Estate of Egenious Coles v. Zucker, Goldberg & Ackerman

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 15-3104
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ESTATE OF EGENIOUS COLES, by and through Frederick Coles, III, Executor,
Appellant

v.

ZUCKER, GOLDBERG & ACKERMAN;
NATIONAL CITY MORTGAGE CO,
d/b/a Eastern Mortgage Services;
PNC MORTGAGE, the successor in interest
to National City Mortgage Co. dba Eastern Mortgage Services;
BALLARD SPAHR, LLP
______________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil Action No. 3-14-cv-01612)
District Judge: Honorable Freda L. Wolfson
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Submitted Under Third Circuit L.A.R. 34.1(a)
June 21, 2016
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Before: FISHER, GREENAWAY, JR. and ROTH, Circuit Judges.

(Opinion Filed: July 12, 2016)
 ______________

OPINION*
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GREENAWAY, JR., Circuit Judge.

Plaintiff-Appellant Frederick Coles, III, as executor of the estate of Egenious

Coles (“Coles”), appeals the District Court’s judgment dismissing a complaint against

Defendants-Appellees PNC Mortgage, successor in interest to National City Mortgage

Co. (“National City”) d/b/a/ Eastern Mortgage Services, and Ballard Spahr LLP (“Ballard

Spahr”).1 For the following reasons, we will affirm the District Court’s judgment.

I. Background2

In December 2004, Coles obtained a mortgage issued by National City, which was

secured by real estate in Plainfield, New Jersey. Coles made timely payments on the

mortgage until March 2009 and, one month later, National City declared the mortgage in

default. Pursuant to the default, in May 2009, National City sent Coles a Notice of

Intention to Foreclose designating itself as the lender on the mortgage. Several months

*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.

Appellant has chosen not to appeal the District Court’s dismissal of the
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complaint with respect to the remaining named defendant, Zucker Goldberg & Ackerman
(“Zucker Goldberg”).
2
As this matter is before us at the motion to dismiss stage, the following facts,
which are taken from the allegations in the plaintiff’s complaint, are set forth as if true.

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later, in August 2009, National City engaged law firm Zucker Goldberg to file a

Foreclosure Complaint on National City’s behalf with the Superior Court of New Jersey.

National City later retained Ballard Spahr to replace Zucker Goldberg as counsel in the

matter.

Throughout the foreclosure litigation, National City represented to Coles through

its counsel that it was the lender on her mortgage and that it had not assigned the

mortgage. However, Coles later learned that, contrary to National City’s representations,

it had executed an Assignment of Mortgage dated June 2013 in favor of Wilmington

Trust Company. Coles contended that the Assignment of Mortgage document was a

sham and that the mortgage was, in fact, assigned to Wilmington Trust Company before

May 2005—well before National City commenced its foreclosure action against Coles.

According to Coles, the foreclosure action brought by National City in its own name in

August 2009 was a fraud because National City no longer owned Coles’s mortgage.

Based on National City’s alleged misrepresentations, Coles filed a federal

complaint against, inter alia, PNC Mortgage, successor in interest to National City, and

its counsel Ballard Spahr, alleging several violations of the Fair Debt Collection Practices

Act (“FDCPA” or the “Act”), 15 U.S.C. §§ 1692f(1), 1692g(b), 1692d. The District

Court dismissed the complaint without prejudice against both defendants, concluding that

Coles had not sufficiently pled that the defendants were “debt collectors” within the

meaning of the FDCPA—a prerequisite to suit under the Act. Appellant filed this timely

appeal.

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 II. Jurisdiction and Standard of Review

The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have

appellate jurisdiction pursuant to 28 U.S.C. § 1291. Although we ordinarily do not have

jurisdiction over a district court’s dismissal of a complaint without prejudice, Appellant

has indicated an intention to “‘stand’ on the dismissed complaint” rather than re-file it

and so the District Court’s judgment is final. S.B. v. KinderCare Learning Ctrs., LLC,

815 F.3d 150, 152 & n.1 (3d Cir. 2016).

We exercise plenary review over the District Court’s dismissal of the complaint.

Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 n.2 (3d Cir. 2016). “[W]e must

accept all well-pled allegations in the complaint as true and draw all reasonable

inferences in favor of” the plaintiff. Pearson v. Sec’y Dep’t of Corr., 775 F.3d 598, 604

(3d Cir. 2015) (internal quotation marks omitted) (quoting Brown v. Card Serv. Ctr., 464

F.3d 450, 452 (3d Cir. 2006)). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Id. (internal quotation marks omitted) (quoting Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)).

III. Analysis

“To prevail on an FDCPA claim, a plaintiff must prove that (1) she is a consumer,

(2) the defendant is a debt collector, (3) the defendant’s challenged practice involves an

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attempt to collect a ‘debt’ as the Act defines it, and (4) the defendant has violated a

provision of the FDCPA in attempting to collect the debt.” Douglass v. Convergent

Outsourcing, 765 F.3d 299, 303 (3d Cir. 2014). The issue in this appeal is whether the

complaint has sufficiently pled that PNC Mortgage and Ballard Spahr are “debt

collectors.” The FDCPA provides that a “debt collector” is “any person who uses any

instrumentality of interstate commerce or the mails in any business the principal purpose

of which is the collection of any debts, or who regularly collects or attempts to collect,

directly or indirectly, debts owed or due or asserted to be owed or due another.” 15

U.S.C. § 1692a(6).

Here, the complaint does not allege, even in a conclusory fashion, that PNC

Mortgage is a “debt collector.” Appellant nonetheless argues that the District Court erred

in dismissing the complaint because an exhibit appended to the complaint (Exhibit B)

demonstrates that PNC Mortgage regularly collects or attempts to collect debts owed to

another.3 However, the complaint does not contain any reference to Exhibit B in this

context and Appellant made no such argument before the District Court. “It is axiomatic

that arguments asserted for the first time on appeal are deemed to be waived . . . .” In re

Diet Drugs (Phentermine/Fenfluramine/Dexfenfluramine) Prod. Liab. Litig., 706 F.3d

217, 226 (3d Cir. 2013) (internal quotation marks omitted) (quoting Tri-M Grp., LLC v.

Sharp, 638 F.3d 406, 416 (3d Cir. 2011)). In any event, we cannot fault the District

3
Appellant also asks us to take judicial notice of exhibits referenced by Exhibit B,
but did not provide those additional exhibits to the District Court and does not provide
those exhibits to this Court.

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Court for failing to intuit the necessary factual allegations from one of the many exhibits

appended to the complaint. “Judges are not like pigs, hunting for truffles buried in the

record.” Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n.8 (3d Cir. 2006)

(internal quotation marks omitted) (quoting Albrechtsen v. Bd. of Regents Univ. of Wis.

Sys., 309 F.3d 433, 436 (7th Cir. 2002)).

Moreover, the FDCPA exempts from the definition of “debt collector,” inter alia,

“any person collecting or attempting to collect any debt owed or due or asserted to be

owed or due another to the extent such activity . . . concerns a debt which was originated

by such person.” 15 U.S.C. § 1692a(6)(F)(ii) (emphasis added). As the complaint itself

acknowledges, PNC Mortgage (as successor in interest to National City) was the

originator of the mortgage at issue. See J.A. 28 ¶ 7. Appellant provides no argument as

to why the originator exemption does not apply in this case. Therefore, the District Court

correctly dismissed the complaint with respect to PNC Mortgage.

As to Ballard Spahr, the complaint alleges, in a conclusory fashion, that the law

firm is a “debt collector” by quoting the relevant definition from the FDCPA. However,

beyond this legal conclusion, the complaint provides no factual allegations that suggest

Ballard Spahr regularly collects or attempts to collect debts owed to another. See

Connelly, 809 F.3d 790. And Appellant provides no further argument on appeal other

than to again recite the statutory definition of “debt collector.” “[M]ere ‘[t]hreadbare

recitals of the elements of a cause of action, supported by conclusory statements’ are

insufficient to survive a motion to dismiss.” Pearson, 775 F.3d at 604 (second alteration

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in original) (quoting Iqbal, 556 U.S. at 678). Accordingly, the District Court correctly

dismissed the complaint with respect to Ballard Spahr.

IV. Conclusion

For the foregoing reasons, we will affirm the District Court’s judgment dismissing

the complaint, without prejudice.

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