throbber
Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 1 of 16 PageID: 444
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`NOT FOR PUBLICATION
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`STEVEN PSAROS,
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`Plaintiff,
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`Civil Action No.: 15-4277 (JLL) (JAD)
`
`v.
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`OPINION
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`GREEN TREE SERVICING, LLC, STERN
`LA VINTHAL & FRANKENBERG LLC, and
`JOHN DOES I-X,
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`Defendants.
`
`LINARES, District Judge.
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`This matter comes before the Court by way of Defendant Stern Lavinthal & Frankenberg
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`LLC ("Stern Lavinthal")'s Motion for Judgment on the Pleadings. (ECF No. 15.) The Court has
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`considered the parties' submissions and decides this matter without oral argument pursuant to Rule
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`78 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court denies Stern
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`Lavinthal's motion.
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`FACTUALBACKGROUND 1
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`Plaintiff Steven Psaros purchased the property at 81 Arlington Ave, Hawthorne, NJ in 1999
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`and has resided there since that time. (ECF No. 1 ("Compl.") iI 6.) In January 2008 Plaintiff
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`entered into a refinance loan whereby Plaintiff executed a promissory note payable to Mortgage
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`Line Financial Corp, and also executed a mortgage to secure the loan. (Id. ilil 7, 8.) Plaintiff
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`1 This background is derived from Plaintiff's Complaint, and other documents that are integral to and/or explicitly
`relied upon in the Complaint, which the Court must accept as true at this stage of the proceedings. See Alston v.
`Countrywide Fin. Corp., 585 F.3d 753, 758 (3d Cir. 2009).
`
`

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`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 2 of 16 PageID: 445
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`alleges that he specifically negotiated the 2008 loan so that property insurance and real estate taxes
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`would
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`paid directly by Plaintiff, rather than through an escrow account managed by the lender.
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`(Id. if
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`see also id. Ex. 1 ("Escrow Waiver").)
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`On September 22, 2010 BAC Home Loans Servicing, L.P. by way of its counsel Stem
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`Lavinthal filed a debt collection foreclosure action under New Jersey docket F-46572-10. (Id. if
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`11.) Stem Lavinthal was not retained to pursue debt collection activities until after the loan was
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`in default. (Id. if 12.)
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`June 2013 Plaintiff received a letter from Green Tree advising that effective June 1,
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`201
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`servicing was transferred to Green Tree. (Id. if 13; id. Ex. 2.) By way ofletters dated June
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`17,
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`3 and July 18, 2013, Green Tree requested that Plaintiff send proof of property insurance
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`to a designated Fax number. (Id. ifif 14, 16; id. Exs. 3, 5.) On July 30, 2013 Plaintiffs insurance
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`agent sent proof of property insurance to the designated fax number provided by Green Tree. (Id.
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`if l
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`Ex. 6.) By way ofletter dated August 4, 2013, Green Tree advised Plaintiff that force(cid:173)
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`placed insurance was obtained by Green Tree, and the policy (effective June 1, 2013) had an annual
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`premium of $3,661.00. (Id. if 19; id. Ex. 8.) After receiving the August 4, 2013 letter, Plaintiff
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`again sent proof of insurance to Green Tree. (Id. if 20; id. Ex. 9.)
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`March 2014, a motion was granted in the foreclosure debt collection lawsuit substituting
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`Green Tree as foreclosing plaintiff. (Id. if 22.)
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`On April 24, 2015, Stem Lavinthal, on behalf of Green Tree, filed a motion for entry of
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`judgment in the foreclosure action. (See id. Ex. 11 at 1-2 ("State Court Notice of Motion").) As
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`part
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`the State Court Notice of Motion, Stem Lavinthal stated that it "shall file the attached
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`Certification of Proof of Amount Due required by law which will establish that there is due upon
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`2
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`

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`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 3 of 16 PageID: 446
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`Plaintiffs obligation and mortgage the sum of $377,287.24 as of April 9, 2015, together with
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`interest thereon." (Id. at 2.) In an attached document captioned "Proof of Amount Due Affidavit
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`and Schedule" and dated April 23, 2015, Green Tree employee Danielle Froelich executed a
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`certification of amount due, which included the sum of $10,974.37 for "Home Owners Insurance
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`Premiums" due as of April 9, 2015 within the $377,287.24 total amount due. (Compl ~ 23; id. Ex.
