Saragusa v Countrywide et al, No. 2:2014cv02717 - Document 59 (E.D. La. 2016)
Court Description: ORDER AND REASONS - the Court GRANTS defendants' motions to dismiss Saragusa's first amendment complaint.. Signed by Judge Sarah S. Vance on 3/17/16. (jjs)
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Saragusa v Countrywide et al Doc. 59 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KAREN SARAGUSA CIVIL ACTION VERSUS NO. 14-2717 COUNTRYWIDE, ET AL. SECTION: R (1) ORD ER AN D REAS ON S Defendants Countrywide Hom e Loans, Inc. and Bank of Am erica, 1 defendant Seterus, Inc., 2 and defendant Green Tree Hom e Len ding, LLC, 3 m ove the Court under Federal Rule of Civil Procedure 12(b)(6) to dism iss plaintiff Karen Saragusa’s first am ended com plaint for failure to state a claim . 4 For the following reasons, the Court grants the m otions. 5 1 R. Doc. 31. 2 R. Doc. 43. 3 R. Doc. 45. 4 Saragusa’s original com plaint, asserting various state-law claim s, nam ed only Countrywide and Bank of Am erica as defendants. R. Doc. 1. After Countrywide and Bank of Am erica m oved to dism iss that com plaint, Saragusa filed her first am ended com plaint, asserting various federal-law claim s. R. Doc. 20 . In the first am ended com plaint, Saragusa appears to have abandon ed her state-law claim s. See id. at 22-37. Regardless, Saragusa’s original allegations of fraud, m isrepresentation, and unfair trade practices under Louisiana law, fail to state a claim as a m atter of law. See La. Rev. Stat. § 6:1122; Jesco Const. Corp. v. N ationsbank Corp., 830 So. 2d 989, 990 (La. 20 0 2) (“[T]he Louisiana Credit Agreem ent Statute precludes all actions for dam ages arising from oral credit agreem ents, regardless of the legal theory of recovery.”). 5 The Court notes that, at the tim e of filing her opposition to defendants’ m otions to dism iss, Saragusa was proceeding pro se. The Court will therefore liberally construe Saragusa’s opposition brief. See Perez v. United States, 312 F.3d 191, 194-95 (5th Cir. 20 0 2). At the tim e Saragusa filed her com plaint, however, she was represented by counsel. See R. Doc. 20 at 39. Accordingly, the Court need not liberally construe the allegations in Saragusa’s com plaint. Dockets.Justia.com I. BACKGROU N D The Court sum m arizes the ram bling and confusing allegations in Saragusa’s original an d first am ended com plaint as follows. Saragusa’s financial troubles began after Hurricane Katrina in 20 0 5. At that tim e, Saragusa m aintained a hom e m ortgage loan with defendant Countrywide. Countrywide allegedly m odified her loan som etim e in 20 0 8 as a result of Saragusa’s in ability to pay. 6 Countrywide did not com plete the loan m odification process to Saragusa’s satisfaction. From 20 0 7 to 20 10 , Saragusa and Countrywide com m unicated num erous tim es regarding her purported loan m odification. 7 In October 20 12, the sheriff’s office notified Saragusa that Bank of Am erica would seize her hom e. 8 After resolving this brief scare, Saragusa continued to com m unicate with Bank of Am erica regarding her hom e loan from 20 12 through 20 15. 9 According to Saragusa, Bank of Am erica m odified her hom e loan in 20 14, im posing m ore expen sive m onthly paym ents than she could afford. 10 Saragusa frequently spoke with Edward Dixon in Bank of Am erica’s “Custom er Care” Departm ent leading up to and following this 6 R. Doc. 1 at 2, 16-18 . 7 Id. at 6-7, 16-70 . 8 Id. at 7, 82. Though Saragusa does not fully explain this point, but it appears from her com plaints that Bank of Am erica purchased Countrywide and assum ed Saragusa’s existing hom e loan. 9 See generally id. at 8 3-99. 10 Id. at 8 . loan m odification. 11 On Novem ber 24, 20 14, Saragusa received a “Final Notice” regarding her hom e loan paym ents. 12 Saragusa refused to pay Bank of Am erica again until she spoke with her attorney. 13 After several unsatisfactory com m unications with Bank of Am erica and her filing this lawsuit against Countrywide and Bank of Am erica, Saragusa told Dixon on Decem ber 4, 20 14, that all future com m unication regarding her loan should be directed to her attorney. 14 Dixon called Saragusa twice after Decem ber 4, and on Decem ber 9, 20 14, Saragusa again notified Dixon to com m unicate with her attorney. 15 Dixon and two other Bank of Am erica em ployees (“Patrick” and “Frank”) continued to call Saragusa after Decem ber 9. 