statements, falsified filings, and any
other action that occurred within the foreclosure litigation. Once again, this is not the law.
The Supreme Court of the United States rejected such an argument that lawyers'
statements, communications, and/or filings are immune from FDCP A liability in Heintz v.
Jenkins, 514 U.S. 291, 294 (1995). In fact, Plaintiff, who is not a lawyer, referenced this case in
his Complaint at Paragraph 17. Defendants, on the other hand, made no reference to the case.
The Heintz opinion held that the FDCPA "does apply to lawyers engaged in litigation." Id. at
294. A lawyer who "regularly, through litigation, tries to collect consumer debts" may be liable
under the FDCPA ifhe or she uses violence, obscenity, or repeated annoying phone calls;falsely
represents the character, amount or legal status of a debt; or uses unfair or unconscionable
means to attempt to collect on a consumer debt. Id. at 292 (citing 15 U.S.C. §§ 1692d,
l 692e(2)(A), l 692f) (emphasis added).
In case there is any doubt that Heintz applies to litigation documents themselves, our
Court of Appeals spoke to that in Kaymark, 783 F.3d at 176-79. The defendant in Kaymark
argued that the foreclosure complaint could not be the basis of an FDCPA claim. Id. at 176. The
Court rejected that argument, concluding "that a communication cannot be uniquely exempted
from the FDCPA because it is a formal pleading or, in particular, a complaint." Id. at 177.
Thus, the FDCPA can apply to any attorney who engaged in prohibited debt-collecting
activity, and the Court will disregard state common law litigation privileges. See Sayyed v.
Wolpoff & Abramson, 485 F.3d 226, 228, 229 (4th Cir. 2007) (rejecting application of state law
litigation immunity to federal FDCPA claim against attorney); see also Hartman v. Great Seneca
Fin. Corp., 569 F.3d 606, 616 (6th Cir. 2009) ("Given the Supreme Court's detailed analysis and
clear conclusion in Heintz that the FDCPA does apply to litigation-related activity, we believe ..
. the First Amendment does not shield lawyers engaged in litigation from FDCP A liability.")
Statute of Limitations
Defendants argue that even if the Foreclosure Action is a form of debt collection (which
it is) and even if attorneys can be liable for litigation-related activity that violates the FDCP A
(which they can), Plaintiff's claims are barred by the statute oflimitations.
The FDCP A imposes a one-year statute of limitations from the date of the alleged
violation. 15 U.S.C. §1692k(d); see Glover v. FDIC, 698 F.3d 139, 145 (3d Cir. 2012). Alleged
violations predicated upon the filing of a foreclosure action are deemed to have occurred on the
date in which the case was filed and cannot be tolled by the continuing violation doctrine.
Schaffhauser v. Citibank (S.D.) NA., 340 F. App'x 128, 131 (3d Cir. 2009); Kohar v. Wells
Fargo Bank, NA., 2016 WL 1449580, at *3 (W.D. Pa. Apr. 13, 2016).
Plaintiff filed his Motion for Leave to Proceed informa pauperis, attaching the
Complaint, on May 26, 2017. 16 Defendants argue any alleged FDCP A violation that occurred
prior to May 26, 2016, is barred by the statute of limitations. According to the state action's
docket sheet attached in Exhibit 3 of the Complaint, the foreclosure action was filed on
While the Complaint was submitted on May 26, 2017, and filed on May 31, 2017, Defendants
do not contest that violations "must have occurred on or after Mary 26, 2016, at the earliest, in
order for the claims to be timely." Defs. Br. in Supp., ECF No. 19, at 9. Therefore, the Court
need not grapple with the two "filing" dates of the Complaint.
September 29, 2015, outside the statute of limitations. Hence, the statute of limitations will bar
any FDCP A claim premised solely on the filing of foreclosure litigation. See id.
There is a split among the district courts in our Circuit as to whether discrete acts
occurring within the foreclosure litigation are tied to the filing date of that action or the date in
which the discrete act occurred. Compare Kohar, 2016 WL 1449580, at *3 ("[T]he statute of
limitations bars the FDCP A claim challenging the Defendants' conduct throughout the
foreclosure litigation which was commenced" outside the statute of limitations.), with Brown v.
