United States District Court, D. Rhode Island
LLOYD AMESBURY, on behalf of plaintiff and the class members defined herein, Plaintiff,
BAKER, BRAVERMAN & BARBADORO, P.C., Defendant.
J. McConnell, Jr. United States District Judge
January 8, 2016, the law firm of Baker, Braverman &
Barbadoro, P.C. ("Baker") sent Lloyd Amesbury a
letter indicating that he was in default on his mortgage and
that he owed $8, 274.37 in back payment, interest, and late
charges. He received two additional cure amounts, one in
April for $14, 801.45 and one in May as part of a proof of
claim in bankruptcy for $24, 762.62. It is this discrepancy
between the amount in the January letter and the amount four
months later, which was three times the original amount, that
forms the basis for Mr. Amesbury's Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 ("FDCPA")
claim. He filed the instant suit and a motion to certify a
class, which the Court denied without prejudice as moot until
Baker was served and answered.
the Court is Baker's motion to dismiss for failure to
state a claim. The basis for Baker's motion is that Mr.
Amesbury has not plausibly alleged that it is a debt
collector as defined in the federal FDCPA. Additionally,
Baker argues that Mr. Amesbury's complaint fails to state
a claim that its conduct violated the FDCPA, even it is could
be considered a debt collector.
Amesbury opposed the motion, not by filing a brief
substantively opposing Baker's arguments, but by seeking
leave to file a second amended complaint. This complaint
purports to include additional factual allegations on
Baker's role as a debt collector and highlighting
portions of Baker's letter to Mr. Amesbury that
demonstrates that it was a collection communication. The
Court granted Mr. Amesbury's motion for leave to file the
second amended complaint, see TEXT ORDER, May 4,
2017, and now considers Baker's motion to dismiss this
latest complaint ("Second Amended Complaint").
function of a motion to dismiss is to test the sufficiency of
the complaint. Godin v. Schencks, 629 F.3d 79, 89
(1st Cir. 2010). This Court '"must assume the truth
of all well-plead facts and give the plaintiff[s] the benefit
of all reasonable inferences therefrom.'"
Genzyme Corp. v. Federal Ins. Co., 622 F.3tf 62, 68
(1st Cir. 2010) (quoting Ruiz v. Bally Total Fitness
Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007)). The
complaint will survive if it establishes '"a
plausible entitlement to relief.'" Id.
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
559 (2007)). This Court should not grant the motion to
dismiss if it "'contain[s] sufficient factual matter
to state a claim to relief that is plausible on its
face.'" Rodriguez-Reyes v.
Molina-Rodriguez, 711 F.3d 49, (1st Cir. Mar. 22, 2013)
(quoting Grajales v. PR. Ports Auth., 682 F.3d 40,
44 (1st Cir. 2012)).
questions raised by Baker's motion are: has Mr. Amesbury
properly alleged that it is a "debt collector" as
defined by the FDCPA and is the January 8, 2016 letter a
collection communication or an enforcement of a security
interest? Baker argues that it is not a debt collector in
accordance with this definition because its January 2016
correspondence was a communication regarding foreclosure on
behalf of its client Middlesex Bank, not an attempt to
collect a debt. A "debt collector" is
any person who uses any instrumentality of interstate
commerce or the mails 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 due or asserted to be owed or due
15 U.S.C.A. § 1692a(6) (emphasis added). Other courts
have found that letters seeking payment on a promisory note
are attempts to collect a debt. See Glazer v. Chase Home
Fin. LLC, 704 F.3d 453, 461-62 (6th Cir. 2013);
Reese v. Ellis, Painter, Ratterree & Adams, LLP,
678 F.3d 1211, 1216-17 (11th Cir. 2012); Wilson v. Draper
& Goldberg, P.L.L.C., 443 F.3d 373, 376-77 (4th Cir.
2006). These decisions are very fact specific, but the
rationale behind each court's holding appears to be
Court finds that Mr. Amesbury's Second Amended Complaint
contains enough factual content to allow a reasonable
inference that Baker is a "debt collector." The
complaint alleges that Baker "regularly uses the mails
and telephone system to collect consumer debts, "
"advertises its services to assist clients with
foreclosures, " and that the law firm "regularly
assists clients, including Middlesex Bank, in collecting
debts in foreclosure and this is a debt collector as defined
in the FDCPA." ECF No. 11-1 at ¶¶ 12, 13, 14.