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`11 at 4-7 ("State Court Proof of Amount Due").) Additionally, Stem Lavinthal attorney Donna
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`M. Miller submitted a "Certification of Diligent Inquiry'' which states in relevant part as follows:
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`On April 7, 2015 and again on April 24, 2015, I
`2.
`communicated by client interface and overnight delivery with the
`following named employee(s) of plaintiff/plaintiffs servicer, who
`informed me that he/she has personally reviewed the documents
`submitted to the Court, affidavit of amount due and the original or a
`true copy of the note, mortgage, and recorded assignments, if any,
`and that he/she confirmed the accuracy of all documents:
`
`Name of employee(s) of Servicer for Plaintiff/Plaintiff: DANIELLE
`FROELICH
`
`Title of employee(s) of Servicer
`FORECLOSURE REPRESENTATIVE
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`for Plaintiff/Plaintiff:
`
`Responsibilities of employee(s) of Servicer for Plaintiff/Plaintiff:
`REVIEWS AND CONFIRMS THE ACCURACY OF THE
`FORECLOUSRE AFFIDAVIT.
`
`Based on my communication with the above-named
`3.
`employee(s) of Plaintiff, as well as my own inspection of the
`documents filed with the court and other diligent inquiry, I execute
`this certification to comply with the requirements of Rule 4:64-2(d)
`and Rule 1 :4-8(a).
`
`(Compl. Ex. 11 at 8-9 ("State Court Cert. of Diligent Inquiry").)
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`Plaintiff alleges that all times pursuant to the 2008 Mortgage Loan contract, Plaintiff has
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`maintained an insurance policy on the property, has sent all insurance premiums to the insurance
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`3
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`

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`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 4 of 16 PageID: 447
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`carrier to pay for the hazard insurance policy, and has provided copies of same to the loan servicer
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`upon request. (Id. iii! 24, 26.) Accordingly, Plaintiff avers that Green Tree has not incurred costs
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`of $10,974.37 for payment of insurance premiums. (Id. ii 25.)
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`PROCEDURAL HISTORY
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`Plaintiff commenced this action on June 24, 2015, two months after the alleged false
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`representation occurred, by filing a two count Complaint.
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`(Compl.) With respect to Stem
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`Lavinthal, Plaintiff alleges that it violated the Fair Debt Collection Practices Act, 15 U .S.C. § 1692,
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`et
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`("FDCP A") by demanding payment of insurance premiums that were not actually owed
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`under Plaintiff's loan agreement. (Id. at 6-8.) 2
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`August 17, 2015, Stem Lavinthal filed an Answer to the Complaint, which includes a
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`cross-claim against its client Green Tree. (ECF No. 11.) On October 9, 2015: Stem Lavinthal
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`filed a Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b) (ECF No. 13);
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`withdrew the Motion to Dismiss so that it could be re-filed as a Motion for Judgment on the
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`Pleadings (ECF No. 14); and filed the instant Motion for Judgment on the Pleadings (ECF No. 15;
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`see
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`No. 15-2 ("Mov. Br.")). On October 26, 2015, Green Tree filed an Answer to Stem
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`Lavinthal' s cross-claim and filed a cross-claim against Stem Lavinthal. (ECF No. 21.) On October
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`28,
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`Stem Lavinthal filed an Answer to Green Tree's cross-claim. (ECF No. 23.) On
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`November 23, 2015, Plaintiff filed opposition to the instant motion (ECF No. 25 ("Opp. Br.")),
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`and on November 30, 2015, Stem Lavinthal filed a reply (ECF No. 26 ("Reply Br.")).