Udren Law Offices PC, No. l l-cv-2697, 2011WL4011411, at *5-6 (E.D. Pa. Sept. 9, 2011)
("Conduct which independently violates the FDCP A, however, is actionable if it falls within the
limitations period, even if undertaken in pursuit of litigation that was filed outside the limitations
period."), and d Jones v. Inv. Retrievers, LLC, No. 10-cv-1714, 2011WL1565851, at *3 (M.D.
Pa. Apr. 25, 2011) ("[A]ctions occurring within the limitations period are not necessarily offlimits under the FDCP A just because the actions fall within the scope of a lawsuit which was
filed outside the limitations period.").
In Jones, the plaintiff alleged that defendants violated the FDCP A when they "failed to
provide her with documents supporting alleged entitlement to payment, failed to provide her
attorney with documents upon request, [and] indicated that they did not have supporting
documentation verifying the debt." 2011WL1565851, at *4. All these actions occurred within
the one-year statute of limitations but also took place within the state action, which commenced
outside the statute of limitations. Id. The court concluded that "it is not clear on the face of the
complaint that any possible violation of the FDCP A would relate back to the filing of the
lawsuit; i.e., that these were simply new communications about old claims. Thus, dismissal
[pursuant to Rule l 2(b )( 6)] on the basis of the statute of limitations is inappropriate." Id.
Brown followed the rational in Jones and denied the defendants' motion to dismiss
because the plaintiffs complaint "was filed within one year of the most recent alleged FDCP A
violation." Brown, 2011 WL 4011411, at *6. The plaintiffs theory was not one that rested on the
defendants' mere continued participation in the underlying state litigation, it was the fact that the
defendants allegedly committed acts, "which independently violates the FDCPA" even though
those acts may have been "undertaken in pursuit of litigation that was filed outside the
limitations period." Id.
Kohar did not address the opposing view expressed in Jones and Brown. For support of
its position, the Court quoted Amelio v. McCabe, Weisberg & Conway, P.C, No. 14-cv-1611,
2015 WL 4545299, at *5 (W.D. Pa. July 28, 2015), stating, "Mere participation in ongoing debt
collection litigation does not constitute a continuing violation of the FDCPA." Kohar, 2016 WL
1449580, at *3. It is therefore unclear from the Kohar opinion whether the plaintiff had alleged
FDCP A violations that occurred independent of the filing of a foreclosure action or alleged
conduct that went beyond "mere participation."
The Court finds Jones and Brown persuasive. If otherwise timely or "fresh" violations of
the FDCP A were forced to relate back to the date of the filing of the debt collection action,
attorneys would, in essence, have immunity for any FDCPA violations committed within one (1)
year of the later federal filing if the debt collection began more than one (1) year before the
federal filing. Like many cases in both state and federal court, debt collection litigation can last
·years. To provide this type of blanket shelter from liability would thwart both the purpose of the
FDCPA and the Supreme Court's holding in Heintz v. Jenkins, 514 U.S. 291 (1995). The Court
will therefore address the statute of limitations defense as it pertains to each claim below.
Analysis of Plaintiff's FDCPA claims
The Court now turns to Plaintiffs FDCPA claims. Plaintiff groups all claims together
under one FDCP A heading, but Plaintiff appears to be asserting numerous violations. Therefore,
the Court addresses the claims of Count I of the Complaint by paragraph to discern the nature of
the claims and to determine which ones survive Defendants' Motion. 17
The Court identifies allegations that are "merely conclusory and not entitled to the
presumption of truth." Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016). First,
Paragraphs 5, 8, 9, 12, 17, 18, 24, 25, 26, 29, 30, 31, 34, 43, 52, 56 do not contain factual
allegations relevant to FDCP A claims and need not be considered for the purpose of discerning
Paragraphs 1-4 are descriptions of Defendants that contain important jurisdictional
information, but they do not relate to Plaintiffs factual allegations. To the extent they establish
that each Defendant is a debt collector under the FDCP A, those are legal conclusions that this
Court need not consider.
Next, Paragraphs 20, 21, 22, 23, 27, 28, 32, 57, and 58 do not specify which Defendant's
(or Defendants') conduct is at issue. There are nine Defendants in this case. It is unclear to whom
Plaintiff is referring to with respect to these allegations. Therefore, these paragraphs are
insufficient to establish any claims and they fail to satisfy Rule 8 because they cannot possibly
put the relevant Defendant on notice.
