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Amelina v. Manufacturers and Traders Trust Co.

United States District Court, S.D. California

March 12, 2015

VICTORIA A. AMELINA, an individual; and A.A.; D.S. and B.S., each individuals and minors by and through their Guardian Ad Litem, Victoria A. Amelina, Plaintiffs,
v.
MANUFACTURERS AND TRADERS TRUST COMPANY aka M&T BANK; SAFEGUARD PROPERTIES, LLC; and THE WOLF LAW FIRM, A Law Corporation, Defendants.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are (1) the Motion to Dismiss Plaintiffs' First Amended Complaint (ECF No. 18), filed by Defendant Manufacturers and Traders Trust Company ("M&T"), (2) the Motion to Dismiss Plaintiffs' First Amended Complaint (ECF No. 20), filed by Defendant Safeguard Properties, LLC ("Safeguard"), and (3) the Motion to Dismiss Plaintiffs' First Amended Complaint (ECF No. 28), filed by Defendant Wolf Law Firm.

BACKGROUND

On August 13, 2014, Plaintiff Victoria Amelina, and Plaintiffs A.A., D.S., and B.S., each minors by and through their Guardian Ad Litem, Victoria Amelina, initiated this action by filing a Complaint in this Court. (ECF No. 1).

On October 27, 2014, Plaintiffs filed a joint motion for leave to file a first amended complaint (ECF No. 11), and a proposed first amended complaint (ECF No. 12). On October 30, 2014, the Court issued an Order granting the joint motion for leave to file a first amended complaint, and the proposed first amended complaint (ECF No. 12), became the operative pleading. (ECF No. 13).

On November 13, 2014, Defendant M&T filed the Motion to Dismiss Plaintiffs' First Amended Complaint. (ECF No. 18). On December 1, 2014, Plaintiffs filed an opposition. (ECF No. 22). On December 8, 2014, Defendant M&T filed a reply. (ECF No. 27).

On November 13, 2014, Defendant Safeguard filed the Motion to Dismiss Plaintiffs' First Amended Complaint. (ECF No. 20). On December 1, 2014, Plaintiffs filed an opposition. (ECF No. 23). On December 8, 2014, Defendant Safeguard filed a reply. (ECF No. 26).

On December 12, 2014, Defendant Wolf Law Firm filed the Motion to Dismiss Plaintiffs' First Amended Complaint. (ECF No. 28). On December 29, 2014, Plaintiffs filed an opposition. (ECF No. 32). On January 5, 2014, Defendant Wolf Law Firm filed a reply. (ECF No. 33).

ALLEGATIONS OF COMPLAINT

"Sometime before July 25, 2013, [Plaintiff Victoria Amelina] is alleged to have incurred certain financial obligations for a home mortgage account with Bank of America." (ECF No. 12 ¶ 30). "Sometime thereafter, but before July 25, 2013, [Plaintiff Victoria Amelina] allegedly fell behind in the payments allegedly owed on the alleged debt." Id. ¶ 33. "[T]he alleged debt was assigned, placed, or otherwise transferred to Lakeview Loan Servicing who subsequently assigned, placed, or otherwise transferred the debt to M&T Bank for collection." Id. ¶ 34.

"On or about July 25, 2013, M&T Bank mailed a letter to [Plaintiff Victoria Amelina]" which "expressed that the servicing' of [Plaintiff Victoria Amelina's] mortgage loan account was being transferred from Bank of America to M&T Bank, effective on or about August 2, 2013; that Bank of America will stop accepting payments on August 1, 2013;' and [M&T Bank] will begin accepting payments from [Plaintiff Victoria Amelina] effective August 2, 2013.'" Id. ¶ 35-36. "After Lakeview Loan Servicing transferred the account to M&T Bank for collection, Plaintiff began receiving collection letters from M&T Bank." Id. ¶ 37.

"On or about August 14, 2013, M&T Bank mailed a letter to [Plaintiff Victoria Amelina]." Id. ¶ 38. The letter stated, in part:

1) M&T Bank was now servicing [Plaintiff Victoria Amelina's] mortgage;
2) The amount of debt in connection with the mortgage was $236, 704.14;'
3) Pursuant to the FDCPA, [Plaintiff Victoria Amelina] had thirty days to dispute the amount of debt and request a verification of the alleged debt; and
4) The name of the creditor to whom the debt was owed was a company called Lakeview Loan Servicing'

Id. ¶ 41. "Twenty three days later, on September 9, 2013, [Plaintiff Victoria Amelina] disputed the debt, in writing, with M&T Bank, consistent with the thirty day time requirement of the FDCPA and California's Rosenthal Act for disputing debt." Id. ¶ 43. "Consequently, pursuant to 15 U.S.C. § 1692g(b), and Cal. Civ. Code § 1788.17, M&T Bank was now required to cease collection of the debt until [] it obtained verification of the debt and produced that verification to [Plaintiff Victoria Amelina], in writing." Id. ¶ 44.

"[F]rom September 17, 2013 through February 5, 2014, M&T Bank sent multiple collection letters to [Plaintiff Victoria Amelina], each time demanding payment, and each time violating the FDCPA and California's Rosenthal Act in that they were collecting without verification." Id. ¶ 46. "By communicating with [Plaintiff Victoria Amelina] by mail before validating the debt, as required pursuant to 15 U.S.C. § 1692g(b), M&T Bank violated 15 U.S.C. § 1692g and Cal. Civ. Code § 1788.17." Id. ¶ 47. "[T]he natural consequence of [the letters] was to harass, oppress, or abuse a person in connection with the collection of a debt." Id. ¶ 48. "Throughout these letters, M&T Bank repeated, and falsely, stated, and implied, that M&T Bank was about to foreclose on [Plaintiff Victoria Amelina's] property when that was not their actual intent." Id. ¶ 51. "M&T Bank initiated this onslaught of letters as to Plaintiff in an effort to abusively mislead and coerce her into paying more than was actually owed to M&T Bank." Id. ¶ 52. "During all relevant times, M&T Bank refused to provide validation or fully explain who Lakeview Loan Servicing' was and the relationship between the different entities listed in the letters." Id. ¶ 53.

