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Venechanos v. Green Tree Servicing, LLC

United States District Court, M.D. Pennsylvania

July 14, 2015

MARY ANN T. VENECHANOS, Plaintiff,
v.
GREEN TREE SERVICING, LLC; X, Y, Z CORPORATIONS, Defendants.

MEMORANDUM

WILLIAM J. NEALON, District Judge.

On November 27, 2014, Plaintiff, Mary Ann T. Venechanos, filed an amended complaint against Defendants Green Tree Servicing, LLC ("Green Tree") and X, Y, Z Corporations[1] alleging that Defendants violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"). (Doc. 3). On March 5, 2015, Green Tree filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 8). On March 21, 2015, Plaintiff filed her brief in opposition.[2] (Doc. 13). On April 1, 2015, Green Tree filed its reply brief. (Doc. 15). For the reasons set forth below, Green Tree's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) will be granted in part and denied in part.

I. BACKGROUND

Plaintiff's amended complaint makes the following allegations: During August 2014, Plaintiff received a written communication from Green Tree entitled "FACTS, ' WHAT DOES GREEN TREE SERVICING LLC ("Green Tree") DO WITH YOUR PERSONAL INFORMATION'" ("Notice"). (Doc. 3, pp. 6, 20-22). The Notice indicates that Green Tree is entitled to share its customers' personal information "for joint marketing with other financial companies." (Id. at pp. 7, 20). The shareable personal information can include a customer's Social Security number, income, account balances, payment history, credit history, and credit scores. (Id. at p. 20). The Notice defines "joint marketing" as "[a] formal agreement between non-affiliated financial companies[3] that together market financial products or services to" the customer. (Doc. 3, p. 21). The Notice also states that its customers cannot limit Green Tree's sharing of personal information "for joint marketing with other financial companies." (Id. at p. 20). The Notice does not disclose that it was sent from a debt collector. (Id. at p. 6).

A portion of the Notice is dedicated to providing the customer with information as to how they should contact Green Tree in order to limit its sharing of that customer's information. (Id. at p. 20). Within that section, Green Tree provides a toll free phone number that customers can call to speak with a "customer service representative" who will "prompt you through your choice(s)." (Id.). Below this section, Green Tree provides the customer with a "Mail-in Form, " which is an alternative means for a customer to limit the sharing and/or use of his/her information. (Id.). According to the form, it "may be mailed to: Green Tree Servicing, LLC, Privacy Department, PO Box 6172, Rapid City, S.D. XXXXX-XXXX." (Id.).

Plaintiff's first count in her amended complaint alleges that Green Tree violated section 1692e(11) of the FDCPA because the Notice does not disclose that it was a written communication from a debt collector. (Id. at pp. 5-6). Plaintiff's second count alleges that Green Tree violated sections 1692c(b), 1681e, and 1692d of the FDCPA. (Doc. 3, pp. 7-8). Plaintiff claims that Green Tree violated section 1692c(b) by sharing Plaintiff's personal information "for joint marketing with other financial companies." (Id. at p. 7). Plaintiff alleges that Green Tree violated section 1692e "by making a false and misleading statement that [it] was entitled to" share Plaintiff's personal information "for joint marketing with other financial companies, " and that Plaintiff "could not choose to limit that sharing of such information." (Id. at p. 8). Finally, Plaintiff claims that Green Tree violated section 1692d of the FDCPA "by engaging in harassment or abuse by stating or implying that [it] was entitled to" share Plaintiff's personal information "for joint marketing with other financial companies, " and that "Plaintiff could not choose to limit the sharing of such information." (Id.).

Plaintiff makes the following requests for relief: at least one dollar ($1.00) in actual damages, one thousand dollars ($1, 000.00) for statutory damages, damages for Plaintiff's frustration, confusion, and emotional distress that resulted from Green Tree's "illegal collection activity, " attorney's fees, injunctive relief barring further unlawful collection activity, "a reasonable plaintiff incentive fee for representing the class in this action, in an amount no less than $5, 000.00, "[4] and "other such relief as this Honorable Court may deem just and proper." (Doc. 3, pp. 15-18).

