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Robinson v. Select Portfolio Servicing, Inc.

United States District Court, D. South Carolina, Greenville Division

January 28, 2016

Edward M. Robinson, Sharon H. Robinson, Plaintiffs,
v.
Select Portfolio Servicing, Inc., Defendant.

          REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

          JACQUELYN D. AUSTIN, Magistrate Judge.

         This matter is before the Court on Defendant's motion to dismiss. [Doc. 31.] Plaintiffs, proceeding pro se, bring this action alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692, 1692a-1692p, and the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§ 2601-2617. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A), and Local Civil Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pretrial matters involving litigation by individuals proceeding pro se and submit findings and recommendations to the District Court.

         Plaintiffs filed their Complaint on May 4, 2015. [Doc. 1.] Defendant filed its motion to dismiss on August 3, 2015. [Doc. 31.] By Order filed August 4, 2015, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiffs were advised of the dismissal/summary judgment procedure and the possible consequences if they failed to adequately respond to the motion. [Doc. 34.] Plaintiffs filed a response in opposition on September 4, 2015 [Doc. 36], and Defendant filed a reply on September 14, 2015 [Doc. 38]. The motion is ripe for review.

         BACKGROUND[1]

         On April 6, 2001, Plaintiffs executed a promissory note for $131, 750.00 in favor of lender Long Beach Mortgage Company. [Doc. 1-1 at 9.] The loan was secured by a mortgage signed on the same day for a property located at 207 Ikes Road in Taylors, South Carolina. [ Id. at 2.] By certified mail on January 19, 2014, and again on April 25, 2014, Plaintiffs sent Defendant a RESPA qualified written request ("QWR") and a FDCPA notice of dispute requesting certain documents and notifying Defendant that the mortgage loan was in dispute. [Doc. 1 ¶¶ 9-10.] On May 7, 2014, Plaintiffs received a written correspondence from Defendant acknowledging receipt of the April 29, 2014 QWR and telling Plaintiffs to "be advised that [Defendant] is under no obligation to respond to the majority of the borrowers inquiries [and to] be advised that the claims and conclusions contained in the Letter are vague and conclusory, and without legal or factual support and are inconsistent with the document signed by the Borrower at closing." [ Id. ¶ 11.] Plaintiffs received a second response letter on May 10, 2014, informing Plaintiffs that "the true owner of this obligation is: LONG BEACH MORTGAGE COMPANY, 1400 S. Douglas Road Suite 100, Anaheim, CA 92806[.]" [ Id. ¶ 19.] On May 25, 2014, Plaintiffs sent a reply letter to Defendant stating that Defendant's previous responses were inadequate, denying the validity of the debt, refusing to pay the alleged debt, and demanding Defendant cease and desist all attempts to collect the debt. [ Id. ¶¶ 21-23.] On June 4, 2014, Plaintiffs received a reply from Defendant acknowledging receipt of Plaintiffs' correspondence and informing Plaintiffs that their loan was released to a new servicer and that they should contact the new servicer about concerns regarding their loan and property. [ Id. ¶ 24.] Defendant sent a second letter that was received June 5, 2014. [ Id. ¶ 27.] On June 20, 2014, Plaintiffs received an annual escrow disclosure statement from Defendant. [ Id. ¶ 33.]

         Plaintiffs assert that the letter received on May 7, 2014 violated the FDCPA because it failed to: validate the debt, contain the name of the creditor to whom the debt was owed, inform Plaintiffs that they had 30 days from receipt of the letter to dispute the validity of the debt or it would be presumed valid, contain a statement that the debt collector would obtain verification of the debt within 30 days of Plaintiffs' request, or contain the mini-miranda warnings that the communication was an attempt to collect the debt and was sent by a debt collector. [ Id. ¶¶ 11, 13-15, 18, 42-57.] Plaintiffs allege the letter received May 10, 2014 violated the FDCPA by failing to validate the debt or provide the mini-miranda warnings. [ Id. ¶¶ 19-20, 58-61.] Plaintiffs further allege the letters received on June 4, 2014; June 5, 2014; and on or around June 20, 2014 violate the FDCPA by failing to include the mini-miranda warnings and by communicating with Plaintiffs after the receipt of their cease and desist letter. [ Id. ¶¶ 25, 26, 28, 29, 34, 35; 62-89.]

         Plaintiffs also contend Defendant violated the FDCPA by transferring the debt, as referenced in Defendant's letter received on June 4, 2014, after Plaintiffs had informed Defendant that the debt was in dispute. [ Id. ¶ 24.] Plaintiffs further contend Defendant violated the FDCPA based on their requests for Plaintiffs' credit reports from the major credit bureaus; the credit bureaus reported that the debt was not categorized as disputed. [ Id. ¶¶ 30-32, 37, 90-105.] Plaintiffs allege that Defendant violated RESPA by failing to respond to Plaintiffs' letter, sent on April 25, 2014, within five days.[2] [ Id. ¶ 11, 12, 106-09.]

         Plaintiffs request statutory damages of $1, 000, 000.00, permanent injunctive relief, and all related legal fees and costs. [ Id. at 5.] In another section of their Complaint, Plaintiffs request $37, 000.00 in statutory damages, permanent injunctive relief, attorneys' fees, and court related costs and fees. [ Id. at 24.]

         APPLICABLE LAW

         Liberal Construction of Pro Se Complaint

         Plaintiffs brought this action pro se, which requires the Court to liberally construe his pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se complaint is still subject to summary dismissal. Id. at 520-21. The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the plaintiff's legal arguments for him. Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir. 1993). Nor should a court "conjure up questions never squarely presented." Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         Motion to Dismiss Standard

         Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts which would support her claim and entitle her to relief. When considering a motion to dismiss, the court should "accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff." Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the court "need not accept the legal conclusions drawn from the facts" nor "accept as true unwarranted inferences, unreasonable conclusions, or arguments." Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further, for purposes of a Rule 12(b)(6) motion, a court may rely on only the complaint's allegations and those documents attached as exhibits or incorporated by reference. See Simons v. Montgomery Cnty. Police Officers, 762 F.2d 30, 31 (4th Cir. 1985). If matters outside the pleadings are presented to and not excluded by the court, the motion is treated as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(d).

         With respect to well-pleaded allegations, the United States Supreme Court explained the interplay between Rule 8(a) and ...


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