Muldrow v. Emc Mortgage Corporation

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SANDRA MULDROW, :
:
Plaintiff, : Civil Action No.: 08-1771 (RMU)
:
v. : Re Document No.: 6
:
EMC MORTGAGE :
CORPORATION et al., :
:
Defendants. :

MEMORANDUM OPINION

DENYING DEFENDANT ROSENBERG ’S MOTION TO DISMISS

I. INTRODUCTION

This matter comes before the court on defendant Rosenberg and Associates, LLC’s

(“Rosenberg”) motion to dismiss. The plaintiff has brought suit against Rosenberg under the Fair

Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692 et seq., claiming that it engaged in

unlawful debt collection practices. Rosenberg contends that it is not a proper party in the

litigation and therefore not subject to or in violation of the FDCPA. Rosenberg asks that the

court dismiss the matter against it for failure to state a claim, which the court denies because the

plaintiff appropriately identified Rosenberg as a party.

II. BACKGROUND

A. Factual History

In October 2006, the plaintiff, a resident of the District of Columbia, obtained a loan from

defendant EMC Mortgage Company (“EMC”) to purchase a residential property in the District of

Columbia. Compl. ¶ 5. The loan was secured by a first deed of trust on the plaintiff’s residence.
Id. Over the next few years, the plaintiff became increasingly unable to make her monthly

payments. Id. ¶ 6. Ultimately, EMC1 hired Rosenberg, a Maryland law firm, as a substitute

trustee to initiate foreclosure proceedings against the plaintiff after she defaulted on her loan. Id.

¶¶ 6-7; Pl.’s Opp’n, Ex. A.

On June 23, 2008, Rosenberg mailed a notice2 to the plaintiff at the plaintiff’s residence,

describing Rosenberg’s relationship to EMC, explaining that Rosenberg was the legal enforcer of

the loan and informing the plaintiff that the notice was an “attempt to collect a debt.” Pl.’s

Opp’n, Ex. A at 1-2. The notice included the total amount owed by the plaintiff, allowing for

interest, late charges and other day-to-day charges that might be incurred at the plaintiff’s

expense, and advised the plaintiff that she could either take no action and assume the validity of

the debt or notify the defendant within thirty days that she disputed part or all of the debt. Id. at

1. According to the notice, if the plaintiff did not dispute the debt, she was to send a check to

Rosenberg, who would not deposit the check until after informing the plaintiff of any

adjustments in the amount owed. Id. If the plaintiff contested the debt within thirty days,

Rosenberg would suspend collection activities, obtain verification of the debt and mail the

verification to the plaintiff. Id.

1
In the complaint, the plaintiff alleges that EMC hired Rosenberg to initiate foreclosure
proceedings. See Compl. ¶¶ 6-7. Rosenberg reiterates this fact in it’s motion. See Def.’s Mot. at
2. The notice sent to the plaintiff, however, indicates that Mortgage Electronic Registration
Systems, Inc., is the holder of the mortgage. See Pl.’s Opp’n, Ex. A. This difference is
immaterial for the purposes of this Memorandum Opinion.
2
Although the plaintiff references this notice as an attachment to her complaint, see e.g., Compl.
¶¶ 7-13, no such attachment exists. It was not until the plaintiff filed her opposition to the instant
motion that she provided the defendants and the court with a copy of this notice. See Pl.’s
Opp’n, Ex. A.

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 The notice sent by Rosenberg stated that the plaintiff’s “failure to contest the validity of

the debt under the Act may not be construed by any Court as an admission of liability.” Id. at 1-

2. Additionally, the notice informed the plaintiff that she might be eligible for a payment plan

program and instructed the plaintiff to contact Rosenberg to determine if she met the program’s

qualifications, with foreclosure proceedings continuing in the interim. Id. at 2. The foreclosure

sale was scheduled for July 29, 2008. Id. at 3.

Rosenberg notified the plaintiff that her property was being sold at a foreclosure sale to

satisfy her debt on the property and informed her that the sale date was subject to up to a thirty-

day postponement. Id. at 1. Also included in the notice was the total amount owed by the

plaintiff, plus attorney’s fees, foreclosure costs and all accruals under the terms of the Deed of

Trust and Note and through the date of the notice. Id. 1, 3. Rosenberg identified itself as the

entity the plaintiff should contact to stop the foreclosure sale and provided its address and phone

number. Id. at 2. According to the notice, the minimum balance required to cure the default

obligation was $12,565.59, plus attorney’s fees, foreclosure costs and all accruals. Id. at .

Following the procedures set forth in the notice, the plaintiff disputed the debt in writing

and requested from Rosenberg the amount necessary to bring the mortgage current. Compl. ¶ 12.

The plaintiff then contacted EMC to discuss loan mitigation to stop the foreclosure sale.3 Id. ¶

13. The foreclosure sale did not occur. Id. at ¶ 23.

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The plaintiff indicates that the notice advised that she could contact EMC regarding mitigation
procedures. Compl. ¶ 13. The notice attached to the plaintiff’s opposition is ostensibly what
should have been attached to the complaint and contains no such advisement. See Pl.’s Opp’n,
Ex. A. This contradiction, however, does not affect the court’s analysis below.