II. STANDARD OF REVIEW

Green Tree's motion is brought pursuant to Federal Rule of Civil Procedure 12(b)(6). "This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted." Suessenbach Family v. Access Midstream, 2015 U.S. Dist. LEXIS 40900, at *2 (M.D. Pa. Mar. 31, 2015) (Mannion, J.). The moving party bears the burden of showing that no claim has been stated. Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). All factual allegations are accepted as true and all inferences are construed in the light most favorable to the non-moving party. Kaymark v. Bank of Am., N.A., 2015 U.S.App. LEXIS 5548, at *7 (3d Cir. Apr. 7, 2015) (citing Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012)). "[D]ismissal is appropriate only if, accepting all of the facts alleged in the complaint as true, the plaintiff has failed to plead enough facts to state a claim to relief that is plausible on its face.'" Suessenbach Family, 2015 U.S. Dist. LEXIS 40900, at *2 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). The non-moving party's allegations must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 544. "This requirement calls for enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of' necessary elements of the plaintiff's cause of action." Suessenbach Family, 2015 U.S. Dist. LEXIS 40900, at *2-3 (quoting Twombly, 550 U.S. at 544). "Furthermore, in order to satisfy federal pleading requirements, the plaintiff must provide the grounds of his entitlement to relief, ' which requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.'" Id . (quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). Since Plaintiff attached the Notice as an exhibit to her complaint, it will be treated as part of the pleading. FED. R. CIV. P. 10(c).

"Generally, the court should grant leave to amend a complaint before dismissing it as merely deficient." Id . (citing Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000)). "Dismissal without leave to amend is justified only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004).

III. DISCUSSION

Prior to the enactment of the FDCPA, Congress discovered "abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors." 15 U.S.C. § 1692(a). Further, Congress also found that "[a]busive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy." 15 U.S.C. § 1692(a). In 1977, Congress enacted the FDCPA:

"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."

Douglass v. Convergent Outsourcing, 765 F.3d 299, 301-02 (3d Cir. 2014) (quoting 15 U.S.C. § 1692(e)). "As remedial legislation, the FDCPA must be broadly construed in order to give full effect to these purposes." Caprio v. Healthcare Revenue Recovery Grp., LLC, 709 F.3d 142, 148 (3d Cir. 2013).

To accomplish these goals, Congress enacted the FDCPA to create "a private right of action against debt collectors who fail to comply with its provisions." Grubb v. Green Tree Servicing, LLC, 2014 U.S. Dist. LEXIS 100886, at *9 (D.N.J. 2014) (citing 15 U.S.C. § 1692k; Marx v. Gen. Revenue Corp., 133 S.Ct. 1166, 1171 n.1 (2013); Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006)). The Third Circuit Court of Appeals has stated that to prevail on an FDCPA claim a plaintiff must prove that:

(1) she is a consumer, (2) the defendant is a debt collector, (3) the defendant's challenged practice involves an attempt to collect a "debt" as the Act defines it, and (4) the defendant has violated a provision of the FDCPA in attempting to collect the debt.

Douglass, 765 F.3d at 303 (citing Piper v. Portnoff Law Assocs., Ltd., 396 F.3d 227, 232 (3d Cir. 2005)).

Plaintiff claims that Green Tree violated the FDCPA on at least two (2) separate occasions. (Doc. 3, pp. 5-8). First, Plaintiff alleges that the Notice sent by Green Tree violated sections 1692d and 1692e of the FDCPA. (Id. at pp. 5-8). Second, relying on a portion of the language in the Notice, Plaintiff alleges that at least one (1) communication, if not more, from Green Tree to an unauthorized third party violated section 1692c(b) of the FDCPA. (Id. at pp. 7-8). Green Tree argues that Plaintiff's claims are not actionable under the FDCPA and ...


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