Escamilla v. DYCK-O'NEAL, INC.

661 B.R. 676

Marta ESCAMILLA, Plaintiff, v. DYCK-O'NEAL, INC. and Bendett & McHugh, P.C., Defendants.

Civil Action No. 22-11001-MPK.^1.

United States District Court, D. Massachusetts

Signed July 10, 2024

Abbas Kazerounian, Pro Hac Vice, Pamela E. Prescott, Pro Hac Vice, Kazerounian Law Group, APC, Costa Mesa, CA, Matthew A. McKenna, Shield Law, LLC, Brockton, MA, Nicola S. Yousif, Brockton, MA, for Plaintiff.

Daniel P. Murphy, Brock & Scott, PLLC, Plainville, MA, John J. O'Connor, Peabody & Arnold LLP, Boston, MA, Sangeeta P. Spengler, Pro Hac Vice, Martin, Golden Lyons, Watts Morgan PLLC, Tampa, FL, for Defendant Dyck-O'Neal, Inc.

Aaron A. Fredericks, Marissa I. Delinks, Hinshaw & Culbertson LLP, Boston, MA, Daniel P. Murphy, Brock & Scott, PLLC, Plainville, MA, for Defendant Bendett & McHugh, PC.

MEMORANDUM AND ORDER ON DEFENDANTS' JOINT MOTION FOR JUDGMENT ON THE PLEADINGS (#42)

KELLEY, United States Magistrate Judge.

I. Introduction.

Plaintiff Marta Escamilla alleges defendants Dyck-O'Neal, Inc. ("DONI") and Bendett & McHugh, P.C. ("BMPC") violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692f, 1692g, and the discharge injunction, 11 U.S.C. § 524(a). (#27.) Plaintiff claims that letters that defendants sent to plaintiff were an attempt to collect a discharged debt and to enforce a non-existent lien stemming from a defaulted second mortgage loan. The debt had been discharged in bankruptcy and plaintiff claims the lien was "stripped off" in the bankruptcy case. At this stage, defendants do not dispute that the loan was "stripped." See, e.g., #27 ¶¶ 65-66; see also #43 at 4 n.2.² Defendants filed a joint motion for judgment on the pleadings under Fed. R. Civ. P. 12(c). (#42); see #43, memorandum, #50, reply; #46, opposition. The court held two hearings and invited supplemental briefing after the second. See #67, transcript of March 5, 2024 hearing; #68, transcript of April 2, 2024 hearing; #62, e-notes from April 2, 2024 hearing. The parties filed supplemental briefing. See ##64, 65.

Plaintiff's allegations are sparse. As mentioned, defendants presently do not dispute that the second mortgage lien was stripped off in the bankruptcy proceeding.³ Given that assumption, the facts do not establish that defendants are entitled to the relief sought. The Rule 12(c) motion is therefore DENIED.

II. Procedural History.

Plaintiff filed the original complaint on June 24, 2022. (#1.) After defendants filed a motion to dismiss, plaintiff filed a motion to amend. (##7, 13.) Before the court ruled on either of those motions, plaintiff filed a second motion to amend, to add class action claims. (#15.) The court granted plaintiff's first motion to amend. (#26.) Plaintiff's first amended complaint (#27) ("FAC") is the operative complaint. Defendants have filed answers. (##30, 31.) At a hearing on the second motion to amend on October 26, 2023, the court denied that motion without prejudice to renewal after resolution of the motion for judgment on the pleadings. See #66, transcript of October 26, 2023 hearing, at 16; see also #39.

III. The Standard of Review and the Record.

Fed. R. Civ. P. 12(c) provides that "[a]fter the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings." Id. The court raised an issue regarding the proper standard of review, (#60), which the parties addressed at the April 2, 2024 hearing, see #68 at 4-7, and in their supplemental briefing, see #64 at 1-3; #65 at 1-3.

In Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), clarifying the proper standard of review on a Fed. R. Civ. P. 12(b)(6) motion to dismiss for the "failure to state a claim upon which relief can be granted," see id., the Supreme Court "retire[d]" the following language from Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957):

...[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Twombly, 550 U.S. at 561, 563, 127 S.Ct. 1955 (quoting Conley, 355 U.S. at 45-46, 78 S.Ct. 99). Similar language appeared in some of the First Circuit's pre-Twombly decisions under Rule 12(c) and still appears in some of its post-Twombly Rule 12(c) decisions. Contrast Rezende v. Ocwen Loan Servicing, LLC, 869 F.3d 40, 42 (1st Cir. 2017); Díaz-Nieves v. United States, 858 F.3d 678, 689 (1st Cir. 2017); Curran v. Cousins, 509 F.3d 36, 43 (1st Cir. 2007) with Zipperer v. Raytheon Co., Inc., 493 F.3d 50, 53 (1st Cir. 2007) (quoting Aponte-Torres v. Univ. of. P.R., 445 F.3d 50, 54 (1st Cir. 2006)).

The Twombly Court explained that Conley's "no set of facts" language is

... best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.... Conley, then, described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint's survival.

