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Oliver v. U.S. Bancorp

United States District Court, S.D. New York

July 8, 2015



P. KEVIN CASTEL, District Judge.

Plaintiffs Cathy Oliver and Ra Maa Nu Amen Bey, proceeding pro se, commenced this action against defendant U.S. Bank National Association sued herein as "U.S. Bancorp" ("U.S. Bank") pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq. Plaintiffs assert, among other things, that U.S. Bank misrepresented its right to collect upon an alleged mortgage loan debt of Ms. Oliver's. Defendant moves to dismiss the Complaint pursuant to Rule 12(b)(6), Fed.R.Civ.P. For reasons to be explained, defendant's motion to dismiss is granted. Most of plaintiffs' claims are barred by the FDCPA's one-year statute of limitations. Any claim not explicitly time-barred is dismissed for failure to state a plausible claim to relief.[1]


Plaintiffs Cathy Oliver and Ra Maa Nu Amen Bey are co-owners of certain real property located at 42 Brookdale Circle, New Rochelle in Westchester County, New York. (Compl., §§ I-II (Dkt. No. 1); Pl. Opp. to MTD, "Pl. Opp." ¶ 2 (Dkt. No. 17.))

In May 2010, defendant U.S. Bank commenced a foreclosure action in the Supreme Court of the State of New York, Westchester County (the "Foreclosure Action") in response to Ms. Oliver's alleged default on her mortgage loan payments.[2] (See Complaint in the Foreclosure Action, Index No. 13318/10, "Foreclosure Action Compl., " (Decl. of Robin L. Muir, "Muir Decl." (Dkt. No. 15, Ex. B.)))[3] The Foreclosure Action Complaint identifies the mortgaged premises as "42 BROOKDALE CIRCLE, NEW ROCHELLE, NY 10801." (Id.)

On November 10, 2014, plaintiffs commenced the instant action, alleging that U.S. Bank "engaged in a pattern of misrepresentation and deceptive practices in the collection of an alleged debt, " in violation of the FDCPA. (Compl., § III.) In context, the Complaint's reference to "collection proceedings" refers to the Foreclosure Action commenced on May 19, 2010. (See Foreclosure Action Compl. & Summons (Muir Decl., Ex. B.)) Plaintiffs' allege, inter alia, that U.S. Bank misrepresented (1) their status as a creditor; (2) the character, amount, and legal status of the alleged debt; (3) that they are owed default interest, attorney's fees, and other expenses; and (4) that they were in possession of an alleged debt when they commenced collection proceedings. (Compl., § III.) Plaintiffs seek injunctive relief, damages, a restitution order, and costs and fees. (Id. at § IV.)

On March 3, 2015, U.S. Bank moved to dismiss the Complaint. (Dkt. No. 13.) Plaintiffs opposed the motion on March 27, 2015. (Dkt. No. 17.) After U.S. Bank submitted a reply memorandum on April 7, 2015 (Dkt. No. 19), the Court provided plaintiffs with another opportunity to respond. (Dkt. No. 21.) Plaintiffs filed a further opposition to the motion to dismiss on June 17, 2015. (Dkt. No. 22.)

I. Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), Fed. R. Civ. P., "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do, '" rather, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . (quoting Twombly, 550 U.S. at 555). In considering a Rule 12(b)(6) motion to dismiss, all non-conclusory factual allegations are accepted as true, see id. at 678-79, and all reasonable inferences are drawn in favor of the plaintiff. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (per curiam). Moreover, plaintiff's pro se pleadings are given a liberal and generous construction and are read "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted). The Court may consider documents annexed to the complaint or incorporated by reference into the complaint without converting the motion into a motion for summary judgment. See Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995).

