Giannasca et al v. Ocwen Loan Services, LLC et al
| Anthony Giannasca |
| Ocwen Loan Services, LLC and Korde and Associates, PC et al |
| 1:2018cv12021 |
| October 1, 2018 |
| US District Court for the District of Massachusetts |
| Denise J Casper |
| Other Statutory Actions |
| 15 U.S.C. § 1692 |
| Plaintiff |
Docket Report
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| Filing 21 NOTICE of Withdrawal of Appearance by Walter H. Porr, Jr (Porr, Walter) |
| Filing 20 NOTICE of Appearance by Lawson Williams on behalf of Korde and Associates, PC et al, Ocwen Loan Services, LLC (Williams, Lawson) |
| Filing 19 Opposition re #17 MOTION to Dismiss filed by Anthony Giannasca. (McKillop, Matthew) |
| Filing 18 MEMORANDUM in Support re #17 MOTION to Dismiss filed by Ocwen Loan Services, LLC. (Attachments: #1 Exhibit A-G)(Ponsetto, James) |
| Filing 17 MOTION to Dismiss by Ocwen Loan Services, LLC.(Ponsetto, James) |
| Filing 16 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above-captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at #http://www.mad.uscourts.gov/attorneys/general-info.htm (Scalfani, Deborah) |
| Filing 15 Transcript of Motion Hearing held on October 3, 2018, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com Redaction Request due 11/1/2018. Redacted Transcript Deadline set for 11/13/2018. Release of Transcript Restriction set for 1/9/2019. (Scalfani, Deborah) |
| Filing 14 Judge Denise J. Casper: ELECTRONIC ORDER entered re: #2 Motion for Temporary Restraining Order or Preliminary Injunction. Having considered Plaintiff Anthony Giannasca's pro se motion for a temporary restraining order or preliminary injunction to enjoin Defendants Ocwen Loan Servicing, LLC ("Ocwen") and Korde & Associates, PC ("Korde") (collectively, "Defendants") from proceeding with a foreclosure sale scheduled for today in violation of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. ("FDCPA"), D. 2, the opposition to the same, D. 11, and having heard counsel at oral argument this morning, the Court DENIES the motion. As an initial matter, the Court notes that, contrary to allegations regarding subject matter jurisdiction in the complaint, D. 1 at 2, there is not complete diversity between the parties given that Mr. Giannasca is a Massachusetts resident and at least one of the Defendants, Korde, is a law firm located in Massachusetts. Because, however, Mr. Giannasca brings a claim for violation of the FDCPA (Count I), the Court notes that it has subject matter jurisdiction over this action pursuant to 28 U.S.C. 1331.When considering a motion for injunctive relief, a movant must establish a reasonable likelihood of success on the merits; the potential for irreparable harm if the injunction is withheld; that the balance of equities tips in his favor; and that the injunction is in the public interest. Jean v. Massachusetts State Police, 492 F.3d 24, 26-27 (1st Cir. 2007). Of these four factors, the reasonable likelihood of success on the merits "weighs heaviest on the decisional scales." Coquico, Inc. v. Rodriguez-Miranda, 562 F.3d 62, 66 (1st Cir. 2009) (citing New Comm. Wireless Servs., Inc. v. SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002)).According to the complaint, on or about November 18, 2005, Mr. Giannasca signed a promissory note in the amount of $332,500 ("the Note") in favor of Indymac Bank, FSB ("Indymac"). D. 1 ¶ 4. The note was secured by a mortgage on Mr. Giannasc's residence. Id. ¶ 5. As of December 1, 2005, the mortgage was assigned to Deutsche Bank National Trust Company ("Deutsche Bank"), as trustee of Indymac. Id. ¶ 7. At some point prior to April 5, 2016, Defendants attempted to collect payment on Mr. Giannasca's outstanding loan. See id. ¶ 11. At the time, Defendant Ocwen served as Deutsche Bank's loan servicer and Defendant Korde was retained by Deutsche Bank to commence foreclosure proceedings. D. 11-4 at 3. The record reflects that on April 5, 2016, Mr. Giannasca informed Defendants that he was exercising his "rights under the 'Fair Debt Collections Practices Acts'" and requesting validation of the debt owed on the loan in question. D. 11-1 at 2-3; see D. 1 ¶ 11. Specifically, Mr. Giannasca demanded that Defendants "verify the debt," including by providing a "verified payoff amount" and other evidence as to the validity of the alleged debt. D. 1 ¶ 21; see D. 11-1 at 2-3. Mr. Giannasca asserts that Defendants failed or refused to produce such evidence. D. 1 ¶ 21. The Court has "broad discretion in deciding what evidence to consider in connection with a motion for preliminary injunction" or other injunctive relief. Rice v. Wells Fargo Bank, N.A., 2 F. Supp. 3d 25, 31 (D. Mass. 2014) (considering affidavit of bank employee and mortgage loan files over plaintiff's hearsay objection in denying motion for preliminary injunction in foreclosure action). Here, uncontroverted documents provided by Defendants indicate that Defendant Ocwen acknowledged receipt of Mr. Giannasca's debt validation letter on April 7, 2016, D. 11-2, and, shortly thereafter, both Defendants provided him with debt validation information, including the terms of the mortgage at issue; information regarding the assignment of the loan from IndyMac to Deutsche Bank; details regarding Mr. Giannasca's outstanding balance and failure to make payments on the loan; notice that Defendants were attempting to collect on the debt; and information regarding the pending