Albert Davis v. Phelan Hallinan & Diamond PC
687 F. App'x 140
| 3rd Cir. | 2017Background
- Davis and his wife executed a mortgage; Davis defaulted and Bank of America retained Phelan to pursue foreclosure.
- Phelan (via investigator Full Spectrum) located multiple addresses for Davis, including 14 Rionda Ct. (property), 14 Carlson Ct., Closter, NJ, and 15 Linda Ave., Brockton, MA.
- Phelan mailed Notices of Intention to Foreclose (NOIs) addressed to "Albert E. Davis" to the Closter and Brockton addresses (certified mail returns were undelivered/unclaimed); regular-mail NOIs were also sent but there is no allegation any third party received or opened them.
- Postal confirmation responses indicated the Closter address matched a "Barbara Davis" and that an "Albert Davis" had moved with no forwarding address; the Brockton address was reported as "no such address."
- Davis sued Phelan under the FDCPA alleging violations of 15 U.S.C. § 1692c(b) (communication with third parties) and § 1692d (conduct the natural consequence of which is to harass, oppress, or abuse).
- The district court converted Phelan’s motion to dismiss into a motion for summary judgment with adequate notice (Plaintiff had argued conversion), granted summary judgment for Phelan on both claims, and this decision was affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mailing NOIs addressed to Davis but sent to addresses not associated with him violates § 1692c(b) (communication with third parties) | Davis: sending letters to third-party addresses is a communication with third parties and violates § 1692c(b) | Phelan: letters were addressed only to Davis; absent proof a third party received or opened them, there was no communication with a third party | Court: No § 1692c(b) violation — a communication requires conveying debt information to a person other than the consumer; letters addressed only to the consumer but mailed to third-party addresses are not communications with third parties absent evidence third parties received the information |
| Whether mailing NOIs to addresses not associated with Davis (even if mistaken) constitutes conduct whose natural consequence is to harass, oppress, or abuse in violation of § 1692d | Davis: mailing NOIs to irrelevant addresses is sufficiently extreme and abusive to violate § 1692d | Phelan: mailings were sent in good-faith to comply with New Jersey foreclosure-notice rules after investigation; sealed envelopes addressed to Davis sent to a few addresses do not naturally harass or oppress | Court: No § 1692d violation — the mailings (sealed and addressed to Davis, sent to a limited set of addresses in an effort to provide statutorily required notice) are not conduct the natural consequence of which is harassment, oppression, or abuse |
Key Cases Cited
- In re Rockefeller Ctr. Props., Inc. Secs. Litig., 184 F.3d 280 (3d Cir. 1999) (standards for converting a motion to dismiss into summary judgment and required notice to parties)
- Hilfirty v. Shipman, 91 F.3d 573 (3d Cir. 1996) (treating a motion as summary judgment where parties had notice; discussed in conversion context)
- Merkle v. Upper Dublin Sch. Dist., 211 F.3d 782 (3d Cir. 2000) (discussed in relation to Hilfirty; procedural standards governing summary judgment conversion)
- Blunt v. Lower Merion Sch. Dist., 767 F.3d 247 (3d Cir. 2014) (standard of review on appeal: de novo review of district court’s grant of summary judgment)