Pacaya v. Freedom Mortgage Corp. et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Elvis-Jack:Pacaya
v. Civ. 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 Federal Home Loan Mortgage Corp.’s (“Freddie
Mac”) motion to dismiss the two FDCPA claims asserted against it
for failure to state a claim upon which relief can be granted
(Doc. No. 23). Plaintiff has filed no substantive objection.1
See Fed. R. Civ. P. 12(b)(6). Pursuant to LR 72.1, the motion
1 Plaintiff’s purported objection (Doc. No. 27) contains no
responses to Freddie Mac’s motion. Instead, each of its twenty
paragraphs baselessly questions defense counsel’s “standing” to
represent Freddie Mac. The court may not deem the lack of a
response to be procedural default. Pomerleau v. W. Springfield
Pub. Sch., 362 F.3d 143, 145 (1st Cir. 2004). Instead, the
district court remains obligated to “examine the complaint
itself to see whether it is formally sufficient to state a
claim.” Id.
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has been referred to the undersigned Magistrate Judge for a
report and recommendation. For the reasons that follow, the
district judge should grant Freddie Mac’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
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). The
court can also consider “documents central to plaintiffs’ claim;
or . . . documents sufficiently referred to in the complaint.”
Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
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B. Count III – Violation of 15 U.S.C. § 1692(g) (FDCPA)
In Count III, plaintiff alleges that Freddie Mac violated
the FDCPA by failing to respond to plaintiff’s “demand for
validation of a claim with regards to their claim of debt.”
Compl. (Doc. No. 1) ¶ 29. This claim fails because Freddie Mac
is a “creditor,” rather than a “debt collector,” as those terms
are defined in the statute.
Pursuant to 15 U.S.C. § 1692a(6), a “debt collector”
means 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 another. Notwithstanding
the exclusion provided by clause (F) of the last
sentence of this paragraph, the term includes any
creditor who, in the process of collecting his own
debts, uses any name other than his own which would
indicate that a third person is collecting or
attempting to collect such debts.
(emphasis added). Here, plaintiff’s allegation in Count I as to
a “mortgage contract,” Compl. (Doc. No. 1) ¶ 15, and his request
in Count II for Freddie Mac to “validate . . . their claim of a
debt,” demonstrates that Freddie Mac was not “Seeking to collect
. . . debts . . . owed or due another,” but was instead a
“creditor,” defined as
“any person who offers or extends credit creating a
debt or to whom a debt is owed, but such term does not
include any person to the extent that he receives an
assignment or transfer of a debt in default solely for
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the purpose of facilitating collection of such debt
for another.
15 U.S.C. § 1692a(4). As a “creditor,” Freddie Mac is
“generally exempt from the definition of ‘debt collector’ and
are thereby exempt from FDCPA liability.” Johnson-Toothaker v.
Bayview Loan Servicing LLC, No. 2:20-CV-00371-JDL, 2022 WL
3278883, at *7 (D. Me. Aug. 11, 2022). Accordingly, Count III
should be dismissed.
C. Count VI - Violations of 15 U.S.C. §§ 1692c-1692g (FDCPA)
In Count VI, plaintiffs allege that Freddie Mac (and
others) violated numerous provisions of the FDCPA by:
• communicating with the plaintiff without his consent;
• threatening the plaintiff with violence or other criminal
means;
• using obscene and profane language;
• instilling a false representation of the legal status of an
alleged debt;
• instilling a false representation regarding plaintiff’s
ability to defend against payment;
• instilling a false representation that plaintiff committed
a crime; and
• attempting to collect a debt without authority.
Compl. (Doc. No. 1) ¶¶ 47-53.
Although the plaintiff has accurately identified FDCPA
provisions which prevent debt collectors from engaging in
certain actions, he has failed to allege any “supporting facts,”
see Wood, 2023 WL 3867254, at *2 (cleaned up), “such as the
dates, times, or content of the allegedly unlawful”
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communications or representations. Chiras v. Associated Credit
Servs, Inc., No 12-10871-TSH, 2012 WL 3025093, at *1 (D. Mass.
July 23, 2012) (dismissing FDCPA claim). Plaintiff’s conclusory
allegations of Freddie Mac’s illegal conduct are insufficient to
state a claim for relief. See Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (holding that “a plaintiff's obligation to
provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do . . . .”) (cleaned
up). Accordingly, Freddie Mac’s motion to dismiss Count VI
should be granted.
Conclusion
Based on the foregoing, the district court should grant
defendant Freddie Mac’s motion to dismiss (Doc. No. 23).
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
such objection(s) are precluded on appeal. See id. Failure to
file any objections within the specified time waives the right
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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
February 5, 2024
cc: Elvis-Jack: Pacaya, pro se
counsel of record
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