United States District Court, D. Connecticut
RULING AND ORDER ON MOTIONS TO DISMISS
A. BOLDEN UNITED STATES DISTRICT JUDGE.
December 11, 2018, Cheryl Yeboah and Kwadwo Yeboah
(“Plaintiffs”) sued Bank of America, N.A.
(“Bank of America”), Nationstar Mortgage, LLC
(“Nationstar”), and McCalla Raymer Leibert
Pierce, LLC (“McCalla”), alleging violations of
the Fair Debt Collection Practices Act, 15 U.S.C.
§§ 1692e(10), 1692f, and 1692g(a)(2)
(“FDCPA”), and the Fair Credit Reporting Act, 15
U.S.C. § 1681-s2(b) (“FCRA”). Complaint,
dated Dec. 11, 2018, ECF No. 1, at 4-7.
pending before the Court are three motions to dismiss the
complaint. McCalla Raymer Leibert Pierce, LLC's Motion to
Dismiss, dated Jan. 18, 2019 (“McCalla Mot.”),
ECF No. 19; Bank of America, N.A.'s Motion to Dismiss,
dated Apr. 26, 2019 (“Bank of America Mot.”), ECF
No. 29; Nationstar Mortgage, LLC's Motion to Dismiss,
dated Apr. 26, 2019 (“Nationstar Mot.”), ECF No.
reasons explained below, Defendants' motions to dismiss
Defendants' motions seeking dismissal under Federal Rule
of Civil Procedure 12(b)(1) are granted with respect to Mr.
Yeboah-who lacks standing to sue Defendants-the Court does
address the merits of Ms. Yeboah's claims, and dismisses
them under Federal Rule of Civil Procedure 12(b)(6).
FACTUAL AND PROCEDURAL BACKGROUND
Ms. Yeboah allege that, on July 12, 2012, U.S. Bank National
Association (“U.S. Bank”), as successor and
trustee for Bank of America and Nationstar, filed a
foreclosure complaint in the Connecticut Superior Court for
the Judicial District of Hartford against Ms. Yeboah's
property, located at 39 Ridge Boulevard in East Granby,
Connecticut. See Compl. ¶ 11. The foreclosure
complaint allegedly stated that U.S. Bank acquired the
mortgage from a succession of other business entities, and
that Ms. Yeboah had not met her mortgage's financial
obligations. Id. ¶¶ 12-17.
Ms. Yeboah allege that U.S. Bank lied and was not the owner
of the mortgage at the time it filed the foreclosure
complaint. See Id. ¶¶ 18-20.
Rather, they allege that Wilmington Finance, Inc. held the
note in 2012, when U.S. Bank filed the foreclosure action in
the Superior Court. See id.
Ms. Yeboah also allege that Defendants knew that U.S. Bank
did not own Ms. Yeboah's mortgage when it filed the
foreclosure complaint, and that Defendants misrepresented the
history of Ms. Yeboah's mortgage and chain of title when
they filed “documents and affidavits” with the
Superior Court in support of U.S. Bank's claim that it
owned the mortgage in 2012. Id. ¶¶ 21-22.
They further allege that Defendants continued to misrepresent
this history in affidavits and pleadings filed over the
course of the state court litigation. Id.
December 11, 2018, Mr. and Ms. Yeboah sued Bank of America,
Nationstar, and McCalla in this Court, alleging that
Defendants' submissions in U.S. Bank's foreclosure
action against Ms. Yeboah in the Connecticut Superior Court
were “false, deceptive, or misleading
representations” of her debt. Id. at ¶
31. Mr. and Ms. Yeboah asserted three causes of action under
the FDCPA, alleging that: (1) Defendants were “debt
collectors” who used “false representation or
deceptive means to collect . . . information concerning a
customer, ” in violation of 15 U.S.C. § 1692e,
id. ¶¶ 37-48; (2) Defendants used
“unfair or unconscionable means” to collect on
Ms. Yeboah's debt, in violation of 15 U.S.C. §
1692f, id. ¶¶ 49-57; and (3) Defendants
did not provide Plaintiffs with “a written notice
containing . . . the name of the creditor to whom the debt is
owed, ” in violation of 15 U.S.C. § 1692g(a)(2),
id. ¶¶ 58-68. Mr. and Ms. Yeboah asserted
one cause of action under the FCRA, alleging that Defendants
did not reasonably investigate Ms. Yeboah's dispute,
review and correct the relevant information, or
“provide notice that the account was in dispute,
” in violation of 15 U.S.C. § 1681s-2(b).