The Notice to Amend the Complaint does not contain any allegations related to the FDCPA
Paragraph 13 alleges a violation of 15 U.S.C. § 1692d(l), which prohibits a debt collector
from engaging "in any conduct the natural consequence of which is to harass, oppress, or abuse
any person in connection with the collection of a debt," and more specifically prohibits such
conduct with respect to the "property of any person." 15 U.S.C. § 1692d(l). Paragraph 14 alleges
a violation of 15 U.S.C. § 1692f(6), which prohibits the use of nonjudicial action to dispossess
another's property. Plaintiff appears to invoke these provisions with respect to Nationstar's
seizure of the House on or about May 30, 2016, 18 which is detailed in Paragraphs 7, IO, 11, and
13. Taking the allegations as true, that Nationstar took possessions and money belonging to
Plaintiff in the course of taking the House, Plaintiff states a plausible claim under the FDCP A,
pursuant to both § l 692d and § l 692f( 6), against N ationstar. 19
Paragraph 15 alleges US Bank and Nationstar violated § l 692c and § l 692b when they
communicated information about the debt with third parties. However, there are insufficient facts
to support this claim. It is unclear from the face of the Complaint what the communications were
and when they occurred. Without this information, Defendants cannot possibly understand the
nature of the claims. Plaintiff cites to Exhibit 4, but Plaintiff fails to explain what Exhibit 4 is. To
the extent it is a copy of a Sheriffs Service History and a copy of a Publication of Notice, it is
unclear how these documents would constitute an improper communication under § l 692c (they
appear to be related to service of process for the state foreclosure case).
Plaintiff filed his Motion for Leave to Proceed informa pauperis, attaching the Complaint, on
May 26, 2017. The events allegedly occurred on May 30, 2016, are therefore timely.
The Court disregards the language in Paragraph 13 that this was a "criminal act," as that is a
legal conclusion and has no bearing on a plausible claim for FDCP A liability in this civil action.
The Court disregards language in Paragraph 14 that Nationstar conducted an illegal search and
seizure, for that is a criminal law doctrine outside the scope of this civil action, irrelevant to this
civil action, and inapplicable to private actors.
The same is true of Paragraphs 17, 27, 28, 32, 33, 37, 38, 39, 50, 54, 55, and 57. More
information would be needed as to the content of the alleged communications or representations,
when they each were made, and which Defendant made each communication. While there may
be factual allegations in these Paragraphs that support other claims, the Court is unable to
decipher any claims that arise out of these Paragraphs.
Paragraph 46 is missing details regarding Plaintiffs requests for verification. Without
more about when and how such a verification was requested, Paragraph 46 fails to state a claim
Paragraphs 16 and 3 5 are incomprehensible and do not appear to state a claim under the
Paragraph 4 7 appears to assert an FDCP A violation based on a violation of "rule 601 of
frcp." "FRCP" may to refer to the Federal Rules of Civil Procedure, but "rule 601" is likely
referring to the Federal Rules of Evidence (specifically the rule on competency to testify), which
alone cannot form the basis of an FDCP A violation. The allegations in Paragraph 4 7 fails to state
Paragraph 51 appears to conflate various legal doctrines related to negotiable instruments,
the Uniform Commercial Code, assignments, and debt verification obligations under the
FDCP A. This paragraph is too vague to establish any claim of an FDCP A violation.
Paragraph 36 alleges that Andrew Friedrich and William Viana's signatures on the
Corporate Assignment of Mortgage, attached to the Complaint at Exhibit 1, is "false, misleading
and deceptive" under § 1692e. While it is unclear exactly which of the sixteen ( 16) types of debt
collector conduct applies to a challenged notary signature, the assignment appears to have been
executed on August 10, 2015. Any claims related to this "Corporate Assignment of Mortgage" to
US Bank are time barred by the FDCPA's one-year statute oflimitations. The same is true
regarding claims made in Paragraph 44, which alleges unlawful practices in reference to Exhibit
1, the Corporate Assignment.