16 On April 1, 20 15, Bank of Am erica transferred Saragusa’s unpaid loan am ounts to defendant Seterus, Inc. In a letter dated April 23, 20 15, Seterus notified Saragusa that it was her new loan servicer and debt collector and that Saragusa’s loan had a balan ce of $ 146,370 .41. 17 Seterus tried to com m unicate with Saragusa by letter and telephone 11 Id. at 8-9, 99-10 7. 12 Id. at 10 5. 13 Id. at 10 6. 14 R. Doc. 20 at 7 ¶¶ 16-19. 15 Id. at ¶¶20 -22. 16 Id. at 8-10 . 17 Id. at 12 ¶¶ 56-58 . during April and May 20 15. 18 On May 25, 20 15, Saragusa am ended her com plaint in this Court to add Seterus, Inc. and Green Tree Hom e Lending, LLC, as defendants. 19 Saragusa’s am ended com plaint asserts the following claim s: • • • Count I – a Telephone Consum er Protection Act claim against Bank of Am erica; 20 Count II – a Fair Debt Collection Practices Act claim against Bank of Am erica; 21 Count III – a Louisiana Consum er Credit Law claim , arising under La. Rev. Stat. 9:3562, against Bank of Am erica, Green Tree, and Seterus; 22 • Count IV – a conspiracy claim against Countrywide, Bank of Am erica, Green Tree, and Seterus; 23 and • Count V – an Am ericans with Disabilities Act claim , a Hom e Mortgage Disclosure Act claim , a Com m unity Reinvestm ent Act claim , an Equal Credit Opportunity Act claim , and a Fair Housing Act claim against Bank of Am erica, Green Tree, and Seterus. 24 18 Id. at 12-15. 19 See generally id. 20 Id. at 22-23. 21 Id. at 23-25. 22 Id. at 26-28. Saragusa refers to Louisiana Revised Statute § 9:3562 as the “Louisiana Fair Debt Collection Statute.” For the sake of clarity, the Court will refer to this provision by the chapter title of Louisiana’s Revised Statutes under which section 9:3562 is nested—Louisiana Consum er Credit Law. 23 Id. at 27-32. 24 Id. at 32-34. Defendants Countrywide, Bank of Am erica, Seterus, and Green Tree all m ove to dism iss Saragusa’s first am ended com plaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). 25 Saragusa opposes the m otion. 26 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead “enough facts to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reason able inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. See Lorm and v. US Unw ired, Inc., 565 F.3d 228 , 239 (5th Cir. 20 0 9); Baker v. Putnal, 75 F.3d 190 , 196 (5th Cir. 1996). A legally sufficient com plaint m ust establish m ore 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 m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal evidence of each elem ent of the plaintiff's claim . Lorm and, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent 25 R. Docs. 31, 43, 45. 26 R. Doc. 58. from the face of the com plaint that there is an insuperable bar to relief, the claim m ust be dism issed. Tw om bly , 550 U.S. at 555. In considering a m otion to dism iss for failure to state a claim , a court m ust typically lim it itself to the contents of the pleadings, including their attachm ents. Collins v. Morgan Stanley Dean W itter, 224 F.3d 496, 498 (5th Cir. 20 0 0 ). “If, on a m otion under 12(b)(6) . . . m atters outside the pleadings are presented to and not excluded by the court, the m otion m ust be treated as one for sum m ary judgm ent under Rule 56.” Fed. R. Civ. P. 12(d). Nevertheless, uncontested docum ents referred to in the pleadings m ay be considered by the Court without converting the m otion to one for sum m ary judgm ent even when the docum ents are not physically attached to the com plaint. See Great Plains Trust Co. v. Morgan Stanley Dean W itter & Co., 313 F.3d 30 5, 313 (5th Cir. 20 0 2). The Court m ay also consider docum ents attached to a m otion to dism iss without converting the m otion into one for sum m ary judgm ent if the docum ents are referred to in the com plaint and are cen tral to the plaintiff's claim . Causey v. Sew ell Cadillac– Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 20 0 4). III. D ISCU SSION To begin, the Court notes that Saragusa fails to state a claim as a m atter of law under the Hom e Mortgage Disclosure Act and the Com m unity Reinvestm ent Act, which do not provide for private rights of action. 27 See, e.g., Hicks v. Resolution Trust Corp., 970 F.2d 378 , 38 2 (7th Cir. 1992) (“The Com m unity Reinvestm ent Act m akes no 27 14. Saragusa seem s to concede this point in her opposition brief. See R. Doc. 58 at 13- provision for a civil private cause of action . . . .”); Lee v. E*Trade Fin. Corp., No. 6543, 20 13 WL 40 16220 , at *5 (S.D.N.Y. Aug. 6, 20 13) (“The HDMA does not give individual plaintiffs a private right of action.”). Saragusa also fails to state a claim under the Equal Credit Opportunity Act. Saragusa alleges that defendants have discrim inated against her only on the basis of her physical disability. 