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James Brignola v. Home Properties

April 25, 2013



I. Introduction

In this matter, Plaintiff alleges that Defendants committed: (1) violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.; (2) violations of the Pennsylvania Fair Credit Extension Uniformity Act, 73 Pa. Stat. Ann. § 2270 et seq.; (3) violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 Pa. Stat. Ann. § 201-1 et seq.; (4) Libel; (5) breach of the Landlord Tenant Act of 1951, 68 Pa. Stat. Ann. § 250.101 et seq.; (6) Invasion of Privacy; (7) Intentional Infliction of Emotional Distress; and (8) Civil Conspiracy. Plaintiff also seeks declaratory relief. See Second Am. Compl. passim.

On February 23, 2011, Plaintiff filed a Second Amended Complaint (Dkt. No. 45). Defendant Fair Collections & Outsourcing, Inc. filed a Motion to Dismiss (Dkt. No. 53). On April 22, 2011, Defendants Home Properties, L.P. and William Henry, LLC jointly filed a Motion to Dismiss (Dkt. No. 54). Responses and replies ensued.

For the reasons that follow, the Motions are granted in part and denied in part.

II. Facts

For purposes of deciding the Motions to Dismiss, this memorandum takes as true the facts as alleged in the Second Amended Complaint.

James Brignola ("Plaintiff") is an adult individual domiciled in Newark, Delaware. Defendant Home Properties, L.P. ("Home") is a limited partnership owned by Home Properties, Inc., with its principal place of business in Rochester, New York. Defendant William Henry, LLC ("Henry") is a limited liability company also owned by Home Properties, Inc., with its principal place of business in Rochester, New York. Home manages, leases, and collects rent for real properties owned by Henry in Pennsylvania, including the William Henry Apartments in Malvern, Pennsylvania. Defendant Fair Collections & Outsourcing, Inc. ("FCO") is a national debt collection company with its principal place of business in Beltsville, Maryland. FCO conducts its business throughout the United States, including in Pennsylvania.

In April 1987, Plaintiff's father, Andrew Brignola ("the deceased"), began leasing an apartment from Home on behalf of Henry in the aforementioned William Henry Apartments, where the deceased resided for the next twenty-two years. Second Am. Compl. ¶ 30. Throughout that time, Home held the deceased's $625.00 security deposit for tenancy. Id. ¶ 31. On October 21, 2009, the deceased suffered an adverse medical event and died intestate in his apartment, without providing Home with its required sixty days notice that he would be ending his lease and vacating his apartment. Id. ¶ 32. On October 27, 2009, Plaintiff met with Home's site manager to conduct a walkthrough of the deceased's apartment and requested a refund of the deceased's security deposit. Id. ¶ 33. During this meeting, Plaintiff provided Home with a signed document bearing his name, address, telephone number, and Social Security Number, as requested by Home to purportedly facilitate a refund of the security deposit. Id.

Rather than refunding the security deposit, Home's manager sent Plaintiff an invoice on November 20, 2009, for $41.86 in utilities and service fees owed by the deceased, with a due date of December 1, 2009. Id. ¶ 34; see id. Ex. I. Plaintiff thereafter repeatedly inquired with Home as to the status of the security deposit. Id. ¶ 35. On December 8, 2009, Home's Leasing Office wrote Plaintiff a letter to inform him that Home was determining a final resolution of the security deposit; the letter included a new "final" invoice for $9.78 for the same charges as listed in the November 20 invoice, due immediately. Id. ¶ 35-36; see id. Ex. J.

Simultaneously with its December 8, 2009 letter, Home sent Plaintiff a "Statement of Deposit" that assessed $815.32 in charges, including $96.32 in allegedly unpaid utility and other fees, and $719.00 for one month's additional rent because the deceased had failed to notify Home he would vacate the apartment prior to his unexpected death. Id. ¶ 37-39; see id. Ex. J. After deducting the security deposit of $625.00 from these charges, Home required Plaintiff personally pay the balance due of $190.32 within 30 days, or he would be "subject to further action by [Home's] Collection Department." Id. ¶ 39-40; see id. Ex. J. In January 2010, Plaintiff's attorney sent a letter to Home disputing these charges, but within a week, Plaintiff's attorney received a letter from Home's counsel reaffirming these charges as valid claims against the deceased's estate. Id. ¶ 41-42; see id. Ex. K; id. Ex. L.

On February 15, 2010, Plaintiff received a telephone call from FCO informing him that FCO was attempting to collect a debt owed by Plaintiff to William Henry Apartments; Plaintiff contested these charges by informing FCO that the deceased allegedly owed the debt. Id. Ex. N, at 2:9-19, 5:17-19, 8:20-9:19. FCO called Plaintiff again on February 19, 2010, to apprise him that his account with FCO had been cancelled because his Social Security Number had been erroneously affixed to the deceased's debt charges. Id. Ex. N, at 27:21-28:15. During that call, FCO offered to send Plaintiff a letter as confirmation that his account had been cancelled. Id. Ex. N, at 28:16-29:5. On March 1, 2010, however, FCO sent Plaintiff an invoice for $190.32 to collect Home's and Henry's debt, stating that "[t]he three major credit bureaus may be notified of this delinquency if you fail to negotiate payment" and that "[f]ailure to pay this debt may result in you not being able to rent another apartment." Id. ¶ 43-44; see id. Ex. M. FCO's invoice noted that Plaintiff's account would be "assigned to a professional debt collector on [March 16, 2010]," yet (inconsistently) stated that "THIS IS AN ATTEMPT TO COLLECT A DEBT BY A DEBT COLLECTOR." Id. ¶ 45; see id. Ex. M. During the following two months, Plaintiff received at least four phone calls from FCO demanding a payment of $190.32; each time, Plaintiff explained the mixup and was assured his account would be corrected to prevent his credit score from being affected. Id. ¶ 47.