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`2 The second count of the Complaint alleges violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601,
`et seq. against Green Tree only, and is thus not pertinent to the instant Motion. (See Compl. at 9-10.)
`4
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`

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`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 5 of 16 PageID: 448
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`LEGAL STANDARDS
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`A. Motion for Judgment on the Pleadings
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`Under Federal Rule of Civil Procedure 12(c), "[a]fter the pleadings are closed-but early
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`enough not to delay trial-a party may move for judgment on the pleadings." Fed. R. Civ. P.
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`12(c). "The pleadings are considered to be 'closed' after the complaint and answer have been
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`filed, along with any reply to additional claims asserted in the answer." Liberty Int 'l Underwriters
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`Canada v. Scottsdale Ins. Co., 955 F. Supp. 2d 317, 323 (D.N.J. 2013) (citation omitted). When
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`a party makes a motion for judgment on the pleadings based on the defense of failure to state a
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`claim upon which relief can be granted, the Court "appl[ies] the same standards as under Rule
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`12(b)(6)." Turbe v. Gov't of Virgin Islands, 938 F.2d 427, 428 (3d Cir.1991); see Caprio v.
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`Healthcare Revenue Recovery Grp., LLC, 709 F.3d 142, 146 (3d Cir. 2013).
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`withstand a motion to dismiss for failure to state a claim, "a complaint must contain
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`suflicient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face."'
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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`570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows
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`the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
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`Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). "The plausibility standard is not akin to
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`a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted
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`unlawfully." Id.
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`determine the sufficiency of a complaint under Twombly and Iqbal in the Third Circuit,
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`the court must take three steps: first, the court must take note of the elements a plaintiff must plead
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`to state a claim; second, the court should identify allegations that, because they are no more than
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`5
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`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 6 of 16 PageID: 449
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`conclusions, are not entitled to the assumption of truth; finally, where there are well-pleaded
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`factual allegations, a court should assume their veracity and then determine whether they plausibly
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`give rise to an entitlement for relief. See Burtch v. Mi/berg Factors, Inc., 662 F.3d 212, 221 (3d
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`Cir.
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`1) (citations omitted). "In deciding a Rule 12(b)(6) motion, a court must consider only
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`the complaint, exhibits attached to the complaint, matters of the public record, as well as
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`undisputedly authentic documents if the complainant's claims are based upon these documents."
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`Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). Among the public records a court may
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`to resolve a motion to dismiss is a judicial proceeding from a different court or
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`case,
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`court must be mindful of the distinction between the existence of a fact and its truth. S.
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`Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Grp. Ltd., 181F.3d410, 426, 427 n.7 (3d
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`Cir. 999).
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`B. Fair Debt Collection Practices Act
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`The purpose of the FDCP A is "to eliminate abusive debt collection practices by debt
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`collectors, to insure that those debt collectors who refrain from using abusive debt collection
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`practices are not competitively disadvantaged, and to promote consistent State action to protect
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`consumers against debt collection abuses." 15 U.S.C. § 1692(e). When Congress passed the
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`legislation in 1977, it found that "[a ]busive debt collection practices contribute to the number of
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`personal bankruptcies, to marital instability, to the loss of jobs, and invasions of individual
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`privacy." Id. § 1692( a). "As remedial legislation, the FDCP A must be broadly construed in order
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`to give full effect to these purposes." Caprio, 709 F.3d at 148. Accordingly, the Court must
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`"analyze the communication giving rise to the FDCP A claim 'from the perspective of the least
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`sophisticated debtor.'" Kaymark v. Bank of America, N.A., 783 F.3d 168, 174 (3d Cir. 2015)
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`6
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`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 7 of 16 PageID: 450
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`(quoting Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3d Cir. 2008). Furthermore, "(t]heFDCPA
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`is a strict liability statute to the extent it imposes liability without proof of an intentional violation."
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`Allen ex Martin v. LaSalle Bank, NA., 629 F.3d 364, 368 (3d Cir. 2011).
