United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, United States District Judge
Aaron Cohen initiated this action against Defendant Ditech
Financial LLC, formerly known as Green Tree ("Green
Tree" or "Ditech"), and Defendant Safeguard
Properties LLC ("Safeguard" or
"Defendant"), alleging violations of the Fair Debt
Collection Practices Act, 15 U.S.C. § 1692, et
seq. ("FDCPA"). Before the Court is
Safeguard's motion to dismiss the amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). For the
reasons stated below, Safeguard's motion is DENIED.
following facts are derived from the Amended Complaint unless
otherwise noted, and are accepted as true for purposes of
has a residential mortgage loan on his home serviced by
Ditech. (See Amended Complaint, ¶ 14, ECF No.
17, [hereinafter ("Am. Compl."].) In March 2015,
doing business as Green Tree, Ditech commenced a foreclosure
filing, claiming that Plaintiffs loan had been in default
since 2010. (Id. ¶ 15.) Shortly before August
12, 2015, Ditech retained Safeguard to assist in the
attempted collection of Plaintiff s mortgage debt by
delivering written communication to Plaintiff. (Id.
¶ 16.) Safeguard then left a door hanger on
Plaintiff's door, which advised Plaintiff to call Green
Tree Mortgage at a specific number, to be prepared to give
his account number, and warned Plaintiff: “we are
expecting your call today.” (Id. ¶ 17.)
purpose of the communication delivered by Safeguard was to
“assist and facilitate Ditech's attempted
collection of … a mortgage loan for Plaintiff's
home.” (Id. ¶ 19.) At the time that
Safeguard delivered the collection communication to
Plaintiff, Ditech, who had already instituted foreclosure
proceedings against Plaintiff, knew that Plaintiff was
represented by counsel with regard to the mortgage, and
initiated direct contact with Plaintiff nonetheless.
(Id. ¶ 21.)
collection communication delivered to Plaintiff by Safeguard,
on behalf of Ditech, did not disclose that the communication
was from a debt collector. (Id. ¶ 22.)
Plaintiff was “intimidated, annoyed and aggravated by
the trespassory visits to his home” by Safeguard, who
at no time provided the disclosures required by 15 U.S.C.
§§ 1692g or 1692e(11). (Id. ¶ 23.)
Plaintiff alleges that Safeguard has a policy and practice of
not furnishing consumers with the disclosures required by 15
U.S.C. §§ 1692g or 1692e(11), or having their
representatives identify themselves as representative of
Safeguard when delivering collection communications.
(Id.) Though the communication was from Safeguard,
it only bears the name of “Green Tree Mortgage, ”
and in fact, Plaintiff only learned of Safeguard's
identity through discovery, and subsequently added Safeguard
to this action in the Amended Complaint. (Id.;
compare ECF. No. 17, with ECF No. 1.)
Plaintiff brings this action on his own behalf and on behalf
of a class. (Id. ¶ 24.)
ON A MOTION TO DISMISS
Rule 12(b)(6), the inquiry is whether the complaint
“contain[s] 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)); accord Hayden v.
Paterson, 594 F.3d 150, 160 (2d Cir. 2010). “While
legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.”
Id. at 679. To survive a motion to dismiss, a
complaint must supply “factual allegations sufficient
‘to raise a right to relief above the speculative
level.'” ATSI Commc'ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting
Twombly, 550 U.S. at 555). The Court must take all
material factual allegations as true and draw reasonable
inferences in the non-moving party's favor, but the Court
is “‘not bound to accept as true a legal
conclusion couched as a factual allegation, '” or
to credit “mere conclusory statements” or
“[t]hreadbare recitals of the elements of a cause of
action.” Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 555). In determining whether a
complaint states a plausible claim for relief, a district
court must consider the context and “draw on its
judicial experience and common sense.” Id. at
662. A claim is facially plausible when the factual content
pleaded allows a court “to draw a reasonable inference
that the defendant is liable for the misconduct
alleged.” Id. at 678.
enacted the FDCPA, in part, “to eliminate abusive debt
collection practices” and “protect consumers from
deceptive or harassing actions taken by debt
collectors.” 15 U.S.C. § 1692; Gabriele v. Am.
Home Mortg. Servicing, Inc., 503 F.App'x 89, 93 (2d
Cir. 2012) (internal citations omitted); see Vincent v.
The Money Store, 736 F.3d 88, 101 (2d Cir. 2013) (citing
Pipiles v. Credit Bureau of Lockport, Inc., 886 F.2d
22, 27 (2d Cir.1989) (“Congress painted with a broad
brush in the FDCPA to protect consumers from abusive and
deceptive debt collection practices.”). To achieve
these ends, the FDCPA, imposes, “among other things,
notice and timing requirements on efforts by ‘debt
collectors' to recover outstanding obligations.”
Goldstein v. Hutton, Ingram, Yuzek, Gainen, Carroll &
Bertolotti, 374 F.3d 56, 58 (2d Cir. 2004). Pursuant to
Section 1692k, “any debt collector who fails to comply
with any provision of [the FDCPA] with respect to any person
is liable to such person.” 15 U.S.C. § 1692k.
parties primarily dispute whether Plaintiff has sufficiently
pled that Defendant is a debt collector, whether the notice
left on Plaintiff's door constitutes a
“communication” within the meaning of the Act,
and if so, whether Defendant is exempted under the FDCPA.
Safeguard is a Debt Collector Under the FDCPA
contends that the factual allegations establish that it is
not a “debt collector” as defined by the Act.
Though apparently uncommon if not somewhat of a novel issue
in this District, both this particular set of facts and this
Defendant have appeared in litigation outside of this
Circuit, and the parties rely primarily on ...