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Bainbridge v. Ocwen Loan Servicing, LLC

United States District Court, M.D. Pennsylvania

March 30, 2017

CHRISTOPHER BAINBRIDGE, ET AL., Plaintiffs
v.
OCWEN LOAN SERVICING, LLC, ET AL., Defendants

          MEMORANDUM

          William J. Nealon United States District Judge

         Plaintiffs, Christopher and Kelly Bainbridge, filed an amended complaint against Defendants U.S. Bank, N.A. as Trustee for the C-BASS Mortgage Loan Trust Asset-Back Certificates, Series 2007-CB6 (“U.S. Bank”); Udren Law Offices, P.C. (“Udren”); and Ocwen Loan Servicing, LLC (“Ocwen”) (collectively “Defendants”). (Doc. 14). Plaintiffs allege that Ocwen and Udren violated the Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. (“FDCPA”). (Id. at pp. 5-6). Plaintiffs also claim that Defendants made wrongful use of civil proceedings in violation of 42 Pa. C.S.A. § 8351, et seq. (“Dragonetti Act”), and violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1, et seq. (“UTPCPL”). (Id. at pp. 6-9). On May 6, 2016, Udren filed a motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and brief in support. (Docs. 21, 22). On May 16, 2016, U.S. Bank and Ocwen filed a motion to dismiss the amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) and brief in support. (Docs. 23, 24). On June 6, 2016, Plaintiffs filed their brief in opposition to the motions to dismiss. (Doc. 27). On June 20, 2016, Defendants filed a joint reply brief. (Doc. 28). As a result, the aforementioned motions to dismiss are ripe for disposition. For the reasons set forth below, Defendants' respective motions to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) will be denied in part and granted in part.

         I. STANDARD OF REVIEW

         As stated, both motions to dismiss have been brought pursuant to Federal Rule of Civil Procedure 12(b)(6). See (Docs. 21-24). “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)).

         “Generally, the court should grant leave to amend a complaint before dismissing it as merely deficient.” Aspinall v. Thomas, 118 F.Supp.3d 664, 670-71 (M.D. Pa. 2015) (Mannion, J.) (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).

         II. FACTUAL ALLEGATIONS

         Pursuant to the above-discussed motion to dismiss standard of review, all facts are taken from Plaintiffs' amended complaint, (Doc. 14), unless otherwise noted.

         On February 7, 2008, Plaintiffs became the owners of the property located at 25 5th Street, Hawley, Pennsylvania 18428. (Id. at p. 2). “On or about March 28, 2007, Plaintiffs initiated a mortgage loan with Defendants' predecessor, Imperial Lending, LLC.” (Id.). On or about November 4, 2010, Plaintiffs filed Chapter 13 bankruptcy in the United States District Court for the Middle District of Pennsylvania. (Id. at p. 3). On October 12, 2011, “Ocwen filed a Transfer of Claim document reflecting transfer of servicing rights” regarding Plaintiff's loan “from Litton Loan Servicing, L.P. to Ocwen.” (Id.). Ocwen “acquired the servicing rights to the mortgage debt disputed herein from Litton Loan Servicing when alleged to be in default.” (Id. at p. 2).

         On July 18, 2013, U.S. Bank filed a motion in Plaintiffs' bankruptcy action “for relief from the stay alleging plaintiffs had not made post-petition monthly mortgage payments beginning February 1, 2013.” (Doc. 14, p. 3). On August 8, 2013, the United States Bankruptcy Court for the Middle District of Pennsylvania “entered an order granting U.S. Bank relief from the stay due to plaintiffs' bankruptcy counsel failing to respond to the motion without the knowledge of the plaintiffs.” (Id.).