"Subsequently, at the instruction of M&T, Safeguard Properties, LLC sent [Plaintiff Victoria Amelina] a pink postcard with printing clearly visible on both sides to anyone who had access to Plaintiff's mail or processed it." Id. ¶ 54. "This Postcard was sent to [Plaintiff Victoria Amelina] for the purpose of conveying of information regarding a debt directly or indirectly to [Plaintiff Victoria Amelina], and was also for the purpose of collect [sic] this alleged debt." Id. ¶ 56. The postcard stated the following:

Dear Property Resident
Safeguard Properties, LLC is conducting a monthly audit on behalf of M&T Bank in order to verify the occupancy of your property.
Please contact our Special Operator at 866-969-9859 to confirm only that you are presently residing at this property. Thank You.
Mortgager: You are entitled to contact M&T Bank regarding a face to face interview at our Buffalo NY Office. 800-724-1633.

Id. ¶ 57. "The purposes [of] this communication with [Plaintiff Victoria Amelina] was to convey information regarding a debt directly or indirectly to [Plaintiff Victoria Amelina], specifically, the name and telephone number of M&T Bank to encourage [Plaintiff Victoria Amelina] to contact M&T Bank so that M&T Bank could collect the debt to be owed, in violation of the FDCPA and California's Rosenthal Act." Id. ¶ 58. "Plaintiff was startled, confused, and embarrassed by this postcard." Id. ¶ 60.

"On January 4, 2014, Safeguard, at the instruction of M&T Bank sent an agent to Plaintiffs' home." Id. ¶ 64. "At the instruction of Safeguard and M&T [B]ank, the intruder attempted to physically enter the home of [Plaintiff Victoria Amelina] and her minor children." Id. ¶ 65. "[Plaintiff Victoria Amelina] was not home during the incident, however, her children, A.A.; D.S.; and B.S., who were nine, twelve, and seventeen years of age, respectively, were at home." Id. ¶ 66. "During this incident, the intruder attempted to force entry into [the] home." Id. ¶ 67. "A.A. repeatedly asked who was at the door, and the intruder failed to identify himself, responding only by demanding that A.A. open the door and allow him immediate entry into the property." Id. ¶ 69. "The intruder then continued to batter on the door with more force and eventually told A.A. that if she did not open the door immediately, her parents would be in big trouble.'" Id. ¶ 71.

"[Plaintiff Victoria Amelina] returned home shortly thereafter and found that the children were in shock due to M&T Bank's actions." Id. ¶ 76. "[Plaintiff Victoria Amelina's] 9 year old daughter, A.A. was particularly traumatized by this incident, and unable to speak." Id ¶ 77. "A.A. was also having difficulty breathing due to the anxiety and stress caused by M&T Bank's agent." Id. ¶ 78. "At one point, A.A. stated to Victoria that she feared for her safety, and the safety of her parents, because she was told that if she did not open the door to M&T Bank's agent, her parents would be in big trouble.'" Id. ¶ 79.

"Subsequently, on January 28, 2014, M&T Bank sent another letter to [Plaintiff Victoria Amelina], in an attempt to collect a debt, still without verify [sic] the alleged debt." Id. ¶ 83. "This letter stated, in part, that [Plaintiff Victoria Amelina's] mortgage documents have been forwarded to our attorney's office for foreclosure proceedings' and that All communications concerning the mortgage must now be directed to: Wolf Law Firm...'" Id. ¶ 85. "Through this conduct, M&T Bank threatened to take action that cannot legally be taken or that was not intended to be taken, in violation of 15 U.S.C. § 1692e(5) and Cal. Civ. Code § 1788.17." Id. ¶ 86. "Through this conduct, M&T Bank took or threatened to take any nonjudicial action to effect dispossession or disablement of property when there was no present intention to take possession of the property in violation of 15 U.S.C. § 1692f(6)(B) and Cal. Civ. Code § 1788.17." Id. ¶ 87.

"Subsequently, on January 30, 2014, M&T Bank sent two more letters to [Plaintiff], stating that the foreclosure process has begun but [Plaintiff Victoria Amelina] still had alternatives if she contacted M&T Bank, even though [Plaintiff Victoria Amelina] had previously been told not to contact M&T Bank but contact only Wolf Law Firm." Id. ¶ 89. "In reality, M&T Bank had not begun foreclosure proceedings, and was using this false, deceptive, or misleading representation or means in connection with the collection of debt to coerce payment from [Plaintiff Victoria Amelina], in violation of the FDCPA and California Rosenthal Act." Id. ¶ 90.

"On April 28, 2014, the Wolf Law Firm sent Plaintiff ten identical letters.... Plaintiff received all of these letters at once a few days later." Id. ¶ 92. "The purpose for sending all of these letters from a law firm was to intimidate and embarrass [] [Plaintiff Victoria Amelina] and her family and to alert third parties that [Plaintiff Victoria Amelina] had legal problems." Id. ¶ 93. "In response, Plaintiff sent Defendant a request for validation ...


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