United States District Court, W.D. North Carolina, Statesville Division
MICHAEL J. GARVEY, Plaintiff,
SETERUS, INC., et al., Defendants.
C. Mullen United States District Judge.
matter is before the Court upon Defendant Seterus, Inc.'s
Second Motion for Judgment on the Pleadings, filed July 27,
2017. The pro se Plaintiff has filed a
response. (Doc. No. 43). This matter is now ripe for
factual background of this case is described in detail in the
Court's Order of June 23, 2017 (Doc. No. 37) and will not
be repeated herein. In that Order, the Court granted all
other Defendants' motions to dismiss. Seterus is the only
remaining Defendant and now seeks judgment on the pleadings.
In his Complaint, Plaintiff attempts to bring claims against
Seterus as loan servicer in connection with attempts to
collect a mortgage loan. With regard to Seterus, the
Complaint attempts to allege the following violations of the
Fair Debt Collection Practices Act 15 U.S.C. §§
1692 et. seq. (“FDCPA”):
1) Seterus failed to provide written verification of the debt
it was attempting to collect (15 U.S.C. § 1692(g))
Compl. at ¶¶ 2, 15, 21, and 56;
2) Seterus communicated with Plaintiff without his consent
(15 U.S.C. § 1692(c)) Compl. at ¶ 23;
3) Upon Plaintiff's demand, Seterus failed to cease and
desist its attempts to collect the debt (15 U.S.C. §
1692(g)) Compl. at ¶¶ 3, 46; and
4) Seterus, along with the other Defendants, otherwise used
false, misleading, unfair or deceptive practices in their
attempts to collect the debt (15 U.S.C. §§ 1692(e),
(f), (i) and (j)). Compl. at ¶¶ 46, 51.
gravamen of Plaintiff's allegations appears to be that
Seterus violated the FDCPA because 1) Plaintiff failed to
receive “verification” for a mortgage debt
Seterus sought to collect; and 2) then despite this, Seterus
attempted to collect the debt and foreclose upon related
collateral-real property located at the Godbey Road address.
Plaintiff's exhibits (Annexes A-M) indicate that
Plaintiff repeatedly sent correspondence from the Godbey Road
address to Seterus and the other Defendants in an attempt to
put them on notice of the alleged violations. Moreover,
several exhibits (for example, Annex I, which contains the
Objection to Plan Confirmation with regard to Plaintiff's
bankruptcy plan) plainly indicate that at times relevant to
the Complaint, Plaintiff also was in fact receiving mail sent
to him at his Godbey Road address.
Answer to the Complaint, Seterus has denied Plaintiff's
allegations that Seterus violated the FDCPA. Seterus admits
that on or about May 17, 2015, Plaintiff requested, via
letter, that Seterus verify the mortgage debt. Answer [Doc
24] at ¶¶ 2, 15. Seterus' Answer illustrates,
however, that in response to Plaintiff's letter, Seterus
sent to Plaintiff all verification information regarding the
mortgage debt required by law. Answer at ¶¶ 2, 25.
Attached to Seterus' Answer as exhibits “A”
and “B, ” respectively, are copies of letters
Seterus sent to Plaintiff on June 5, 2015 and June 26, 2015
in response to Plaintiff's request for verification of
the debt. Each is addressed to the Plaintiff at his Godbey
Road address. The June 26, 2015 correspondence included the
name and address of Plaintiff's original creditor, and
enclosed copies of the promissory note and deed of trust
executed by Plaintiff, as well as a copy of the assignment of
the mortgage and a complete payment history for the debt in
Complaint makes no competing allegation concerning these
correspondences. In fact, it does not reference them at all.
Nor does it attach either as part of any Annex. Further, the
Complaint does not allege that Seterus engaged in any
collection activity during the time period prohibited by the
FDCPA-i.e. the time between when Plaintiff sent his request
for verification on or about May 17, 2015, and when Seterus
mailed its verification letter on or about June 26, 2015.
Rule 12(c) of the Federal Rules of Civil Procedure, ‘a
party is entitled to a judgment on the pleadings when no
genuine issues of material fact exist, and the case can be
decided as a matter of law.' The Court considers both the
Complaint and Answer.” Unitrin Auto & Home Ins.
Co. v. Siarris, No. 3:14-CV-50, 2015 WL 457630, at *2
(W.D. N.C. Feb. 3, 2015), aff'd, 615 Fed.Appx.
164 (4th Cir. 2015) (internal citations omitted). “In
order to survive a Rule 12(c) motion, ‘a complaint must
contain sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.'”
Deerborne Cottages, LLC v. First Bank, No.
1:11CV178, 2012 WL 4363742, at *2 (W.D. N.C. Sept. 24, 2012)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“To be ‘plausible on its face, ' a plaintiff
must demonstrate more than ‘a sheer possibility that a
defendant has acted unlawfully.'” Id.
review of the pleadings, the Court “is not required to
assume the truth of ‘bare legal
conclusions.'” Id. (citing Aziz v.
Alcolac, Inc., 658 F.3d 388, 391 (4th Cir.2011)).
“‘The mere recital of elements of a cause of
action, supported only by conclusory statements, is not
sufficient.'” Id. (citing Walters v.
McMahen, 684 F.3d 435, 439 (4th Cir.2012)). Nor must the
Court give credence to “unwarranted inferences,
unreasonable conclusions, or arguments.” Glassman
v. Arlington County, 628 F.3d 140, 146 (4th Cir. 2010)
deciding a 12(c) motion, “[d]ocuments attached to the
pleadings may be considered by the Court when the parties do
not dispute the authenticity of the documents.”
Unitrin, 2015 WL 457630, at *2. “A copy of a
written instrument that is an exhibit to a pleading is a part
of the pleading for all purposes.” Fed.R.Civ.P. 10(c).
“[I]n the event of conflict between the bare
allegations of the complaint and any exhibit attached
pursuant to Rule 10(c), Fed.R. Civ. P. the exhibit
prevails.” Fayetteville Inv'rs v. Commercial
Builders, Inc., 936 F.2d 1462, 1465 (4th Cir. 1991).
in a light most favorable to Plaintiff, the Complaint and
exhibits, along with the Answer reveal no actionable claim
upon which relief can be granted. Plaintiff's Complaint
does not allege that Seterus failed to mail
verification of the debt to Plaintiff, and Plaintiff's
own exhibits suggest that Plaintiff's allegation that he
failed to receive the required verification is not
plausible. Moreover, Seterus' Answer and attached
exhibits reveal that the proper verification of the debt was
mailed to Plaintiff at his home address within one month ...