689 F. App'x 97
2d Cir.2017Background
- Plaintiff Tonya Hill defaulted on a $379,200 promissory note secured by a mortgage; DLJ is assignee, Selene is servicer, and Doonan is a law firm communicating on their behalf.
- Hill sued under the FDCPA, RESPA, and New York GBL § 349, alleging improper debt-collection communications, improper force-placed insurance practices, and deceptive conduct.
- District Court (E.D.N.Y.) dismissed FDCPA and RESPA claims with prejudice under Rule 12(b)(6) and declined supplemental jurisdiction over the GBL claim; Hill appealed.
- Key factual contention for FDCPA: monthly statements from Selene constituted unlawful debt-collection communications.
- Key factual contention for RESPA: defendants purchased force-placed insurance without providing required notices and charged Hill’s account in violation of Regulation X.
- On appeal, the Second Circuit reviewed the dismissal de novo and affirmed the District Court’s order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA: whether monthly statements are debt-collection attempts | Hill: monthly statements seeking amounts due are attempts to collect and violate FDCPA | Defendants: statements were TILA/Regulation-compliant monthly statements by a servicer, not debt-collection demands | Affirmed dismissal — statements were required TILA disclosures, not FDCPA collection attempts |
| RESPA: failure to provide required notices and improper charges for force-placed insurance | Hill: defendants did not provide Regulation X notices/requests and improperly charged force-placed insurance | Defendants: complaint pleaded only conclusory allegations and failed to allege that the mortgage was "federally related" as required by RESPA | Affirmed dismissal — RESPA allegations were conclusory and lacked required factual detail, including that mortgage was federally related |
| Leave to Amend RESPA claim | Hill: District Court should have allowed amendment to specify damages amount | Defendants: no amendment requested below; court need not sua sponte grant leave | Affirmed — Hill never sought leave to amend in district court; no abuse of discretion in denying sua sponte amendment |
| State-law GBL § 349 claim / supplemental jurisdiction | Hill: raised GBL claim below (not argued on appeal) | Defendants: federal claims dismissed, so district court should decline supplemental jurisdiction | District Court’s decline to exercise supplemental jurisdiction affirmed; GBL claim waived on appeal for lack of argument |
Key Cases Cited
- Chambers v. Time Warner, 282 F.3d 147 (2d Cir. 2002) (standard for Rule 12(b)(6) review)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not entitled to assumption of truth)
- Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012) (contrast where communications expressly demanded payment and stated collection intent)
- ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87 (2d Cir. 2007) (standard of review for denial of leave to amend)
- Williams v. Citigroup Inc., 659 F.3d 208 (2d Cir. 2011) (failure to request amendment below precludes claim that district court abused discretion)
- JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418 (2d Cir. 2005) (arguments omitted from opening brief are waived)