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Burt v. PHH Mortgage Corp.

United States District Court, E.D. New York

January 25, 2017

CHARISE L. BURT, Plaintiff,
v.
PHH MORTGAGE CORPORATION, SHAPIRO, DICARO & BARAK, LLC, MARK RICCIARDI and JOHN DOE 1-3, Defendants.

          For Plaintiff: Charise L. Burt, pro se.

          For Defendant PHH Mortgage Corporation: John Fincey, Esq. McGlinchey Stafford.

          For Defendant Shapiro, DiCaro & Barak, LLC: John A. DiCaro, Esq. Shapiro, DiCaro & Barak, LLC.

          For Defendant Mark Ricciardi: James N. Joseph, Esq. Joseph & Terracciano, LLP.

          For Defendant John Doe 1-3: No appearance.

          MEMORANDUM & ORDER

          JOANNA SEYBERT JOANNA SEYBERT, U.S.D.J.

         This dispute relates to the foreclosure of a residential property in Roosevelt, New York. Plaintiff Charise Burt (“Plaintiff”) alleges that Defendants PHH Mortgage Corporation (“PHH”), Shapiro, DiCaro & Barak, LLC (“Shapiro”), Mark Ricciardi (“Ricciardi”) and John Doe 1-3 (“John Does”) (collectively, “Defendants”) violated the Fair Debt Collection Practices Act (“FDCPA”). (Am. Compl., Docket Entry 53, ¶ 1.) Presently pending before the Court are Riccardi, Shapiro, and PHH's motions to dismiss for failure to state a claim. (Ricciardi Mot., Docket Entry 56; Shapiro Mot., Docket Entry 57; PHH Mot., Docket Entry 76.) For the following reasons, the motions are GRANTED. Plaintiff is also GRANTED leave to file a Second Amended Complaint as set forth below.

         BACKGROUND

         I. Factual Background[1]

         Plaintiff executed a mortgage note on October 12, 2004, which was secured by a residence at 24 Conlon Road in Roosevelt, New York. (Am. Compl. ¶ 10; Shapiro Ex. B, Docket Entry 61, at 19.) The mortgagee was Merrill Lynch Credit. (Am. Compl. ¶ 10.) Plaintiff was found to be in default as of February 1, 2011. (Am. Compl. ¶ 11.) Thereafter, Plaintiff went to the public recorder's office and discovered that the note was assigned to PHH on May 11, 2011.[2] (Am. Compl. ¶¶ 12-13; Pl.'s Ex. A, Docket Entry 53, at 9-10.)[3] On August 31, 2011, Defendant Shapiro, on behalf of PHH, commenced a foreclosure action in New York State Supreme Court. (Shapiro Ex. B, at 2.)

         On October 9, 2014, Plaintiff served a Notice of Dispute on Defendants pursuant to 15 U.S.C. § 1692g, requiring that they “validate the alleged debt and obtain verification from the creditor.” (Am. Compl. ¶ 16; Pl.'s Ex. B, Docket Entry 53, at 11-13.) She never received verification of the debt. (Am. Compl. ¶ 16.)

         Plaintiff further alleges that she did not give prior consent for Defendants to contact her and that Defendants acquired certain data from a third party and “used such data in abusive conduct” toward her. (Am. Compl. ¶¶ 14-15.) She maintains that Defendants “engaged in abusive behavior, trespass[ed] in [P]laintiff's private commercial affairs as well as . . . harass[ed] and invade[d] [P]laintiff's privacy.” (Am. Compl. ¶ 18.) Additionally, Plaintiff alleges that she suffered headaches, nausea, embarrassment, and insomnia as a result of Defendants' conduct and seeks the following relief: (1) a declaratory judgment that Defendants violated the FDCPA, (2) $1, 000 in statutory damages, (3) $250, 000 in actual damages, (4) $500, 000 in punitive damages, (5) costs, fees and expenses, and (6) an injunction preventing Defendants from further debt collection activity. (Am. Compl. ¶ 22, and at 5.)

         II. Procedural History

         Plaintiff commenced this action on July 2, 2015, alleging that Defendants violated the FDCPA and New York General Business Law (“NYGBL”) § 349. (Compl., Docket Entry 1, ¶ 1.) Defendants subsequently moved to dismiss the Complaint for failure to state a claim. (Shapiro Mot., Docket Entry 11; Ricciardi Mot., Docket Entry 31; PHH Mot., Docket Entry 34.) Thereafter, Plaintiff filed a motion to amend her Complaint. (Docket Entry 39.) On October 15, 2015, PHH filed a motion to consolidate this matter with a related action that PHH had previously removed to this Court. (Docket Entry 42.)

         During a conference on January 8, 2016, the Court granted PHH's motion to consolidate and consolidated this action with Burt v. PHH Mortgage Corp., 15-CV-5274. (Minute Order, Docket Entry 50.) In addition, the Court granted Plaintiff's motion to amend and directed her to file an Amended Complaint containing the allegations in both actions. Defendants' motions to dismiss were terminated pending the filing of the Amended Complaint. (See Minute Order.) Plaintiff filed her Amended Complaint on March 7, 2016. (See Am. Compl.) She appears to allege that Defendants violated several provisions of the FDCPA, including 15 U.S.C. §§ 1692g, 1692c, and 1692d.[4] (Am. ...


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