Pacaya v. Freedom Mortgage Corp. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Elvis-Jack:Pacaya
v. 	Case No. 23-cv-279-LM
Freedom Mortgage Corp.
Orlans, PC
Federal Mortgage Home Loan Corp.
Grafton County Sheriff’s Dept.
REPORT AND RECOMMENDATION
Plaintiff Elvis-Jack:Pacaya has sued several defendants,
alleging violations of the Fair Debt Collection Practices Act,
15 U.S.C. §§ 1692-1692p (“FDCPA”) and the Real Estate Settlement
Procedures Act, 12 U.S.C. § 2605(e)(3) (“RESPA”). 	Before the
court is defendant Grafton County Sheriff Dept.’s (“GCSD”)
motion to dismiss for failure to state a claim upon which relief
can be granted (Doc. No. 4), to which the plaintiff has timely
objected, (Doc. No. 10). 	See Fed. R. Civ. P. 12(b)(6).
Pursuant to LR 72.1, the motion has been referred to the
undersigned Magistrate Judge for a report and recommendation.
For the reasons that follow, the district judge should grant
GCSD’s motion.
Standard of Review
When evaluating a motion to dismiss for failure to state a
claim under Rule 12(b)(6), the court asks whether the plaintiff
has made allegations in his pleadings that are sufficient to
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render his entitlement to relief plausible. 	See Manning v.
Boston Med. Ctr. Corp., 725 F.3d 34, 43 (1st Cir. 2013). 	The
court accepts all well-pleaded facts as true and draws all
reasonable inferences in the non-moving party's favor. Hamann v.
Carpenter, 937 F.3d 86, 88 (1st Cir. 2019). 	The court, however,
disregards conclusory allegations that simply parrot the
applicable legal standard. Manning, 725 F.3d at 43. 	In addition
to the allegations in the complaint, the court may also consider
judicially noticed documents, matters of public record, and
documents attached to the complaint, without converting this
12(b)(6) motion into a motion for summary judgment. 	See
Breiding v. Eversource Energy, 939 F.3d 47, 49 (1st Cir. 2019);
Greene v. Rhode Island, 398 F.3d 45, 49 (1st Cir. 2005).
Background
The factual allegations in the complaint (Doc. No. 1)
against GCSD are sparse. On May 1, 2023, GCSD personnel served
with a notice to quit through abode service. Compl. (Doc. No. 1)
¶ 39–40. 	Plaintiff further claims that the GCSD was acting as a
debt collector attempting to collect an alleged debt against the
Plaintiff. Id. ¶ 12. In addition, plaintiff claims that
“[h]aving service done by respondent Grafton gave the claimant
the false representation that respondent alleged debt was
vouched for by the State of New Hampshire.” Id. ¶ 41. 	Next,
plaintiff claims that the GCSD was operating as a private
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corporation acting as a debt collector. Id. ¶ 10. Finally,
plaintiff asserts that the GCSD’s service of the notice to quit
caused him unspecified “harm, damage, and loss.” (Id. ¶ 44.
Discussion
In Count V of his complaint, plaintiff alleges that the
GCSD violated the FDCPA when it served him with a notice to
vacate premises.1 	Congress enacted 	the FDCPA “to eliminate
abusive debt collection practices” by “debt collectors.” 15
U.S.C. § 1692(e). 	For example, under the FDCPA, a “debt
collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any
debt,” 15 U.S.C. § 1692e, and a “debt collector may not use
unfair or unconscionable means to collect or attempt to collect
any debt,” 15 U.S.C. § 1692f. 	To ultimately prevail on a claim
under the FDCPA, the plaintiff must show that: “(1) they have
been the object of collection activity arising from a consumer
debt; (2) the defendant attempting to collect the debt qualifies
as a ‘debt collector’ under the Act; and (3) the defendant has
engaged in a prohibited act or has failed to perform a
requirement imposed by the Act.” Moore v. Mortg. Elec.
1Plaintiff specifically alleges a violation of 15 U.S.C. §
1692(e)(1), which proscribes “[t]he false representation or
implication that the debt collector is vouched for, bonded by,
or affiliated with the United States or any State, including the
use of any badge, uniform, or facsimile thereof.”
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Registration Sys., Inc., 848 F. Supp. 2d 107, 124 (D.N.H. 2012)
(quotation and brackets omitted).
