Lovegrove v. Brock & Scott, PLLC

Filing 34

OPINION & ORDER re: 29 Motion to Amend/Correct; 30 Motion for Reconsideration. For the reasons set forth herein, the Court DENIES the Motion to Reconsider, Doc. 30, and DENIES the Motion to Amend, Doc. 29. It is so ORDERED. Signed by District Judge Henry C. Morgan, Jr and filed on 4/6/17. Copies distributed to all parties 4/6/17. (ldab, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division

THOMAS W. LOVEGROVE,
Plaintiff,
V,

Civil Action No. 2:16cv418

BROCK & SCOTT, PLLC,
Defendant.
OPINION & ORDER

This matter is before the Court on two related motions. Plaintiff Thomas W. Lovegrove

("Lovegrove" or "Plaintiff") filed a Motion to Reconsider This Court's Opinion and Order Dated
January 17, 2017 ("Motion to Reconsider"). Doc. 30, and a Motion to Amend Complaint
("Motion to Amend"), Doc. 29. For the reasons set forth herein, the Court DENIES both
Motions.

I.

BACKGROUND

This action arises out of a foreclosure letter that Defendant Brock & Scott, PLLC

("Defendant") sent to Plaintiff regarding the property at 70 Homeplace Circle, Moneta, Virginia,
Doc. 1, Ex. B. Defendant is a law firm organized under the laws of North Carolina that

maintains an office in Virginia Beach, Virginia. Id. 4. "The principal purpose of [Defendant]'s
business is the collection of debts for its clients, creditors to whom debts are allegedly owed by

consumers." Id. If 5. Defendant also owns and operates Trustee Services of Virginia, L.L.C.,
which performs foreclosures in Virginia. Id H22.

Plaintiff filed a three-count Class Action Complaint against Defendant on July 7, 2016.
Doc. 1. The Complaint alleged violation of Sections 1692g(b) and 1692e(10) of the Fair Debt
1

Collection Practices Act ("FDCPA") (Counts One and Two) and fraud (Count Three).

Id.

Plaintiff included the description of three (3) classes in the Complaint: (1) the "Main Class"
eligible for relief under Count Three consisting of all persons nationwide who received
foreclosure letters with identical debt dispute language from Defendant, attempted to dispute the
debt, but did not receive mailed verification of the debt from Defendant; (2) the "First Subclass"

eligible for relief under Count Two consisting of members of the Main Class to whom Defendant
sent the same Foreclosure Letter in the year preceding the filing of the Complaint; and (3) the
"Second Subclass" eligible for relief under Count One consisting of members of the Main Class
to whom Defendant sent the same Foreclosure Letter in the year preceding the filing of the

Complaint and against whom Defendant pursued collection prior to verifying the debt. Id. H31.
The Court DISMISSED the Complaint on January 17, 2017. Doc. 26. The Court
dismissed the FDCPA claims because Plaintiff's debt was "undisputedly discharged in Plaintiffs

prior bankruptcy proceedings" and thus "Defendant's contacts with Plaintiff were not an attempt
to collect a debt under the FDCPA." Id at 8. The Court dismissed the fraud claim because

Defendant's promises to comply with the FDCPA were immaterial to its dealings with Plaintiff,
who no longer had the debt at issue. Id. at 12.

Plaintiff filed the instant Motion to Reconsider on February 14, 2017. Doc. 30. He filed
the instant Motion to Amend on the same day. Doc. 29.
II.

A.

MOTION TO RECONSIDER

Legal Standard

Federal Rule of Civil Procedure 59(e) allows the Court "to alter or amend a judgment" if
a motion is filed within twenty-eight (28) days after entry. Fed. R. Civ. P. 59(e). In order to
alter a judgment, the moving party must show "either (1) an intervening change in the controlling

law, (2) new evidence that was not available at trial, or (3) that there has been a clear error of law

or a manifest injustice." Robinson v. Wix Filtration Corp. LLC. 599 F.3d 403, 407 (4th Cir.

