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Muldrow v. EMC Mortgage Corp.

September 28, 2009

SANDRA MULDROW, PLAINTIFF,
v.
EMC MORTGAGE CORPORATION ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document No.: 6

MEMORANDUM OPINION

DENYING DEFENDANT ROSENBERG'S MOTION TO DISMISS

I. INTRODUCTION

This matter comes before the court on defendant Rosenberg and Associates, LLC's ("Rosenberg") motion to dismiss. The plaintiff has brought suit against Rosenberg under the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692 et seq., claiming that it engaged in unlawful debt collection practices. Rosenberg contends that it is not a proper party in the litigation and therefore not subject to or in violation of the FDCPA. Rosenberg asks that the court dismiss the matter against it for failure to state a claim, which the court denies because the plaintiff appropriately identified Rosenberg as a party.

II. BACKGROUND

A. Factual History

In October 2006, the plaintiff, a resident of the District of Columbia, obtained a loan from defendant EMC Mortgage Company ("EMC") to purchase a residential property in the District of Columbia. Compl. ¶ 5. The loan was secured by a first deed of trust on the plaintiff's residence.

Id. Over the next few years, the plaintiff became increasingly unable to make her monthly payments. Id. ¶ 6. Ultimately, EMC*fn1 hired Rosenberg, a Maryland law firm, as a substitute trustee to initiate foreclosure proceedings against the plaintiff after she defaulted on her loan. Id. ¶¶ 6-7; Pl.'s Opp'n, Ex. A.

On June 23, 2008, Rosenberg mailed a notice*fn2 to the plaintiff at the plaintiff's residence, describing Rosenberg's relationship to EMC, explaining that Rosenberg was the legal enforcer of the loan and informing the plaintiff that the notice was an "attempt to collect a debt." Pl.'s Opp'n, Ex. A at 1-2. The notice included the total amount owed by the plaintiff, allowing for interest, late charges and other day-to-day charges that might be incurred at the plaintiff's expense, and advised the plaintiff that she could either take no action and assume the validity of the debt or notify the defendant within thirty days that she disputed part or all of the debt. Id. at 1. According to the notice, if the plaintiff did not dispute the debt, she was to send a check to Rosenberg, who would not deposit the check until after informing the plaintiff of any adjustments in the amount owed. Id. If the plaintiff contested the debt within thirty days, Rosenberg would suspend collection activities, obtain verification of the debt and mail the verification to the plaintiff. Id.

The notice sent by Rosenberg stated that the plaintiff's "failure to contest the validity of the debt under the Act may not be construed by any Court as an admission of liability." Id. at 1-2. Additionally, the notice informed the plaintiff that she might be eligible for a payment plan program and instructed the plaintiff to contact Rosenberg to determine if she met the program's qualifications, with foreclosure proceedings continuing in the interim. Id. at 2. The foreclosure sale was scheduled for July 29, 2008. Id. at 3.

Rosenberg notified the plaintiff that her property was being sold at a foreclosure sale to satisfy her debt on the property and informed her that the sale date was subject to up to a thirtyday postponement. Id. at 1. Also included in the notice was the total amount owed by the plaintiff, plus attorney's fees, foreclosure costs and all accruals under the terms of the Deed of Trust and Note and through the date of the notice. Id. 1, 3. Rosenberg identified itself as the entity the plaintiff should contact to stop the foreclosure sale and provided its address and phone number. Id. at 2. According to the notice, the minimum balance required to cure the default obligation was $12,565.59, plus attorney's fees, foreclosure costs and all accruals. Id. at .

Following the procedures set forth in the notice, the plaintiff disputed the debt in writing and requested from Rosenberg the amount necessary to bring the mortgage current. Compl. ¶ 12. The plaintiff then contacted EMC to discuss loan mitigation to stop the foreclosure sale.*f ...


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