28 Physically disabled individuals are not a “protected class” under the Act, which prohibits discrim in ation on the basis of “race, color, religion, national origin, sex or m arital status, or age . . . .” 15 U.S.C. § 1691; see also N ia Hom e Health Care, In c. v. W hitney N at’l Bank, No. 97-190 3, 1998 WL 171522, at *4 (E.D. La. Apr. 9, 1998), aff’d, 20 4 F.3d 1115 (5th Cir. 1999) (“[T]o establish a prim a facie case under the ECOA, plaintiff m ust dem onstrate that . . . he or she is a m em ber of a protected class . . . .”). In addition, other than referring to defendant Green Tree as a loan servicer or debt collection agency, Saragusa has not alleged any facts whatsoever in volving Green Tree. 29 Saragusa has therefore wholly failed to state a claim , under any of her legal theories, against Green Tree. The Court addresses Saragusa’s rem aining claim s in turn. A. Th e Te le p h o n e Co n s u m e r Pro te ctio n Act Claim In Count I, Saragusa alleges that Bank of Am erica violated the Telephone Consum er Protection Act, 47 U.S.C. § 227. The TCPA aim s to protect individual privacy by regulating certain undesirable telem arketing practices, including the use of 28 29 R. Doc. 20 at 1-2, 32-33. See id. at 7-22 (section of the First Am ended Com plaint titled “Updated Chronology of Facts and Actions Taken by Defendants Including . . . Seterus an d Green Tree Len ding” lacks any reference to Green Tree). unsolicited, autom ated phone calls. See Patriotic Veterans, Inc. v. Indiana, 736 F.3d 10 41, 10 45 (7th Cir. 20 13). The Act provides: It shall be unlawful for any person . . . (A) to m ake any call (other than a call m ade for em ergency purposes or m ade with the prior express consent of the called party) using an y autom atic telephone dialing system or an artificial or prerecorded voice . . . to any telephone num ber assigned to a . . . cellular telephone service[; or] (B) to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a m essage without the prior express consent of the called party . . . . 47 U.S.C. § 227 (b)(1)(A)-(B). Saragusa accuses Bank of Am erica of calling her “several tim es per day and on back to back days” without her consent. Under the Act, a person consen ts to receiving phone calls if she gives a com pany her num ber before the com pany calls her. See Hill v. Hom ew ard Residential, Inc., 799 F.3d 544, 552 (6th Cir. 20 15). Moreover, under the Act, “a debtor does not need to give h[er] consent to autom ated calls specifically; h[er] general consent to being called . . . constitutes ‘prior express consent.’” Id. Here, accepting her allegations as true, Saragusa consented to receiving m any of the com plained-of telephone calls regarding her loan m odification efforts. First, in connection with addressing her loan m odifications, Saragusa provided defendants with her phone num ber on several occasions. 30 Second, even after retaining an attorney, Saragusa authorized Countrywide and Bank of Am erica to call her directly. 31 30 See, e.g., R. Doc. 1-3 at 10 , 12, 33, 40 , 52-53, 62, 64; R. Doc. 1-4 at 2, 41, 43, 5255; R. Doc. 1-5 at 2, 4, 9, 42, 46, 48 , 60 ; see also R. Doc. 31-1, Exhibit D. 31 See R. Doc. 20 -2 at 2 (J uly 8, 20 0 8 letter from attorney Cynthia De Luca) (“If you have an y further questions or need to discuss this further please feel free to contact m e or Karen Saragusa.”); Id. at 3 (October 4, 20 12 letter from attorney Daniel Abel) Though Saragusa m ay have revoked her consent, she did not do so until Decem ber 20 14, according to her own allegations. See Gager v. Dell Fin. Servs., LLC, 727 F.3d 265, 270 (3d Cir. 20 13) (recognizing a consum er’s ability to revoke her prior express consent). Saragusa alleges that on Decem ber 4, 20 14, and again on Decem ber 9, she faxed Edward Dixon at Bank of Am erica a letter requesting that all phone calls from the com pany be directed to her attorney. 