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 B. Procedural History

On September 15, 2008, the plaintiff filed a civil action against EMC and Rosenberg in

the Superior Court for the District of Columbia. See Muldrow v. EMC Mortgage Corp. et al.,

D.C. Super. Ct., Case No. 2008-658 R(RP). The plaintiff accused EMC with violating the D.C.

Consumer Protection Procedures Act and accused Rosenberg of violating the FDCPA. See

generally Compl.

Rosenberg removed the action to this court on October 16, 2008. See Notice of Removal.

On October 23, 2008, Rosenberg moved to dismiss the action against it, alleging that the plaintiff

failed to state a claim in accordance with Federal Rule of Civil Procedure 12(b)(6). See

Rosenberg’s Mot. to Dismiss (“Def.’s Mot”). The plaintiff opposed Rosenberg’s motion on

November 11, 2008, see generally Pl.’s Opp’n, and the court turns now to the parties’ arguments.

III. ANALYSIS

A. Legal Standard for a Motion to Dismiss

A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of a complaint. Browning v.

Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). The complaint need only set forth a short and plain

statement of the claim, giving the defendant fair notice of the claim and the grounds upon which

it rests. Kingman Park Civic Ass’n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (citing

FED. R. CIV. P. 8(a)(2) and Conley v. Gibson, 355 U.S. 41, 47 (1957)). “Such simplified notice

pleading is made possible by the liberal opportunity for discovery and the other pre-trial

procedures established by the Rules to disclose more precisely the basis of both claim and

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defense to define more narrowly the disputed facts and issues.” Conley, 355 U.S. at 47-48

(internal quotation marks omitted). It is not necessary for the plaintiff to plead all elements of his

prima facie case in the complaint, Swierkiewicz v. Sonoma N.A., 534 U.S. 506, 511-14 (2002), or

“plead law or match facts to every element of a legal theory,” Krieger v. Fadely, 211 F.3d 134,

136 (D.C. Cir. 2000) (internal quotation marks and citation omitted).

Yet, the plaintiff must allege “any set of facts consistent with the allegations.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 563 (2007) (abrogating the oft-quoted language from Conley,

355 U.S. at 45-56, instructing courts not to dismiss for failure to state a claim unless it appears

beyond doubt that “no set of facts in support of his claim [] would entitle him to relief”);

Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans, Inc., 525 F.3d 8, 16 n.4 (D.C. Cir. 2008)

(affirming that “a complaint needs some information about the circumstances giving rise to the

claims”). While these facts must “possess enough heft to ‘sho[w] that the pleader is entitled to

relief,’” a complaint “does not need detailed factual allegations.” Twombly, 550 U.S. at 555,

557. In resolving a Rule 12(b)(6) motion, the court must treat the complaint’s factual allegations

– including mixed questions of law and fact – as true and draw all reasonable inferences

therefrom in the plaintiff’s favor. Macharia v. United States, 334 F.3d 61, 64, 67 (D.C. Cir.

2003); Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003);

Browning, 292 F.3d at 242. While many well-pleaded complaints are conclusory, the court need

not accept as true inferences unsupported by facts set out in the complaint or legal conclusions

cast as factual allegations. Warren v. District of Columbia, 353 F.3d 36, 40 (D.C. Cir. 2004);

Browning, 292 F.3d at 242.

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 B. The Court Denies Defendant Rosenberg’s Motion to Dismiss

Determining that “[t]here is abundant evidence of the use of abusive, deceptive, and

unfair debt collection practices by many debt collectors,” Congress passed the FDCPA to

eliminate those practices. 15 U.S.C. § 1692(a). The FDCPA protects (1) consumers (2) who

have been subjected to abusive, deceptive or unfair debt collection practices (3) by a debt

collector (4) in an attempt to collect a debt. See Piper v. Portnoff, 396 F.3d 227, 232 (3d Cir.

2005) (citing 15 U.S.C. §§ 1692e-f). The first and second prongs of this analysis are not

contested in this case. See generally Def.’s Mot.; Pl.’s Opp’n; Def.’s Reply.

Rosenberg maintains that as a substitute trustee, it is not a debt collector within the

meaning of §§ 1692d, 1692e or 1692g4 of the FDCPA. More specifically, Rosenberg argues that

pursuant to the terms of § 1692a(6), substitute trustees are only liable under § 1692f(6). Def.’s

Mot. at 5-11. Section 1692a(6) states, in relevant part, that

[f]or the purpose of section 1692f(6) of this title, [the term “debt collector”] also
includes any person who uses any instrumentality of interstate commerce or the mails
in any business the principal purpose of which is the enforcement of security
interests.

Based on this language, Rosenberg argues that substitute trustees are exempt from liability under

all provisions of the FDCPA except § 1692f(6). Def.’s Mot. at 5-8. Rosenberg further argues

that, even if the court determines it is a debt collector within the meaning of the sections cited by

the plaintiff, it was still not involved in the collection of a debt. Id. at 9-11.