         On June 26, 2014, “Defendants filed a complaint in mortgage foreclosure against Plaintiffs in Wayne County, Pennsylvania Court of Common Pleas.” (Id.). In that foreclosure action, “Defendants alleged . . . that plaintiffs had not made post-petition monthly mortgage payments beginning” on September 1, 2013. (Id.). Defendants “alleged that the aforesaid mortgage was in default in that the payment due on or about September 1, 2013, and alleged that all subsequent payments had not been made.” (Id.). Plaintiffs “never missed a single payment after relief was granted to” U.S. Bank in the Plaintiffs' bankruptcy action until “Ocwen began returning plaintiffs' payments in January 2014.” (Id.). Ocwen returned these payments “despite Plaintiffs having copies of checks and bank statements evidencing payment for every month alleged unpaid.” (Id.). Additionally, “Defendants cashed the checks.” (Id.).

         Defendants instituted the underlying mortgage foreclosure action against Plaintiffs “without investigating the claimed default.” (Id. at p. 4). Subsequent to the complaint being filed in the underlying mortgage foreclosure action, Plaintiffs “continually informed Defendants of their mistake.” (Doc. 14, p. 4). Defendants, however, continued to pursue the foreclosure action. (Id.). On March 13, 2015, in the Wayne County Court of Common Pleas, the Honorable Raymond L. Hamill entered a verdict in favor of Plaintiffs and against Defendants in the underlying foreclosure action. (Id.).

         On or about October 7, 2015, Plaintiffs “received a discharge of their chapter 13 bankruptcy wherein they had paid $12, 600 in pre-petition arrears to Ocwen and its predecessor servicer, Litton.” (Id.). On or about that same date, Ocwen filed “a Response under BR 3002.1(g)” in Plaintiffs' bankruptcy action “alleging a post-petition mortgage loan default by plaintiffs for the months [of] December 1, 2013 through October 1, 2015 in the total amount of $36, 851.75.” (Id.).

         Based on the foregoing, “Plaintiffs' credit has been damaged causing them to be unable to purchase a new truck . . . [and they] also have been forced to rent rather than purchase a new home because they cannot qualify for an affordable mortgage.” (Id.). Moreover, Plaintiffs spent “approximately $7, 000 to retain attorneys” for their representation in the underlying mortgage foreclosure action. (Id.).

         III. DISCUSSION

         A. FDCPA

         Both motions currently before the Court argue that Plaintiffs' FDCPA claims concerning the underlying foreclosure action are barred by the FDCPA's one (1) year statute of limitations. (Doc. 22, p. 7); (Doc. 24, pp. 1, 5, 6-8). According to Udren, “Plaintiffs claim that ‘Defendants' violated the FDCPA by falsely filing a foreclosure action to take Plaintiffs' home and that ‘Defendants' sent in and out-of-court correspondence concerning the amounts due.” (Doc. 22, p. 7). However, Udren states that Plaintiffs provide “[n]o further specification.” (Id.). Furthermore, Udren argues that since the FDCPA has a one-year (1) statute of limitations, “only alleged FDCPA violations occurring after March 8, 2015 are actionable in this proceeding.” (Id.). Udren notes that the relevant “Foreclosure Action was filed on June 26, 2014, ” and “Plaintiffs filed an Answer on September 26, 2014.” (Id.). Udren claims that the “[t]rial occurred [on] March 3, 2015.” (Id.). Thus, Udren concludes, “[t]he alleged communications by Udren ‘in and out of court' would have had to occur after March 8, 2015 to fall within the statute of limitations.” (Id.). But, according to Udren, “[b]ecause all the conduct complained of possibly attributable to Udren occurred more than one (1) year before all of the above dates, it is not actionable under the FDCPA.” (Id.).

         Udren also argues that while Plaintiffs “make unsupported assertions that the purported FDCPA violations continued through the ‘present date, '” they “cannot maintain a ‘continuation of violation' theory to somehow toll the date of accrual of their FDCPA claim beyond June 26, 2014, the date of commencement of the mortgage foreclosure action or service of the Complaint on August 26, 2014.” (Doc. 22, p. 8). Udren claims that “[i]t is well-settled that a specific date is affixed for the accrual of a purported FDCPA violation . . . and the subsequent course of litigation is not actionable under a ‘continuing violation' theory in the context of the FDCPA.” (Id.) (quoting Schaffhauser v. Citibank (S.D.) N.A., 340 F. App'x 128, 130 (3d Cir. 2009); citing Parker v. Pressler & Pressler, LLP, 650 F.Supp.2d 326, 341 (D.N.J. 2009)).

