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Brenda Brown v. Udren Law Offices Pc

September 9, 2011

BRENDA BROWN, PLAINTIFF,
v.
UDREN LAW OFFICES PC, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

September ___, 2011

Presently before this Court is Defendant Deutsche Bank's Motion to Dismiss (Doc. 4), Defendant Udren Law Office's Motion to Dismiss (Doc. 5), and Plaintiff's Response in Opposition thereto (Doc. 8). For the reasons set forth below, the Court grants in part and denies in part Defendants' motions.

I. BACKGROUND

This case involves collection activities stemming from a mortgage foreclosure. At all relevant times, Defendant Udren Law Offices P.C. ("Udren") provided legal services to and acted on behalf of Defendant Deutsche Bank National Trust Company ("Deutsche Bank"). On January 20, 2009, Defendant Udren commenced a foreclosure action on behalf of Deutsche Bank against Plaintiff and her brother by filing a complaint ("mortgage complaint") in the Chester County Court of Common Pleas to foreclose on the mortgaged premises located at 75W Central Avenue, Paoli, PA 19301 ("Property") because Plaintiff and her brother had defaulted on the mortgage obligations. On April 1, 2009, as Plaintiff had not filed an answer to the foreclosure complaint, Defendants filed for default judgment and petitioned for a writ of execution in the amount of $164,378.69 with interest in the amount of $2500.00, which the lower court granted. On April 2, 2009, Defendants filed a Notice of Sheriff's Sale of the property.

Plaintiff alleges that the property was owned by her, her brother and her mother, Mattie Wells, who died in June 2008. Plaintiff also alleges that after learning of the July 2009 sheriff sale, counsel for the Estate of Mattie Wells informed Defendants that the Estate may have an interest in the property. On June 18, 2009, Defendant Udren withdrew the judgment entered in the foreclosure action and subsequently filed a motion for leave to amend the mortgage complaint to add the executors of Mattie Wells' estate as defendants. On September 24, 2009, the Court of Common Pleas granted the motion to amend.

Plaintiff alleges that, despite the fact that the judgment had been withdrawn, Defendant proceeded with the sheriff sale and on December 17, 2009, Defendant Udren filed for a writ of execution. Plaintiff alleges the writ wrongfully stated that Defendant had a judgment in the amount of $164,378.69 with interest in the amount of $9575.00. On December 18, 2009, Defendant again filed a Notice of Sheriff's sale and posted the Notice, containing a reference to the judgment, on the property. According to Plaintiff, on multiple occasions during 2010, Defendants filed various documents related to the sheriff sale which falsely represented that Defendants had a judgment against Plaintiff.

Plaintiff contends that all of Defendants' filings after June 18, 2009 which stated that Defendants had a judgment against Plaintiff were false. Plaintiff further alleges that as a result of these false representations, she has suffered and continues to suffer humiliation, embarrassment, mental anguish, and severe emotions and physical distress, including headaches. Plaintiff's Amended Complaint contains three claims: abuse of process, intentional infliction of emotional distress, and violation of the Fair Debt Collections Practices Act ("FDCPA"), 12 U.S.C. § 1692 et seq. by falsely representing the legal status of the debt.

On February 7, 2011, Plaintiff filed a Writ of Summons in the Court of Common Pleas of Chester County, Pennsylvania, initiating this matter against Defendants Udren and Deutsche Bank. On or about February 23, 2011, Plaintiff filed a Complaint asserting claims for abuse of process and intentional infliction of emotional distress. On March 9, 2011, Defendant Udren filed Preliminary Objections to the Complaint. On March 22, 2011, Plaintiff filed an Amended Complaint raising the same claims for abuse of process (Count I) and intentional infliction of emotional distress ("IIED") (Count II), and added a third claim for violation of the Fair Debt Collection Practices Act ("FDCPA") (Count III). On April 21, 2011, Deutsche Bank removed the matter to federal Court. Plaintiff later withdrew her cause of action for abuse of process, leaving only Counts II and III for IIED and violation of the FDCPA. On April 28, 2011, Defendant Deutsche filed a Motion to Dismiss (Doc. 4). The same day, Defendant Udren filed a Motion to Dismiss (Doc. 5). On May 17,2011, Plaintiff filed a Response in Opposition to both motions (Doc. 8). The Court now addresses these pending motions.

II. LEGAL STANDARD

On a motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), the court is required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and to view them in the light most favorable to the non-moving party. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3d Cir. 1994). A complaint should be dismissed only if the alleged facts, taken as true, fail to state a claim. See In re Warfarin Sodium Antitrust Litig., 214 F.3d 395, 397--98 (3d Cir. 2000).

In making this determination, the question before the court is not whether the plaintiff will ultimately prevail, but whether the plaintiff can prove any set of facts consistent with his or her allegations that will entitle him or her to relief. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (explaining that the Court's role is limited to determining whether a plaintiff is entitled to offer evidence in support of her claims); Semerenko v. Cendant Corp., 223 F.3d 165, 173 (3d Cir. 2000).

While a court will accept well-pled allegations as true for the purposes of the motion, it will not accept bald assertions, unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Though detailed factual allegations are not required, the United States Supreme Court has recognized that "a plaintiff's obligation to provide the 'grounds' of his 'entitle [ment] to relief' requires more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In Twombly the Court made clear that it would not require a "heightened fact pleading of specifics," but only "enough facts to state a claim to relief that is plausible on its face." Id. at 570. A "pleader is required to 'set forth sufficient information to outline the elements of his claim or to permit inferences to be drawn that these elements exist.' " Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993) (citation omitted).

In 2009 the United States Supreme Court revisited the requirements for surviving a 12(b)(6) motion to dismiss in Ashcroft v. Iqbal,129 S.Ct. 1937, 1950 (2009). There the Court made clear that "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements ...


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