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Melissa Devin Magness v. Walled Lake Credit Bureau

March 29, 2013


The opinion of the court was delivered by: Legrome D. Davis, J.


AND NOW, this 29th day of March, 2013, upon consideration of Defendants' Motions to Dismiss Plaintiff's Amended Complaint (Doc. Nos. 17 and 18) and the parties' responses and replies thereto (Doc. Nos. 21, 25, 27, 30), it is hereby ORDERED that the Motions are DENIED.

I. Factual Background

Plaintiff brings this action under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 192, et seq., (FDCPA) (Count I) and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §§ 201.1, et seq. (UTPCPL) (Count II). Plaintiff alleges that Defendants Bank of America N.A. ("BOA") and Walled Lake Credit Bureau, LLC ("Walled Lake") violated Plaintiff's rights under the applicable statutes by wrongfully informing Plaintiff that her mortgage was in default, threatening to foreclose on Plaintiff's home, and harassing Plaintiff with a number of abusive oral and written communications.

The Amended Complaint (the "Complaint") (Doc. No. 15) alleges that, in June 2011, Plaintiff acquired a loan from BOA in order to purchase a home. Thereafter, BOA sent Plaintiff regular "mortgage statements," and Plaintiff made timely, monthly payments on the mortgage in addition to voluntary contributions towards the principal of the loan.

Despite remaining current on her loan, in August 2012, Plaintiff received a "Borrower v. Response Package" from BOA, which stated, inter alia that: (1) BOA did not receive Plaintiff's "last two regularly scheduled payments"; (2) Plaintiff must "take action on this issue quickly"; and (3) failure to take action may put Plaintiff "at risk of losing [her] home to foreclosure." (Doc. No. 15 at ¶ 28). The package further identified BOA as a "debt collector" and Walled Lake as a third party "licensed debt collector" working with BOA. (Id. at ¶ 36).

After receiving the Borrower Response Package, Plaintiff immediately contacted BOA, remitted an additional (and allegedly unnecessary) payment, and received assurance from BOA that all "collection activity" on Plaintiff's account would cease. Despite Plaintiff's immediate action and BOA's assurances, Plaintiff continued to receive harassing phone calls, emails, and additional Borrower Response Packages. These communications indicated that Plaintiff's account with BOA was in default and that Plaintiff was at risk of foreclosure on her home. Plaintiff alleges that these communications came from "representatives" of BOA and identified Walled Lake as a third party debt collector working with BOA.

Currently before the Court are BOA and Walled Lake's Motions to Dismiss under Federal Rule of Civil Procedure 12(b)(6) (Doc. Nos. 17 and 18). For the reasons stated below, the Motions are DENIED.

II. Standard of Review

Pursuant to Rule 12(b)(6), a complaint may be dismissed for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). 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 v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "The plausibility standard 'asks for more than a sheer possibility that a defendant has acted unlawfully.'" Miles v. Twp. of Barnegat, 343 F. App'x 841, 844 (3d Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949). Rather, plausibility exists "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Gelman v. State Farm Mut. Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Iqbal, 129 S. Ct. at 1949).

When evaluating a motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6), "the facts alleged [in the complaint] must be taken as true and a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits." Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). While we must draw all reasonable inferences in favor of the plaintiff, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Additionally, the "presumption of truth" does not apply "to legal conclusions couched as factual allegations or to '[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements.'" Miles, 343 F. App'x at 845 (quoting Iqbal, 129 S. Ct. at 1949).

In considering a motion to dismiss, we may look to the allegations made in the complaint, the exhibits attached to the complaint, undisputedly authentic documents, and matters of public record. Pryor v. Nat'l Coll. Athletic Ass'n, 288 F.3d 548, 560 (3d Cir. 2002).

With regard to the substantive legal claims at issue, this Court applies Pennsylvania law as interpreted by the Pennsylvania Supreme Court. See, e.g., Nationwide Mut. Ins. Co. v. Buffetta, 230 F.3d 634, 637 (3d Cir. 2000). In the absence of guidance from the Pennsylvania Supreme Court, we consider decisions of the state's intermediate appellate courts and decisions of federal courts interpreting Pennsylvania law for assistance in ...

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