Doherty v. PNC Mortgage

Filing 33

ORDER ACCEPTING IN PART, THE REPORT AND RECOMMENDATION for 21 Motion to Dismiss, filed by PNC Mortgage, 28 Report and Recommendation. Ordered that defendant's motion to dismiss be granted in part and denied in part. This matter is recommitted to the Magistrate Judge for further proceedings. Signed by Chief Judge Terry L Wooten on August 21, 2015. (kbos)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
ROCK HILL DIVISION
Teresa Doherty,

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Plaintiff,
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vs.
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PNC Mortgage, A Division of
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PNC Bank,
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Defendant.
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____________________________________)

Civil Action No. 0:14-4013-TLW

ORDER
The Plaintiff, Teresa Doherty (“Plaintiff”), brought this civil action, proceeding pro se, on
October 15, 2014 against the Defendant, PNC Mortgage, a division of PNC Bank (“Defendant”),
alleging various claims of fraud and violations of the Fair Debt Collection Practices Act, 15 U.S.C.
§§ 1692c(c), 1692d, 1692e, and 1692g. (Doc. #1). The Defendant filed a motion to dismiss all
claims pursuant to Fed. R. Civ. P. 12(b)(6) on January 13, 2015. (Doc. #21). The Plaintiff filed a
response to the motion on February 17, 2015 (Doc. #25), to which the Defendant replied on
February 27, 2015 (Doc. #26).
This matter now comes before the Court for review of the Report and Recommendation (“the
Report”) filed on July 16, 2015 by United States Magistrate Judge Shiva V. Hodges, to whom this
case had previously been assigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local
Civil Rule 73.02(B)(2) DSC. (Doc. #28). In the Report, the Magistrate Judge recommends that the
District Court grant the Defendant’s motion to dismiss (Doc. #21) as to all claims. The Plaintiff
filed Objections to the Report on August 3, 2015. (Doc. #30). The Defendant replied to the
Plaintiff’s Objections on August 20, 2015. (Doc. #31).

This Court is charged with conducting a de novo review of any portion of the Magistrate
Judge’s Report and Recommendation to which a specific objection is registered, and may accept,
reject, or modify, in whole or in part, the recommendations contained in that report. 28 U.S.C. §
636. In conducting this review, the Court applies the following standard:
The magistrate judge makes only a recommendation to the Court, to which any party
may file written objections . . . . The Court is not bound by the recommendation of
the magistrate judge but, instead, retains responsibility for the final determination.
The Court is required to make a de novo determination of those portions of the report
or specified findings or recommendation as to which an objection is made. However,
the Court is not required to review, under a de novo or any other standard, the factual
or legal conclusions of the magistrate judge as to those portions of the report and
recommendation to which no objections are addressed. While the level of scrutiny
entailed by the Court’s review of the Report thus depends on whether or not
objections have been filed, in either case the Court is free, after review, to accept,
reject, or modify any of the magistrate judge’s findings or recommendations.
Wallace v. Housing Auth. of the City of Columbia, 791 F. Supp. 137, 138 (D.S.C. 1992)
(citations omitted).
In light of the standard set forth in Wallace, the Court has reviewed, de novo, the Report and
Recommendation and the Objections thereto, as well as all other relevant filings, motions, and
memoranda.

After careful consideration, the Report and Recommendation (Doc. #28) is

ACCEPTED IN PART.
More specifically, the Court DENIES the Defendant’s motion to dismiss only as to the claim
for alleged violations of the Fair Debt Collection Practices Act. After careful consideration, the
Court concludes that the Plaintiff’s pro se Complaint presents sufficient alleged facts with regard
to the FDCPA cause of action to meet the basic pleading requirements of Rule 8(a). At this early
stage of the proceeding, and in liberally construing the Complaint, the Court is constrained to
conclude that it cannot find, based on the pleadings alone, that the Plaintiff has failed to state a claim
upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6).
The Defendant argues in its motion to dismiss that the FDCPA claim should be dismissed
because the Defendant is not a “debt collector” within the meaning of the Act, but instead is a
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“creditor” and is therefore not subject to the FDCPA. The Plaintiff counters that the Defendant does
qualify as a debt collector. After careful review, the Court finds that the Plaintiff has presented
sufficient factual allegations in the Complaint to support the plausible inference that the Defendant
may be a debt collector under the Act. Further, the Court concludes that the question of the
Defendant’s status under the Act requires additional factual development as the pleadings do not
definitively answer when the Defendant acquired its interest in the note and mortgage or if the
Defendant qualified as either the mortgagee or mortgage servicing company prior to the time of
default. See Perry v. Stewart Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985), modified on other
grounds, 761 F.2d 237 (5th Cir. 1985) (stating that “a debt collector does not include the consumer’s
creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in
default at the time it was assigned”). Thus, the Defendant’s motion to dismiss (Doc. #21) is denied
with regard to the Plaintiff’s FDCPA cause of action.
After careful consideration, the Report and Recommendation is accepted as to all of the
Plaintiff’s other causes of action. For the reasons articulated by the Magistrate Judge, the Court
GRANTS the Defendant’s motion to dismiss (Doc. #21) with regard to all other claims in the
Complaint. Accordingly, the single claim remaining in this action is under the FDCPA.
IT IS ORDERED that the Defendant’s Motion to Dismiss (Doc. #21) be GRANTED IN
PART and DENIED IN PART. In light of the foregoing, this matter shall be recommitted to the
Magistrate Judge for further proceedings.
IT IS SO ORDERED.
s/ Terry L. Wooten
TERRY L. WOOTEN
Chief United States District Judge
August 21, 2015
Columbia, South Carolina

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