         Similarly, U.S. Bank and Ocwen argue that Plaintiffs' FDCPA claims are barred by the FDCPA's one-year (1) statute of limitations. (Doc. 24, p. 6). In particular, U.S. Bank and Ocwen claim that since the instant action was instituted on March 8, 2016, “no action taken prior to March 8, 2015 may form the basis of their claims against Ocwen and U.S. Bank.” (Id.). According to U.S. Bank and Ocwen, even assuming, without deciding, that the limitations period began to run in September 2014, when Plaintiffs were served with the foreclosure complaint, the Plaintiffs' “FDCPA claims, premised on improper or ‘false' allegations included in the Foreclosure Action, are clearly time-barred.” (Doc. 24, p. 7).

         U.S. Bank and Ocwen also claim that “[a]ny acts taken or statements made by Ocwen or U.S. Bank in the course of the Foreclosure Action do not constitute ‘continuing violations' of FDCPA that would re-start the limitations period.” (Id.) (citing Schaffhauser, 340 F. App'x at 130-31; Kimmel v. Phelan Hallinan & Schmeig, PC, 847 F.Supp.2d 753, 767 (E.D. Pa. 2012); Schaffhauser v. Burton Neil & Assocs., P.C., 2008 U.S. Dist. LEXIS 24894 (M.D. Pa. Mar. 27, 2008) (Rambo, J.)).

         Plaintiffs respond by arguing that their FDCPA claims concerning the underlying mortgage foreclosure action should be considered ripe when the foreclosure verdict was handed down in the underlying state court litigation. (Doc. 27-1, pp. 4-9). Plaintiffs ask the Court to craft “an exception” which would toll “the FDCPA claim from the time of filing or answer given the unique concerns of ripeness, judicial economy and important state interests involved in determining real property issues.” (Id. at p. 5).

         In support of their request that the Court adopt this exception to the FDCPA's statute of limitations, Plaintiffs first argue that judicial economy will be served by adopting this exception to the FDCPA's statute of limitations. (Id.). According to Plaintiff, “[t]he reasoning employed by Federal Courts considering abstention from state court determinations provides a foundation for [P]laintiff[s'] ripeness arguments.” (Doc. 27-1, p. 5). Plaintiffs claim that courts within the Third Circuit that have considered “Younger abstention issues abstain where real property issues are involved.” (Id. at p. 6). Moreover, Plaintiffs state that “[a]nother category of cases appropriate for abstention involves ‘considerations of [wise] judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.'” (Id.) (second alteration and emphasis in original) (quoting Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 817 (1976)). Plaintiffs argue that “[i]nsofar as federal abstention doctrine dictates that any parallel FDCPA case arising from plaintiff's standing defense would require the case be stayed anyhow under the Colorado River abstention doctrine, judicial economy is served by” this Court's rejection the “argument that tolling of an FDCPA claim based on a foreclosure action is based on the time of that action's filing or service.” (Id.).

         According to Plaintiffs, the “Colorado River abstention provides that, under ‘exceptional circumstances, ' a federal court may abstain from its otherwise ‘virtually unflagging obligation' to assert jurisdiction over a case because (1) there is a parallel case in state court, and (2) after ‘careful[ly] balancing' a series of factors, maintaining the federal case would be a waste of judicial resources.” (Id.) (alteration in original) (quoting Moses 4 H Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 13-16, 19 (1983)). Plaintiffs argue that “[h]ere the two proceedings would have easily been considered parallel insofar [as] they ‘involve the same parties and substantially identical claims, raising nearly identical allegations and issues, ' and when plaintiffs in each forum seek the same remedies, i.e. here, determination as to the validity of the underlying debt in a foreclosure action.” (Doc. 27-1, pp. 6-7) (internal citations omitted). Plaintiffs also claim that “five of the six factors clearly argue for abstention with the sixth, convenience of the federal forum, having a neutral effect.” (Id. at p. 7).

