United States District Court, D. Delaware
Gunn, Dover, Delaware. Pro Se Plaintiff.
J. Mangan, Esq., Womble Carlyle Sandridge Rice, Wilmington,
Delaware. Counsel for Defendants.
ANDREWS, U.S. District Judge
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.
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. (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
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 ¶
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).
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 ¶
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 ¶
seeks actual, special, general, and punitive damages.
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.
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