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`prevail on an FDCPA claim, a plaintiff must prove that (1) she is a consumer, (2) the
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`defendant is a debt collector, (3) the defendant's challenged practice involves an attempt to collect
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`a 'debt' as the Act defines it, and (4) the defendant has violated a provision of the FDCPA in
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`attempting to collect the debt." Douglass v. Convergent Outsourcing, 765 F.3d 299, 303 (3d Cir.
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`201
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`(citation omitted). Here, Plaintiff has alleged all four elements (Compl. ~~ 28, 29, 33, 35),
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`and Stern Lavinthal does not dispute the first three prongs. At issue is the fourth prong: whether
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`Stern Lavinthal violated a provision of the FDCP A in attempting to collect the debt.
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`ANALYSIS
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`Plaintiff alleges that Stern Lavinthal violated 15 U.S.C. § 1692e by making and/or using
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`"false, deceptive and/or misleading representations in connection with its effort to collect a debt"
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`(id.~ 35(a)), in particular with respect to "the character and amount of the debt it sought to collect
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`from Plaintiff, in violation of 15 U.S.C. § 1692e(2)." (Id.~ 35(b).) The relevant statute states as
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`follows:
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`False or misleading representations. A debt collector may not use
`any false, deceptive, or misleading representation or means in
`connection with the collection of any debt. Without limiting the
`general application of the foregoing, the following conduct is a
`violation of this section:
`
`(2) The false representation of --
`(A) the character, amount, or legal status of any debt; or
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`7
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`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 8 of 16 PageID: 451
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`(B) any services rendered or compensation which may be
`lawfully received by any debt collector for the collection of a
`debt.
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`The issue before the Court is whether Stern Lavinthal violated § l 692e when it filed the
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`State Court Notice of Motion and the State Court Cert. of Diligent Inquiry. As noted, the State
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`Court Notice of Motion stated that Stern Lavinthal "shall file the attached Certification of Proof
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`of Amount Due required by law which will establish that there is due upon Plaintiff's obligation
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`and mortgage the sum of $377,287.24 as of April 9, 2015, together with interest thereon." (Id. at
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`2.)
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`State Court Notice of Motion referenced the State Court Proof of Amount Due, in which
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`Green Tree employee Danielle Froelich included the sum of $10,974.37 for "Home Owners
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`Insurance Premiums" in the $377,287.24 total amount due. (State Court Proof of Amount Due at
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`3.)
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`respect to the State Court Cert. of Diligent Inquiry, Stern Lavinthal attorney Donna M.
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`Miller stated in relevant part as follows:
`
`On April 7, 2015 and again on April 24, 2015, I
`2.
`communicated by client interface and overnight delivery with the
`following named employee(s) of plaintiff/plaintiffs servicer, who
`informed me that he/she has personally reviewed the documents
`submitted to the Court, affidavit of amount due and the original or a
`true copy of the note, mortgage, and recorded assignments, if any,
`and that he/she confirmed the accuracy of all documents:
`
`Name of employee(s) of Servicer for Plaintiff/Plaintiff: DANIELLE
`FROELICH
`
`Title of employee(s) of Servicer
`FORECLOSURE REPRESENTATIVE
`
`for Plaintiff/Plaintiff:
`
`Responsibilities of employee(s) of Servicer for Plaintiff/Plaintiff:
`REVIEWS AND CONFIRMS THE ACCURACY OF THE
`FORECLOUSRE AFFIDAVIT.
`
`8
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`

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`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 9 of 16 PageID: 452
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`Based on my communication with the above-named
`3.
`employee(s) of Plaintiff, as well as my own inspection of the
`documents filed with the court and other diligent inquiry, I execute
`this certification to comply with the requirements of Rule 4:64-2(d)
`and Rule 1:4-8(a).
`
`(State Court Cert. of Diligent Inquiry at 1-2.)