32 Because Saragusa consented to receiving calls before Decem ber 4, none of those com m unications trigger liability under the TCPA. Regarding the calls she received from Bank of Am erica after Decem ber 4, 20 14, Saragusa has not sufficiently alleged the other elem ents of a TCPA claim . In conclusory fashion, Saragusa alleges that Bank of Am erica used an “autom atic telephone dialing system ” or an “artificial or prerecorded voice” to m ake the calls. First, m ere recitation of the elem ents of a cause of action is insufficient to plausibly state a claim for relief. See Iqbal, 556 U.S. at 678. Beyond that, other allegations of Saragusa’s com plaint contradict this assertion. The TCPA defines the “autom atic telephone dialing system ” as equipm ent capable of “stor[ing] or produc[ing] telephone num bers to be called, using a random or sequential num ber generator [and] dial[ing] such num bers.” 47 U.S.C. § 227(a)(1)(A)-(B). Here, Saragusa’s TCPA claim is prem ised on Bank of Am erica “harassing” her about her outstanding debt. This harassm ent allegedly occurred on a few occasions in 20 14 an d 20 15 after Saragusa had repeatedly com m unicated with and provided her contact (“[A]lthough I represent Ms. Saragusa, you m ay speak with her an d she with you about these m atters even when I am not on the phone with you both.”). 32 R. Doc. 20 at 7 ¶¶ 19, 22. inform ation to num erous Bank of Am erica em ployees over the course of ten years. The Court cannot reasonably infer from these facts that Bank of Am erica random ly generated Saragusa’s cellular and hom e phone num bers with an autom atic telephone dialing system , rather than deliberately dialed the num bers that she provided to the com pan y. Further, Saragusa alleges that after she told Dixon to direct all com m unication regarding her loan to her attorney, she continued to receive phone calls from Dixon, and two other people at Bank of Am erica em ployees, Patrick and Frank. These real-tim e calls from people that Saragusa knows to be em ployees of Bank of Am erica do not violate the TCPA’s prohibition on using an “artificial or prerecorded voice.” See Ybarra v. Dish N etw ork, LLC, 8 0 7 F.3d 635, 640 (5th Cir. 20 15) (“[A] defendant m ust m ake a call and an artificial or prerecorded voice m ust actually play.”); Ley se v. Bank of Am . N at’l Ass’n, 8 0 4 F.3d 316, 322 (3d Cir. 20 15) (“The Telephone Consum er Protection Act was intended to com bat, am ong other things, the proliferation of autom ated telem arketing calls (known as ‘robocalls’) . . . .” (em phasis added)). Therefore, Saragusa has failed to state a claim under the TCPA. B. Th e Fa ir D e bt Co lle ctio n Practice s Act Claim In Count II, Saragusa alleges that Bank of Am erica violated the Fair Debt Collection Practices Act. The FDCPA seeks to elim inate “abusive, deceptive, and unfair debt collection practices” by regulating the type and num ber of contacts a “debt collector” m ay m ake with a debtor. See 15 U.S.C. § 1692, et seq. To state a claim under the FDCPA, the plaintiff must allege that (1) she has been the object of collection activity arising from consum er debt, (2) the defendant is a “debt collector” as defined by the Act, and (3) the defendant has engaged in an act or om ission prohibited by the Act. See, e.g., Alvarado v. Credit Prot. Ass'n, L.P., No. 8 :14-cv-447-T-33TGW, 20 15 WL 18 158 63, at *3 (M.D. Fla. Apr. 22, 20 15). As a bank attem pting to collect the debt Saragusa owed directly to it, Bank of Am erica is not a “debt collector” within the m eaning of the Act. See Thom asson v. Bank One, La., N .A., 137 F. Supp. 2d 721, 724 (E.D. La. 20 0 1) (collecting cases). Saragusa therefore fails to state a claim under the FDCPA. C. Th e Lo u is ian a Co n s u m e r Cre d it Law ( La. Re v. Stat. § 9 :3 56 2 ) a n d Co n s p iracy Claim s In Count III, Saragusa alleges that that Bank of Am erica violated Louisiana Revised Statute § 9:3562 by “willfully com m unicating with Plaintiff with such frequency as can reasonably be expected to harass the Plaintiff [and] by attem pting to enforce a debt when such person knows that the debt is not legitim ate.”33 In addition, Saragusa alleges that Green Tree and Seterus “have also com m itted acts and om issions in violation of [Revised Statute section] 9:3562.”34 Section 9:3562 provides that a creditor “shall not contact any person other than an extender of credit or credit reporting agen cy who is not living, residing, or present in the household of the debtor regarding the debtor’s obligation to pay a debt.” This statute prohibits creditors from com m unicating with third-parties about a debtor’s obligation. See Manuel H. Newburger & Barbara M. Barron, Fair Debt Collection Practices: Federal and State Law and Regulation ¶19.0 6[4][a] (20 13). Because Saragusa has not alleged that Bank of Am erica, Green Tree, or Seterus unlawfully com m unicated with anyone but her, she fails to state a claim under Louisiana Revised Statute § 9:3562. 33 R. Doc. 20 at 26. 