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Maze v. Wells Fargo Bank, N.A.

United States District Court, W.D. Kentucky, Louisville Division

March 10, 2017

ROBERT MAZE and JESSICA BUTLER PLAINTIFFS
v.
WELLS FARGO BANK, N.A., and IN A SNAP INSPECTIONS, LLC DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          JOSEPH H. MCKINLEY, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT

         This matter is before the Court on motions by Defendants, Wells Fargo Bank, N.A., and In a Snap Inspections, LLC, to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) [DN 9, DN 10]. Fully briefed, this matter is ripe for decision.

         I. STANDARD OF REVIEW

         Upon a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), a court “must construe the complaint in the light most favorable to plaintiff, ” League of United Latin Am. Citizens v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007) (citation omitted), “accept all well-pled factual allegations as true[, ]” id., and determine whether the “complaint states a plausible claim for relief[, ]” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Under this standard, the plaintiff must provide the grounds for his or her entitlement to relief which “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff satisfies this standard only when he or she “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. A complaint falls short if it pleads facts “merely 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, 679. Instead, the allegations must “‘show[ ] that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). It is against this standard the Court reviews the following facts.

         II. BACKGROUND

         Plaintiff, Robert Maze, executed a promissory note and mortgage on the subject property in 2011 with Defendant, Wells Fargo Bank. Plaintiff, Jessica Butler, is not a party to either the note or the mortgage but occupied the real property with Maze. Maze defaulted on the mortgage loan by failing to make payments, and Wells Fargo initiated the foreclosure action in Hardin Circuit Court on October 10, 2013. Maze failed to appear and answer the foreclosure complaint and failed to respond to a subsequent motion for the court to enter a judgment. As a result, the Hardin Circuit Court entered a judgment and order of sale on February 28, 2014. Pursuant to the judgment and order of sale, the property was scheduled for a sale by the master commissioner on April 3, 2014. The day before the scheduled sale, Maze filed a bankruptcy petition which resulted in an automatic stay of the foreclosure proceedings, including the scheduled sale of the property. The bankruptcy proceeding was subsequently dismissed in January of 2016. With the automatic say lifted, on February 12, 2016, the Hardin Circuit Court ordered the master commissioner to reschedule the sale of the property. The judicial sale was conducted on April 14, 2016, at which time Wells Fargo purchased the property. The master commissioner filed his report that day, and Maze did not file any objection. No objections having been filed, on May 3, 2016, the Hardin Circuit Court entered an order confirming the judicial sale of the property. See Wells Fargo Bank v. Robert R. Maze, No. 13-CI-00168 (Foreclosure Proceedings); In Re Robert R. Maze, No. 14-31304-THF (Bankr. W.D. Ky.)(bankruptcy proceedings).

         Plaintiffs allege that “[a]t some point in 2016, before it sought a writ of possession [August 17, 2016] and before it had any right to enter the subject property, Wells Fargo retained In a Snap to act on its behalf and to provide collection services regarding the home subject to foreclosure.” (Complaint at ¶¶ 10-11.) Plaintiffs further allege that Wells Fargo and In a Snap “broke into the property, ransacked it and stole very valuable music equipment and other personal property, ” “damaged property that was not stolen, ” and “destroyed Mr. Maze's birth certificate.” (Id. at ¶¶ 16, 19, 20.) Additionally, Plaintiffs allege that an In a Snap employee later advertised the stolen property for sale online. (Id. at ¶ 18.)

         Plaintiffs filed this action on October 6, 2016, against Wells Fargo and In a Snap. Plaintiffs seek to recover monetary damages against In a Snap Inspections under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p, stemming from the removal of Plaintiffs' property from the residence and damage to other personal property. See 15 U.S.C. § 1692d(1), 15 U.S.C. § 1692f(1), and 15 U.S.C. § 1692f(6). In addition to the federal claim, Plaintiffs assert four additional state law claims against both Wells Fargo and In a Snap: intentional trespass, negligent trespass, conversion, and negligence/gross negligence. Plaintiffs also assert a state law claim for breach of contract against Wells Fargo.

         III. DISCUSSION

         A. FDCPA Claim

         In a Snap moves to dismiss the FDCPA claim arguing that Plaintiffs have not alleged any facts showing that In a Snap is “debt collector” as defined by the FDCPA; that the principal purpose of In a Snap's business is the collection of consumer debt; or that In a Snap attempted to collect a debt from Plaintiffs under the circumstances of this case.

         The FDCPA prohibits debt collectors from engaging in “abusive, deceptive, and unfair debt collection practices” towards debtors. See 15 U.S.C. § 1692. Under the FDCPA, “‘(1) plaintiff must be a consumer as defined by the Act; (2) the debt must arise out of transactions which are “primarily for personal, family or household purposes; (3) defendant must be a debt collector as defined by the Act; and (4) defendant must have violated § 1692e's prohibitions.'” Labron v. Nationstar Mortgage, LLC, 2016 WL 2993622, *2 (W.D. Ky. May 23, 2016)(quoting Wallace v. Washington Mut. Bank, F.A., 683 F.3d 323, 326 (6th Cir. 2012) (internal quotation marks omitted)). Liability under the FDCPA can only attach to those who meet the statutory definition of a “debt collector” and engage in “debt collection.” 15 U.S.C. § 1692(a). The term “debt collector” means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. 15 U.S.C.A. § 1692a(6). See Glazer v. Chase Home Finance LLC, 704 F.3d 453 (6th Cir. 2013).

         Under the facts alleged in this matter, In a Snap neither qualifies as a debt collector, nor does In a Snap's behavior constitute debt collection.

         First, In a Snap does not qualify as a debt collector under the facts of the complaint. Plaintiffs make no factual averment suggesting a nexus between the conduct of In a Snap and any debt Plaintiffs' owed. Plaintiffs do not allege that In a Snap demanded payment for any debt, notified Plaintiffs of the pendency of any debt or legal action, or communicated to Plaintiffs that they owed an outstanding debt to either Defendant. Instead, Plaintiffs allege that In a Snap broke into the property, ransacked it and stole and/or damaged very valuable music equipment and other personal property. The only support for Plaintiffs' argument that In a Snap was acting as a debt collector is Plaintiffs' conclusory allegation that “Wells Fargo retained In a Snap to act on its behalf and to provide collection services regarding the home subject to foreclosure.” ...


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