United States District Court, M.D. Pennsylvania
William J. Nealon United States District Judge
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
“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.
STANDARD OF REVIEW
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)).
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).
to the above-discussed motion to dismiss standard of review,
all facts are taken from Plaintiffs' amended complaint,
(Doc. 14), unless otherwise noted.
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).
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.”
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.).
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.).
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.”
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.).
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.).
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
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).
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.)).
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.
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.”
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).
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).
also make clear that they are not alleging a continuing
violation theory under the FDCPA. (Id.). According
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.
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).
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.
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.
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
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).
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
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
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,
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,  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
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.).
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
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).
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.
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 ...