United States District Court, D. Connecticut
JOAN T. KLOTH-ZANARD, Plaintiff,
BANK OF AMERICA, ET. AL. Defendants.
RULING ON MOTION TO AMEND
MICHAEL P. SHEA, U.S.D.J.
se Plaintiff, Joan T. Kloth-Zanard, sued Bank of
America, N.A. (“Bank of America”), Specialized
Loan Services, LLC (“SLS”), Wells Fargo/Northwest
Bank Minnesota, Mortgage Electronic Registration Services,
Inc. (“MERS”), and The Bank of New York Mellon
(“BONY”). I dismissed the claims against Wells
Fargo, MERS, and BONY in October 2017. (See ECF No.
70; ECF No. 74.) Now before me is the plaintiff's motion
to amend her complaint. (ECF No. 132.) In her motion to
amend, the plaintiff claims that her “inexperience and
lack of legal knowledge, ” along with her “unseen
disability, ” caused her to err in her reading of this
Court's initial review order (ECF No. 12), resulting in
her mistakenly believing that her “Fair Debt
Practices” claim-her claims under 15 U.S.C.
§§ 1692d and 1692g, the Fair Debt Collection
Practices Act (“FDCPA”)-had been dismissed.
(See Id. at 1-2.) As such, she requests permission
to amend her complaint to include such a claim.
issued an order on June 8, 2018, noting I would deny the
plaintiff's motion to amend to the extent it sought to
revive her FDCPA claim against defendants who had been
previously dismissed from the case. (See ECF No. 134
(“As an initial matter, it appears that the
plaintiff's proposed amended complaint would revive her
suit against the previously dismissed defendants. . . . The
Court will deny the plaintiff's motion to amend with
respect to these defendants given the prejudice it would
cause them.” (internal citations omitted).) I noted,
however, that since the plaintiff's remaining claims
against the defendants included a claim under the Connecticut
Creditors Collections Practices Act (“CCCPA”)-a
statute similar to the FDCPA in that both focus on
proscribing abusive debt collection practices-and discovery
had not yet been completed, I was “inclined to
seriously consider the plaintiff's request to amend her
complaint despite her significant delay in making such a
request.” (See Id. (citing A.V. by
Versace, Inc. v. Gianni Versace S.p.A., 87 F.Supp.2d
281, 299 (2d Cir. 2000) (granting leave to amend where trial
date had not been set, discovery had not been completed, and
claims against new defendants did not raise factual claims
unrelated to the events in [the] original [ ] complaint).) In
light of this disposition, I gave the defendants fourteen
days to file a brief in opposition to the motion to amend.
(See id.) Defendant Bank of America subsequently
filed a timely objection. (See ECF No. 138.)
Federal Rules of Civil Procedure provide that courts
“should freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). A district court,
“in its discretion, should freely grant leave to amend,
and may not deny leave to amend absent good
cause.” Stiller v.
Colangelo, 221 F.R.D. 316, 317 (D. Conn. 2004). I
conclude that there is “good cause” in this case.
The FDCPA applies only to “debt collectors.”
See 15 U.S.C. § 1692d (“A debt
collector may not engage in any conduct the natural
consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt.”
(emphasis added)). The FDCPA defines the term “debt
collector” as follows:
The term “debt collector” means 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). The Supreme Court recently
considered the extent of this definition in Henson v.
Santander Consumer USA Inc., 137 S.Ct. 1718 (2017).
Henson concerned whether a bank that purchased a
series of defaulted loans from another lender and then sought
to collect under those loans constituted a “debt
collector” under the FDCPA. See Id. at
1720-21. The Supreme Court held that it did not, concluding
that “under the definition [of ‘debt
collector'] at issue . . . [, ] you have to attempt to
collect debts owed another before you can ever
qualify as a debt collector.” Id. at 1725.
Thus, a company that “collects] purchased defaulted
debt for its own account” does not qualify as a
“debt collector” under the statute. Id.
is directly applicable to the plaintiffs proposed FDCPA claim
against Bank of America. The plaintiffs amended complaint
alleges that Bank of America took over her mortgage when it
purchased Country Wide Home Loans. (See ECF No. 132
at ¶¶ 30, 35, 40-41, 43.) It also alleges that Bank
of America repeatedly refused her loan modifications to which
she was entitled due to her disability and engaged in
harassing debt collection practices along with Defendant SLS.
(See Id. at ¶¶ 51-55, 76-91.) The
plaintiff does not argue, however, that Bank of America is
engaged in the practice of collecting debts owed to other
entities. Rather, she contends that Bank of America engaged
in abusive tactics in attempting to collect on a mortgage it
had assumed through its purchase of Country Wide Home Loans.
I therefore conclude that Bank of America is not a
“debt collector” under the FDCPA and that the
plaintiffs claim against it would be futile. See In re
American Exp. Co. Shareholder Litig., 39 F.3d 395, 402
(2d Cir.1994) (“leave to amend may be denied if the
amendment would be futile”).
plaintiff's motion to amend (ECF No. 132) is therefore
GRANTED IN PART AND DENIED IN PART. She may amend her
complaint to add an FDCPA claim against Defendant SLS but not
against Defendant Bank of America. The Court and the parties
shall treat ECF No. 132 as the operative complaint, except
that the FDCPA claim in that complaint against Bank of
America is hereby dismissed.
 The plaintiffs FDCPA claim does not
suffer from a similar flaw with respect to SLS, which she
alleges was the “servicer” of her mortgage.