Paragraph 40 references docket entries and then cites to Exhibit 6 of the Complaint,
which is a letter from Sandelands Eyet LLP to Plaintiff. Thus, it is unclear what Paragraph 40 is
alleging. The Court draws Plaintiffs attention to§ 1692g(d) in which legal pleadings (which
may be what the docket entries tum out to be) are not considered "initial communication for the
purposes of[§ 1692g(a)]." § 1692g(d).
It is unclear who the word "Attorneys" refers to in Paragraph 41. It is unclear what the
CFBP consent order refers to, and there are no Consumer Finance Protection Bureau orders
attached to the Complaint. The remainder of this Paragraph is confusing and insufficient to state
While Paragraph 42 identifies which Defendants allegedly violated a provision of the
FDCP A, the allegations fail to specify which communication failed to include proper debt
collection disclosures. "[l]ts first communication" and "subsequent communications" are
insufficient descriptions. Again, the reference to Exhibit 1 is confusing as it does not contain any
communications involving any of the Defendants.
Paragraph 45 alleges that certain named Defendants failed to provide Plaintiff with a
proper "dunning letter." A dunning letter usually takes the form of a notification from a creditor
to a debtor, stating that the debtor is delinquent. Failure to provide an adequate dunning letter
constitutes a violation of the FDCPA. See, e.g., Nokes v. Cavalry Firm, No. 15-3354, 2016 U.S.
Dist. LEXIS 102012, at *9 (C.D. Ill. Aug. 3, 2016). Along the same vein, "a failure ofa debt
collector to 'communicate that a disputed debt is disputed' is considered a violation of the
FDCPA." Farren v. RJM Acquisition Funding, LLC, No. 04-cv-995, 2005 U.S. Dist. LEXIS
15230, at *28 (E.D. Pa. July 26, 2005) (quoting 15 U.S.C. § 1692e(8)) (analyzing on motion for
summary judgment whether a dunning letter was deceptive pursuant to 15 U.S.C. § 1692e).
Taking the factual allegations of the Complaint as true, Plaintiff states a plausible claim pursuant
to the FDCPA against Matthew Eyet, Alina Eyet, William Sandelands, Cara Ann Murphy,
Mitchell E Zipkin, and Sandeland Eyet LLP.
Paragraph 48 states a plausible and timely claim against Sandeland Eyet LLP and
Mitchell Zipkin pursuant to § 1692g(a) and/or (b ). Plaintiff contends that these two Defendants
failed to provide a notice of validation of debts within five (5) days of their initial
communication "in court," which occurred on August 26, 2016. 20 Thus, any duties arising from
this initial communication would be within the statute of limitations. While the initial
communication appears to be bound up with the Foreclosure Action, this is not a violation
predicated upon the filing of a Foreclosure Action.
Paragraph 49 states factual allegations that theoretically may support other claims, but
this Paragraph does not establish any new claims not already addressed herein.
Defendants argue that Paragraph 48 lacks "specific allegations as to date of, parties to and
content of the communications referenced." Defs.' Br. in Supp., ECF No. 19, at 19. Plaintiff
provided an exact date and location in which the communication occurred. Plaintiff specified
exactly who made that communication, Sandeland Eyet LLP and Mitchell Zipkin. The content of
communication is not what gives rise to a claim under § 1692g. The "initial communication"
triggers the clock. Plaintiff alleges that these two Defendants failed to provide information in a
timely manner. Plaintiff also attached Exhibit 6, which is a letter from Defendant Matthew Eyet
"For: Sandelands Eyet LLP," demonstrating the plausible relationship between the Defendants.
ECF No. 3-7. This letter also has language circled that states: "This communication is from a
debt collector." Id.
Paragraph 53 alleges that the letter from Matthew Eyet on behalf of Sandelands Eyet LLP
dated September 20, 2016, attached to the Complaint at Exhibit 6, fails to comply with
§ 1692(g)(a) & (b). This section requires a debt collector to relay certain information upon
request by a consumer in certain circumstances. Any violations in connection with this letter are
within the one-year statute of limitations. There is a reference in the letter to the Foreclosure
Action, but the Court cannot conclude from the face of the Complaint that any possible FDCP A
violation relates back to the filing of the lawsuit rather than a new communication giving rise to
a new claim. See Jones, 2011WL1565851, at *4; Wisniewski v. Fisher, 857 F.3d 152, 157 (3d
Cir. 2017) ("A complaint is subject to dismissal for failure to state a claim on statute of
limitations grounds only when the statute oflimitations defense is apparent on the face of the
complaint."). There is sufficient information here to give Defendants notice of Plaintiffs claim.
