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Windham v. Harmon Law Offices P.C.

United States District Court, D. Massachusetts

January 7, 2016

RACHEL A. WINDHAM, Plaintiff,
v.
HARMON LAW OFFICES, P.C. and JPMORGAN CHASE BANK, N.A., Defendants.

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION TO DISMISS

F. Dennis Saylor IV United States District Judge.

This lawsuit arises out of an attempted foreclosure on a residential property owned by plaintiff Rachel Windham.

On June 24, 2015, Windham filed a pro se complaint against defendant Harmon Law Offices, P.C. alleging that it was in the process of “attempting to move to illegally foreclose on the [p]laintiff’s property” and seeking an order enjoining Harmon from proceeding with the foreclosure sale. (Compl. at 2-3). Harmon is the law firm that handled the foreclosure; the lender is JPMorgan Chase Bank, N.A. On that same day, she filed an emergency motion for an injunction against the scheduled foreclosure auction along with a motion for leave to proceed in forma pauperis. (Dkt. Nos. 2-3).

On June 26, 2015, this Court (Woodlock, J.) issued an order granting the motion for leave to proceed in forma pauperis. (Dkt. No. 7). The order directed plaintiff to submit a memorandum of law in support of her motion to enjoin the foreclosure, including “an explanation of the basis of the Court’s subject matter jurisdiction over this action.” Windham filed the memorandum on July 1, 2015. (Dkt. No. 10). The memorandum appeared to assert claims against Harmon based on a number of federal statutes, including 15 U.S.C. § 1692(f)(6)(C) (a section of the Fair Debt Collection Practices Act), 18 U.S.C. § 241 (a criminal provision concerning conspiracy to violate federal law), and 26 U.S.C. § 7206 (a criminal provision of the Internal Revenue Code).

In an order issued July 8, 2015, this Court held that federal jurisdiction could not be predicated on the two criminal statutes alleged, but allowed Windham the opportunity to clarify the complaint with respect to her potential claim under the FDCPA. Following the order, Windham filed an amended complaint on July 9, 2015, adding JPMorgan Chase Bank, N.A. as a named defendant. The amended complaint does not refer to 15 U.S.C. § 1692(f)(6), but alleges in general terms that both Harmon and the bank “meet the requirements of . . . Unlawful Collection Practices, 15 USC 1692 (including listing the Plaintiff’s debt for sale to the public . . . .” (Am. Compl. at 1-2).

On July 20, 2015, Harmon filed a motion to dismiss the claims against it, contending that the Court lacks subject-matter jurisdiction over Windham’s claims, and, alternatively, that the amended complaint fails to state a claim against Harmon.

I. Legal Standard

On a motion to dismiss, the Court “must assume the truth of all well-plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v. Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the complaint must state a claim that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555 (citations omitted). “The plausibility standard is not akin to a ‘probability requirement, ’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if plaintiff's well-pleaded facts do not “possess enough heft to show that plaintiff is entitled to relief.” Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (quotations and original alterations omitted).

A document filed by a pro se party “is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (internal quotation marks omitted). See also Fed. R. Civ. P. 8(e) (“Pleadings must be construed so as to do justice.”).

II. Analysis

Harmon first contends that the Court lacks subject-matter jurisdiction over plaintiff’s claims. Whether a claim “arises under” federal law generally depends on an evaluation of the “well-pleaded complaint.” Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808 (1986). As noted, the two criminal statutes to which plaintiff previously referred clearly cannot give rise to federal jurisdiction. However, the reference to the Fair Debt Collection Practices Act in the amended complaint, while vague and brief, appears to allege that Harmon violated the FDCPA by “listing the Plaintiff’s debt for sale to the public.” At this stage, and because plaintiff is proceeding pro se, the Court will construe the complaint liberally and decline to dismiss the action based on a lack of federal subject-matter jurisdiction.

Harmon further contends that even if federal question jurisdiction exists under the FDCPA, the amended complaint must be dismissed under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted.

The amended complaint refers only generally to 15 U.S.C. § 1692, alleging that Harmon “[met] the requirements of . . . Unlawful Collection Practices, 15 USC 1692 (including listing the Plaintiff’s debt for sale to the public . . . .” (Am. Compl. at 1-2). Plaintiff’s opposition to the motion to dismiss indicates that the basis for that claim is that the FDCPA “provides that under no circumstances shall a debt collector ‘list your debt for sale to the public, ’”and that “Harmon Law Offices caused to be printed by way of a public notice in the Randolph Herald that the Plaintiff’s home would be auctioned for non-payment of the mortgage, violating this statute.” (Pl. Opp. at 3).

The Court will assume, without deciding, that the FDCPA applies to the actions of attorneys who conduct foreclosure proceedings.[1] It appears that the complaint alleges a violation of 15 U.S.C. § 1692d(4), which prohibits “[t]he advertisement for sale of any debt to coerce payment of the debt.” According to the complaint, as amplified by plaintiff’s opposition memorandum, the publication of the foreclosure notice in the newspaper violated that provision. But there is nothing in the complaint to suggest that the publication was anything other than an ordinary notice of a foreclosure sale; it was not an advertisement for sale of a debt, but an advertisement concerning ...


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