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Amelio v. McCabe, Weisberg & Conway, Pc

United States District Court, W.D. Pennsylvania

July 28, 2015

Alfonso AMELIO, Plaintiff,
v.
McCABE, WEISBERG & CONWAY, P.C. et al., Defendants.

MEMORADUM OPINION

JOY FLOWERS CONTI, Chief District Judge.

I. Introduction

Plaintiff Alfonso Amelio ("Amelio") sued defendants McCabe, Weisberg & Conway P.C., Marc S. Weisberg, Bank of America N.A., and John Does 1-10 (collectively "defendants") for improperly filing and maintaining a mortgage foreclosure action against him. The complaint, filed pro se, contains three overlapping counts asserting that defendants violated various provisions of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692p. Amelio alleged that defendants filed the foreclosure complaint despite knowing they did not possess the original promissory note as required by Pennsylvania's Uniform Commercial Code, 13 PA. CONS. STAT. §§ 3101-3605.

McCabe, Weisberg & Conway and Marc S. Weisberg (the "law firm defendants") filed a motion to dismiss (ECF No. 2), arguing that Amelio's claims are time barred. (Mem. of Law 4, ECF No. 3.) Amelio subsequently filed a motion to vacate and strike the law firm defendants' motion to dismiss the complaint (ECF No. 9) and a motion for a temporary restraining order (ECF No. 11). Amelio argued that the law firm defendants violated 11 U.S.C. § 362 by filing their motion to dismiss after Amelio had filed bankruptcy and was under the protection of the automatic litigation stay. (Mot. to Vacate 4-5, ECF No. 9.) The court denied the motion to strike and vacate and the motion for a temporary restraining order because the Bankruptcy Code's automatic stay provision only applies to proceedings against the debtor. (Order, ECF No. 15.) Amelio was granted leave to file a substantive response to the motion to dismiss, which he did. (ECF No. 16). In the response, Amelio alleged that the law firm defendants committed a continuing violation that is not subject to the statute of limitations, and that the law firm defendants' motion to dismiss violates the congressional intent of the FDCPA-to protect consumers from unfair debt collection practices. ( Id. at 36-38.) The court finds, based upon the complaint and state-court litigation documents in the public record, that Amelio's claims against the law firm defendants are barred by the statute of limitations and must be dismissed.[1]

II. Legal Standard

A motion to dismiss tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not opining on whether the plaintiff will be likely to prevail on the merits; rather, the court accepts as true all well-pleaded factual allegations in the complaint and views them in a light most favorable to the plaintiff. U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002). While a complaint does not need detailed factual allegations to survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, a complaint must provide more than labels and conclusions. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Factual allegations must be enough to raise a right to relief above the speculative level and sufficient to state a claim for relief that is plausible on its face." Id. "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 for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

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. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'"

Id. (quoting Twombly, 550 U.S. at 556-57) (citation omitted).

Two working principles underlie Twombly. Id. First, with respect to mere conclusory statements, a court need not accept as true all the allegations contained in a complaint. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Second, to survive a motion to dismiss, a claim must state a plausible claim for relief. Id. at 679. "Determining whether a complaint states a plausible claim for relief will... be a content-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Id. (quoting FED. R. CIV. P. 8(a)(2)).

A plaintiff whose claims are dismissed for failure to state a claim generally must be given leave to file an amended complaint to cure the defective pleading. Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004). The court may dismiss a claim without leave to amend on the grounds of bad faith, undue delay, prejudice, or futility. Id. An amendment is futile where "the complaint, as amended, would fail to state a claim upon which relief could be granted." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997).

III. Facts Alleged in the Complaint and Viewed as True for the Purpose of Resolving the Motion to Dismiss

On July 26, 2006, [2] Amelio executed a mortgage and promissory note to Bank of America. (Compl. ¶ 16, ECF No. 1.) Defendants[3] failed to examine the documents prior to filing the security instrument with the Allegheny County Recorder of Deeds to determine if Bank of America was in possession of the original promissory note and original mortgage. ( Id. ¶¶ 17-18.) Defendants are currently attempting to collect upon fraudulently obtained notes because the original documents were never produced and because the copies that were provided by defendants lack an endorsement as to their authenticity. ( Id. ¶ 19.) Defendants first threatened foreclosure litigation, and then took foreclosure action against Amelio, while knowingly lacking proper evidence. ( Id. ¶¶ 20, 26.) The foreclosure complaint was based upon an improper affidavit because the affiant lacked personal knowledge. ( Id. ¶¶ 34k, 38.) The mortgage was securitized and Bank of America was not the holder in due course or injured by the default. ( Id. ¶¶ 45, 46.) Marc Weisberg knew or should have known that the mortgage was securitized, but concealed this fact during the foreclosure litigation. ( Id. ¶ 46.)

IV. Discussion

A. Subject-Matter Jurisdiction


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