However, Plaintiffs do not offer any facts to show how Alina Eyet, William Sandelands, Cara
Ann Murphy, and Mitchell E Zipkin have any relation to this claim. This claim survives
Defendants' Motion to Dismiss, but only against Matthew Eyet (the author of the letter) and
Sandelands Eyet LLP (Eyet's law firm).
Paragraph 59 appears to challenge venue of the state foreclosure action. The FDCPA
does not offer relief for this allegation, nor does this Court have jurisdiction to alter venue in the
state foreclosure action.
Paragraph 60 states Plaintiffs request for relief and does not state any additional claim
for relief other than those discussed above.
Paragraph 61 appears to state constitutional claims, which were dismissed in this Court's
Conclusion Regarding Plaintiff's FDCPA claims
To summarize the analysis above regarding Plaintiffs claims pursuant to the FDCPA, the
Court concludes that Plaintiff has plausibly stated the following claims pursuant to the FDCPA:
(1) against Defendant Nationstar under 15 U.S.C. §§ 1692d and 1692frelating to the pled events
of May 30, 2016; (2) against Defendants Matthew Eyet, Alina Eyet, William Sandelands, Cara
Ann Murphy, Mitchell E Zipkin, and Sandeland Eyet LLP related to the failure to provide
Plaintiff with a proper "dunning letter"; (3) against Defendants Sandelands Eyet LLP and
Mitchell Zipkin for failure to provide notice of validation of debts pursuant to§ 1692g(a) and/or
(b) following an alleged initial communication around August 25, 2016; and (4) against
Defendant Matthew Eyet and Defendant Sandelands Eyet LLP under § 1692g related to the
September 20, 2016, letter from Matthew Eyet on behalf of Sandelands Eyet LLP.
All remaining claims brought pursuant to the FDCP A are dismissed. Such claims relating
to events occurring prior to May 26, 2016, are dismissed with prejudice as time barred by the
statute of limitations. However, the remainder of the dismissed FDCP A claims are dismissed
without prejudice, and Plaintiff will be granted leave to amend his Complaint and Notice to
Amend to attempt to fix the problems identified in this Opinion one final time. Defendants will
be free to assert or reassert their arguments as relevant in any motions to dismiss such an
Count 2: Constitutional Claim
The Complaint states that Count 2 is for constitutional violations. This Court dismissed
Count 2 without prejudice on May 31, 2017. Order, ECF No. 2. A Motion for Reconsideration
was denied on June 27, 2017. Order, ECF No. 8. While Plaintiff filed the Notice to Amend, that
Notice to Amend does not appear to re-assert these claims. Therefore, such claims are out of this
Count 3: Unjust Enrichment
Plaintiff pleads a claim for unjust enrichment against US Bank, Nationstar, Jay Bray, and
Richard Davis. Plaintiff claims that Nationstar and Jay Bray received $100,800 on the "note"
(presumably the promissory note secured by the mortgage on the House) without giving
consideration. Compl.~ 77. It appears this number constitutes "7 years of payment." It is unclear
who is making these payments. Plaintiff alleges that he 21 is the holder in due course of the note,
and he is entitled to that $100,800. Compl.
71. Plaintiff has failed to explain how he is a holder
in due course of the note. There is insufficient information here as to the nature of this figure and
why Plaintiff is entitled to it under a theory of unjust enrichment.
Plaintiff claims US Bank, Richard Davis, Nationstar, and Jay Bray received a benefit of
$106,355, but that amount is actually a "liability owed to the Straders." Compl.
74. It is
completely unclear where this different figure originated from other than it is later referenced as
"the benefit of credit default swap insurance." There is insufficient information here as to the
nature of this figure and why Plaintiff is entitled to it under a theory of unjust enrichment.
Plaintiff claims there was a "sale of the instrument" (that returned $159,532.50, Compl.
75), unlawful retention of payments (of $240,000, Compl.