Id. ¶¶ 69-78.
January 18, 2019, McCalla moved under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6) to dismiss all claims against
them, arguing that: (1) Mr. Yeboah did not have standing
because he did not qualify as a “consumer” under
the FDCPA; (2) all claims under the FDCPA were barred by the
statute of limitations; (3) McCalla's communications with
Ms. Yeboah's attorney were “excluded from the
purview of the FDCPA”; and (4) McCalla did not qualify
as a “furnisher of information” under the FCRA.
Memorandum of Law in Support of McCalla Mot., dated Jan. 18,
2019 (“McCalla Mem.”), annexed to McCalla Mot.,
ECF No. 19-1, at 12-17. McCalla also urged the Court to
abstain from exercising jurisdiction under the
Younger or Burford abstention doctrines
because it could “unduly intrude” upon the
Superior Court proceedings. Id. at 4-8, 4 n.1
(citing Burford v. Sun Oil Co, 319 U.S. 315 (1943)
and Younger v. Harris, 401 U.S. 37 (1971)).
January 28, 2019, Nationstar moved to stay proceedings in
this Court, pending a ruling on Ms. Yeboah's motion to
dismiss the foreclosure complaint in the state court action.
Nationstar Mortgage, LLC's Motion to Stay Action Pending
Determination of State Court Motion to Dismiss, dated Jan.
28, 2019 (“Nationstar Motion to Stay”), ECF No.
January 31, 2019, the Court granted Nationstar's motion
and stayed proceedings until April 12, 2019. Order Granting
Motion to Stay, dated Jan. 31, 2019, ECF No. 23.
April 12, 2019, the parties filed status reports with the
Court. Defendants' Joint Status Report, dated Apr. 12,
2019(“Defs.' Report”), ECF No. 27;
Plaintiffs' Status Report, dated Apr. 12, 2019
(“Pls.' Report”), ECF No. 28. Defendants
attached the Superior Court's ruling to its status
report, which found that U.S. Bank had demonstrated
“prima facie evidence” that it owned Ms.
Yeboah's note when it filed its foreclosure action
against her in 2012. Superior Court of Connecticut Memorandum
of Decision, dated Mar. 13, 2019 (“Superior Court
Decision”), annexed as Ex. A to Defs.' Report, ECF
No. 27-1 at 13. In their status report, Mr. and Ms. Yeboah
indicated that they might appeal the Superior Court's
decision. Pls.' Report at 1-2.
April 26, 2019, Bank of America moved to dismiss Mr. and Ms.
Yeboah's complaint under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) because (1) Mr. Yeboah lacked standing
to bring the case because he did not qualify as a
“consumer” under the FDCPA nor did he allege any
injury in fact; (2) their claims were barred by the statute
of limitations; (3) the FDCPA only recognizes violations by
third-party debt collectors, not parties collecting on a debt
owed to themselves; and (4) Mr. and Ms. Yeboah did “not
allege sufficient facts to state a plausible claim for
violation of the FCRA.” Memorandum of Law in Support of
Bank of America Mot., dated Apr. 26, 2019 (“Bank of
America Mem.”), annexed to Bank of America Mot., ECF
No. 29-1, at 8-15. Bank of America also urged the Court to
abstain from ruling on Mr. and Ms. Yeboah's claims under
the Younger or Colorado River abstention
doctrines because the ongoing Superior Court action would
determine which bank owned the mortgage in 2012. See
Id. at 6-8 (citing Younger, 401 U.S. 37, and
Colorado River Water Conservation Dist. v. United
States, 424 U.S. 800 (1976)).
April 26, 2019, Nationstar moved to dismiss Mr. and Ms.
Yeboah's claims under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) because (1) Mr. Yeboah lacked standing
to assert the claims and failed to allege any injury in fact;
(2) Ms. Yeboah “fail[ed] to allege concrete harm”
from any FCRA violation and also lacked standing as to that
claim; (3) the FDCPA claims were barred by the statute of
limitations; (4) the FDCPA claims' “alleged false
representations [were] not material”; (5) legal
pleadings do not qualify as “initial
communications” under the FDCPA; and (6) Mr. and Ms.
Yeboah offered no evidence to demonstrate that Nationstar
failed to investigate her credit dispute. Memorandum of Law
in Support of Nationstar Mot., dated Apr. 26, 2019
(“Nationstar Mem.”), annexed to Nationstar Mot.,
ECF No. 30-1 at 8-22.
