Tucker v. McCurdy & Candler, LLC, 2:12-cv-00184

Plaintiff Tucker asserts a FDCPA claim against McCurdy & Candler as foreclosure counsel for Cenlar FSB regarding a loan tied to real property in Buford, GA.
Plaintiff executed a promissory note for $245,000 to Taylor Bean; security deed named MERS as nominee for lender.
Taylor Bean ceased operations in 2009; Cenlar began servicing the loan in 2009 and later acquired servicing rights.
June 13, 2011, MERS assigned the Security Deed to Cenlar FSB; Cenlar advised Tucker Freddie Mac owns the note and Cenlar is servicing for Freddie Mac.
Cenlar sent foreclosure notices identifying Cenlar as creditor and stating Cenlar is a debt collector, though no foreclosure sale occurred.
Court grants the defendant’s motion to dismiss the FDCPA claim concluding foreclosure activities are not debt collection under the FDCPA.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether foreclosure activity qualifies as debt collection under the FDCPA	Tucker; (not stated in brief)	Foreclosure is not debt collection; Cenlar not a debt collector	No; foreclosure activity is not debt collection; FDCPA claim fails
Whether Cenlar can be identified as creditor under FDCPA notices	Cenlar misidentified as creditor	Identification is irrelevant since not a debt collector	Irrelevant to ruling; claim fails on above basis

Bryant v. Avado Brands, Inc., 187 F.3d 1271 (11th Cir. 1999) (pleading standards and liberal construction of pro se pleadings; factual assertions required for plausibility)
D.L. Day v. Taylor, 400 F.3d 1272 (11th Cir. 2005) (documents incorporated by reference; attachment of documents to dismissals)
Horsley v. Feldt, 304 F.3d 1125 (11th Cir. 2002) (undisputed documents may be considered in dismissal”)
Iqbal v. Ashcroft, 556 U.S. 662 (U.S. 2009) (plausibility pleading standard; not mere conclusory statements)
Twombly v. Bell Atl. Corp., 550 U.S. 544 (U.S. 2007) (facial plausibility standard for pleading)