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Dixon v. Stern & Eisenberg, PC

United States District Court, E.D. Pennsylvania

June 22, 2015

DENNIS KEITH DIXON, Plaintiff,
v.
STERN & EISENBERG, PC, et al., Defendants.

MEMORANDUM

JOSEPH F. LEESON, JR. UNITED STATES DISTRICT JUDGE

Defendants’ Motion to Dismiss/Summary Judgment, ECF No. 7- Granted.

I. Introduction

On July 31, 2014, Plaintiff Dennis Keith Dixon filed a complaint against Defendants Stern & Eisenberg, PC and its employees, Does 1-50, for alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq. Compl., ECF No. 1. Plaintiff subsequently filed an Amended Complaint. Am. Compl., ECF No. 3. Defendants filed a Motion to Dismiss the Amended Complaint on January 6, 2015. Mot. Dismiss, ECF No. 7.[1] On May 14, 2015, this Court issued notice of its intent to convert the motion into one for summary judgment and provided the parties with time to present any additional materials to support or oppose summary judgment. Order, May 14, 2015, ECF No. 18. That time has now passed. For the reasons set forth below, summary judgment will be granted in favor of Defendants.

II. Factual Background

Plaintiff initiated the above-captioned action on July 31, 2014. Compl. He filed an Amended Complaint on November 28, 2014. Am. Compl. The Amended Complaint alleges that Defendants, whose law practice includes mortgage foreclosure debt collections, mailed six debt collection notices, which Plaintiff received at his residence on August 1 and 2, 2013. Id. at ¶¶ 12-14. Three of the six notices were addressed to “Heather E. Merritt, ” Plaintiff’s spouse. Id. at ¶ 14 and Ex. B. Two of the notices addressed to Plaintiff’s spouse and two of the three addressed to Plaintiff were mailed to 639 Old Airport Road, Douglassville, Pennsylvania, and the other notices to 639 Old Airport Road, Amity, Pennsylvania. Id.[2]

The notices, titled “Combined Notice Under Act 6[3] and Act 91, [4]” state: “[t]his is an official notice that the mortgage on your home is in default, and the lender intends to foreclose.” Am. Compl. Ex. A. The notices identify Plaintiff as the homeowner, the property address as 639 Old Airport Road, Amity, Pennsylvania, and the mailing address as 639 Old Airport Road, Douglassville, Pennsylvania. Id. Option One Mortgage Corporation (“Option One”)[5] is listed as the original lender. Id. The current lender is identified as Wells Fargo Bank, N.A. (“Wells Fargo”) as Trustee for ABFC 2006-OPT1 Trust, [6] by its servicer Ocwen Loan Servicing, LLC (“Ocwen”). Id. The notices explain, inter alia, that Plaintiff can cure the default by paying the past due amount of $13, 040.31 within thirty days, that he may be eligible for financial assistance through the Homeowner’s Mortgage Assistance Program, and the possibility of foreclosure if the default remained uncured. Id.

Plaintiff alleges that the Act 6/Act 91 notices contained material misrepresentations that a debt was in default. Am. Compl. ¶ 14. He challenges Defendants’ alleged failure to investigate whether there was a recorded transaction creating the alleged debt before sending collection notices. Id. at ¶¶ 17-28, 88-93 (contending that “Defendants carry the burden of producing a lending ‘transaction’”). The Amended Complaint claims that Defendants violated the FDCPA by asserting there was a default when no debt could be proven in the absence of a “transaction, ” and by threatening a foreclosure that could not be legally undertaken. Id. at ¶¶ 79-84, 96-104, 108, 112.

Additionally, Plaintiff alleges that the notices gave him the impression that Wells Fargo was in legal possession of all ownership rights in the property, but it would not be until several months later, on November 20, 2013, and March 4, 2014, that the Assignments of Mortgage were recorded in favor of Wells Fargo with the Berks County Recorder of Deeds. Am. Compl. ¶¶ 14, 30, Exs. E-F. Plaintiff contends that Option One/Sand Canyon did not own his mortgage and therefore could not have assigned it to Wells Fargo, [7] and that the assignments missed the closing date for the Trust by almost eight years. Id. at ¶¶ 68, 85, 109, 116, 119. He alleges that Defendants violated the FDCPA by conspiring with Wells Fargo and Ocwen to create and record invalid assignments in the land records in preparation of foreclosing on Plaintiff’s property. Id. at ¶¶ 29-54 (complaining also about Defendants’ alleged use of robo-signers).[8]

The Amended Complaint claims that the six Act 6/Act 91 notices contained four hundred fifty-six (456)[9] violations of the FDCPA, 15 U.S.C. §§ 1692d, e, f, g, and j. Am. Compl. ¶¶ 123-24. Plaintiff further alleges that Defendants caused two fraudulent Assignments of Mortgage to be recorded with the Berks County Recorder of Deeds, resulting in eighty-four (84)[10] additional violations of the FDCPA. Id. at ¶ 125. Plaintiff seeks statutory damages under the FDCPA for each[11] alleged violation, $150, 000.00 in actual damages for pain and suffering, and other damages in the amount “allegedly” owed to cure his debt. Id. at ¶¶ 122-132.

