Silly me, I was thinking laws and rules and things like fraud and forgery meant something. But then what in the world do I know anyway?
I mean, when you study history mankind has participated in gruesome wars of unspeakable violence. Entire nations have descended into dark and evil madness. And so what’s really so surprising about what’s happening in this nation today. After all, it’s not so much that the supremacy of the corporate state is unprecedented, it’s frankly more accurate to state that those haughty principles we read about a lifetime ago in those funny textbooks were just momentary delusions, a mere blink in the eye of mankind’s cruel and vicious existence.
Stare deeply into the eyes of a solider and ask him about his work. He merely executes the orders as provided.
But I digress. Or I regress or perhaps I just project. Whatever does that have to do with today?
And so back to the subject at hand, let’s read about how things are going down in the former nation called the United States of America. I wonder what will they call us when the switch flips? Will we be known as the Former United States of America? I rather think any reference to the past will be too difficult and that there will merely be something new, the past erased. Be careful what they offer you, they may not be taking you for that medical treatment they promised….it might just be far worse…..
But then again, I digress.
Today, we’ll focus on today and a case recently released from a federal court……
Defendants argue that the misrepresentations alleged in the Complaint are not material,
and therefore are insufficient to sustain a FDCPA claim. Doc. No. 32 at 15-19. Defendants
maintain that the method of applying signatures to otherwise substantially correct foreclosure
documentation is irrelevant to the debtor. Plaintiffs contend that the signatures are material
because, but for the signatures, the case would not be before a court. Defendants’ argument is
more persuasive.
Plaintiffs fail to allege any facts in their Amended Complaint that demonstrate that the
signatures contained on the foreclosure documents were material. The Plaintiffs do not identify
a substantive error with respect to the debt or the timing of the foreclosure. They also fail to
allege that they relied on or were misled because someone other than the substitute trustee
affixed his or her signature to an otherwise correct document evidencing their indebtedness.
Plaintiffs’ Amended Complaint alleges that the Defendants falsely executed signatures
of a trustee in order to maintain a foreclosure action in state court. See, e.g., Am. Compl. ¶ ¶ 124,
129, 135. These allegations also fail to surpass the materiality threshold. Plaintiffs admit that
they ” fell behind on their mortgage payments” and that their house was subject to foreclosure.
Id. ¶ 116. Moreover, as discussed above, only the Lembachs’ claims are the only ones properly
before this Court because Stewart’s claims are barred by the doctrines of issue and claim
preclusion, and Plaintiffs informed the Court of Nachbar’s death, but have not filed a substitution
of party. No foreclosure action is pending against the Lembachs.
Plaintiffs maintain that the ” robo-signings” performed by Defendants were unfair and
deceptive. While the Court agrees that the Defendants’ foreclosure practices were shortcuts that
do not comply with the signature and acknowledgement requirements of the Maryland rules, the
facts alleged by Plaintiffs do not rise to the level of materiality on which a FDCPA claim can be
maintained. Although the trustee signatures are alleged not to be those of the Defendants, they
are not actionable because they were not material. See Warren, 2012 WL 76053, at *7. The
Orders to Docket were correct in every way except that the signatures were affixed with the
authority of the purported signer, but not in fact signed by the person whose name was affixed.
See Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 332 (6th Cir. 2006) (rejecting plaintiff’s
argument that defendant’s conduct violated Section 1692e because plaintiff ” never denied in her
complaint that she owed [defendant] a debt, nor did she claim that [defendants] misstated or
misrepresented the amount that she owed”); Johnson, 2011 WL 4550142, at *10 (” To the extent
Plaintiffs’ allegations imply the filing of a lawsuit without substantiating documentation is false,
deceptive or misleading, Plaintiffs do not state a claim [because] insufficient evidence or
documentation claims based on the filing of a state court complaint do not constitute viable
claims under section 1692e.”) (quotation omitted).
Even assuming that the trustees’ signatures were not their own, the signatures concern
undisputedly accurate information concerning mortgage debts owed by Plaintiffs. The signatures
do not relate materially to the debt at issue, and Plaintiffs fail to assert how the allegedly
fraudulent signatures on indisputably accurate court filings would mislead the least sophisticated
consumer in any way.
Defendants also argue that the Plaintiffs fail to allege any specific conduct that violates
15 U.S.C. § 1692f. They maintain that ” Plaintiffs have failed to allege what conduct is unfair or
unconscionable with respect to each of them and his or her particular loan status and they fail to
allege any misconduct under any sub-section of § 1692f beyond what Plaintiffs assert violate
other provisions of the FDCPA, specifically 15 U.S.C. § 1692e(5) and (10).” Doc. No. 32 at 20.
Plaintiffs do not counter Defendants’ arguments.
The ” Unfair Practices” section of the FDCPA prohibits debt collectors from using ” unfair
or unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. § 1692f. ” The
statute does not define unfair or unconscionable, but it does provide a non-exhaustive list of
conduct that violates the section.” Hauk v. LVNV Funding, LLC, 749 F. Supp. 2d 358, 366
(D. Md. 2010).
In Donohue, the Ninth Circuit, relying on Hahn and Miller held that ” false but nonmaterial
representations are not likely to mislead the least sophisticated consumer and therefore
are not actionable under § § 1692e or 1692f.” 592 F.3d at 1033 (emphasis added). To the extent
that the Fourth Circuit’s holding in Warren applies the materiality requirement of § 1692e to
§ 1692f, this Court finds that Plaintiffs fail to plead any material allegations as discussed above.
In the alternative, Plaintiffs’ § 1692f claim should be dismissed because Plaintiffs fail to allege
any misconduct separate and distinct from the §1692e claims.
In Foti v. NCO Fin. Sys., the Southern District of New York found that ” § 1692f may
provide a cause of action for conduct that is not specifically listed in that section or other
provision of FDCPA.” 424 F. Supp. 2d 643, 667 (S.D.N.Y. 2006). However, the court
concluded that because Plaintiffs’ complaint ” [did] not identify any misconduct beyond that
which Plaintiffs assert violate other provisions of the FDCPA,” the Defendant’s motion to
dismiss the § 1692f claim should be granted. Id.; see Johnson, 2011 WL 4550142, at *11
(” Plaintiffs’ failure to allege other conduct that was unfair and unconscionable under section
1692f warrants dismissal of this claim.”). Although § 1692f serves as a means for a court ” to
sanction improper conduct that the FDCPA fails to address specifically,” Foti, 424 F. Supp. 2d at
667 (quotation omitted), Plaintiffs’ § 1692f claim here fails to allege any conduct separate and
distinct from the alleged § 1692e violations. See Am. Compl. ¶ 158 (anchoring the § 1692f
claim with the §1692e(10) claim). All of Plaintiffs’ allegations are asserted for actions arising
under § 1692e. Plaintiffs fail to allege any separate facts that contend that Defendants engaged
in unfair or unconscionable practices under § 1692f. Therefore Defendants’ motion to dismiss
the § 1692f claim will be granted.