II. FDCPA's One-Year Statute of Limitations

Most of plaintiffs' FDCPA claims are dismissed as time-barred. A claim under the FDCPA must be brought within one year from the date on which the violation occurs. 15 U.S.C. § 1692k(d) ("An action to enforce any liability created by this subchapter may be brought... within one year from the date on which the violation occurs.") The continued prosecution of a foreclosure or collection suit is not a continuing violation under the FDCPA-if the same alleged misrepresentation is repeated in court filings, the claim accrues on the date of the initial representation. A new FDCPA claim only arises if a new misrepresentation is alleged. See Calka v. Kucker, Kraus & Bruh, LLP, 98-cv-0990 (RWS), 1998 WL 437151, at *3 (S.D.N.Y. Aug. 3, 1998) (concluding that FDCPA claim accrued on date that state court lawsuit was filed in the absence of an allegation that new misrepresentations were made in subsequent court filings, rejecting theory that each action in the prosecution of a lawsuit amounts to a continuing violation of the FDCPA); Sierra v. Foster & Garbus, 48 F.Supp.2d 393, 395 (S.D.N.Y. 1999) (dismissing an FDCPA claim because a summons and complaint did not re-start the statute of limitations where the court filings contained the same alleged deceptive representation as previous communications); DeJesus v. BAC Home Loans Servicing, LP, 13-cv-2864 (KAM) (VVP), 2014 WL 4804999, at *4-5 (E.D.N.Y. Sept. 26, 2014) (concluding that "[t]he established law in this Circuit does not support" plaintiffs' argument "that the fact that the Foreclosure Action is ongoing requires a finding that their FDCPA claim is timely").

Here, a number of plaintiffs' claims are time-barred because they allege violations that occurred more than one year before the date of the commencement of this action on November 10, 2014. Any FDCPA claim premised upon an alleged misrepresentation contained in the Foreclosure Action Complaint is untimely because the claim accrued when the Foreclosure Action was commenced in May 2010, over four years before plaintiffs brought the instant action. (See Compl., § III ¶ 2; Foreclosure Action Summons & Compl. (Muir Decl., Ex. B.)) That some of the alleged misrepresentations in the Foreclosure Action Complaint were repeated in subsequent state court filings does not amount to a new violation of the FDCPA and does not restart the statute of limitations. See Calka, 1998 WL 437151, at *3; Sierra, 48 F.Supp.2d at 395; DeJesus, 2014 WL 4804999, at *4-5. The following claims are based on representations made in the Foreclosure Action Complaint, and thus are dismissed as time-barred: U.S. Bank's alleged misrepresentation (1) of its status as a creditor rather than a debt collector (Compl., § III ¶¶ 2, 4, 6, 27, 28, 29); (2) of the character, amount, and legal status of the alleged debt (id. § III ¶¶ 5, 10); (3) that it is owed default interest, attorney's fees, and other expenses (id. § III ¶¶ 7, 16); and (4) that it was in possession of an alleged debt when it commenced collection proceedings. (Id. ¶ 25.)

To the extent plaintiffs allege that U.S. Bank made new misrepresentations regarding the amount of the debt and other expenses owed in the "Affidavit of Merit and Amounts Due and Owing" submitted in the Foreclosure Action in August 2013, the FDCPA's statute of limitations still bars the claim. (See "Affirmation of Regularity, " Ex. A ("Affidavit of Merit and Amounts Due and Owing) (Muir Reply Decl., Ex. A (Dkt. No. 20)); Pl. Opp., ¶¶ 7-8.) The statute of limitations for a violation that occurred in August 2013 expired in August 2014, three months before the commencement of this action.

Further, to the extent plaintiffs allege that U.S. Bank made new misrepresentations regarding the amount of attorney's fees due in U.S. Bank's August 22, 2014 "Attorney Affirmation" filed in the Foreclosure Action, (Pl. Second Opp. to MTD, ¶¶ 18, 20 & Ex. S of Ex. 1 (Dkt. Nos. 22 & 22-8)), the claim is also still untimely. Plaintiffs allege that "US BANK misrepresented they are owed... attorney's fees... [as] the default provision written in alleged note does not clearly state nor claim debt owner can collect... attorney's fees." (Compl., § III ¶ 7.) The Foreclosure Action Complaint asserts that Ms. Oliver owes "reasonable attorney's fees if provided for in the mortgage." (Foreclosure Action Compl., p. 5.) In August 2013, U.S. Bank represented that the mortgage did allow for attorney's fees; U.S. Bank submitted to the state court a copy of Ms. Oliver's note and mortgage as exhibits to their "Affirmation of Regularity, " which respectively represent that the "Note Holder" or "Lender" may collect reasonable attorney's fees under specified circumstances. (See "Affirmation of Regularity, " Ex. B ("Note, " ¶ 6(E)), Ex. C ("Mortgage, " ¶ 22.)) In August 2014, U.S. Bank submitted an affirmation in the Foreclosure Action in support of the state court granting attorney's fees in the amount of $3, 025. (Pl. Second Opp. to MTD, Ex. S of Ex. 1.) Plaintiffs' allegations concern whether U.S. Bank is entitled to any attorney's fees; plaintiffs do not allege that U.S. Bank misrepresented the precise amount of ...

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