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Tabb v. Ocwen Loan Servicing, LLC

United States District Court, D. Delaware

March 4, 2019

DANIEL L. TABB, JR., Plaintiff,
v.
OCWEN LOAN SERVICING, LLC, Defendant.

          Daniel L. Tabb, Middletown, Delaware, Pro se Plaintiff.

          Craig N. Haring, Esquire, and David A. Dorey, Esquire, Blank Rome LLP, Wilmington, Delaware. Counsel for Defendant.

          MEMORANDUM OPINION

          CONNOLLY, U.S. DISTRICT JUDGE

         Plaintiff Daniel L. Tabb, Jr., ("Plaintiff) who appears pro se and has paid the filing fee, filed this action on August 11, 2017, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, et seq. (D.I. 1) Defendant Ocwen Loan Servicing, LLC ("Defendant") moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). (D.I. 10) Plaintiff opposes.

         I. BACKGROUND

         Plaintiff and Dana L. Tabb filed for Chapter 7 bankruptcy relief in the United States Bankruptcy Court for the District of Delaware, No. 14-11647-CSS. (D.I. 1 at Ex. B) On October 20, 2014, they were granted a discharge of debtors under Section 727 of Title 11 of the United States Bankruptcy Code. (Id.)

         Plaintiffs five-count Complaint, with attached Exhibits A through G, alleges that Defendant is a debt collector, Plaintiff is a consumer, Defendant sent Plaintiff "dunning notices" in an attempt to collect a debt from Plaintiff, and Defendant's communications consisted of false and misleading representations in violation of the FDCPA. (D.I. 1, 8) Plaintiff seeks statutory and actual damages, costs, and fees.

         Count One alleges that Defendant's August 12, 2016 communication violated 15 U.S.C. §§ 1692e(2)(A), 1692e(5), and 1692e(10) because it attempted to collect an alleged debt as defined under § 1692e(5) after the Bankruptcy Court discharged Plaintiffs personal liability of all debts, and barred Defendant from taking any debt collection efforts against Plaintiff since October 20, 2014. (D.I. 1 at Count One, Exs. A, C)

         On September 2, 2016, Defendant sent Plaintiff a payoff quote valid through October 3, 2016 in the amount of $382, 252.67, for property located at 202 E. Wayne Way in Middletown, Delaware ("the property"). (D.I. 1 at Ex. A) Plaintiff refers to the September 2, 2016 document as a dunning communication. He alleges the September 2, 2016 communication contains false and misleading representations through deceptive means in an attempt to collect a debt from Plaintiff. At the bottom of each page of the payoff quote, it states:

"This communication is from a debt collector attempting to collect a debt; any information obtained will be used for that purpose. However, if the debt is in active bankruptcy or has been discharged through bankruptcy, this communication is purely provided to you for informational purposes only with regard to our secured lien on the above referenced property. It is not intended as an attempt to collect a debt from you personally.

(Id. at Ex. A)

         Count Two alleges that on September 9, 2016, Defendant sent Plaintiff an August 12, 2016 communication titled "response letter loss mitigation option(s) are enclosed" after it had completed a review of Plaintiff s application for assistance. (D.I. 1 at Count Two, Ex. C) Plaintiff was provided the option of a loan modification trial period plan with a new monthly payment, and the loan was conditionally approved for surrender of the property while avoiding foreclosure. (Id. at Ex. C) The Complaint alleges the communication is a dunning communication, contains false and misleading representations, and violates 15 U.S.C. §§ 1692e(5) and 1692e(10). At the bottom of each page of the response letter it states:

This communication is from a debt collector attempting to collect a debt; any information obtained will be used for that purpose. However, if the debt is in active bankruptcy or has been discharged through bankruptcy, this communication is purely provided to you for informational purposes only with regard to our secured lien on the above referenced ...

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