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Moore v. PNC Bank, N.A.

United States District Court, Southern District of Georgia, Savannah Division

January 28, 2015

SYLVESTER MOORE, Plaintiff,
v.
PNC MORTGAGE, N.A., MCCURDY & CANDLER, LLC, NELSON MULLINS & SCARBOROUGH, LLP, GREGORY M. TAUPE and Does 1-10, Defendants.

REPORT AND RECOMMENDATION

Once again proceeding pro se, Sylvester Moore invokes the Federal Debt Collection Practices Act, 15 U.S.C. § 1692e (FDCPA), to sue various people and entities having something to do with the nonjudicial foreclosure of his home. Doc. 1, as amended, doc. 3. His previous FDCPA lawsuit, Moore v. PNC Mortgage, NA, 414CV127 (S.D. Ga.), resulted in its dismissal because the Complaint was "virtually incomprehensible." Id., doc. 10 at 1. The district judge opted to dismiss it "without prejudice." Id., doc. 21.

Exploiting that second-chance option, Moore filed this second lawsuit against the same lead defendant (PNC) but added some new defendants. 414CV237, doc. 1, as amended, doc. 3. As it did in his first case, PNC moves to dismiss. Doc. 9. It invokes Fed.R.Civ.P. 4(m) in asserting that Moore has failed to serve it. Doc. 9-1 at 7-8. It also moves to dismiss under Fed.R.Civ.P. 12(b)(6), arguing that (a) it is a mortgage loan servicer, not a debt collector; and (b) in any event Moore fails to meet the "debt collector" and prohibited action (false, deceptive practices) pleading requirements for an FDCPA claim.[1] See doc. 9-1 at 4-7; see also doc. 3 (Amended Complaint) at 7-10 (Moore's FDCPA allegations against PNC).

Although a pro se complaint must be liberally construed and held to a less stringent standard than pleadings drafted by attorneys, Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006), it "must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotes omitted). That "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not" be enough to survive a Rule 12(b)(6) motion to dismiss. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Nor can this Court advocate on behalf of any party appearing before it. Boles v. Riva, 565 F.App'x 845, 846 (11th Cir. 2014) ("[E]ven in the case of pro se litigants this leniency does not give a court license to serve as de facto counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain an action.") (quotes and cite omitted).

PNC prevails here. The specific FDCPA section that Moore invoked creates a right to sue any "debt collector" for making one of several types of false or misleading representations. 15 U.S.C. § 1692e. "A 'debt collector' is defined, for the purposes of § 1692f(6), as '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 the enforcement of security interests], or who regularly collects or attempts to collect . . . debts . . . due another. . . .'" Lodge v. Kondaur Capital Corp., 750 F.3d 1263, 1273 (11th Cir. 2014). Congress intended the Act to reach only third persons who collect debts for others, not mortgage originators or servicers. Zow v. Regions Fin. Corp., 2014 WL 589567 at * 2 (S.D. Ga. Feb 14, 2014); Driskell v. Thompson, 971 F.Supp.2d 1050, 1070 (D. Colo. 2013).

Indeed, even if the servicer calls itself a collector, FDCPA plaintiffs must still plead that the debt was in default when the servicer began to service it. Fenello v. Bank of America, NA, 577 F.App'x 899, 902 (11th Cir. 2014) (mortgage loan servicer was not an FDCPA "debt collector, " even though it stated in letter to mortgagors that it was a debt collector under the FDCPA and state laws, where its debt collection activities involved a debt that was not in default at the time it became the servicer); Beepot v. J.P. Morgan Chase Nat. Corporate Services, Inc., __ F.Supp. 3d __, 2014 WL 5488791 at * 15 n. 15 (M.D. Fla. Oct. 30, 2014).

Moore's own filings show that PNC was a servicer and that law firms, not PNC, sent him debt-collection (as opposed to debt management, or debt satisfaction) communications. Doc. 1-1 at 18-25. Other than Moore's bare conclusion that PNC in fact is a "debt collector, " his amended complaint is bereft of the above pleading elements. Compare Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1218 (11th Cir. 2012) (borrowers' allegations that law firm representing lender, which had sent them dunning letter and enclosed documents, was "engaged in the business of collecting debts owed to others incurred for personal, family[, ] or household purposes, " and that, in the year before the complaint was filed, firm had sent to more than 500 people "dunning notice[s]" containing "the same or substantially similar language" to that found in the letter and documents attached to the complaint in this case, plausibly alleged that firm regularly attempted to collect debts and, thus, was a "debt collector" within meaning of the FDCPA). And his "Objection" response to PNC's brief is simply more of the same (a conclusion that he has stated a claim). Doc. 16. PNC's motion to dismiss should therefore be granted on Rule 12(b)(6) grounds.[2]

Defendants Gregory M. Taube and Nelson Mullins Riley & Scarborough, LLP, also move to dismiss. Doc. 10. They contend that Moore has likewise failed to allege the requisite "debt collector" facts, much less any communications from Nelson Mullins to him. Doc. 10-1 at 6-7 ("Plaintiff fails to specifically identify any communication from Nelson Mullins that he alleges constitutes debt collection activity").[3] They also raise the same lack-of-service defense. Id. at 7-8. Taube is a Nelson Mullins partner (doc. 10-1 at 2) and Moore apparently named him separately because he saw his name in some documents, doc. 3 at 6II 34, as well as on the Nelson Mullins website. Docs. 14-18.

The defendants' dismissal motions (docs. 9 & 10) should be GRANTED and Moore's case against them should be DISMISSED WITH PREJUDICE. Defendants' motion to stay this litigation in the meantime is GRANTED. Doc. 13. Finally, Moore is reminded of Rule 4(m)'s 120-day limit for serving the remaining defendants (the Doe and McCurdy & Candler, LLC defendants). And if he does not intend to pursue those defendants then he should promptly notify the Court, rather than consume its resources by waiting for a Rule 4(m) dismissal.

SO REPORTED AND RECOMMENDED.


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