         According to Plaintiffs, the argument put forth by Defendants “requires any foreclosure defendant opposing foreclosure for lack of a defaulted debt to file a parallel concurrent action to toll the FDCPA statute of limitations despite all Colorado River and Younger abstention factors arguing for federal court abstention.” (Id. at p. 8). Moreover, Plaintiffs contend that:

Extending the Motion's argument to the instant case's facts would have resulted in the consequent squandering of not only the state court's resources spent for years on a meritless state foreclosure claim, but would also have squandered the resources of the federal court to carry the FDCPA action on its docket as an active matter for such time.

(Id.). Plaintiffs also claim that:

filing of an FDCPA claim in federal court against the foreclosing parties and their counsel within one (1) year of the foreclosure action's filing or service without regard for disposition of whether the debt is owed increases the danger of the borrower and his counsel having Rule 11 sanctions threatened thereby increasing the likelihood of multiplying the litigation.

(Doc. 27-1, p. 9).

         Plaintiffs also make clear that they are not alleging a continuing violation theory under the FDCPA. (Id.). According to Plaintiffs:

The case law underlying the Motion's argument that an FDCPA claim is broadly tolled by the initiation or service of the foreclosure complaint should be distinguished because it does not involve foreclosure or standing defense in the respective underlying collection actions as discussed above.

(Id.).

         Initially, the Court notes that Plaintiffs' FDCPA claims are based on two (2) sections of the FDCPA and concern actions allegedly taken in two (2) separate legal proceedings. (Doc. 14, pp. 5-6). First, Plaintiffs contend that Ocwen violated 15 U.S.C. § 1692e(2)(A) of the FDCPA on October 7, 2015, when it “falsely fil[ed] a Response in the bankruptcy when no post-petition payments were due.” (Id. at p. 5). Second, Plaintiffs allege that Ocwen and Udren violated section 1692e(2)(A) when they “falsely fil[ed] a foreclosure action to take [Plaintiffs'] home when [Plaintiffs] were not contractually in default under the Note for payments due.” (Doc. 14, p. 5). Notably, Plaintiffs also allege generally that “Defendants violated § 1692f by engaging in unfair or unconscionable means to collect or attempt to collect a debt by the aforesaid conduct.” (Id. at p. 6).

         As to Plaintiff's FDCPA claims, Defendants' respective motions focus on Plaintiffs' allegations concerning the Defendants' filing of the underlying foreclosure action and, importantly, do not address Plaintiffs' claim regarding the “Response” allegedly filed by Ocwen on October 7, 2015, in the “bankruptcy.” See (Doc. 22, pp. 2, 7-8); (Doc. 24, pp. 1-2, 6-7). Consequently, Plaintiffs' FDCPA claims under sections 1692e(2)(A) and 1692f based on the “Response” allegedly filed by Ocwen in the “bankruptcy” will be allowed to proceed.

         However, Plaintiffs' claim that Ocwen and Udren violated sections 1692e(2)(A) and 1692f of the FDCPA when they filed the underlying mortgage foreclosure action will not proceed. Pursuant to section 1692k(d) of the FDCPA, “[a]n action to enforce any liability created by this title . . . may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one [(1)] year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). Here, Plaintiffs filed their original complaint on March 8, 2016. Therefore, under section 1692k(d), Plaintiffs' FDCPA claims which occurred before March 8, 2015, will be time barred.