2010). Mere disagreement as to how legal standards are applied will not support a motion under
Rule 59(e). See United States ex rel. Becker v. Westinehouse Savannah River Co.. 305 F.3d
284, 290 (4th Cir. 2000) (quoting Hutchinson v. Stanton. 994 F.2d 1076, 1082 (4th Cir. 1993)).
Further, Rule 59(e) "provides for an extraordinary remedy that should not be awarded except

under exceptional circumstances." Mavfield v. Nat'l Ass'n for Stock Car Auto Racing. Inc.. 674
F.3d 369, 378 (4th Cir. 2012).
B.

Analysis

Plaintiffs argument for reconsideration is little more than mere disagreement with the

Court's ruling.

He challenges the Court's holding on fraud, where the Court found that

Defendant's statement that it would verify Plaintiff's debt if challenged was not material to its

dealings with Plaintiff Doc. 30 at I; Doc. 28 at 2-3. Plaintiff contends that Defendant's
statement was fraudulent regardless of whether it was required by the FDCPA. Id.

Materiality is often a mixed question of law and fact, and thus it is a question that the
court decides. ^

Breault v. Berkshire Life Ins. Co.. 821 F. Supp. 410, 414 (E.D. Va. 1993)

(citing Fidelitv & Guaranty Co. v. Havwood. 211 Va. 394 (1970)).

Plaintiff does not

demonstrate any clear error in the Court's reasoning on materiality, let alone a resulting manifest
injustice that would justify reconsideration. He offers a "thought experiment" to challenge the
Court's reasoning, but he offers no authority in support of his argument that Defendant's
statement was material to his dealings with Defendant. S^ Doc. 28 at 2.

Any promises to verify debts were immaterial because both Parties knew that there was
no debt attributable to Plaintiff.

See Doc. 26 at 12.

Defendant's foreclosure letter discussed

proving debts attributable to Plaintiff as part of Defendant's debt collection effort. Id Plaintiff
knew that that he had discharged the debt listed in the letter in bankruptcy and that the letter
could not be a debt collection effort. Id Furthermore, the letter also stated that "IF YOU HAVE
RECEIVED A DISCHARGE IN A CHAPTER 7 BANKRUPTCY, WE ARE AWARE THAT

YOU ARE NOT PERSONALLY OBLIGATED FOR THIS DEBT." Doc. 1, Ex. A. A promise

to verify debts might be actionable in some contexts, as Plaintiff suggests in his Motion to
Reconsider, but he offers no proof of clear error in the Court's analysis of his particular context.
Thus, the Court DENIES the Motion to Reconsider.
IIL

A.

MOTION TO AMEND

Legal Standard

A party may amend its pleading once as a matter of course within twenty one (21) days
of service or within twenty one (21) days of either a responsive pleading or a motion under Rule
12(b), (e), or (f), whichever is earlier. Fed. R. Civ. P. 15(a)(1). Afterward, a party may amend
its pleading with the opposing party's written consent or the court's leave, and "[t]he court

should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). If a party seeks
leave to amend after judgment, "the district court may not grant the post-judgment motion unless
the judgment is vacated pursuant to Rule 59(e) or [Rule] 60(b)." Laber v. Harvev. 438 F.3d 404,
427 (4th Cir. 2006) (en banc).
B.

Analysis

Plaintiff seeks leave to amend if the Court grants the Motion to Reconsider. See Doc. 29.
Because the Court DENIES the Motion to Reconsider, the Court must also DENY the Motion to
Amend.

IV.

CONCLUSION

For the reasons set forth herein, the Court DENIES the Motion to Reconsider, Doc. 30,
and DENIES the Motion to Amend, Doc. 29.

The Clerk is REQUESTED to deliver electronically a copy of this Opinion and Order to
all counsel of record.
It is so ORDERED.

/s/

Hetiry Coke Morgan. Jr.

Sfiiior United Slates District .Titdge'^ 7^^
HENRY COKE MORGAN, JR.
SENIOR UNITED STATES DISTRICT JUDGE

Norfolk, VA

April (r-, , 2017