Tardi-Osterhoudt v. McCabe, Weisberg & Conway LLC
1:18-cv-00840
N.D.N.Y.Sep 6, 2019Background
- Pro se plaintiff Anne Marie Tardi-Osterhoudt and her husband borrowed $165,600 in 2006 (New Century), secured by a mortgage on 40 Sunnybrook Circle, Highland, NY.
- Plaintiff stopped paying (payment due Mar 1, 2017). Loan servicing by Ocwen began in 2011; plaintiff alleges transfers and opaque ownership of the defaulted note involving an investor, an intermediate trust, Ocwen, and Deutsche Bank as trustee.
- McCabe, Weisberg & Conway (McCabe) sent a July 19, 2017 debt-collection notice naming Deutsche Bank; plaintiff sent a written dispute/validation request to McCabe on July 28, 2017.
- McCabe recorded an assignment of mortgage (AOM) Aug 25, 2017 and filed a foreclosure action on behalf of Deutsche Bank Nov 20, 2017. Ocwen responded to plaintiff’s validation request on Sept 14, 2017 with loan documents identifying Deutsche Bank as owner.
- Plaintiff sued under the FDCPA (15 U.S.C. §§ 1692c, 1692e, 1692g(b)) seeking ~ $587,191. Defendants moved to dismiss or for summary judgment. The Court: dismissed Ocwen and Deutsche Bank; granted McCabe summary judgment except denied as to McCabe on the §1692g(b) claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Deutsche Bank is a "creditor" (FDCPA) and thus not a debt collector under §1692e | Deutsche Bank acquired the debt post-default solely to collect for an unnamed investor, so it is not the creditor and its naming was deceptive | Deutsche Bank, as trustee/purchaser asserting ownership, is the creditor and not a debt collector | Court: Deutsche Bank qualifies as a creditor; §1692e claim against it dismissed |
| Whether Ocwen is a "debt collector" under FDCPA | Ocwen concealed creditor identity and acted as a debt collector | Ocwen began servicing the loan before default and thus is excluded from the FDCPA debt-collector definition | Court: Plaintiff failed to plead Ocwen was a debt collector; claims against Ocwen dismissed |
| Whether recording/filing the AOM or recording assignment is a "communication in connection with collection" (§1692c/§1692e(11)) | Recording the AOM and not disclosing debt-collector language violated §§1692c and 1692e(11) | Recording an assignment and filing foreclosure are not FDCPA ‘‘communications’’ or are excepted when necessary for foreclosure | Court: Recording AOM is not a communication under FDCPA; filing foreclosure is an attempt to collect but filings/communications with court/clerk can be privileged or necessary; §1692c/§1692e claims dismissed |
| Whether McCabe violated §1692g(b) by failing to mail verification after plaintiff disputed the debt | McCabe did not itself mail verification to plaintiff after dispute and continued collection activity | McCabe forwarded the dispute to Ocwen (servicer) and Ocwen mailed verification; McCabe contends this satisfies §1692g(b) | Court: Section 1692g(b) requires the debt collector to obtain verification and mail it; disputed whether relay to servicer suffices — summary judgment denied as to McCabe on §1692g(b) |
Key Cases Cited
- Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017) (purchaser of defaulted debt who collects for itself is a creditor, not a debt collector)
- Heintz v. Jenkins, 514 U.S. 291 (1995) (FDCPA exceptions and reading communications in context; litigation communications may be necessary to invoke remedies)
- Obduskey v. McCarthy & Holthus LLP, 139 S. Ct. 1029 (2019) (foreclosure is a means of collecting a debt for FDCPA purposes)
- Cohen v. Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75 (2d Cir. 2018) (statements must be materially false or misleading to violate §1692e)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (court need not accept legal conclusions as true)