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Wallace v. Manley Deas Kochalski LLC

United States District Court, Sixth Circuit

July 1, 2013

DANNY WALLACE, Plaintiff,
v.
MANLEY DEAS KOCHALSKI LLC, Defendant.

MEMORANDUM OPINION AND ORDER

JOHN G. HEYBURN, II, District Judge.

Presently before the Court are Defendant, Manley Deas Kochalski LLC's motion to dismiss and Plaintiff, Danny Wallace's motion for leave to file a first amended complaint. For purposes of the pending motion to dismiss, the Court will consider plaintiff's amended complaint, which contains more specific factual allegations, in evaluating Defendant's motion.[1] See Begala v. PNC Bank, Ohio, Nat. Ass'n, 214 F.3d 776, 784 (6th Cir. 2000) (quoting the lower court opinion indicating that "[h]ad plaintiffs filed a motion to amend the complaint prior to this Court's consideration of the motions to dismiss and accompanied that motion with a memorandum identifying the proposed amendments, the Court would have considered the motions to dismiss in light of the proposed amendments to the complaint"). For the following reasons, the Court sustains Defendant's motion to dismiss and denies Plaintiff's motion for leave to file an amended complaint.

I.

On January 10, 2013, Plaintiff filed this action against Defendant seeking recovery for alleged violations of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692, et. seq., ("FDCPA"), and intentional infliction of emotional distress ("IIED"). Defendant is a law firm retained to file suit in Kentucky state court on behalf of Cenlar, FSB ("Cenlar"), a mortgage company, to foreclose a mortgage on real property owned by Plaintiff.

In Plaintiff's complaint, he describes in detail his interaction with various mortgage loan services including Taylor, Bean, and Whitaker ("Taylor Bean"), Cenlar, and Bayview Loan Servicing, LLC. Specifically, Plaintiff details an ordeal in which hazard insurance on the property securing his mortgage was "force-placed" by one of the mortgage services despite his assertion that he had secured continuous coverage. As a result, his monthly mortgage payment increased from $514.12 to $778.03. When Taylor Bean transferred the mortgage to Cenlar, the parties corrected the mistake and entered into a payment arrangement that returned Plaintiff's monthly payment to $514.12. Sometime after that, another issue arose when Plaintiff allegedly failed to timely pay his property tax bill. Cenlar paid the property taxes on Plaintiff's behalf. Plaintiff contends that he subsequently repaid Cenlar the amount it paid to cover Plaintiff's property taxes, but questions whether Cenlar properly credited the funds to his account. He claims that Cenlar created an unlawful forced-escrow account to collect on a debt that Cenlar essentially created in failing to credit his account.

In July 2011, Plaintiff ceased making his ordinary monthly mortgage payments to Cenlar, until Cenlar explained how it applied prior payments to his account. Cenlar retained Defendant after Plaintiff failed to make payments on his mortgage loan for more than five months. On January 4, 2012, Defendant filed the foreclosure action, on behalf of Cenlar, in Jefferson Circuit Court. Plaintiff maintains that statements in the foreclosure complaint are false, deceptive, and misleading in violation of the FDCPA, in that the complaint alleges Plaintiff defaulted on his mortgage loan, a fact Plaintiff contends is completely false. His main argument is that Defendant failed to investigate the alleged debt before filing the foreclosure action. Had Defendant done so, Plaintiff maintains that Defendant would have learned that no debt existed.

Plaintiff filed the instant action on January 10, 2013. On February 21, 2013, without filing an answer to Plaintiff's complaint, Defendant filed a motion to dismiss for failure to state a claim upon which relief may be granted.

II.

Upon a motion to dismiss, the court must construe the complaint in a light most favorable to the plaintiff, accept all well-pleaded factual allegations as true, and determine whether the complaint states a plausible claim for relief. Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010). To survive a motion to dismiss, a plaintiff must "provide the grounds' of his entitlement to relief, '" which "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies that standard when he "pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ascroft v. Iqbal, 556 U.S. 662, 678 (2009). However, a party falls short of meeting this burden if the complaint merely pleads facts consistent with a defendant's liability or if the alleged facts do not "permit the court to infer more than the mere possibility of misconduct." Id. at 678-79.

III.

In Plaintiff's Complaint, he advances four claims under the FDCPA and one claim of IIED. Plaintiff principally alleges that statements made in pleadings of the state foreclosure action violated the FDCPA and entitle him to recovery under Kentucky's IIED law.

In order to establish a claim under the FDCPA, the following elements must be present: (1) plaintiff is a "consumer" as defined by the FDCPA; (2) the "debt" must arise out of transactions that are "primarily for personal, family or household purposes"; (3) defendant is a "debt collector" as defined by the FDCPA; and (4) defendant must have violated one of the specific statutory prohibitions regarding debt collection communication and/or activity. Wallace v. Wash. Mut. Bank, 683 F.3d 323, 326 (6th Cir. 2012). Section 1692k of the FDCPA permits the consumer to recover statutory or actual damages for violations of the Act should he make out a meritorious claim. 15 U.S.C. § 1692k. Defendant does not dispute the first three elements of each FDCPA claim. Therefore, the fourth element is at issue and the Court must determine whether Defendant violated the four specific provisions of the FDCPA so as to be held liable under to the FDCPA. The Court will address each FDCPA provision individually, and then evaluate Plaintiff's IIED claim.

A.

Plaintiff alleges that Defendant's action in seeking to collect an allegedly invalid debt constitutes a violation of 15 U.S.C. § 1692d, which prohibits "any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. This provision of the FDCPA also delineates nonexclusive examples of the type of conduct that the FDCPA prohibits. These examples evidence behavior that is primarily "intended to embarrass, upset, or frighten a debtor." Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 330 (6th Cir. 2006); see 15 U.S.C. ...


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