         To determine whether Plaintiffs' FDCPA claims concerning the underlying mortgage foreclosure action are time barred, the Court must first decide when those claims began to accrue under the FDCPA's statute of limitations. According to the plain language of the FDCPA, the statute of limitations begins to accrue “from the date on which the violation occurs.” 15 U.S.C. § 1692k(d). This plain reading is consistent with decisions reached by the United States Court of Appeals for the Third Circuit and the district courts within that jurisdiction. For example, in Schaffhauser v. Citibank, the Third Circuit noted that “[a]n action under the FDCPA must be brought ‘within one year from the date on which the violation occurs.'” 340 F. App'x 128, 130 (3d Cir. 2009) (quoting 15 U.S.C. § 1692k(d)). The Third Circuit went on to state that “[w]here FDCPA claims are premised upon allegations of improper pursuit of debt collection litigation, [footnote omitted] courts are split as to when the FDCPA's one-year statute of limitations begins to run . . . .” Id. The Third Circuit continued by noting that “some have held that such claims accrue upon filing the underlying collection action, see Naas v. Stolman, 130 F.3d 892, 893 (9th Cir. 1997), while others use the date on which the purported debtor was served with the complaint.” Id. at 131 (citing Johnson v. Riddle, 305 F.3d 1107, 1113 (10th Cir. 2002)). Ultimately, the Third Circuit determined that it was not necessary to determine which approach applied because “under either approach” the plaintiffs' FDCPA claims were “clearly untimely.” Schaffhauser, 340 F. App'x at 131. Additionally, the Third Circuit also addressed the plaintiffs' argument that “the actions taken by the [] defendants ‘constitute a continuing violation, ' bringing their otherwise time-barred claims within FDCPA's one-year statute of limitations.” Id. “However, ” the Third Circuit noted, the plaintiffs “offer no support for their contention that participation in ongoing debt collection litigation qualifies as a ‘continuing violation' of the FDCPA, and we are aware of none.” Id. According to the Third Circuit, at the time of its decision “the only circuit court decision addressing this issue has concluded precisely the opposite.” Id. (citing Naas, 130 F.3d at 893). The Court of Appeals went on to state that “[g]enerally, our decisions have limited the continuing violation doctrine to the employment discrimination context.” Id. (citing O'Connor v. City of Newark, 440 F.3d 125, 127-28 (3d Cir. 2006)). Finally, the Third Circuit declined to extend the “continuing violation doctrine” to an FDCPA claim relating to “state court debt collection actions.” Id.

         A number of district courts within the Third Circuit have found the Third Circuit's non-precedential decision in Schaffhauser to be persuasive, specifically to the extent it determined that the participation in the underlying state court action did not qualify as a continuing violation. For example, in Toritto v. Portfolio Recovery Assocs., LLC, 2016 U.S. Dist. LEXIS 45821 (D.N.J. Apr. 5, 2016), the United States District Court for the District of New Jersey recently addressed whether a plaintiff's claim that the defendants “violated the FDCPA by ‘attempting to collect an alleged debt beyond the statute of limitations' in the state court action” was barred by the FDCPA's one-year (1) statute of limitations. Id. at *3. The District Court, in reaching its determination that the plaintiffs' claim was time barred, found Schaffhauser to be “persuasive and on point.” Id. at *4. In particular, the District Court stated that “[a]s in Schaffhauser, [the plaintiffs'] claims in this case are ‘premised upon allegations of improper pursuit of debt collection litigation.'” Id. at *5 (Schaffhauser, 340 F. App'x at 130-31).

         Additionally, in Kohar v. Wells Fargo Bank, N.A., 2016 U.S. Dist. LEXIS 49599 (W.D. Pa. Apr. 13, 2016), the United States District Court for the Western District of Pennsylvania noted that:

The Court of Appeals and numerous District Courts have recognized that the one year statute of limitations associated with the FDCPA commences upon the invocation of the underlying foreclosure litigation and is not generally saved by the continuing litigation doctrine.

