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Cohen v. Ditech Financial LLC

United States District Court, S.D. New York

March 3, 2017

AARON COHEN, Plaintiff,

          OPINION & ORDER

          NELSON S. ROMAN, United States District Judge

         Plaintiff 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.


         The following facts are derived from the Amended Complaint unless otherwise noted, and are accepted as true for purposes of this motion.

         Plaintiff 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.)

         The 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.)

         The 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.)


         Under 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.


         Congress 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.

         The 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.

         I. Safeguard is a Debt Collector Under the FDCPA

         Safeguard 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 ...

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