JOHN J. McCONNELL, JR., District Judge.
Defendant Harmon Law Offices, P.C. ("Harmon") moves to dismiss the single claim in Count VI that Kenneth Fitch and the Estate of Dianne L. Fitch
The Court takes the allegations in Plaintiff's Complaint as true for the purposes of Harmon's motion.
Ms. Fitch executed a note on a $96,648.00 loan on December 31, 2009 on a property in Cumberland, Rhode Island, and a mortgage as security for the note. ECF No. 1 at ¶ 48. She was the sole owner of the property; Mr. Fitch was not a party to the loan transaction and did not sign the note. Id. Mr. Fitch appears to have executed the mortgage but only in his capacity as a non-vested spouse. Ms. Fitch passed away on April 7, 2014. Id. at ¶ 13.
On or about March 31, 2017, the loan went into default for nonpayment. Wells Fargo hired Harmon to bring foreclosure proceedings. Id. at ¶ 52. On April 20, 2017, Harmon sent a notice of foreclosure sale. Id. at ¶ 53. Harmon advertised the notice of sale during May, June, and July 2017 in the Pawtucket Times newspaper. On July 28, 2017, the Kay Street property was sold at foreclosure auction. Id. at ¶ 56. Months later in December 2017, Mr. Fitch was appointed administrator of Ms. Fitch's estate. The Estate of Ms. Fitch and Mr. Fitch filed an eight count Complaint against Federal Housing Finance Agency, Federal National Mortgage Association ("Fannie Mae"), Wells Fargo Bank, N.A., Harmon, and 266 Putnam Avenue, LLC, alleging violations of various statutes and due process.
To survive a motion under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a "complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly 550 U.S. 544, 570 (2007)). "The plausibility inquiry necessitates a two-step pavane." García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013). "First, the court must distinguish `the complaint's factual allegations (which must be accepted as true) from its conclusory legal allegations (which need not be credited).'" Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). "Second, the court must determine whether the factual allegations are sufficient to support `the reasonable inference that the defendant is liable for the misconduct alleged.'" García-Catalán, 734 F.3d at 103 (quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011)). "In determining whether a complaint crosses the plausibility threshold, `the reviewing court [must] draw on its judicial experience and common sense.'" García-Catalán, 734 F.3d at 103 (quoting Iqbal, 556 U.S. at 679).
Harmon conducted a nonjudicial foreclosure proceeding on behalf of Wells Fargo and Fannie Mae to enforce their security interests in the Fitch's property after the Fitch's failure to make payments. In Count VI
The Complaint allegations are not particularly pointed, rendering a decision on a motion to dismiss tricky. Harmon levels several arguments in support of its motion to dismiss but emphasizes its argument that Harmon is not a "debt collector" as defined in the FDCPA. Because the Court finds that Harmon's conduct did not put it in the category of an FDCPA debt collector, it will address Harmon's conduct in executing the foreclosure on Wells Fargo and Fannie Mae's behalf first.
According to the FDCPA, a "debt collector" is defined as a person 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 asserted to be owed or due another." 15 U.S.C. § 1692a(6). The United States Supreme Court dealt with the parameters of this definition in Obduskey v. McCarthy & Holthus LLP, 139 S.Ct. 1029, 1036-38 (2019). The Supreme Court noted that Congress wrote a primary definition, which it recognized would include a business, like Harmon, engaged in nonjudicial foreclosure proceedings. Id. at 1036 (quoting § 1692a(6)) ("[F]oreclosure is a means of collecting a debt. And a business pursuing nonjudicial foreclosures would, under the capacious language of the Act's primary definition, be one that `regularly collects or attempts to collect, directly or indirectly, debts.'").
The Supreme Court also noted that Congress included a "limited-purpose definition," that explains "`[f]or the purpose of section 1692f(6)'
Given the Obduskey Court's definitive ruling on this issue under similar factual circumstances, the Court applies that holding to Mr. Fitch's case. Harmon was engaged by Wells Fargo and Fannie Mae to begin foreclosure proceedings to protect their security interest in the Fitch's property therefore it was not a debt collector under the FDCPA.
Mr. Fitch does not state a claim for a violation of the FDCPA on which he is entitled to relief. The Court GRANTS Harmon's motion to dismiss Count VI. ECF No. 42.
IT IS SO ORDERED.