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Gunn v. Specialized Loan Servicing LLC

United States District Court, D. Delaware

March 13, 2017

LAMAR GUNN, Plaintiff,

          La Mar Gunn, Dover, Delaware. Pro Se Plaintiff.

          Kevin J. Mangan, Esq., Womble Carlyle Sandridge Rice, Wilmington, Delaware. Counsel for Defendants.


          ANDREWS, U.S. District Judge

         Plaintiff La Mar Gunn, who appears pro se and has paid the filing fee, filed this action on September 14, 2015, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq. (D.I. 1). The original Complaint was dismissed and Plaintiff was given leave to amend. (D.I. 20, 21). Plaintiff filed an unverified "Verified Amended Complaint" on June 6, 2016, alleging violations of the FDCPA and the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681, et seq. (D.I. 27). Defendants Specialized Loan Servicing LLC ("SLS") and John Charles Beggins moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). (D.I. 28). Plaintiff opposed and filed a motion to strike irrelevant materials relied on by Defendants, said motion being opposed by Defendants. (D.I. 30, 31, 32). Briefing has been completed.


         The Amended Complaint alleges that SLS is "the authorized successor of Plaintiffs mortgage loan" and, "in its capacity as a loan servicer, " "acts as a third party debt collector for the owner of Plaintiffs mortgage loan." (D.I. 27, at ¶ 5). Beggins, whose principal residence is in Colorado, is described as being employed by SLS as a debt collector.[1] (Id. at ¶ 7). The Amended Complaint alleges that Defendants are debt collectors under the FDCPA, 15 U.S.C. § 1692a(6), and that "Beggins through his regular business practice[] collects debts in this District." (Id. at ¶ 8). The Amended Complaint adds John Doe Defendants I through V and Roe Corporation Defendants VI through X, and alleges that the Doe and Roe Defendants "are in some way legally responsible and liable for the events referred to herein, and proximately caused the damages alleged herein." (Id. at ¶¶ 9-10).

         Plaintiff owns property at 2511 North Pine Street in Wilmington, Delaware. (Id. at ¶ 16). Prior to February 2014, he had an outstanding promissory note and mortgage recorded against the property, which was serviced by Ocwen Loan Servicing LLC. (Id. at ¶ 17). Plaintiff received correspondence and telephone calls from SLS advising him that SLS was "the servicer of an alleged mortgage debt belonging to Plaintiff." (Id. at ¶ 18). Plaintiff "did not have any relationship with [D]efendants, " and his mortgage payments to Ocwen had never been late. (Id. at ¶ 19). Indeed, Plaintiffs mortgage payments were "set-up for automatic draft." (Id. at ¶ 20). "Defendants, without any notice, began reporting negative information to the [three] primary credit reporting agencies, " and this "slander[ed his] stellar credit rating despite his perfect payment history." (Id. at ¶ 22). Plaintiff alleges that, as a result of these actions, he suffered "termination of long-standing credit lines, denial of new credit lines, loss of business, and damage to his triple A credit rating." (Id. at ¶ 22).

         Count I alleges violations under § 1681s-2(b) of the FCRA in that: (1) Plaintiff disputed information on his credit report; (2) the credit agencies notified Defendants of the dispute; (3) Defendants failed to review all information provided by the credit reporting agencies; (4) Defendants notified the credit reporting agencies that the credit information reported was correct; and (5) Defendants failed to notify the credit reporting agencies that the account was disputed. (Id. at ¶¶ 27-30).

         Count II alleges violations of §§ 1692d, 1692e, 1692f, and 1692g of the FDCPA. It alleges that Defendants acted as third party debt collectors for the owner of Plaintiffs mortgage loan and asks the Court to "draw the reasonable inference that [D]efendant[s] fallQ within the FDCPA's definition of a debt collector, as Defendants are 'third party' servicers to the 'owner' of Plaintiff's mortgage." (Id. at ¶ 34).[2] The Amended Complaint refers to Exhibit 1 (id.), but there are no exhibits attached to the Amended Complaint. Plaintiff received no less that twenty-five contacts from SLS and Beggins; he received harassing, inaccurate, and inconsistent communications from Defendant; and Defendants "tried to 'frighten Plaintiff with legal action and persuade him to make a payment, '" all in violation of the FDCPA. (Id. at ¶ 35). Plaintiff alleges, "[l]t is extremely unfair for Defendants to use unlawful and unjust practices to collect debts on behalf of others through intimidation tactics." (Id. at ¶ 37).

         Plaintiff seeks actual, special, general, and punitive damages.


         Plaintiff proceeds pro se and, therefore, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Under Rule 12(b)(6), a motion to dismiss may be granted only if, accepting the well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, a court concludes that those allegations "could not raise a claim of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558 (2007). "Though 'detailed factual allegations' are not required, a complaint must do more than simply provide 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Davis v. Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Cir. 2014) (quoting Twombly, 550 U.S. at 555). In addition, a plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, ___ U.S. ___, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See Id. at 346.

         When reviewing the sufficiency of a complaint, a court should follow a three-step process: (1) consider the elements necessary to state a claim; (2) identify allegations that are merely conclusions and therefore are not well-pleaded factual allegations; and (3) accept any well-pleaded factual allegations as true and determine whether they plausibly state a claim. See Connelly v. Lane Constr. Corp.,809 F.3d 780, 787 (3d Cir. 2016); Williams v. BASF Catalysts LLC,765 F.3d 306, 315 (3d Cir. 2014). Deciding whether a claim is plausible will be a "context-specific ...

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