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Glover v. Federal Deposit Insurance Corporation

September 5, 2012

MARY E. GLOVER, INDIVIDUALLY AND ON BEHALF OF OTHER SIMILARLY SITUATED FORMER AND CURRENT HOMEOWNERS IN PENNSYLVANIA, APPELLANT
v.
FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR WASHINGTON MUTUAL BANK, F.A.; MARK J. UDREN; UDREN LAW OFFICES, P.C.; WELLS FARGO HOME MORTGAGE; GOLDMAN SACHS MORTGAGE COMPANY



On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-08-cv-00990) District Judge: Honorable Donetta W. Ambrose

The opinion of the court was delivered by: Fisher, Circuit Judge.

PRECEDENTIAL

Argued June 26, 2012

Before: FISHER and GREENBERG, Circuit Judges, and OLIVER,*fn1 District Judge.

OPINION OF THE COURT

Mary Glover (―Glover‖) appeals the District Court's dismissal of her claims against defendants Mark Udren and Udren Law Offices (―Udren‖ or ―Udren Defendants‖) under the Fair Debt Collection Practices Act (―FDCPA‖) and Pennsylvania's Fair Credit Extension Uniformity Act (―FCEUA‖). This appeal requires us to flesh out the notice requirements inherent in Federal Rule of Civil Procedure 15(c), as well as address novel issues of statutory interpretation pertaining to each statute. We will affirm.

I. FACTUAL BACKGROUND*fn2

In August of 2002, Glover entered into a mortgage loan transaction with Washington Mutual Bank (―WaMu‖). After suffering injuries from an automobile accident in March of 2005, Glover fell behind on her mortgage and requested a ―work-out‖ agreement to reduce her monthly payments. WaMu initially threatened to foreclose on the home, but subsequently agreed to postpone her payments until the request had been evaluated. Eventually, on March 14, 2006, WaMu denied Glover's work-out request.

Around this time, Bill Murray, an attorney with Udren Law Offices, called Glover and informed her that she owed WaMu eleven missed mortgage payments, in addition to attorney's fees and costs, totaling approximately $3,397.28. On April 10, 2006, WaMu filed a Foreclosure Complaint against Glover in the Court of Common Pleas of Allegheny County, claiming $12,652.36 on the mortgage and threatening foreclosure if Glover did not pay. The aggregate claim included $9,703.57 in principal, $633.71 in interest, $280.00 in anticipated court costs, $1,250.00 in anticipated attorney's fees, and various other fees. Mark Udren of Udren Law Offices was counsel of record on WaMu's Foreclosure Complaint. No further action took place following this initial filing.

After various communications between Glover and WaMu's assignee, Wells Fargo,*fn3 Glover entered into a Loan Modification Agreement (―Agreement‖ or ―Modification Agreement‖) with Wells Fargo on January 4, 2008. The Agreement stipulated to unpaid principal in the amount of $12,152.02, increased Glover's monthly payment, and extended the repayment period by six years. Although Glover began making payments under the Agreement soon thereafter, the Foreclosure Complaint was not discontinued until November 25, 2009.

II. PROCEDURAL HISTORY

On June 9, 2008, Glover filed a putative class-action Complaint in the Court of Common Pleas of Allegheny County against WaMu, Wells Fargo, and the Udren Defendants, alleging, inter alia, violations of the FCEUA, 73 Pa. Cons. Stat. Ann. § 2270.4(a), premised in turn on broadly alleged violations of the FDCPA, 15 U.S.C. § 1692 et seq. The case was removed to the United States District Court for the Western District of Pennsylvania on July 14, 2008, and motions to dismiss were filed by all defendants.

On October 23, 2008, the Federal Deposit Insurance Corporation (―FDIC‖), in its capacity as receiver for WaMu,*fn4 filed a motion for a ninety-day stay for Glover to submit her claims against WaMu to the FDIC's mandatory claims review process. The motion was granted on October 24, 2008. On January 22, 2009, at the conclusion of the stay, the FDIC again moved to stay the proceedings pending completion of its review process. The motion was granted over Glover's objections on March 20, 2009, and reaffirmed on June 15, 2009. On September 24, 2009, the FDIC denied Glover's claims against WaMu.

Glover filed a First Amended Complaint on October 14, 2009, adding a count against the Udren Defendants for FDCPA violations arising out of the Udren Defendants' alleged failure to voluntarily discontinue the Foreclosure Complaint after Glover signed the Modification Agreement. (App. at 143a.) The Udren Defendants filed a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). On June 3, 2010, the Magistrate Judge issued a Revised Report recommending dismissal of the newly alleged FDCPA claim against the Udren Defendants with prejudice.

On June 9, 2010, Glover filed a Second Amended Complaint, adding Goldman Sachs as a defendant and restyling, among other claims, the FDCPA claim against the Udren Defendants. (App. at 290a-294a.)

The Magistrate Judge vacated the Revised Report to allow filing of the Second Amended Complaint, but subsequently reinstated the Report. On August 18, 2010, adopting the Revised Report, the District Court entered an order dismissing the First Amended Complaint's FDCPA and FCEUA counts against the Udren Defendants without prejudice, thereby rendering the Second Amended Complaint the operative pleading.*fn5

On October 22, 2010, the Udren Defendants filed a motion to dismiss the Second Amended Complaint. The District Court granted the motion as to the FDCPA claim, finding that the Amended Complaint was not filed within the FDCPA's one-year statute of limitations, 15 U.S.C. § 1692k(d), and did not relate back to the timely filed original Complaint under Federal Rule of Civil Procedure 15(c)(1)(B). The District Court also dismissed Glover's FCEUA claims against the Udren Defendants, finding that the Udren Defendants were not ―debt collectors‖ under the FCEUA because Glover's mortgage was a ...


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