Mr. Amesbury alleges that the letter sought "to collect
a loan secured by plaintiffs residence in Woonsocket. The
loan was used for personal, family and household purposes,
and not for business purposes, " Id. at ¶
16. The complaint also alleges in multiple paragraphs that
the letter is a form letter, a standardized initial letter
that Baker sends to mortgagors. Id. at ¶¶
19, 25. Taking all reasonable inferences in Mr.
Amesbury's favor as the Court must at this stage, the
standardized nature and text of the letter implies that Baker
regularly engages in sending similar letters to collect
mortgage debts. As such, Mr. Amesbury's Second Amended
Complaint has adequately pled that Baker is a debt collector.
argues that this Court should follow the Pimental v.
Wells Fargo Bank, N.A., C.A. No. 14-494S, 2015 WL
5243325 (D.R.I. Sept. 4, 2015), report and recommendation
adopted, 2016 WL 70016 (D.R.I. Jan. 6, 2016) decision,
where the court dismissed plaintiffs' claims against a
law firm under the FDCPA because the complaint allegations
failed to plausibly allege that the firm was a "debt
collector" under the statute. The facts of that case are
different though because the court noted that the complaint
did not allege that the firm's correspondence was
attempting to collect a debt or that the firm was engaged in
debt collection. Pimental, 2015 WL 5243325, at *2.
In fact, in the law firm's answer,  it made
contradictory factual allegations - such as that it had been
hired to foreclose on the mortgage - that undisputedly
overcame some of the allegations in the plaintiffs'
complaint. Id. Additionally, the letter in that case
stated that the plaintiffs were not personally liable for the
debt - a fact that contradicted the Pimental
plaintiffs' allegation that the law firm asserted that
they still owed the debt. Id. at *10. Because the
posture of this case was different and the facts on which the
court based its plausibility finding are not present here or
alleged in his Second Amended Complaint, the Court declines
to follow the very fact-based reasoning in the
issue of whether the January 8, 2016 letter is a debt
collection correspondence or an attempt to enforce a security
interest, the Court finds that Mr. Amesbury has adequately
alleged that the letter was an attempt to collect a debt.
Baker argues in its memorandum that it was an enforcer of a
security interest as though it was a foregone conclusion,
framing additional arguments for dismissal on that fact
alone. However, Mr. Amesbury does not allege in his Second
Amended Complaint, which is the operative document at this
stage that Baker is in the business of enforcing security
interests or initiating foreclosures. The Court finds,
therefore, that the nature of Baker's conduct vis-a-vis
Mr. Amesbury's outstanding mortgage loan is a factual
issue at this very early stage of litigation and should be
resolved after discovery and, if there is no dispute that
Baker was in fact attempting to enforce a security interest,
a motion for summary judgment could be appropriate.
Cicalo v. Hunt Leibert Jacobson, P.C., No.
3:i6-CV-339 (SRU), 2017 WL 101302, at *4 (D. Conn. Jan. 10,
2017) (citing Derisme v. Hunt Leibert Jacobson P.C.,
880 F.Supp.2d 339, 362-63 (D. Conn. 2012); Wilson,
443 F.3d at 379; Pimental, 2015 WL 5243325, at *9).
Baker advocates that Mr. Amesbury's Second Amended
Complaint should be dismissed on substantive grounds because
the January 8, 2016 letter was accurate and did not
misrepresent the amount he owed. It argues that the $8,
274.37 originally cited did not exclude the reality that
other fees and expenses were also outstanding and would need
to be collected. The reality is that the $8, 274.37 in
January grew to $24, 763.62 in just four months - that is a
three-fold increase. While discovery may account for such an
astronomical increase in the amount to cure default,
"the sheer amount of the increase makes it plausible
that one or more of those amounts is not accurate. If one or
both of the amounts is incorrect, the defendants would likely
have violated section 1692e's prohibition on false
statements in connection with an attempt to collect on a
debt." Cicalo, 2017 WL 101302, at * 7. Mr.
Amesbury is entitled to discovery to find out whether any of
the three amounts are incorrect or misleading in accordance
with the FDCPA.
Motion to Dismiss ...