On May 19, 2010, without notifying Plaintiff, FCO posted a negative report of Plaintiff's purported delinquency with at least one credit reporting agency. Id. ¶ 48; see id. Ex. S. Plaintiff then received a letter from FCO dated May 24, 2010, requesting Plaintiff pay the deceased's alleged debt without any reference to the adverse credit report against him. Id. ¶ 51; see id. Ex. T. Unaware of this negative report, Plaintiff called FCO on May 28, 2010, and was once again advised that his account with FCO had been cancelled and that the adverse accounting would not show up on his credit report. Id. Ex. N, at 38:10-14.

In June 2010, Plaintiff attempted to refinance his mortgage to decrease his interest rate from 5.5% to 4.125%, at which time he first became aware of FCO's derogatory posting and the concomitant 200-point drop from his previous 809-point credit score. Id. ¶ 52. This reduction in Plaintiff's credit score made it impossible for him to refinance his mortgage at the lower interest rate. Id. On July 23, 2010, FCO sent Plaintiff a letter indicating that it had removed him from its debt collection system and had sent corrective information to the credit reporting bureaus, but FCO's adverse posting was not removed from Plaintiff's credit report until August 17, 2010. Id. ¶ 53-54.

Defendants' attempts at collecting the deceased's debt from Plaintiff, and the resulting decrease in Plaintiff's credit score, caused emotional distress and anxiety that led Plaintiff to suffer a series of detrimental medical events over the course of a year, including rapid weight fluctuations, charted blood-pressure increases, and a critical alert for a diabetic coma. Id. ¶ 59.

III. Legal Standard

In deciding a motion to dismiss pursuant to Rule 12(b)(6), courts must "accept all 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." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002). After the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), "threadbare recitals of a cause of action's elements, supported by mere conclusory statements" do not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). "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 of the alleged misconduct." Id. at 678 (citing Twombly, 550 U.S. at 556). This standard, which applies to all civil cases, "asks for more than a sheer possibility that a defendant has acted unlawfully."

Id.; accord Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) ("All civil complaints must contain more than an unadorned the-defendant-unlawfully-harmed-me accusation.") (quoting Iqbal, 556 U.S. at 677). Moreover, "the factual detail in a complaint [must not be] so undeveloped that it does not provide a defendant [with] the type of notice of claim which is contemplated by Rule 8 [of the Federal Rules of Civil Procedure]." Villegas v. Weinstein & Riley, P.S., 723 F. Supp. 2d 755, 756 (M.D. Pa. 2010) (quoting Phillips, 515 F.3d at 232).

IV. Discussion

The Court addresses the Counts of the Second Amended Complaint seriatim.

1. Count I: Violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.

Plaintiff's asserts violations by Defendants of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692P (2012). The FDCPA imposes civil liability on "debt collectors" that utilize abusive debt collection practices. § 1692(e); see also Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S. Ct. 1605, 1608-09 (2010). A debt collector, defined as any entity that "regularly collects or attempts to collect . . . debts owed or due or asserted to be owed or due another," may be "any business the principal purpose of which is the collection of any debts." § 1692a(6). The FDCPA prohibits a debt collector from, inter alia, (1) communicating with a "consumer"*fn1 at any unusual or inconvenient time or place, such as after nine o'clock postmeridian, without prior consent of the consumer, § 1692c(a)(1);*fn2 (2) harassing, oppressing, or abusing any person in connection with collection of a debt, including "engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass," § 1692d(5); (3) making any false, misleading, or deceptive representations as to a debt's character, amount, or legal status, § 1692e(2)(A); (4) threatening to take any action against the consumer that cannot legally be taken, § 1692e(5); (5) communicating to any person credit information that is false or that should be known to be false, including a failure to communicate that a debt is disputed, § 1692e(8); (6) using any false, misleading, or deceptive means to attempt to collect any debt, § 1692e(10); and (7) attempting to collect an amount not permitted by law, § 1692f(1). Yet where a debt collector exhibits by a preponderance of evidence that any such "violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error," the debt collector may not be held liable for failing to comply with the FDCPA. § 1692k(c); Jerman, 130 S. Ct. at 1609 (quoting the FDCPA).

A "creditor," on the other hand, defined as "any person who offers or extends credit creating a debt or to whom a debt is owed," generally does not fall under the purview of the FDCPA when the creditor attempts to collect his own debt or any other debt acquired prior to a debt going into default. ยง 1692a(4); see also Oppong v. First Union Mortg. Corp., 215 F. App'x 114, 118 (3d Cir. 2007) ("Th[e] definition of debt collector excludes creditors who attempt to collect their own debts, but does not exclude an entity . . . who has acquired a debt that was already in default.") (internal quotation marks omitted); Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 403 (3d Cir. 2000) ("Creditors -- as opposed to debt collectors -- generally are not subject to the FDCPA.") (internal quotation marks omitted). There is an exception to this general rule: a creditor will be held liable as a debt collector utilizing ...

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