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Crimone v. McCabe, Weisberg & Conway, P.C.

United States District Court, W.D. Pennsylvania

June 12, 2015

RAYMOND S. CRIMONE and REBECCA A. CRIMONE, Plaintiffs,
v.
McCabe, Weisberg & Conway, P.C.; Marc S. Weisberg, Esq.; Andrew L. Markowitz, Esq.; Nationstar Mortgage, LLC; Ekker, Kuster, McCall & Epstein, LLP; Thomas R. Dobson; Sandelands Eyet; Matthew T. Eyet, Esq.; and Does 1-10. Defendants.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

CYNTHIA REED EDDY, Magistrate Judge.

I. RECOMMENDATION

Presently pending before the Court are four Motions to Dismiss the Amended Complaint filed by the above-captioned Defendants. (ECF Nos. 3, 5, 15, 21 errata 23). For the following reasons, it is respectfully recommended that the District Court grant all of Defendants' pending motions, and dismiss the Amended Complaint filed by pro se Plaintiffs Raymond S. Cimone and Rebecca A. Crimone, (ECF No. 2), with prejudice.

II. REPORT

A. Background[1]

In April 2004, Plaintiffs obtained a mortgage. (ECF No. 5-2 at 3). At various points during the term of the loan, the mortgage was assigned to other parties. Plaintiffs received notice on July 13, 2012, that the mortgage had been transferred from Aurora Loan Services, LLC, to Nationstar Mortgage, LLC ("Nationstar"). (ECF Nos. 26 at 2; 28 at 2-3). In a separate notice dated August 14, 2012, Plaintiffs received a letter from Nationstar indicating that Plaintiffs were in "serious default" on the mortgage. ( Id. ). Nationstar's correspondence stated that it was a "debt collector trying to collect a debt." ( Id. ).

On October 16, 2013, Nationstar filed a complaint in mortgage foreclosure against Plaintiffs in the Court of Common Pleas of Mercer County, Pennsylvania ("state foreclosure action"). (ECF No. 5-2 at 3). Nationstar was initially represented by McCabe, Weisberg & Conway, P.C. ("MWC"), specifically by attorneys Marc S. Weisberg and Andrew L. Markowitz. (ECF Nos. 15; 21-1). MWC contacted Ekker, Kuster, McCall & Epstein, LLP ("EKME"), to act on its behalf as local counsel. (ECF Nos. 21, 21-1).

On December 2, 2013, Plaintiffs filed pro se preliminary objections to Nationstar's complaint in the state foreclosure action, which challenged, inter alia, whether Nationstar had possession of the note. (ECF No. 5-2 at 4). Nationstar subsequently filed an answer to Plaintiffs' preliminary objections on December 23, 2013, followed by a praecipe for argument on February 3, 2014. ( Id. ). Oral argument was held on May 5, 2014 before Common Pleas Judge Robert G. Yeatts. ( Id. ). Plaintiff Rebecca A. Crimone was removed from the courtroom during this hearing. ( Id. ). Oral argument was rescheduled for, and completed on, June 2, 2014. (ECF No. 5-2 at 5).

On June 20, 2014, Plaintiffs filed the Complaint herein in the United States District Court for the Western District of Pennsylvania against all parties involved in the foreclosure action, including the then-presiding judge, Judge Robert G. Yeatts.[2] (ECF Nos. 1, 5-2 at 5). Thereafter, Judge Yeatts issued an order requiring Nationstar to attach a copy of the mortgage notes and subsequent assignments to its original complaint in the state foreclosure action. (ECF No. 5-1 at 4). Nationstar had twenty days to file the amended complaint. On July 16, 2014, Judge Yeatts issued an Opinion setting forth reasons that he was recusing from the state foreclosure action. (ECF No. 16-1 at 4).

The state foreclosure action was then reassigned to President Judge Thomas R. Dobson. On July 30, 2014, Judge Dobson entered default judgment in favor of Plaintiffs following Nationstar's failure to file an amended complaint within the prescribed time period. (ECF No. 5-1 at 4). An amended complaint was thereafter filed on August 6, 2014. ( Id. ). Nationstar subsequently employed Sandelands Eyet, LLP, specifically Matthew T. Eyet, as counsel. (ECF No. 5). Nationstar then moved to strike the default judgment. (ECF No. 5-1 at 5). At argument on October 9, 2010, Nationstar's counsel, Matthew Eyet, presented the note containing Rebecca Crimone's signature. Judge Dobson granted Nationstar's motion to strike the default judgment on October 10, 2014. ( Id. ).

On October 17, 2014, Plaintiffs filed an Amended Complaint in this Court against the above-captioned Defendants. (ECF No. 2). Plaintiffs brought suit pursuant to the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (FDCPA), primarily alleging that Defendants committed numerous violations of the Act throughout the course of the foreclosure action. Plaintiffs also generally allege violations of their First, Fourth, Fifth, Seventh, and Fourteenth Amendment rights under the United States Constitution. Plaintiffs further seek relief under several provisions of Pennsylvania law.[3]

Following the filing of their Amended Complaint in this Court, Plaintiffs filed preliminary objections to Nationstar's amended complaint in the state foreclosure action, which were denied by Judge Dobson on November 3, 2014. (ECF No. 5-1 at 6). Plaintiffs were ordered to file an answer within twenty days. Plaintiffs instead filed a motion for recusal on November 6, 2014. ( Id. ). In an opinion filed November 10, 2014, Judge Dobson declined to recuse. (ECF No. 16-1 at 9-13).

Several motions to dismiss the Amended Complaint before this Court were independently filed by Defendants between November 3, 2014 and February 2, 2015. (ECF Nos. 3, 5, 15, 21 errata 23).[4] The issues presented therein have been fully briefed, and are now ripe for disposition.

We have jurisdiction over the matter pursuant to 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 1334 (civil rights), 15 U.S.C. § 1692k(d) (civil liability for debt collection practices), and 28 U.S.C. § 1367(a) (supplemental jurisdiction).

B. Analysis

1. Standard of Review

a. Pro Se Litigants

Pro se pleadings, "however inartfully pleaded, " must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir.1969) (petition prepared by a pro se plaintiff may be inartfully drawn and should be read "with a measure of tolerance"). Notwithstanding this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002).

b. Motion to Dismiss - Rule 12(b)(6)

In light of the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), a complaint may be dismissed pursuant to Rule 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Phillips v. Co. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570). While Conley v. Gibson, 355 U.S. 41, 45-46 (1957) allowed dismissal of a claim only if "no set of facts" could support it, under Twombly, and Ashcroft v. Iqbal, 556 U.S. 662 (2009), a claim for relief under Rule 12(b)(6) now "requires more than labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678.

In Iqbal, the Supreme Court held that a claim is facially plausible when its factual content allows the court to draw a reasonable inference that the defendants are liable for the misconduct alleged. Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009) (citing Iqbal, 556 U.S. at 678). The plausibility standard in Iqbal "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678. While well-pleaded factual content is accepted as true for purposes of whether the complaint states a plausible claim for relief, legal conclusions couched as factual allegations or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, " are not entitled to an assumption of truth. Iqbal, 566 U.S. at 678. "Where the well-pleaded facts do not permit the court to infer more than a mere possibility of misconduct, the complaint has alleged - but it has not show[n]' - that the pleader is entitled to relief.'" Iqbal, 566 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)(2)). In order to satisfy the ...


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