Under the plain language of the statute, liability under
the FDCPA requires the defendant to be a “debt collector,” which
the Act defines as “ ‘any person . . . in any business the
principal purpose of which is the collection of any debts, or
who regularly collects or attempts to collect . . . debts owed
or due or asserted to be owed or due another.’ ” Sheriff v.
Gillie, 136 S. Ct. 1594, 1598 (2016) (quoting 15 U.S.C. §
1692(e)). “The plaintiff in an FDCPA action bears the burden of
proving the defendant's debt collector status.” Goldstein v.
Hutton, Ingram, Yuzek, Gainen, Carroll & Bertolotti, 374 F.3d
56, 60 (2d Cir.2004).
GCSD bases its motion on 15 U.S.C. § 1692a(6)(C), which
excludes several categories of actors from the statutory
definition of “debt collector.” 	As relevant here, the statute
excludes “any officer or employee of the United States or any
State to the extent that collecting or attempting to collect any
debt is in the performance of his official duties.”
Plaintiff’s objection (Doc. No. 10) provides no serious
response to GCSD’s argument. 	Aside from largely irrelevant
legal jargon, the bulk of the objection’s twenty-two paragraphs
baselessly question defense counsel’s legal right to appear in
this case, rather than address the question of whether the
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defendant is a “debt collector.”2 	This arguably forfeits
plaintiff’s right to argue that the GCSD personnel were acting
as “debt collectors,” within the meaning of the FDCPA. 	See Hill
v. State, No 22-cv-290-PB, 2023 WL 4204662, at *3 (D.N.H. June
27, 2023) (“It is a long-established policy that when a party's
opposition to a motion fails to respond to arguments raised by
the opposing party, a court may treat those unopposed arguments
as conceded.” (quoting Int'l Union, United Gov't Sec. Officers
of Am. v. Clark, 704 F. Supp.2d 54, 60 (D.D.C. 2010).
Plaintiff’s concession notwithstanding, the exclusion in
section 1692a(6)(C) reflects the fact that “[t]he term debt
collector is not intended to include the following: . . .
Government officials, such as marshals and sheriffs, while in
the conduct of their official duties.” 	Heredia v. Green, 667
F.2d 392, 399 (3d Cir. 1981) (quoting S. Rep. No. 95-382
(1977)). 	In Heredia, the court found that a Landlord and Tenant
Officer – a court-appointed position for serving notices to quit
upon tenants – was excluded from liability under the FDCPA.
Similarly, in Hicks v. Ward, Civ. No. PX 17-258, 2017 WL
4786616, at *4 (D. Md. Oct. 24, 2017), the court found that a
2For example, plaintiff states that “he sees no facts or
evidence that [defense counsel} is not required to use a full
legal name,” is using his “full legal name,” or is not required
to register as a foreign agent under the Foreign Agent
Registration Act.” 	Pltf. Obj. (Doc. No. 10) ¶¶ 3, 4, and 19.
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County Sheriff serving process was not a “debt collector” under
the FDCPA. 	See also Garcia v. Fry, 186 F. Supp. 3d 228, 232 (D.
Conn. 2016) (finding that state marshal attempting to collect a
debt in his official job capacity was exempt from FDCPA even
though his attempt was not made in accordance with applicable
state law regarding service); 	Rojo v. Watson, No. 15-CV-3134,
2016 WL 5394679 (D. Neb. Sept. 27, 2016) (sheriffs that were
allegedly “acting like private debt collectors” were entitled to
“officer” exception). The court reaches the same conclusion
here. 	The GCSD personnel serving plaintiff with a notice to
quit are not “debt collectors” within the meaning of the FDCPA.3
Conclusion
Based on the foregoing, the district court should grant
defendant GCSD’s motion to dismiss Count V of the complaint.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. See Fed.
R. Civ. P. 72(b)(2). The fourteen-day period may be extended
upon motion. 	Only those issues raised in the objection(s) to
this Report and Recommendation are subject to review in the
district court. See Sch. Union No. 37 v. United Nat'l Ins. Co.,
617 F.3d 554, 564 (1st Cir. 2010). 	Any issues not preserved by
3Although plaintiff alleges in his complaint the defendants
were “acting as debt collectors,” the court need not accept such
legal conclusion in considering the defendant’s motion. 	Manning,
725 F.3d at 43
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such objection(s) are precluded on appeal. See id. Failure to
file any objections within the specified time waives the right
to appeal the district court's Order. 	See Santos-Santos v.
Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
July 14, 2023
cc: 	Elvis-Jack: Pacaya, pro se
Counsel of Record
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