Id. at *11-12 (citing Schaffhauser, 340 F. App'x at 131; Parker v. Nationstar Mortg. LLC, 2015 U.S. Dist. LEXIS 145439 (W.D. Pa. Oct. 27, 2015); Amelio v. McCabe, Weisberg & Conway, P.C., 2015 U.S. Dist. LEXIS 98378 (W.D. Pa. July 28, 2015)); see Rhodes v. U.S. Bank Nat'l Assoc., 2017 U.S. Dist. LEXIS 27578, at *4 n.8 (E.D. Pa. Feb. 28, 2017) (citing Schaffhauser, 340 F. App'x at 131); Living Life v. Deutsche Bank Nat'l Trust Co., 2016 U.S. Dist. LEXIS 50742, at *13 (E.D. Pa. Apr. 15, 2016) (citing Schaffhauser, 340 F. App'x at 130-31).

         In Brown v. Udren Law Offices PC, however, the United States District Court for the Eastern District of Pennsylvania distinguished the Third Circuit's decision in Schaffhauser. 2011 U.S. Dist. LEXIS 102004 (E.D. Pa. Sept. 9, 2011). The District Court rejected the defendant's reliance on Schaffhauser in its contention that the plaintiff's “FDCPA claim is barred by the one-year statute of limitations” and that the plaintiff “cannot assert a continuing violation . . . .” Id. at *15-16. The District Court found that the plaintiff's FDCPA claim was not barred “by the statute of limitations because she . . . alleged discrete acts that occurred within the year before she filed her Complaint.” Id. at *16. The District Court noted that “FDCPA claims are predicated upon improperly bringing debt collection litigation, the one-year limitations period begins to run-at latest-when the debtor is served with process.” Id. (citing Schaffhauser, 340 F. App'x at 130-31). However, “[c]onduct which independently violates the FDCPA, however, is actionable if it falls within the limitations period, even if undertaken in pursuit of litigation that was filed outside the limitations period.” Brown, 2011 U.S. Dist. LEXIS 102004, at *16 (citing Jones v. Inv. Retrievers, LLC, 2011 U.S. Dist. LEXIS 44138 (M.D. Pa. Apr. 25, 2011) (Caputo, J.)).

         Here, Plaintiffs allege, in relevant part, that Defendants violated section 1692e(2)(A) of the FDCPA when “[b]oth defendants[, Ocwen and Udren, ] falsely fil[ed] a foreclosure action to take plaintiff[s'] home when plaintiffs were not contractually in default under the Note for payments due.” (Doc. 14, p. 5). Plaintiffs also allege that “Defendants violated § 1692f by engaging in unfair or unconscionable means to collect or attempt to collect a debt by the aforesaid conduct.” (Id. at p. 6). As alleged, the Defendants filed the complaint in the underlying mortgage foreclosure action on “June 26, 2014.” (Id. at p. 3). As a result, even using June 26, 2014, [1] as the latest available date for statute of limitations purposes, Plaintiffs' FDCPA claims based on the filing of the underlying mortgage foreclosure action is barred by the FDCPA's one-year statute of limitations.[2]

         While Plaintiffs' FDCPA claims concerning the underlying state foreclosure action are barred by the one-year statute of limitations, Plaintiffs request that the Court find that Plaintiffs are entitled to equitable tolling of the FDCPA's statute of limitations. In particular, Plaintiffs argue that the statute of limitations for FDCPA claims which require the determination of the ultimate issue already before a state court, and thus are subject to federal abstention, be tolled during the pendency of that state court action. See (Doc. 27-1, pp. 4-9). In essence, Plaintiffs are asking the Court to carve out an exception to the FDCPA's statute of limitations based on an after the fact determination as to whether abstention would have applied had Plaintiffs filed a federal complaint alleging the FDCPA claims at issue during the pendency of the state court proceeding. See (Id.).

