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Yeboah v. Bank of America, N.A.

United States District Court, D. Connecticut

July 26, 2019

CHERYL YEBOAH and KWADWO YEBOAH, Plaintiffs,
v.
BANK OF AMERICA, N.A., NATIONSTAR MORTGAGE, LLC, and MCCALLA RAYMER LIEBERT PIERCE, LLC Defendants.

          RULING AND ORDER ON MOTIONS TO DISMISS

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE.

         On 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.

         Currently 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. 30.

         For the reasons explained below, Defendants' motions to dismiss are GRANTED.

         While 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).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         Mr. and 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[1] against Ms. Yeboah's property, located at 39 Ridge Boulevard[2] 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.

         Mr. and 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.

         Mr. and 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. ¶¶ 23-36.

         B. Procedural History

         On 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.

         On 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)).

         On 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. 20.

         On 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.

         On 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.

         On 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)).

         Also on 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.

         On May 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.

         On May 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.

         On May 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.

         Mr. and Ms. Yeboah did not file a timely response to Defendants' motions to dismiss or move for an extension of time.

         On July 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.

         On July 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 argument.[3]

         II. STANDARD OF REVIEW

         A. Rule 12(b)(1)

         “A 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.

         “When 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)).

         B. Rule 12(b)(6)

         A 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).

         In 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. 2009)).

         When 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).

         A court 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).

         III. DISCUSSION

         Because 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)).

         Defendants 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.

         Because 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.

         A. Mr. Yeboah's Standing

         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).

         To 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).

         “[E]ach 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).

         But if 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.”).

         Defendants argue that Mr. Yeboah lacks standing to sue because he has not pleaded an injury that is particular to him. McCalla Mem. at 8; ...


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