8, 2019, Mr. and Ms. Yeboah indicated they would be
proceeding with this case pro se and moved for
permission to participate in electronic filing. Notices of
Pro Se Appearance, dated May 8, 2019, ECF Nos. 31
& 32; Motions by Self-Represented Litigants to
Participate in Electronic Filing, dated May 8, 2019, ECF Nos.
37 & 38.
9, 2019, Mr. and Ms. Yeboah's attorney moved to withdraw
from this case. Motion to Withdraw, dated May 9, 2019, ECF
No. 34, at 1-2.
10, 2019, the Court granted the motion to withdraw and the
motions to participate in electronic filing. Order, dated May
10, 2019, ECF No. 39; Order, dated May 10, 2019, ECF No. 40.
Ms. Yeboah did not file a timely response to Defendants'
motions to dismiss or move for an extension of time.
9, 2019, the Court scheduled a hearing on the motions to
dismiss. Notice of E-Filed Calendar, dated Jul. 9, 2019, ECF
No. 46. Mr. and Ms. Yeboah, who have consented to receiving
electronic notifications from the Court, see ECF
Nos. 35-36, were e-mailed notice of the hearing that same
day. See Notice of Electronic Filing, dated Jul. 9,
2019 at 8:35 a.m., ECF No. 46.
23, 2019, the Court held a hearing on the motions to dismiss.
Minute Entry, filed Jul. 24, 2019, ECF No. 48. Mr. and Ms.
Yeboah did not appear. Id. The Court held the
hearing open for an hour before reconvening, noting
Plaintiffs' failure to appear on the record, and
reserving decision on the motions-stating on the record that
the Court intended to rule on the motions without oral
STANDARD OF REVIEW
case is properly dismissed for lack of subject matter
jurisdiction under [Federal Rule of Civil Procedure] 12(b)(1)
when the district court lacks the statutory or constitutional
power to adjudicate it.” Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000); Fed.R.Civ.P.
12(b)(1). The plaintiff bears the burden of establishing by a
preponderance of the evidence that the court has subject
matter jurisdiction over the claims. Id.
considering a motion to dismiss pursuant to Rule 12(b)(1),
the court must take all facts alleged in the complaint as
true and draw all reasonable inferences in favor of
plaintiff.” Sweet v. Sheahan, 235 F.3d 80, 83
(2d Cir. 2000); see also Nat. Res. Def. Council v.
Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (quoting
Sweet, 235 F.3d at 83). However, the court may also
resolve disputed jurisdictional fact issues “by
referring to evidence outside of the pleadings, such as
affidavits, and if necessary, hold an evidentiary
hearing.” Karlen ex rel. J.K. v. Westport Bd. of
Educ., 638 F.Supp.2d 293, 298 (D. Conn. 2009) (citing
Zappia Middle E. Constr. Co. v. Emirate of Abu
Dhabi, 215 F.3d 247, 253 (2d Cir. 2000)).
complaint must contain a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a). Any claim that fails
“to state a claim upon which relief can be
granted” will be dismissed under Federal Rule of Civil
Procedure 12(b)(6). Fed.R.Civ.P. 12(b)(6).
reviewing a complaint under Rule 12(b)(6), a court applies a
“plausibility standard” guided by “two
working principles.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). First, Bouldin, 136 S.Ct.
1885, 1892 (2016) (recognizing a district court's
inherent authority to manage its docket “with a
“view toward the efficient and expedient resolution of
cases”). “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.; see also
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(“While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations . . . a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” (internal
citations omitted)). Second, “only a complaint that
states a plausible claim for relief survives a motion to
dismiss.” Iqbal, 556 U.S. at 679. Thus, the
complaint must contain “factual amplification . . . to
render a claim plausible.” Arista Records LLC v.
Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting
Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir.
reviewing a complaint under Federal Rule of Civil Procedure
12(b)(6), the court takes all factual allegations in the
complaint as true. Iqbal, 556 U.S. at 678.
The court also views the allegations in the light most
favorable to the plaintiff and draws all inferences in the
plaintiff's favor. Cohen v. S.A.C. Trading
Corp., 711 F.3d 353, 359 (2d Cir. 2013); see also
York v. Ass'n of the Bar of the City of N.Y., 286
F.3d 122, 125 (2d Cir. 2002) (“On a motion to dismiss
for failure to state a claim, we construe the complaint in
the light most favorable to the plaintiff, accepting the
complaint's allegations as true.”), cert.
denied, 537 U.S. 1089 (2002).
considering a motion to dismiss under Rule 12(b)(6) generally
limits its review “to the facts as asserted within the
four corners of the complaint, the documents attached to the
complaint as exhibits, and any documents incorporated in the
complaint by reference.” McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). A
court may also consider “matters of which judicial
notice may be taken” and “documents either in
plaintiffs' possession or of which plaintiffs had
knowledge and relied on in bringing suit.” Brass v.