`
`Stem Lavinthal moves for dismissal on two grounds. First, Stem Lavinthal contends that
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`its alleged conduct does not implicate the FDCP A because it did not make a false representation.
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`(Mov.
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`at 13-17; Reply Br. at 6-11.) Stem Lavinthal contends that Plaintiff's claim fails as a
`
`matter
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`law because the State Court Cert. of Diligent Inquiry "is utterly devoid of any false
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`representations whatsoever" and that there is a fundamental and dispositive distinction between
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`affirmatively "certifying the accuracy" of Green Tree's statements, as Plaintiff alleges in the
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`Complaint, versus merely filing a "Certification of Diligent Inquiry," as required by the New
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`Jersey Court Rules. (Mov. Br. at 3-4, 6-9, 13-17; Reply Br. at 6-11.) Second, Stem Lavinthal
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`alternatively argues that Plaintiff waived his right to contest the amount owed to Green Tree by
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`declining to oppose the underlying foreclosure, (Mov. Br. at 18-19; Reply Br. at 12-13), and
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`similarly argues that the doctrine of judicial estoppel prohibits Plaintiff from taking a position
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`inconsistent with his decision to forego any defense in the underlying foreclosure action (Mov. Br.
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`at
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`1; Reply Br. at 13-14 ).
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`opposition, Plaintiff first argues that because Stem Lavinthal's motion "includes several
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`exhibits not directly relating to the controversy'' the Court should either deny the motion outright
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`or convert it to one for summary judgment. (Opp. Br. at 5-7.) Second, Plaintiff argues that the
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`motion should be denied as procedurally untimely because the pleadings were still open when it
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`was filed, thus making Rule 12(c) inapplicable on its face. (Id. at 7-8.) Third, even ifthe motion
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`9
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`

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`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 10 of 16 PageID: 453
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`is considered procedurally proper, Plaintiff contends that the Complaint sets forth a valid claim for
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`relief under the FDCPA: by seeking to collect $10,974.37 not owed by Plaintiff (included in the
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`total amount sought of $377,287.24), Stem Lavinthal violated 15 U.S.C. § 1692e(2) because it
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`made a false representation of the amount of debt owed. (Opp. Br. at 8-13.) Plaintiff argues that
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`Stem Lavinthal has not established the lone defense to liability where a debt collector has engaged
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`in conduct that violates the FDCP A, and avers that "Stem Lavinthal cannot evade its
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`responsibilities as a debt collector by blaming its client for providing it with factually inaccurate
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`information used in the process of collecting a debt." (Id. at 13-15(citing15 U.S.C. § 1692k(c)).)
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`Finally, Plaintiff argues that a debtor has no obligation to notify a debt collect that it has engaged
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`in conduct violating the FDCP A prior to the debtor filing suit under the FDCPA, such that concepts
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`of waiver and judicial estoppel are inapplicable to Plaintiffs claims. (Id. at 15-19.)
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`Court agrees with Plaintiff. 3 The Court first addresses the statute and then discusses
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`waiver and judicial estoppel.
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`A. Plaintiff Has Stated a Claim Under 15 U.S.C. § 1692e(2)
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`When interpreting a statute, the court must begin with the text. Allen ex rel. Martin v.
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`LaSalle Bank, NA., 629 F.3d 364, 367 (3d Cir. 2011). "If the statute's plain language is
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`unambiguous and expresses [Congress's] intent with sufficient precision, we need not look
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`3 As an initial matter, the Court finds the motion-filed under Rule 12(c) as a motion for judgment on the pleadings(cid:173)
`to be procedurally proper. A party may move for judgment on the pleadings under Rule 12(c) "[a]fter the pleadings
`are closed-but early enough not to delay trial[.]" Fed. R. Civ. P. 12(c). Here, Stern Lavinthal filed an Answer to
`Plaintiff's Complaint on August 17, 2015, and therein asserted a cross-claim against Green Tree. (ECF No. 11.) Thus,
`although the pleadings between Stern Lavinthal and Green Tree may not have been closed as of the date the instant
`motion was filed, the pleadings between Plaintiff and Stern Lavinthal were closed as of August 17, 2015. Accordingly,
`the Court finds the instant motion to be procedurally proper. Additionally, the Court declines to convert the instant
`motion to one for summary judgment, because all of the exhibits relied on by the parties are either attached to
`Plaintiff's Complaint or matters of public record subject to judicial notice that directly relate to Plaintiff's claims. See
`Mayer, 605 F.3d at 230; S. Cross Overseas Agencies, 181 F.3d at426, 427 n.7.
