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Lesher v. Law Office of Mitchell N. Kay

October 22, 2009

DARWIN LESHER, PLAINTIFF
v.
LAW OFFICE OF MITCHELL N. KAY, P.C., DEFENDANT



The opinion of the court was delivered by: J. Andrew Smyser Magistrate Judge

(Magistrate Judge Smyser)

MEMORANDUM AND ORDER

The plaintiff filed a second amended complaint in this case on August 3, 2009. (Doc. 24). A motion to dismiss the second amended complaint was filed on August 25, 2009. (Doc. 25). A brief in support was filed on the same date. (Doc. 26). The plaintiff filed a brief in opposition to the defendant's motion to dismiss the complaint on September 9, 2009. (Doc. 27). A reply brief was filed on September 21, 2009. (Doc. 28).

The second amended complaint alleges that the plaintiff Darwin Lesher borrowed a sum from a lender, Washington Mutual Home Equity Loan, in the form of a home equity loan and that he fell behind on his payments as a consequence of predatory lending practices and unfair business practices on the part of Washington Mutual. He disputes the alleged debt and how the debt was calculated. Washington Mutual Home Equity Loan placed the account with defendant Law Offices of Mitchell N. Kay, P.C. The defendant sent communications to the plaintiff relating to the debt. The defendant was collecting the debt. The communications stated that the plaintiff's account was being handled by the defendant's office and that the defendant had been authorized to offer the plaintiff an opportunity to settle the account with a lump sum payment. The communications stated that the plaintiff was invited to visit the web site of the defendant to "resolve this debt privately." The communication stated: "[a]t this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account."

The second amended complaint alleges that the plaintiff believed that an attorney was involved in the collection of the alleged debt and that an attorney could and would take legal action against him.

In a subsequent communication from the defendant to the plaintiff, the second amended complaint alleges, the defendant stated to the plaintiff, "[d]ifficult economic times exist today. We would like to offer you the opportunity to repay this obligation on a monthly repayment plan." It also states, "OR: A SETTLEMENT OFFER." It also states, "[a]t this point in time, no attorney with this firm has personally reviewed the particular circumstances of your account." The plaintiff believed that if payment or a settlement were not made, legal action could and would be taken against him.

The second amended complaint alleges that the defendant failed to make it clear to the plaintiff that the defendant had no authority to take legal action in Pennsylvania.

The second amended complaint alleges that the defendant acted through its agents with malicious, intentional, willful, reckless, negligent and wanton disregard for the plaintiff's rights with the purpose of coercing the plaintiff into paying the alleged debt and caused harm to the plaintiff. It is alleged that the defendant as a matter of policy and practice does not advise consumers that it can take no legal action against them, that it uses its title and status as an attorney to make false, deceptive or confusing statements to consumers, and that it uses the authority and credibility of its letterhead to threaten litigation and to create a heightened sense of urgency without a meaningful review of the consumer's account.

The second amended complaint asserts violations of 15 U.S.C. § 1692d and §§ 1692e(5) and (10), § 1692f, § 1692j, § 1692g and § 1692u. The complaint seeks statutory, actual, general and punitive damages, fees and costs as well as declaratory and injunctive relief.

The defendant's motion to dismiss the second amended complaint argues that the communications are not false or misleading, that they did not threaten a lawsuit, and that the plaintiff's demand for relief of $1,000 per violation is not proper.

A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) challenges the legal sufficiency of the plaintiff's complaint. In deciding a motion to dismiss the complaint, we must accept all well-pleaded factual allegations as true, "construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009)(quoting Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)).

"Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). The statement required by Rule 8(a)(2) need only give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Erickson v. Pardus, 551 U.S. 89, 93 (2007). Detailed factual allegations are not required. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, more is required than labels, conclusions and a formulaic recitation of the elements of a cause of action. Id. "In other words, a complaint must do more than allege the plaintiff's entitlement to relief." Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). "A complaint has to "show" such an entitlement with its facts."

Id. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft, supra, 129 S.Ct. at 1950. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft, supra, 129 S.Ct. at 1949 (quoting Twombly, supra, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin ...


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