82), and unlawful retention of
interest (of $300,000, Compl. ~ 83). It is entirely unclear from the face of the Complaint which
Defendants have these alleged proceeds, what the instrument refers to (sale of the actual House
Plaintiffs claims seem to seek relief on behalf of "the Straders," but as the Court stated in
prior Orders, Plaintiff is not able to bring claims on behalf of anyone but himself. If Plaintiff
retains a lawyer, that lawyer may be able to bring claims on behalf of others.
or just the "note") 22 or where the other figures derive from, and why it would be inequitable for
that Defendant to retain such benefit without paying value to Plaintiff.
Plaintiff fails to state an unjust enrichment claim upon which relief may be granted, and
this claim is dismissed without prejudice. 23
Count 4: Abuse of Process
To the extent this claim restates alleged violations under the FDCPA, those claims are
absorbed in Count 1 and do not state an additional claim for abuse of process. Our Court of
Appeals summarized a claim for abuse of process under Pennsylvania law:
[A ]buse of process is the improper use of process after it has been issued,
that is, a perversion of it. A perversion of legal process occurs when a party uses
the process primarily to accomplish a purpose for which the process was not
designed. Generally speaking, to recover under a theory of abuse of process, a
plaintiff must show that the defendant used legal process against the plaintiff in a
way that constituted a perversion of that process and caused harm to the plaintiff.
Gen. Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297, 304 (3d Cir. 2003)
(quotations and citations omitted). Plaintiff appears to be challenging whether various
Defendants have standing to bring the Foreclosure Action. More specifically, Plaintiff believes
the Defendants do not have standing to bring their Foreclosure Action in state court because they
are not the proper holders of the note and mortgage. As a result of their "wrongful" Foreclosure
A few paragraphs later in the Complaint, Plaintiff also referred to the $159,532.50 as
"proceeds from the sale." Compl., ~ 81.
Defendants argue the unjust enrichment claim should be dismissed with prejudice because the
relationship between the parties is based upon a written mortgage agreement. It is unclear from
the face of the Complaint who is actually a party to the mortgage agreement. Without this
information, the Court cannot conclude from the face of the Complaint that the Defendants and
Plaintiff have a relationship bound in contract. At the same time, the lack of information also
makes it impossible for the Court to conclude that Plaintiff has any rights to any proceeds,
interest, or funds related to the mortgage under a theory of unjust enrichment.
Action, Plaintiff had to spend hundreds of hours studying the law in order to defend himself and
Defendants argue bringing the Foreclosure Action for the clear purpose of foreclosing on
the House is not a perversion of the legal process. "A court must look at the legal process used
and decide whether it was used primarily 'to benefit someone in achieving a purpose which is
not the authorized goal of the procedure in question."' Id. at 305 (quoting Werner v. PlaterZyberk, 799 A.2d 776, 785 (Pa. Super. Ct. 2002) (emphasis appearing in opinion). The Court
agrees with the Defendants that the Foreclosure Action is not a perversion of the legal process,
and this claim of abuse of process is an inappropriate vehicle to challenge the underlying
Plaintiffs standing to enforce the terms of the mortgage (if that is what Plaintiff is trying to do).
Count 4 is dismissed with prejudice.
Count 5: Invasion of Privacy
Plaintiff brings a claim for invasion of privacy. In Pennsylvania, the limitations period for
an invasion of privacy claim is one year. 42 Pa. C.S. § 5523. Pennsylvania law recognizes four
torts under the umbrella of invasion of privacy, but Plaintiff appears to rely on the theory of
unreasonable publicity given to another's private life. See Burger v. Blair Med. Assocs., Inc., 964
A.2d 374, 376-77 (Pa. 2009) (citing Rest. (Second) of Torts§§ 652B-E (2nd 1979)); Boring v.
Google Inc., 362 F. App'x 273, 278 (3d Cir. 2010). In order to state a claim for unreasonable
publicity given to private life, Plaintiff must show that the "matter publicized is '(1) publicity,
given to (2) private facts, (3) which would be highly offensive to a reasonable person, and (4) is
not of legitimate concern to the public."' Boring, 362 F. App'x at 280 (quoting Harris v. Easton
Pub. Co., 483 A.2d 1377, 1384 (Pa. Super. Ct. 1984)).
