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Wright v. Phelan

March 8, 2010

JOAN M. WRIGHT ON BEHALF OF HERSELF AND ALL OTHERS SIMILARLY SITUATED
v.
PHELAN, HALLINAN & SCHMIEG, LLP



The opinion of the court was delivered by: Baylson, J.

MEMORANDUM RE: DEFENDANT'S MOTION TO DISMISS

Before the Court is the Motion to Dismiss of defendant Phelan, Hallinan & Schmieg, LLP. (Doc. 4). Plaintiff, Joan M. Wright, has brought suit against defendant on behalf of herself and all others similarly situated, alleging that defendant, a firm that engages in debt collection, has violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et seq. Defendant contends plaintiff has failed to state a claim upon which relief can be granted. For the reasons that follow, the Court will grant defendant's Motion to Dismiss.

I. Facts and Procedural History*fn1

Plaintiff owns a home at 3344 Carter Lane, Chester, Pennsylvania, that is subject to a mortgage to the Bank of Oklahoma. (Compl. ¶¶ 4, 6). Defendant was hired by the Bank of Oklahoma to collect on an alleged debt for overdue payments on the mortgage, and on December 16, 2008, defendant filed a complaint in mortgage foreclosure against plaintiff in the Court of Common Pleas of Delaware County. (Compl. ¶¶ 6, 8). Upon request, defendant faxed a three-page letter to the office of plaintiff's attorney-Robert F. Salvin, Esquire, of Community Impact Legal Services, Inc.-on May 13, 2009, regarding the "Reinstatement Figure" necessary to reinstate plaintiff's mortgage. (Compl. Ex. A).*fn2 The first page of this letter stated, in part:

May 13, 2009

Via Fax Gonnie Hales

[fax number of Salvin's office] Re: Wright, Joan M.

3344 Carter Lane, Chester PA 19103 Acct#: []

To Whom It May Concern:

In accordance with your recent request, please find a reinstatement figure in the amount of $10,570.58, which is the amount required to bring the above account current with BOK Mortgage. Funds must be received in our office no later then [sic] 5/29/09 to allow for processing and mailing to our client. (Compl. Ex. A). The letter then provided various details regarding payment. On the second page of the letter, the Reinstatement Figure was itemized as follows:

Payments Due $5,198.88 Late Charges $207.90 Credit -$2.82 Prothonotary of Delaware County Costs $280.25 Sheriff of Delaware County Costs $2,466.57 Additional Foreclosure Costs $870.00 Attorney Fee $1,550.00 TOTAL $10,570.58 (Compl. Ex. A). The third page of the letter was a form to be submitted along with payment, requesting information such as the name on the mortgage, the loan number, and so forth. At the bottom of all three pages of the letter, in smaller print, was the following language:

Please be advised that this firm is a debt collector attempting to collect a debt. Any information received will be used for that purpose. If you have received a discharge in bankruptcy, and this debt was not reaffirmed, this correspondence is not and should not be construed to be an attempt to collect a debt, but only enforcement of a lien against property.

As of the date of this communication, you owe the amount specified. Because of interest, late charges, and other charges that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount above, an adjustment may be necessary after we receive your check, in which event we will inform you before depositing the check for collection. For further information, write the undersigned or call [] and ask for the Reinstatement Department. (Compl. Ex. A).

On May 14, 2009, one day after receipt of this letter, plaintiff filed an answer to defendant's complaint in the state-court foreclosure action, asserting, inter alia, that she "has the funds to reinstate the mortgage, and she will try to tender the funds, but [defendant] has sent [her] an inflated an [sic] inaccurate reinstatement demand, and thus her tender may very well be rejected." (Def.'s Mot. to Dismiss, Ex. D ¶ 5). Namely, plaintiff claimed that defendant's Reinstatement Figure "contains collection costs and fees that plaintiff has not yet incurred, such as fees for a sheriff's deposit even though plaintiff does not yet have a judgment and cannot yet schedule the property for a sheriff's sale." (Def.'s Mot. to Dismiss, Ex. D ¶ 13). On May 19, 2009, plaintiff tendered a cashier's check for $7,500 to defendant for the reinstatement of her mortgage. (Compl. ¶ 16). This payment was accepted, plaintiff's mortgage was reinstated, ...


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