         First, there is a question as to whether equitable tolling is available under the present circumstances. Specifically, “[e]quitable tolling is appropriate only when the statutory time limit is not jurisdictional.” Shivone v. Washington Mut. Bank, F.A., 2008 U.S. Dist. LEXIS 59212, at *4 (E.D. Pa. Aug. 5, 2008). The “statute of limitations clause in the FDCPA falls under the heading, ‘Jurisdiction, ' and, consequently, there is split authority among the circuits regarding whether or not the limitations period is jurisdictional, meaning that it would not be subject to equitable tolling.” Rotkiske v. Klemm, 2016 U.S. Dist. LEXIS 32908, at *14 (E.D. Pa. Mar. 15, 2016). Notably, “[t]he Court notes that the Third Circuit has not had the occasion to address the question whether the FDCPA's statute of limitations is jurisdictional.” Coles v. Zucker Goldberg & Ackerman, 2015 U.S. Dist. LEXIS 98628, at *11 n.3 (D.N.J. July 29, 2015); but see Rotkiske, 2016 U.S. Dist. LEXIS 32908, at *14-15 (noting that “at least two Third Circuit Court of Appeals cases have considered equitable tolling arguments related to FDCPA claims.”) (citing Kliesh v. Select Portfolio Serv., Inc., 527 F. App'x 102, 104 (3d Cir. 2013); Glover v. F.D.I.C., 698 F.3d 139, 151 (3d Cir. 2012)). The Court need not decide, however, whether the FDCPA's statute of limitations is jurisdictional, and thus bars application of equitable tolling to FDCPA claims, because Plaintiffs have failed to establish circumstances necessary for the application of equitable tolling to their FDCPA claims concerning the underlying mortgage foreclosure action.

         “The doctrine of equitable tolling is only applicable when timely filing was prevented by extraordinary or sufficiently inequitable circumstances, and in that regard, equitable tolling should be sparingly applied by courts.” Coles, 2015 U.S. Dist. LEXIS 98628, at *10 (citing Santos v. United States, 559 F.3d 189, 197 (3d Cir. 2009); Parker v. Pressler & Pressler, LLP, 650 F.Supp.2d 326, 340 (D.N.J. 2009); Glover, 698 F.3d at 151; Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999)). “That said, a plaintiff may be entitled to equitable tolling if the conduct of the defendant prevented the plaintiff from ascertaining the viability of his or her claim within the limitations period.” Id. (citing Kliesh, 419 F. App'x at 271).

         However, Plaintiffs' amended complaint does not support a determination that Plaintiffs were prevented from timely filing their FDCPA claim by an extraordinary or sufficiently inequitable circumstance. Further, the amended complaint shows that Plaintiffs were not prevented from ascertaining the viability of their FDCPA claim concerning the underlying mortgage foreclosure action within the limitations period by any fraud or concealment done by Defendants. Rather, quite the opposite. The basis of Plaintiffs' claims hinge on their allegation that:

Plaintiffs never missed a single payment after relief was granted to defendant U.S. Bank in the bankruptcy until defendant Ocwen began returning plaintiffs' payments in January 2014 despite Plaintiffs having copies of checks and bank statements evidencing payment for every month alleged unpaid. Furthermore, Defendants cashed the checks.

(Doc. 14, pp. 3-4). Notably, Plaintiffs continue by alleging that “[e]ven after the complaint in foreclosure was filed, and Plaintiffs continually informed Defendants of their mistake, Defendants pursued their meritless claim.” (Id. at p. 4). These allegations run opposite to any argument that Defendants prevented Plaintiffs from ascertaining the viability of their FDCPA claim concerning the underlying mortgage foreclosure action within that Act's limitations period. Thus, even if the Court were to find that equitable tolling is allowed in FDCPA actions, Plaintiffs' request to apply equitable tolling to their FDCPA claims concerning their underlying mortgage foreclosure action is denied.

         Furthermore, Plaintiffs' equitable tolling argument relies on the speculative conclusion that the Court would have found that this case was subject to federal abstention. Moreover, had Plaintiffs filed a complaint within the applicable statute of limitations, and during the pendency of the state court proceeding, the Court may have issued a stay, as opposed to dismissing the federal case. Also, adopting the mechanism proposed by Plaintiffs most likely would not avoid an abstention determination and, thus, conserve judicial resources. Rather, as would be the case here if Plaintiffs' argument was accepted, such a principle would just prolong that determination until the defendants move for relief under Federal Rule of Civil Procedure 12(b). Since the abstention determination most likely would be made ...


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