Plaintiff alleged the publicity occurred when Defendants "filed a false affidavit and
deceptive form without name on it and put it in the public," Compl. ii 108, placing Plaintiffs
name "in the public on a complaint and in the newspaper." Id.
ii 110. Defendant seeks to dismiss
this claim for failure to state a claim. It is true that this claim fails to satisfy the pleading
standards. First, Plaintiff fails to specify which Defendants were involved in the allegations.
Second, the Complaint lacks all references to when these alleged publications occurred. Third,
the Complaint fails to describe with at least some detail the nature of the publications, which is
necessary to show that such publication concerned a private fact and would be highly offensive
to a reasonable person. However, the Court will dismiss this claim with prejudice based on
Pennsylvania's judicial proceedings privilege.
While state law judicial proceedings privilege does not apply to alleged violations under
the FDCPA, the privilege does apply to state law claims such as invasion of privacy. "All
communications pertinent to any stage of a judicial proceeding are accorded an absolute
privilege which cannot be destroyed by abuse." Binder v. Triangle Publ'ns, Inc., 275 A.2d 53, 56
(Pa. 1971). To the extent Plaintiff bases his claims on filings and affidavits made in the course of
the Foreclosure Action, those claims are barred by the litigation privilege. Id. (concluding
statements by parties, witnesses, or attorneys made in open court or in pleadings cannot give rise
to defamation or invasion of privacy claims). To the extent Plaintiff bases his claims on the way
in which service of process was executed or the fact that service was executed by publication in
the Foreclosure Action, those claims are also barred by the litigation privilege. Id. ("All
communications pertinent to any stage of a judicial proceeding are accorded an absolute
privilege which cannot be destroyed by abuse."). Finally, to the extent Plaintiff claims a physical
invasion onto his property, those allegations must be brought under a trespass claim.
Therefore, Count 5 is dismissed with prejudice.
Count 6: Libel and Slander
Plaintiff alleges that various Defendants made written and oral statements "on or around"
August 2015 that give rise to claims for libel and slander. In Pennsylvania, an action for libel or
slander is subject to a one-year statute oflimitations. 42 Pa. C.S. § 5523. Therefore, all claims of
libel or slander having occurred prior to May 26, 2016, including the claims pled in Count 6,
they are all time-barred. Therefore, Count 6 is dismissed with prejudice.
Count 7: Trespass
Count 7 first appears in the Notice to Amend, ECF No. 16. Plaintiff alleges all named
Defendants committed trespass on Plaintiffs property beginning "about three years ago" and
continuing to the present time. Notice to
5. Defendants move to dismiss based on
Plaintiffs failure to conform with Rule 8 and the two-year statute of limitations under 42 Pa.
The Notice to Amend contains few facts but an overabundance of legal jargon. For
example, Plaintiff pleads that "[t]his is a common law land the common law is the supreme law
in America, It is [sic] requires that a man woman or group of people swear by oath, affirmation,
affidavit that they have been harm or have some sort of lost physically financial or mental caused
by me that is actual or imminent." Notice to
6. It is unclear how the repeated
references to the lack of oaths and affidavits, which Plaintiff alleges amounts to "harassment and
domestic terrorism," relates to his claim for trespass on his property. There is no specific
mention of the nature of the trespass, exactly when such incidents occurred, and which
Defendant trespassed at each occurrence. 24 Without more, this claim fails to satisfy the pleading
requirements or Rule 8. Therefore, Count 7 for Trespass is dismissed without prejudice.
Defendants' Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(I) is denied without
prejudice. Defendants' Motion to Dismiss pursuant to Fed. R. Civ. P 12(b)(6) is granted and part
and denied in part as set forth above. An appropriate Order will issue.
Mark R. Hornak
United States District Judge
Cc: All counsel of record
Vance Strader (by U.S. Mail)
Date: February 7, 2018
Paragraph 11 references a breaking and entering. It is unclear if this is related to the May 30,
2016, incident in which Nationstar allegedly entered the House. Without more information,
Paragraph 11 does not have sufficient factual allegations to state a claim. Unlike the FDCPA
claim against Nationstar that survives, this claim lacks dates and a specified Defendant.
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