Twombly, 550 U.S. at 563, 127 S.Ct. 1955 (internal citations and footnotes omitted). The Twombly Court listed the First Circuit among the "judges and commentators [who] have balked at" reading the Conley "no set of facts" language literally as a pleading standard. Remexcel Managerial Consultants, Inc. v. Arlequin, 583 F.3d 45, 54 (1st Cir. 2009) (quoting Twombly, 550 U.S. at 562, 127 S.Ct. 1955) (citing O'Brien v. DiGrazia, 544 F.2d 543, 546 n.3 (1st Cir. 1976))). Thus, Conley's "no set of facts" language is not a minimum standard of adequate pleading, see Twombly, 550 U.S. at 563, 127 S.Ct. 1955, and a court cannot deny a Rule 12(b)(6) (or a Rule 12(c)) motion on "the remote possibility that plaintiffs would eventually show some unknown set of facts to support their claim," see Remexcel, 583 F.3d at 54.

Rule 12(c) motions are treated like Rule 12(b)(6) motions, and the First Circuit has applied the familiar "plausibility" standard to them: "To survive a motion for judgment on the pleadings, a complaint must allege sufficient facts to 'state a claim to relief that is plausible on its face.'" Sevelitte v. Guardian Life. Ins. Co. of Am., 55 F.4th 71, 79 (1st Cir. 2022) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)); see Kando v. R.I. State Bd. of Elec., 880 F.3d 53, 63 (1st Cir. 2018). "Those factual allegations cannot be meager, vague, or conclusory, leaving the plaintiff's claim largely within the realm of conjecture." Kando, 880 F.3d at 63 (cleaned up) (citation omitted); see Sevelitte, 55 F.4th at 79.

On both Rule 12(b)(6) and Rule 12(c) motions, the court views the well-pleaded facts and the reasonable inferences drawn from them in the light most favorable to the nonmovant, here, plaintiff. Kando, 880 F.3d at 58. A Rule 12(c) motion, however, "implicates the pleadings as a whole." Aponte-Torres, 445 F.3d at 54-55. New facts in an answer, to which no responsive pleading is required, are deemed denied. Kando, 880 F.3d at 58. The court may include facts from documents that are fairly incorporated into the pleadings as well as those that are susceptible to judicial notice. Id.; see Sevelitte, 55 F.4th at 76. The court may properly consider the "relevant entirety" of incorporated documents. See Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000) (Rule 12(b)(6)); LaMarche v. Met. Life Ins. Co., 236 F. Supp. 2d 50, 54 (D. Me. 2002) (Rule 12(c)).

Defendants submit exhibits that were not attached to the pleadings.⁴ Exhibit A (#43-1) is the docket sheet in United States Bankruptcy Court for the District of Massachusetts #10-bk-12071. Exhibit B (#43-2) is the discharge order, see #10-bk-12071, #65. The court may take judicial notice of relevant proceedings in other courts. Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. 1990). Exhibits A and B are properly part of the record.

Defense counsel proffer that Exhibit H (#43-8) is a model Consumer Financial Protection Bureau ("CFPB") form. (#43 at 6.) The court has found a copy of this "Debt Collection Model Form: Model Validation Notice" on the CFPB's website.⁵

In the absence of an objection from plaintiff, the court takes judicial notice of the fact that the Model Validation Notice "exist[s] [and] contain[s] certain information...." Pietrantoni v. Corcept Therapeutics Inc., 640 F. Supp. 3d 197, 205 (D. Mass. 2022).

Exhibits D, F, G, and I are clearly incorporated into the pleadings and therefore properly part of the record. Compare #43-4 (Ex. D) (DONI's June 25, 2021 letter) with #27 ¶ 29 (allegations about this letter); compare #43-6 (Ex. F) (DONI's October 18, 2021 letter) with #27 ¶ 30-32 (allegations about this letter); compare #43-7 (Ex. G) (BMPC's April 1, 2022 letter) with #27 ¶¶ 34-41 (allegations about this letter); compare #43-9 (Ex. I) (BMPC's April 4, 2022 letters) with #27 ¶¶ 42-44 (allegations about these letters); see also #30 ¶¶ 29-32, 34-40, 42-44; #31 ¶¶ 29-35, 37-40, 42-44.

Exhibit C (#43-3) is fairly incorporated into the pleadings. Plaintiff alleges, and DONI and BMPC admit, that the second mortgage loan was transferred to DONI. (#27 ¶ 10; #30 ¶ 10; #31 ¶ 10.) Exhibit C is DONI's April 27, 2021 letter to plaintiff notifying her of the transfer. (#43-3 (Ex. C) at 2.)

The court has ruled that it will not convert the Rule 12(c) motion to a Fed. R. Civ. P. 56 motion for summary judgment. (#67 at 12.) The court agrees with plaintiff's counsel, see id. at 4-5, that defense counsel's proffer regarding Exhibit E (#43-5) is unsupported.⁶ Regardless, the court does not find that Exhibit E is fairly incorporated into the pleadings. It is more accurate to characterize plaintiff's putative request for a payoff amount to which DONI allegedly responded with a payoff amount...