`10
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`

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`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 11 of 16 PageID: 454
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`further.
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`Id. (citation omitted). But if the "literal application of a statute will produce a result
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`demonstrably at odds with the intentions ofits drafters," then we are obligated to "construe statutes
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`sensibly and avoid constructions which yield absurd or unjust results." United States v. Fontaine,
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`697
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`1, 227 (3d Cir. 2012) (internal citations and quotation marks omitted). Where the plain
`
`meaning of a statute would lead to an absurd result, we presume "the legislature intended
`
`exceptions to its language [that] would avoid results of this character." Gov't of Virgin Islands v.
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`Berry, 604 F.2d 221, 225 (3d Cir. 1979) (quoting United States v. Kirby, 74 U.S. (7 Wall.) 482,
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`487, 9 L.Ed. 278 (1868)).
`
`A plain reading of the statute leads to the conclusion that a violation has occurred. In
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`pertinent part, § 1692e(2)(A) prohibits the "false representation of ... [the] amount ... of any
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`debt[.]" Id. Here, Plaintiff has alleged that Stem Lavinthal made a false representation with
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`respect to "the character and amount of the debt it sought to collect from Plaintiff, in violation of
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`15
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`§ 1692e(2)." (Cornpl. ~ 35(b).) Specifically, Plaintiff alleges that "Stem Lavinthal's
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`demand for payment of $10,974.37 was a demand for funds not owed and fees not incurred" (id.
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`~ 35(d)), and that "Stem Lavinthal affirmed the use of false allegations in an effort to collect money
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`not owed by Plaintiff' by filing the State Court Cert. of Diligent Inquiry (id.~ 35(c)). In essence,
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`construing the Complaint in a light most favorable to Plaintiff, the Complaint alleges that when
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`Stem Lavinthal attempted to collect $377,287.24 from Plaintiff on behalf of Green Tree, Stem
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`Lavinthal misrepresented the amount of the debt in violation of the statute because the total amount
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`sought included $10,974.37 in Horne Owners Insurance Premiums which were allegedly not owed
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`to Green Tree. Accepting the allegations as true, as the Court must at this stage, the Court finds
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`that Plaintiff has sufficiently alleged a violation of the statute's plain language. Because the
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`11
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`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 12 of 16 PageID: 455
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`statute's language is plain, the Court's function is "to enforce it according to its terms," so long as
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`"the disposition required by that [text] is not absurd." Alston v. Countrywide Fin. Corp., 585 F.3d
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`753,
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`(3d Cir. 2009) (quoting Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004)).
`
`Finding a violation here, as required by a straightforward application of the plain language
`
`of the statute, is not absurd; rather, it is consistent with the Third Circuit's recent decisions in
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`McLaughlin v. Phelan Hallinan & Schmieg, LLP, 756 F.3d 240, 248 (3d Cir.) cert. denied, 135 S.
`
`Ct. 487 (2014) and Kaymark v. Bank of America, N.A., 783 F.3d 168 (3d Cir. 2015).
`
`In
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`McLaughlin, a mortgagor alleged that a law firm representing the mortgagee had falsely
`
`represented the amount of the debt in a debt collection demand letter by including not-yet-incurred
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`fees.
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`Third Circuit held that the mortgagor had stated a claim under § 1692e, reasoning that
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`"[a]s
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`drafter of the Letter, [the law firm] is responsible for its content and for what the least
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`sophisticated debtor would have understood from it." 756 F.3d at 246.
