United States District Court, W.D. Kentucky, Louisville Division
ROBERT M. CAIN; and DONNA J. CAIN PLAINTIFFS
TRAVIS W. THOMPSON DEFENDANT
MEMORANDUM OPINION AND ORDER
N. Stivers, Chief Judge
matter is before the Court on Defendant's Motion to
Dismiss (DN 9), Plaintiffs' Motion to Strike
Defendant's Motion to Dismiss (DN 12), Plaintiffs'
Motion for Summary Judgment (DN 14), Plaintiffs' Motion
to Strike Defendant's Response to Plaintiffs' Motion
for Summary Judgment (DN 18), and Plaintiffs' Motion for
a Hearing on the Motion for Summary Judgment (DN 19). This
matter is now ripe for adjudication. For the reasons that
follow, Defendant's motion is GRANTED,
and Plaintiffs' motions are DENIED.
Statement of Facts
facts giving rise to this action are unclear on the face of
the Complaint as filed by Plaintiffs Robert Cain and Donna
Cain (collectively, “Plaintiffs”). It appears,
however, that Defendant Travis Thompson
(“Defendant”), an attorney licensed in Kentucky
practicing with the firm Clunk, Hoose LPA,  represents
Deutsche Bank National Trust Company (“Deutsche
Bank”) in a state foreclosure action against
Plaintiffs. (Compl. 1-2, DN 1). Plaintiffs allege that this
process involved numerous procedural deficiencies and
fraudulent practices on the part of Defendant. (Compl. 1-4)
Specifically, Plaintiffs allege that Defendant
“demanded forfeiture of property based on an
undocumented and unverified claim that [Plaintiffs] owed
$166, 082.36 . . . [then] raised their damages again to $191,
522.37.” (Compl. 2). Plaintiffs further allege, among
other claims, that Defendant did not provide proper notice to
Plaintiffs and that Deutsche Bank “is not a bona fide
holder in due course of a promissory note binding on
[Plaintiffs].” (Compl. 2-3).
motion to dismiss and the state foreclosure complaint clarify
that this action arises from a Note in the amount of $109,
800 that Plaintiffs secured with a Mortgage on property
located in Meade County, Kentucky. (Def.'s Mot. Dismiss
2, DN 9; Def.'s Reply Mot. Dismiss Ex. A at 2). On
October 14, 2016, Defendant initiated an underlying
foreclosure action on behalf of Deutsche Bank against
Plaintiffs in Meade County Circuit Court, styled 16-CI-00282.
(Def.'s Mot. Dismiss 2).
March 14, 2019, Plaintiffs filed the present Complaint
alleging various violations of the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. §§
1692-1692p, relating to the Meade Circuit Court foreclosure
action. (Compl. 1-4). On May 31, 2019, Defendant moved to
dismiss the case. (Def.'s Mot. Dismiss). Plaintiffs
responded, and Defendant replied. (Pls.' Resp. Def.'s
Mot. Dismiss, DN 10; Def.'s Reply Mot. Dismiss, DN 11).
On July 22, 2019, Plaintiffs filed a brief styled as a brief
in opposition to and motion to strike Defendant's motion
to dismiss. (Pls.' Mot. Strike #1, DN 12). Plaintiffs
then filed a motion for summary judgment. (Pls.' Mot.
Summ. J., DN 14). Defendant responded, and Plaintiffs
replied. (Def.'s Resp. Pls.' Mot. Summ. J., DN 16;
Pls.' Reply Mot. Summ. J., DN 17). On September 19, 2019,
Plaintiffs moved to strike Defendant's response to
Plaintiffs' motion for summary judgment. (Pls.' Mot.
Strike #2, DN 18). Finally, on December 18, 2019, Plaintiffs
moved for a hearing on the motion for summary judgment.
(Pl.'s Mot. Hr'g, DN 19).
Complaint alleges violations of federal law, namely the
FDCPA. As such, the Court has subject matter jurisdiction
over this action via federal question pursuant to 28 U.S.C.
STANDARD OF REVIEW
order to survive dismissal for failure to state a claim under
Fed.R.Civ.P. 12(b)(6), “a Complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “[A] district court must (1) view the
complaint in the light most favorable to the plaintiff and
(2) take all well-pleaded factual allegations as true.”
Tackett v. M & G Polymers, USA, LLC, 561 F.3d
478, 488 (6th Cir. 2009) (citing Gunasekera v.
Irwin, 551 F.3d 461, 466 (6th Cir. 2009)). Even so, the
Court need not accept a party's “bare assertion of
legal conclusions.” Columbia Nat. Res., Inc. v.
Tatum, 58 F.3d 1101, 1109 (6th Cir. 1995) (citation
omitted). Ultimately, this inquiry is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679.
Complaint alleges violations of the FDCPA. Defendant argues
that the FDCPA claims (1) are barred by the statute of
limitations, (2) are barred by res judicata, and (3) ...