34 Id. at 28. In Count IV, Saragusa also alleges that Bank of Am erica, Countrywide, Green Tree, and Seterus have conspired to violate the Louisiana Consum er Credit Law and the Fair Debt Collection Practices Act. Because Saragusa has failed to state a claim for the alleged underlying violation of the Louisiana Consum er Credit Law or the Fair Debt Collection Practices Act, she has also failed to state a claim that defendants have conspired to violate those laws. D. Th e Fair H o u s in g Act an d Am e rican s w ith D is abilitie s Act Claim s In Count V, Saragusa alleges that Bank of Am erica, Green Tree, and Seterus violated the Fair Housing Act and the Am ericans with Disaibilities Act. The Fair Housing Act prohibits discrim ination because of handicap in “residential real estate-related transactions,” including “the m aking or purchasing of loans or providing other finan cial assistan ce.” 42 U.S.C. § 360 5; see also Meadow briar Hom e for Children, Inc. v. Gunn, 8 1 F.3d 521, 530 (5th Cir. 1996). To state a claim for relief under the Act, a plaintiff “m ust show proof of intentional discrim ination . . . either through direct eviden ce or through circum stantial eviden ce using the burden-shifting fram ework first articulated in McDonnell Douglas Corp. v. Green.” HDC, LLC v. City of Ann Arbor, 675 F.3d 60 8, 612 (6th Cir. 20 12). Under McDonnell’s burden-shifting test, the plaintiff m ust dem onstrate that (1) she is a m em ber of a protected class, (2) she attem pted to engage in a “real-estate related transaction” with the defendants and m et all relevant qualifications for doing so, (3) the defendants refused to engage in the real-estate related transaction despite the plaintiff’s qualifications, and (4) the defendants continued to engage in that type of transaction with other parties outside of the plaintiff’s class with sim ilar qualifications. See Molina v. Aurora Loan Servs., LLC, _ _ F. App’x _ _ , 20 15 WL 7753215, at *5 (11th Cir. 20 15) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). Although Saragusa alleges that a work-related injury has left her “totally disabled,”35 she has not alleged sufficient facts from which the Court can reasonably infer that defendants m odified Saragusa’s loan to her dissatisfaction because of her disability. On the contrary, accepting Saragusa’s allegations as true, it appears that em ployees of Bank of Am erica attem pted to work with Saragusa to secure m ore favorable financing for her during the penden cy of her Social Security disability hearings. 36 In addition, Saragusa did not tell Bank of Am erica that her disability m ade her new m onthly loan am ount unaffordable until after her m odification had been finalized. 37 Further, Saragusa does not offer any inform ation regarding the qualifications for the loan m odification she was seeking, whether she m et those qualifications, or whether defendants entered into loan m odifications with other non-disabled people with sim ilar qualifications to Saragusa. Therefore, Saragusa fails to state a claim for discrim ination under the FHA. Finally, Saragusa fails to state a claim against defendants under the Am erican s with Disabilities Act, 42 U.S.C. § 1210 1, et seq. The ADA prohibits discrim in ation on the 35 R. Doc. 20 at 2. 36 See, e.g., R. Doc. 1 at 96 ¶ 262 (Bank of Am erica em ployee offering to follow up with Saragusa after she checked on her disability status); id. at 98 (Bank of Am erica em ployee using a “letter from Disability Office” to “help with the [loan m odification] process” and repeatedly calling Saragusa to update her on the status of her loan m ofication); id. at 99-10 0 (Bank of Am erica em ployee “checking in” with Saragusa while she awaited a disability determ ination); id. at 10 0 (Bank of Am erica em ployee attem pting to start a new loan m odification based on recent Social Security Disability Award letter after earlier denial). 37 R. Doc. 1 at 8 -9 . basis of physical or m ental disability by public or private em ployers, see generally § 12112; entities who adm in ister public service benefits or program s, see generally § 12132; an d entities who own, lease, or operate places of public accom m odation, see generally § 1218 2, none of which applies here. IV. CON CLU SION For the foregoing reasons, the Court GRANTS defendants’ m otions to dism iss Saragusa’s first am endm ent com plaint. New Orleans, Louisiana, this 17th day of March, 20 16. ___ ____________________________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE
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