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`Kaymark extended this rationale from a demand letter to a formal pleading in a foreclosure
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`action.
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`Kaymark, a mortgagor alleged that when a law firm initiated foreclosure proceedings
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`on behalf of the mortgagee, the body of the foreclosure complaint filed by the law firm falsely
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`represented the amount of the debt in violation of§ 1692e by including not-yet-incurred attorneys'
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`fees,
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`report fees, and property inspection fees. Id. at 171. Despite the fact that the alleged
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`misrepresentation was contained in a foreclosure complaint, the Third Circuit held that the
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`mortgagor had adequately stated a claim under § 1692e, upon an analysis of "the statutory text, as
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`well at
`
`the case law interpreting the text[.]" Id. at 176.
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`First, the Court noted that it is "well-established in this Circuit" that "the FDCP A covers
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`attorneys engaged in debt collection litigation[.]" Id. at 176-77 (citing Heintz v. Jenkins, 514 U.S.
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`12
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`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 13 of 16 PageID: 456
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`291
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`(1995) (holding that attorneys "engage[ d] in consumer-debt-collection activity, even
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`when that activity consists of litigation" are covered by the FDCP A); Piper v. Portnoff Law
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`Assocs.,
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`, 396 F.3d 227, 234 (3d Cir. 2005) ("[I]f a communication meets the [FDCPA's]
`
`definition
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`an effort by a 'debt collector' to collect a 'debt' from a 'consumer,' it is not relevant
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`that
`
`came in the context of litigation.")).4 Second, the Court observed that Congress has not
`
`specifically excluded formal pleadings in foreclosure actions from the FDCP A. "Subsequent to
`
`Congress twice amended the statute and exempted 'formal pleading[s] made in connection
`
`with a
`
`action' from 15 U.S.C. § 1692e(l 1), as amended Pub.L. No. 104-208, § 2305(a), 110
`
`Stat. 3009, 3009-425 (1996), and 'cornrnunication[s] in the form of []formal pleading[s]' from§
`
`1692g(d), as amended Pub.L. No. 109-351, § 802(a), 120 Stat. 1966 (2006)." Id. at 177. "If
`
`Congress had wanted to exclude formal pleadings from the protections of the FDCP A under any
`
`of
`
`other provisions, it could have done so.
`
`It did not. Thus, except for §§ 1692e(ll) and
`
`1692g(d), [t]he amendment[s] by [their] terms in fact suggest[ ] that all litigation activities,
`
`including formal pleadings, are subject to the FDCPA."' Id. (quoting Sayyed v. Wolpoff &
`
`Abramson, 485 F.3d 226, 231 (4th Cir. 2007)). Ultimately, the Third Circuit concluded "that a
`
`communication cannot be uniquely exempted from the FDCP A because it is a formal pleading, or
`
`in particular, a complaint" and noted that "[t]his principle is widely accepted by our sister
`
`Circuits."
`
`(citing cases); see also id. at 179 (concluding that the FDCP A does not "exclude
`
`foreclosure actions from its reach"). 5
`
`4 As noted, there is no dispute here that Stem Lavinthal acted as a "debt collector" when it "attempt[ed] to collect" a
`debt on behalf of Green Tree in the foreclosure proceeding, or that Plaintiff is a "consumer." 15 U.S.C. §§ 1692a(3),
`(6).
`5 The Court additionally found that the foreclosure complaint fell within the parameters of § l 692e because the
`mortgagor, and not merely the court, was the intended recipient of the communication. Id. at 178 (concluding that the
`foreclosure complaint "was unquestionably a communication directed at Kaymark in an attempt to collect the debt"
`because the complaint "was served on Kaymark (directly or indirectly through his attorney)").
