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Stuart v. Udren Law offices P.C.

United States District Court, M.D. Pennsylvania

June 9, 2014

ELAINE STUART, Plaintiff,
v.
UDREN LAW OFFICES P.C., et al., Defendants

For Elaine Stuart, Plaintiff: Vicki A. Piontek, LEAD ATTORNEY, Piontek Law Office, Lansdale, PA.

For Udren Law Offices, P.C., Defendant: Sherri J. Braunstein, Udren Law Offices, P.C., Cherry Hill, NJ.

OPINION

Matthew W. Brann, United States District Judge.

Page 505

MEMORANDUM

The Defendant, Udren Law Offices P.C.,[1] filed a Motion to Dismiss Plaintiff's Complaint for failure to state a claim under Federal Rule Civil Procedure 12(b)(6). Plaintiff's Complaint, filed February 7, 2013, seeks redress for Defendant's alleged violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (" FDCPA" ). The Court exercises jurisdiction pursuant to 28 U.S.C. § 1337 and 15 U.S.C. § 1692k(d).

For the reasons discussed, the Defendant's Motion to Dismiss is granted and the Plaintiff's Complaint is dismissed with prejudice.

I. BACKGROUND

Defendant, Udren Law Offices P.C. (" Udren" or " Defendant" ), is a law firm that represents various mortgage lenders in federal and state court proceedings in Pennsylvania, New Jersey, and Florida. Plaintiff, Elaine Stuart (" Stuart" or " Plaintiff" ), is an adult individual who was subject to a mortgage held by HSBC Mortgage Services Inc. (" HSBC" ).

On or about March 16, 2012, Udren, on behalf of its client HSBC, mailed Stuart a " Payoff Statement" detailing an alleged debt Plaintiff owed HSBC. Pl.'s Compl. ¶ 17, Ex. A, Feb. 7, 2013, ECF No. 1[hereinafter Pl.'s Compl.]. The Payoff Statement read, in pertinent part: " Dear Elaine Stuart: As requested, enclosed please find payoff form, indicating the sum needed to payoff the referenced mortgage." Id. The attached " payoff form" then detailed the principal balance of the loan, accrued interest, and several other fees, including attorneys fees, all totaling $139,793.65. Many of the additional fee amounts were marked " (Anticipated)." The letter stated that those items marked " (Anticipated)" were " not yet due, but may become due during the time period set forth in this statement." Id.

Plaintiff alleges that Udren's letter was an " initial communication" debt collection

Page 506

letter subject to the pertinent provisions of the FDCPA. Pl.'s Compl., ¶ 21. Plaintiff's Complaint alleges two counts: that Udren violated 15 U.S.C. § 1692g by failing to send a validation notice within five (5) days of the alleged initial communication; and, that the items marked " (Anticipated)" were false and misleading in violation of 15 U.S.C. § 1692e-f; 41 P.S. § 406. Udren then filed this Motion to Dismiss Plaintiff's claims.

II. DISCUSSION

A. Motion to Dismiss Standard

" 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, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 662. The goal behind the standard is to weed out those claims that do not present " enough" factual matter, assumed to be true, " to raise a reasonable expectation that discovery will reveal evidence" in support of the claims. Twombly, 550 U.S. at 556. Where a plaintiff fails to nudge her " claims across the line from conceivable to plausible, [her] complaint must be dismissed." Id. at 570.

As a matter of procedure, the United States Court of Appeals for the Third Circuit has instructed that:

[A]fter Iqbal, when presented with a motion to dismiss for failure to state a claim, district courts should conduct a two-part analysis. First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. [Iqbal, 556 U.S. at 678-79]. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a " plausible claim for relief." [Id. at 679].

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).

B. Stuart's Complaint Fails to State a Claim Under the FDCPA

1. Udren's Response to Consumer-Initiated Communication Is Not an Initial Communication Under the FDCPA

The stated purpose of the Federal Debt Collection Practices Act is " to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent state action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). " A threshold requirement for application of the FDCPA is that the prohibited practices are used in an attempt to collect a 'debt.'" Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163, 1167 (3d Cir. 1987); see also Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 400 (3d Cir. 2000). In order to state a claim under the FDCPA, a ...


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