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Wilson v. Grest

United States District Court, E.D. Louisiana

November 2, 2017


         SECTION “R” (4)



         Defendant Herschel Adcock, Jr.[1] and defendants Carrington Mortgage Services, LLC and Deutsche Bank National Trust Company[2] separately move to dismiss plaintiff's complaint. For the following reasons, the Court grants both motions.

         I. BACKGROUND

         This case arises out of allegedly unfair debt collection practices in connection with a mortgage on a home in New Orleans, Louisiana.[3] On February 25, 1999, plaintiff William Wilson Jr. executed a promissory note and mortgage in favor of the Secretary of Veterans Affairs.[4] The documents attached to plaintiff's complaint indicate that, on June 24, 1999, the note was endorsed by the Department of Veterans Affairs to Bankers Trust Company of California as trustee for Vendee Mortgage Trust 1999-2.[5] Bankers Trust Company is now known as Deutsche Bank National Trust Company.[6]

         Based on the documentation accompanying plaintiff's complaint, it appears that the mortgage entered into foreclosure at some point in time before 2016.[7] Bank of America served as plaintiff's mortgage servicer until September 2016, when it was replaced by Carrington Mortgage Services.[8]Herschel Adcock, Jr. represented Deutsche Bank in a civil suit against plaintiff in Orleans Civil District Court.[9] On September 26, 2016, Adcock withdrew from the case and Nicholas Grest was substituted as counsel of record.[10]

         On April 7, 2017, plaintiff filed a pro se complaint in this Court alleging violations of the Fair Debt Collection Practices Act.[11] Plaintiff attached an exhibit to his complaint containing over 350 pages of documents.[12] Grest was not served with process and was dismissed from this litigation for failure to prosecute.[13] The remaining defendants now move to dismiss plaintiff's complaint for failure to state a claim.[14]


         To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “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)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. See Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

         A legally sufficient complaint must establish more than a “sheer possibility” that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal relevant evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. The claim must be dismissed if there are insufficient factual allegations to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (2007).


         A. Applicability of Fair Debt Collection Practices Act

         The Fair Debt Collection Practices Act (FDCPA) regulates the activities of debt collectors, and does not apply to a creditor seeking to collect its own debts. See Henson v. Santander Consumer USA, Inc., 137 S.Ct. 1718, 1721-22 (2017); see also 15 U.S.C. § 1692a(6) (defining debt collector as a person who collects “debts owed or due or asserted to be owed or due another”). Deutsche Bank contends that it owns plaintiff's debt, and is therefore not a debt collector under the statute.[15]

         The documents attached to plaintiff's complaint make clear that Deutsche Bank is not a debt collector. Plaintiff's exhibit includes a notarized copy of the assignment of his promissory note from the Department of Veterans Affairs to Bankers Trust Company of California, [16] now renamed Deutsche Bank. Further, correspondence from Carrington Mortgage Services to plaintiff identifies Deutsche Bank as the holder of the loan.[17]

         The complaint asserts, without factual basis, that Deutsche Bank is a debt collector.[18] Plaintiff conclusorily alleges that Deutsche Bank acquired a counterfeit copy of plaintiff's promissory note and falsely represented that it is the holder of the note.[19] This allegation is not supported by specific facts and is implausible in light of the extensive documentation related to plaintiff's mortgage attached to the complaint.[20] When “an allegation is contradicted by the contents of an exhibit attached to the pleading, then indeed the exhibit and not the allegation controls.” United States ex rel. Riley v. St. Luke's Episcopal Hosp., 355 F.3d 370, 377 (5th Cir. 2004); cf. Vaillancourt v. PNC Bank, Nat. Ass'n, 771 F.3d 843, 848 (5th Cir.) (“[S]imply questioning the competency of an affiant in general terms in a complaint, when confronted with contrary and facially sufficient exhibit evidence, is insufficient to defeat a motion to dismiss-type inquiry”).

         The exhibits attached to plaintiff's complaint show that Deutsche Bank is not a debt collector, and is therefore not subject to the requirements of the FDCPA. Accordingly, plaintiff's allegations against Deutsche Bank are dismissed with prejudice.

         B. Factual Allegations

         Plaintiff's claims against Carrington Mortgage Services and Adcock must also be dismissed because the complaint contains insufficient factual allegations to state a plausible claim for relief. The Court liberally construes plaintiff's pro se complaint. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). But, “regardless of whether the plaintiff is proceeding pro se or is represented by counsel, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” Taylor v. Books a Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (internal citation and quotation marks omitted). The complaint names each defendant in a separate count, but repeats the same allegations against every defendant. It is therefore unclear what specific violations plaintiff attributes to each defendant.

         Plaintiff makes numerous allegations of false representation, which appear to allege violations of 15 U.S.C. § 1692e. Specifically, plaintiff asserts that defendants used false or fictitious names, falsely represented that they were the holders of the promissory note, falsely and deceptively stated that they were representing various parties, falsely and deceptively requested financial disclosures from plaintiff, and engaged in schemes to obtain ...

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