`13
`
`

`
`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 14 of 16 PageID: 457
`
`The holdings and underlying rationale in McLaughlin and Kaymark suggest that the
`
`FDCPA extends to the facts of this case. Keeping in mind that "[a]s remedial legislation, the
`
`FDCPA must be broadly construed in order to give full effect to [Congress's] purposes," Caprio,
`
`709 F.3d at 148 (3d Cir. 2013), the Court finds that Plaintiffs allegations that Stem Lavinthal
`
`falsely represented the amount of the debt when it filed the State Court Notice of Motion and State
`
`Court Cert. of Diligent Inquiry in an attempt to collect the debt on behalf of the mortgagee are
`
`sufficient to state a claim under§ 1692e(2). In other words, when analyzing the text of the statute
`
`and
`
`relevant case law interpreting it, the Court cannot say that Congress intended to exempt
`
`litigation activities such as these from the purview of the FDCP A. As the Third Circuit noted,
`
`"[a]bsent a finding that 'the result [will be] so absurd as to warrant implying an exemption for'
`
`FDCPA claims involving foreclosure actions, [the Court] is not empowered to disregard the plain
`
`language
`
`the statute." Kaymark, 783 F.3d at 179 (quoting Heintz, 514 U.S. at 295). "Thus,
`
`[defendant's] arguments are more 'properly addressed to Congress,' which 'is, of course, free to
`
`amend the statute accordingly."' Id. (quoting Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich
`
`LPA,
`
`U.S. 573, 604 (2010)).
`
`B. Plaintiff Did Not Waive His FDCP A Claim by Failing to Appear in the State Court
`Foreclosure Proceeding and the Court Declines to Judicially Estop Plaintiff from
`Asserting the Claim
`
`Stem Lavinthal argues that because Plaintiff did not contest the amount of the debt in the
`
`foreclosure proceeding, he either waived his right to assert a claim under the FDCP A, or the Court
`
`should judicially estop him from doing so. Generally speaking, waiver is a "voluntary
`
`relinquishment-express or implied--of a legal right to advantage[.]" Black's Law Dictionary
`
`1611 (8th ed. 2004). That has not occurred here. First, the Third Circuit has made clear that "a
`
`14
`
`

`
`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 15 of 16 PageID: 458
`
`consumer is not required to seek validation of a debt he or she believes is inaccurately described
`
`in a debt communication as a prerequisite to filing suit under§ 1692e." McLaughlin, 756 F.3d at
`
`248; see also 15 U.S.C. § 1692g(c) ("The failure of a consumer to dispute the validity of a debt ..
`
`. may not be construed by any court as an admission of liability by the consumer."). The Court
`
`also notes that the State Court Notice of Motion and the State Court Cert. of Diligent Inquiry-the
`
`documents giving rise to liability here-were filed in April 2015. Plaintiff initiated this lawsuit in
`
`June
`
`Thus, again keeping mind that "[ a]s remedial legislation, the FDCP A must be broadly
`
`construed in order to give full effect to [Congress's] purposes," Caprio, 709 F.3d at 148 (3d Cir.
`
`201
`
`the Court does not find that Plaintiff waived his right to assert a claim under the FDCP A.
`
`By failing to contest the amount owed in the foreclosure proceeding.
`
`similar reasons, the Court also declines to impose the doctrine of judicial estoppel,
`
`which is "a judge-made doctrine that seeks to prevent a litigant from asserting a position
`
`inconsistent with one that she has previously asserted in the same or in a previous proceeding."
`
`Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81F.3d355, 358 (3d Cir. 1996). In short,
`
`Plaintiff did not assert a position in the foreclosure proceeding. He filed this lawsuit instead, which
`
`for the reasons explained above appears to be well within his rights.
`
`15
`
`

`
`Case 2:15-cv-04277-JLL-JAD Document 27 Filed 12/21/15 Page 16 of 16 PageID: 459
`
`CONCLUSION
`
`For the reasons above, the Court denies Stem Lavinthal's motion. An appropriate Order
`
`accompanies this Opinion.
`
`DATED: December
`
`5
`
`,£ L. LINARES
`ITED STATES DISTRICT JUDGE
`
`16

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