Cohen v. Rosicki, Rosicki & Assocs., P.C.
897 F.3d 75
2d Cir.2018Background
- Cohen obtained a residential mortgage in 2005, defaulted in 2009, and his loan eventually was serviced by Green Tree (later Ditech); Green Tree initiated a judicial foreclosure in New York in March 2015 and served Cohen with the summons and complaint.
- New York law required a Certificate of Merit (filed with the complaint) and a Request for Judicial Intervention (RJI) (filed soon after); both identified Green Tree as the creditor; Cohen received both documents.
- Cohen sent a qualified written request; Ditech replied that it was the servicer and that Fannie Mae owned the loan, but that Ditech (servicer) could act on the owner’s behalf.
- Cohen sued Ditech and its counsel under the FDCPA, alleging violations of 15 U.S.C. §§ 1692e and 1692g for identifying Green Tree (servicer) rather than Fannie Mae (owner) as the creditor in foreclosure filings.
- The district court dismissed under Rule 12(b)(6), holding that foreclosure enforcement of a security interest is not "debt collection" under the FDCPA; the Second Circuit reversed that categorical rule but affirmed dismissal on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judicial mortgage foreclosure is "debt collection" under the FDCPA | Cohen: foreclosure seeks payment on a consumer debt and thus is debt collection | Ditech: foreclosure enforces a security interest (possession), not collection of money, so FDCPA does not apply | Court: foreclosure can constitute debt collection under the FDCPA in these circumstances; reversed district court's categorical rule |
| Article III standing to sue under FDCPA for alleged misidentification of creditor | Cohen: statutory violations of §§1692e and 1692g protect concrete interests and create standing | Ditech: mere procedural/statutory error without concrete harm is insufficient under Spokeo | Court: Cohen alleged injury to concrete interests Congress sought to protect; he has standing |
| § 1692e (false/misleading representations): misidentifying creditor | Cohen: naming Green Tree as creditor was false/misleading under FDCPA | Ditech: Green Tree properly identified as servicer/creditor; even if false, the misidentification was immaterial | Court: even accepting possible technical inaccuracy, the identification was not materially misleading to the least sophisticated consumer; §1692e claim fails |
| § 1692g (validation notice / initial communication): Certificate and RJI counted as initial communications requiring correct creditor ID | Cohen: Certificate and RJI were initial communications that failed to identify the correct creditor | Ditech: §1692g(d) excludes formal pleadings and related filings from being initial communications | Court: Certificate and RJI are part of the pleading process (legally required filings) and fall within §1692g(d) exclusion; §1692g claim fails |
Key Cases Cited
- Kaymark v. Bank of Am., N.A., 783 F.3d 168 (3d Cir. 2015) (judicial foreclosure can be debt collection under the FDCPA)
- Glazer v. Chase Home Fin. LLC, 704 F.3d 453 (6th Cir. 2013) (foreclosure is undertaken to obtain payment and falls within FDCPA debt collection)
- Wilson v. Draper & Goldberg, P.L.L.C., 443 F.3d 373 (4th Cir. 2006) (foreclosure-related communications are not categorically outside the FDCPA)
- Heintz v. Jenkins, 514 U.S. 291 (1995) (lawyers who regularly litigate to collect consumer debts are debt collectors under the FDCPA)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. 2016) (procedural statutory violations must still implicate concrete interests for Article III standing)
- Strubel v. Comenity Bank, 842 F.3d 181 (2d Cir. 2016) (FDCPA procedural rights can protect concrete interests; informs standing analysis)
- Carlin v. Davidson Fink LLP, 852 F.3d 207 (2d Cir. 2017) (broad §1692g(d) exclusion applies to pleadings and communications forming part of pleadings)
- Jensen v. Pressler & Pressler, 791 F.3d 413 (3d Cir. 2015) (§1692e incorporates materiality requirement for false statements)
- Donohue v. Quick Collect, Inc., 592 F.3d 1027 (9th Cir. 2010) (materiality is required for FDCPA §1692e claims)
- Hahn v. Triumph P'ships LLC, 557 F.3d 755 (7th Cir. 2009) (materiality is an element of FDCPA false-statement claims)