Am. Film Techs., Inc., 987 F.2d 142, 150 (2d
Cir. 1993); Patrowicz v. Transamerica HomeFirst,
Inc., 359 F.Supp.2d 140, 144 (D. Conn. 2005).
federal courts are courts of limited jurisdiction,
“[c]ustomarily, a federal court first resolves any
doubts about its jurisdiction over the subject matter of a
case before reaching the merits or otherwise disposing of the
case.” Cantor Fitzgerald, L.P, v. Peaslee, 88
F.3d 152, 155 (2d Cir. 1996); see also Rhulen Agency,
Inc. v. Ala. Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d
Cir. 1990) (“the court should consider the Rule
12(b)(1) challenge first since if it must dismiss the
complaint for lack of subject matter jurisdiction, the
accompanying defenses and objections become moot and do not
need to be determined.”) (citing 5 Wright & Miller,
Fed. Prac. & Proc. § 1350, 548 (1969)).
agree that Mr. Yeboah does not have standing to pursue this
action. McCalla Mem. at 8; Bank of America Mem. at 8-9;
Nationstar Mem. at 8-10. In addition, McCalla and Bank of
America argue that this Court should abstain from exercising
jurisdiction due to the ongoing state court proceedings.
McCalla Mem. at 4-8; Bank of America Mem. at 6-8.
standing and abstention are threshold issues that affect this
Court's subject-matter jurisdiction, the Court will
address these issues before taking up other grounds for
dismissal on the merits under Rule 12(b)(6). See Cantor
Fitzgerald, 88 F.3d at 155.
Mr. Yeboah's Standing
is a constitutional requirement rooted in Article III of the
United States Constitution. Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560 (1992) (“[T]he core
component of standing is an essential and unchanging part of
the case-or-controversy requirement of Article III.”).
“Standing, moreover, like other jurisdictional
inquiries, cannot be inferred argumentatively from averments
in the pleadings, but rather must affirmatively appear in the
record.” Thompson v. Cty. of Franklin, 15 F.3d
245, 249 (2d Cir. 1994) (citation, internal quotation marks
and alterations omitted).
demonstrate standing, a plaintiff must allege an
injury-in-fact that is fairly traceable to defendant's
conduct and is likely to be redressed by judicial action.
Allen v. Wright, 468 U.S. 737, 751 (1984); see
also Lujan, 504 U.S. at 560-61 (“Over the years,
our cases have established that the irreducible
constitutional minimum of standing contains three elements.
First, the plaintiff must have suffered an injury in fact-an
invasion of a legally protected interest which is (a)
concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of-
the injury has to be fairly traceable to the challenged
action of the defendant, and not the result of the
independent action of some third party not before the court.
Third, it must be likely, as opposed to merely speculative,
that the injury will be redressed by a favorable
decision.“) (internal quotation marks, alterations, and
citations omitted); Spokeo, Inc. v. Robins, 136
S.Ct. 1540, 1547 (2016) (to establish standing, a
“plaintiff must have (1) suffered an injury in fact,
(2) that is fairly traceable to the challenged conduct of the
defendant, and (3) that is likely to be redressed by a
favorable judicial decision.”) (citing Lujan,
504 U.S. at 560).
element [of standing] must be supported in the same way as
any other matter on which the plaintiff bears the burden of
proof, i.e., with the manner and degree of evidence
required at the successive stages of the litigation. At the
pleading stage, general factual allegations of injury
resulting from the defendant's conduct may suffice, for
on a motion to dismiss we presume that general allegations
embrace those specific facts that are necessary to support
the claim.” Lewis v. Casey, 518 U.S. 343, 358
(1996) (quoting Lujan, 504 U.S. at 561).
a plaintiff does not meet his burden of demonstrating such an
injury, he does not have standing, and the Court must dismiss
that plaintiff's claims. See Fed. R. Civ. P.
12(b)(1); see also Lujan, 504 U.S. at 561
(“The party invoking federal jurisdiction bears the
burden of establishing [standing].”); Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 96
(1998) (“In a long and venerable line of cases, this
Court has held that, without proper jurisdiction, a court
cannot proceed at all, but can only note the jurisdictional
defect and dismiss the suit.”).
argue that Mr. Yeboah lacks standing to sue because he has
not pleaded an injury that is particular to him. McCalla Mem.
at 8; ...