On January 6, 2015, Defendants filed a Motion to Dismiss, asserting that Plaintiff failed to allege that he was prejudiced by receiving the pre-foreclosure notices and that his frustration with the statutorily prescribed method is insufficient to state a claim. Mot. Dismiss 7-8.[12]Defendants contend that the notices, sent in accordance with Acts 6 and 91, were not false, deceptive, or misleading, and that their actions are not the type of conduct Congress intended to prohibit in the FDCPA. Id. at 8-10 (citing 41 Pa. C.S. § 403(c)(3)). Defendants claim that their first-hand knowledge of the “transaction” that created the debt is not a pre-requisite under the FDCPA and, regardless, the transaction creating Plaintiff’s debt was properly recorded on August 1, 2006. Id. at 10-11 (asking this Court to take judicial notice of the mortgage dated May 26, 2006, and recorded on August 1, 2006, at Book 04934, Page 0931, Recorder of Deeds, Berks County, Pennsylvania); Am. Ex. B, ECF No. 14. Defendants further state that the subject note is endorsed to blank and that the holder of the note, Defendants’ client, is entitled to enforce the same. Id. at 11-12 (citing 13 Pa. C.S. § 3301). Finally, Defendants assert that they have not sent “communications” as defined by the FDCPA, but merely complied with state requirements to send pre-foreclosure notices to Plaintiff. Mot. Dismiss 13.

Plaintiff filed a response to the Motion to Dismiss on February 27, 2015. Resp., ECF No. 13. Plaintiff initially asserts that Defendant is a corporation and cannot proceed pro se. Id. at ¶¶ 1-8 (citing 15 Pa.C.S. §§ 2922-2925). Next, he argues that Defendants’ “Notice of Motion to Dismiss...” should be denied because it does not comply with procedural rules in that it does not contain numbered paragraphs or a wherefore clause. Id. at ¶¶ 9-19 (emphasis added). Finally, Plaintiff objects to the Exhibits attached to the Motion to Dismiss as having no bearing on this case. Id. at ¶¶ 20-29. Specifically, he alleges that Exhibits A and B are mortgage documents and the Act 6/Act 91 notices are for a different property than that identified in the debt collection notices at issue here. Id. Plaintiff argues that Exhibit C, the Adjustable Rate Note for the property at 639 Old Airport Road, was not mentioned anywhere in his Amended Complaint. Id.

In his accompanying Memorandum of Law, Plaintiff argues that Wells Fargo is not a party in interest because Option One/Sand Canyon did not own any residential real estate mortgages to assign and, thus, Defendants had no legal basis to send the Act 6/Act 91 notices. Resp. Memo, ECF No. 13, pp. 4-6, 14. He asserts Defendants failed to address his pleading that no “transaction” creating the debt has been shown, then opposes Defendants’ position that knowledge of the debt was obtained from its review of the title report and recorded mortgage. Id. at pp. 7-9. Plaintiff asks for proof of the existence of the debt. Id. at pp. 12. Lastly, he disagrees with Defendants’ interpretation of and reliance on the UCC. Id. at pp. 15-20.

On March 27, 2015, Defendants filed Amended Exhibits A and B. Am. Exs., ECF No. 14. Plaintiff filed a supplemental response objecting to these Exhibits. Pl. Supp. Resp., ECF No. 15. He claims that Amended Exhibit A is unrelated to Defendants’ original Exhibit A, and is merely a redacted copy of Plaintiff’s Exhibit A. Id. at ¶¶ 1-4. Plaintiff asserts that Amended Exhibit B, which contains the mortgage documents for the property at 639 Old Airport Road, is not probative to his claims. Id. at ¶ 5. Additionally, in both the response and supplemental response, Plaintiff suggests that defense counsel committed perjury and should be sanctioned. Resp. ¶¶ 25-27; Pl. Supp. Resp. ¶¶ 2-4.

On May 14, 2015, this Court issued notice of its intent to convert the Motion to Dismiss into one for summary judgment and provided the parties with time to present any additional materials to support or oppose summary judgment. Order, May 14, 2015. On May 27, 2015, Plaintiff filed objections to the Court’s notice. Pl. objs., ECF No. 19. Plaintiff repeats its objections to Defendants’ self-representation, to Defendants’ alleged failure to comply with procedural rules in filing the Motion to Dismiss, and to defense counsel’s alleged perjury in attaching the wrong exhibits to the Motion to Dismiss. Id. at pp. 1-2. Additionally, Plaintiff sets forth numerous grounds disputing Defendants’ original Exhibit C and Amended Exhibits A and B. Id. at pp. 5-13. Plaintiff asserts that in light of these factual disputes that summary judgment should not be granted. Id.

Notably, on June 9, 2013, Plaintiff filed a complaint, in a separate action number before this Court, against Option One Mortgage Corporation, Ocwen Loan Servicing, LLC, and H&R Block, Inc., alleging breach of a promissory note and mortgage agreement for the property at 639 Old Airport Road. Dixon v. Option One Mort. Corp., et al., 5:13-cv-3199 (E.D. Pa. filed June 9, 2013) (Goldberg, J.). In an amended complaint dated October 2, 2013, Plaintiff alleged that Option One breached the agreement to loan him $252, 000, that Defendants failed to record transfers of the note and mortgage, or to give notice of them to him, and that Defendants breached the agreements by recording the allegedly invalid assignment with the Berks County Recorder of Deeds. Id. at ECF Nos. 5, 17. On April 15, 2014, the amended complaint was dismissed. Id. at Order, April 15, 2014, ECF No. 17. The Honorable Mitchell S. Goldberg determined that Plaintiff’s legal theory that the promissory note and mortgage are invalid was meritless and that the assignment was lawful. Id. (finding that “the promissory note contained the following clause: ‘I understand that the Lender may transfer this Note’” and that “the Mortgage expressly contemplated that the ‘Note ...


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