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The plaintiff’s complaint appears to state claims under these three sections. See Compl. ¶¶ 40-
59. In count three, however, the plaintiff cites to § 1692f, but quotes from § 1692g(b). Id. ¶¶ 45,
48. Based on the discussion in the plaintiff’s complaint, see id. ¶¶ 40-49, and the parties’ briefs,
see Def.’s Mot. at 7-11; Pl.’s Opp’n at 3-5; Def.’s Reply at 5-8, the court assumes that the
plaintiff intended to cite to § 1692g.
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 The plaintiff counters that her mortgage is a “debt” as defined by 15 U.S.C. § 1692a(5)

because it constitutes an obligation to pay money that arose out a transaction in which the

property was primarily for personal, family or household purposes. Pl.’s Opp’n at 4. The

plaintiff also asserts that, although Rosenberg is unquestionably a substitute trustee, that fact does

not preclude it from being held liable as a debt collector. Id. at 3.

As this Circuit has not determined whether § 1692a(6) of the FDCPA excludes substitute

trustees from liability under the general provisions of the FDCPA, both parties cite decisions

from other jurisdictions to support their positions. Compare Piper, 396 F.3d at 232 (applying the

FDCPA to debts secured by real property); Romea v. Heiberger & Assocs., 163 F.3d 111, 116 (2d

Cir. 1998) (concluding that an eviction notice for failure to pay rent can be an attempt to collect a

debt); Shapiro & Meinhold v. Zartman, 823 P.2d 120, 124 (Colo. 1992) (holding that “a

foreclosure is a method of collecting and debt” and, thus, the defendant attorneys “are not exempt

merely because their collection activities are primarily limited to foreclosures”) with Jordan v.

Kent Recovery Servs., Inc., 731 F. Supp. 652, 658 (D. Del. 1990) (distinguishing a debt collector

from an enforcer of a security interest, who has a “present right to a piece of secured property

[and] attempts to retrieve something which another person possesses but which the holder of the

security interest still owns”).

This court, however, finds persuasive the Fourth Circuit case of Wilson v. Draper &

Goldberg, PLLC – a case involving nearly identical circumstances though not addressed by either

party in their briefs. 443 F.3d 373 (4th Cir. 2006). The plaintiff in Wilson brought suit against

the law firm that acted as the substitute trustee for the holder of the deed of trust on the plaintiff’s

property. Id. at 374. The defendant initiated foreclosure proceedings on the plaintiff’s property

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and sent her a notice that provided information regarding the creditor and the amount of the debt

owed. Id. The Wilson defendants included in their notice a statement specifying that they were

not ‘“debt collectors’ or acting in connection with the collection of a ‘debt.’” Id. Nevertheless,

the court held that the default on a Deed of Trust Note is a debt, and that concluding otherwise

“would create an enormous loophole in the [FDCPA] immunizing any debt from coverage if that

debt happened to be secured by a real property interest and foreclosure proceedings were used to

collect that debt.” Id. at 376 (citing Piper, 396 F.2d at 234; Romea, 163 F.3d at 116; Shapiro,

823 P.2d at 124). The Wilson court went on to explain that

[Section 1692a(6)] applies to those whose only role in the debt collection process is
the enforcement of a security interest. See Jordan[, 731 F. Supp. at 657] (“It thus
appears that Congress intended an enforcer of a security interest, such as a
repossession agency, to fall outside the ambit of the FDCPA except for the provisions
of § 1692f(6).”). In other words, this provision is not an exception to the definition
of debt collector, it is an inclusion to the term debt collector. It serves to include as
debt collectors, for the purposes of § 1692f(6), those who only enforce security
interests. It does not exclude those who enforce security interests but who also fall
under the general definition of “debt collector.” See Piper, 396 F.3d at 236 (“Section
1692a(6) thus recognizes that there are people who engage in the business of
repossessing property, whose business does not primarily involve communicating
with debtors in an effort to secure payment of debts.”).

443 F.3d at 378 (emphasis in original).

Like the defendant in Wilson, Rosenberg is a law firm that was hired as a substitute

trustee to enforce a Deed of Trust Note. See generally Def.’s Mot.; Pl.’s Opp’n, Ex. A.

Nevertheless, in initiating foreclosure proceedings, Rosenberg undertook the role of debt

collector and communicated with the plaintiff in a manner regulated by the FDCPA. See Wilson,

443 F.3d at 376-78. Adopting the defendant’s logic that law firms acting as substitute trustees

for mortgage holders are exempt from the provisions of the FDCPA is contrary to the stated

purpose of the FDCPA. See 15 U.S.C. § 1692(a) (explaining that the FDCPA is designed to

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protect consumers from unfair collection practices). Accordingly, the court determines that the

plaintiff has alleged sufficient facts to support her claim that, for the purposes of the actions

described in the complaint, the plaintiff’s mortgage is a “debt” and defendant Rosenberg was

acting as a “debt collector.”

IV. CONCLUSION

For the foregoing reasons, the court denies defendant Rosenberg’s motion to dismiss. An

Order consistent with this Memorandum Opinion is separately and contemporaneously issued

this 28th day of September, 2009.

RICARDO M. URBINA
United States District Judge

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