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Cohen v. Ditech Financial LLC

United States District Court, E.D. New York

March 24, 2017

AARON COHEN, on behalf of himself and all others similarly situated, Plaintiff,
v.
DITECH FINANCIAL LLC, and ROSICKI, ROSICKI & ASSOCIATES, P.C., Defendants.

          LAW OFFICES OF SHIMSHON WEXLER, PC, Shimshon Wexler, Esq., Attorney for Plaintiff

          BALLARD SPAHR LLP, Justin Angelo, Esq., Attorneys for Defendant Ditech Financial LLC

          RIVKIN RADLER, LLP, Carol A. Lastorino, Esq., Attorneys for Defendant Rosicki, Rosicki & Associates, P.C.

          MEMORANDUM AND ORDER

          LEONARD D. WEXLER, UNITED STATES DISTRICT JUDGE

         Plaintiff Aaron Cohen ("Cohen" or "Plaintiff) commenced this action, on behalf of himself and as a putative class action, alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq., by defendants Ditech Financial LLC ("Ditech") and Rosicki, Rosicki & Associates, P.C. ("Rosicki"). Specifically, he seeks statutory damages, attorneys' fees, and costs for violations to § 1692e and § 1692g(a)(2) of the FDCPA. Currently before the Court are each defendant's motion to dismiss pursuant Rule 12 (b)(6) of the Federal Rules of Civil Procedure. See Rosicki Motion, Docket Entry ("DE") [24]; Ditech Motion, DE [29]. For the reasons set forth herein, both motions are granted and the complaint is dismissed.

         I. BACKGROUND

         A. Factual Allegations and State Foreclosure Action[1]

         On or about August 11, 2005, Cohen incurred a debt in the form of a mortgage loan. Complaint, DE [1], ¶ 15. The mortgage was assigned on more than one occasion, the last assignment occurring on June 10, 2013 to Green Tree Servicing LLC ("Green Tree"). See Foreclosure Complaint ¶4, Declaration of Carol A. Lastorino ("Lastorino Decl."), Ex. B, DE [25]. On March 11, 2015, Green Tree commenced a foreclosure proceeding in state court (the "Foreclosure Action") upon Plaintiffs default on his mortgage payments in 2009. See Foreclosure Compl. ¶7. After the foreclosure action was filed, Green Tree changed its name to Ditech.[2]

         After the foreclosure complaint was filed, Plaintiff received two additional documents in furtherance of the Foreclosure Action: a Certificate of Merit Pursuant to CPLR 3012-b ("Certificate") and a request for judicial intervention ("RJI"). Compl. ¶23. The Certificate is dated March 11, 2015, bears the same caption as the Foreclosure Complaint, and certifies that plaintiff Green Tree "is the creditor entitled to enforce rights" under the pertinent documents. Certificate ¶2, Lastorino Decl. Ex. C. The RJI uses the same caption as the Foreclosure Complaint, indicates that the nature of the action is a Real Property - Mortgage Foreclosure, and purports to seek a "Residential Mortgage Foreclosure Settlement Conference." Lastorino Decl. Ex. D. Green Tree is designated as the Plaintiff, but there is no language identifying it as the "creditor." In the Foreclosure Action, Green Tree seeks inter alia that the mortgaged premises be sold, that plaintiff be paid monies owed from the proceeds of the sale, and that Aaron Cohen "be adjudged to pay any deficiency which may remain." Foreclosure Compl., Wherefore CI.

         B. Complaint in This Action

         The complaint in the case before this Court alleges a single cause of action for violations of two sections of the FDCPA. Under §1692e, "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Section 1692g provides in pertinent part as follows:

(a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing
(2) the name of the creditor to whom the debt ...

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