foreclosure of Mr. Giannasca's residence. See D. 11-3; D. 11-4. For example, Defendant Ocwen's letter, dated April 12, 2016 and addressed to Mr. Giannasca, indicates that he had failed to make any payments on the loan at issue since the completion of a loan modification in August 2014. D. 11-3 at 2. As a result, Mr. Giannasca's property was in foreclosure as of the date of Ocwen's letter. Id. Attached to Defendant Ocwen's letter was the 2014 loan modification agreement signed by Mr. Giannasca that provided the outstanding principal balance as well as the terms for the loan modification. Id. Even as alleged by Mr. Giannasca, on or about August 30, 2018, Defendants commenced foreclosure activity on Mr. Giannasca's property. Id. ¶ 12. Mr. Giannasca also received a letter from Defendant Korde providing the date and time of the foreclosure sale on September 12, 2018. D. 2 at 3-4. A foreclosure sale is scheduled for later today.The Court notes that the instant litigation is not Mr. Giannasca's first attempt to enjoin the foreclosure of his residence. In April 2016, Giannasca filed suit against Defendants, Deutsche Bank and others in Middlesex Superior Court seeking a preliminary injunction in connection with the foreclosure proceedings at the time. D. 11-5. There, the court granted summary judgment and entered judgment in favor of the defendants on June 26, 2017. D. 11-6; D. 11-8. Mr. Giannasca subsequently filed, and the trial court denied, motions for reinstatement of the preliminary injunction, reconsideration and a request for an automatic stay. D. 11-6. He also filed an appeal from the trial court's judgment, which is pending in the Massachusetts Appeals Court. D. 11-9. On September 28, 2018, Mr. Giannasca apparently filed a motion to stay the foreclosure in the Massachusetts Appeals Court pending a ruling on his appeal, which may still be pending, but is not for this Court's consideration. D. 12.In this matter, Mr. Giannasca brings a claim against Defendants for violation of the FDCPA. Given that the debt collection practices at issue allegedly occurred in April 2016 in connection with Defendants' response to Giannasca's debt validation request, it appears that his claim is barred by the one-year statute of limitations under the FDCPA. See Berger v. Northland Grp., Inc., 886 F. Supp. 2d 59, 63 (D. Mass. 2012) (applying one-year statute of limitations to claims that letters from a debt collector violated FDCPA). Even if Mr. Giannasca's claim was not time barred, the Court concludes that Giannasca is unlikely to succeed on the merits of his claim. The purpose of the FDCPA is "to protect debtors from abusive debt collection practices" and regulate the actions of debt collectors. Chiang v. Verizon New England Inc., 595 F.3d 26, 41 (1st Cir. 2010). Accordingly, to prevail on a FDCPA claim, a plaintiff must prove "that (1) he was the object of collection activity arising from consumer debt, (2) the defendant is a debt collector within the meaning of the statute, and (3) the defendant engaged in a prohibited act or omission under the FDCPA." Krasnor v. Spaulding Law Office, 675 F. Supp. 2d 208, 211 (D. Mass. 2009). Here, Giannasca alleges that Defendants violated the FDCPA by (1) failing to validate the debt; (2) providing false or misleading representations as part of the debt collection process; (3) using unfair practices to collect the debt; and (4) harassing and abusing Giannasca in connection with the debt collection process in violation of Sections 1692d-g of the FDCPA.Even reading the pleadings in the light most favorable to Mr. Giannasca, the Court concludes that he has not plausibly alleged that Defendants' debt collection practices violated the FDCPA. Defendants provided timely responses to Giannasca's validation request in accordance with Section 1692g, such responses are void of inherently false, deceptive or misleading content, and Mr. Giannasca has failed to establish why the letters constitute unconscionable activity or harassment under Sections 1692d-f. He has also failed to plausibly allege how such responses are insufficient or unsatisfactory. Accordingly, Giannasca is unlikely to succeed on the merits of his FDCPA claim. See Berger, 886 F. Supp. 2d at 63 (dismissing FDCPA claim where the "[p]laintiff has offered no evidence or argument to suggest exactly why [debt collector's] letter[] and the actions taken by [debt collector] are false, deceptive, or misleading" or otherwise unreasonable).For all of these reasons, the Court does not find that Giannasca has shown a likelihood of success on the merits, and the Court need not reach the other three prongs of the showing required for injunctive relief. In light of this ruling, the Court also does not reach the merits of Defendants' other arguments opposing injunctive relief.For all of the aforementioned reasons, the Court DENIES Giannasca's motion, D. 2. (Hourihan, Lisa) |
| Filing 13 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 10/3/2018 re #2 MOTION Emergency Ex Parte Motion for Temporary Restraining Order filed by Anthony Giannasca. Arguments. Court takes under advisement #2 Motion for Temporary Restraining Order. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Anthony Giannasca pro se. James Ponetsso and Walter Porr for the defendants.) (Hourihan, Lisa) |
| Filing 12 Copy of Motion to Stay Sale filed in Massachusetts Appeals Court from Anthony Giannasca. (McKillop, Matthew) |
| Filing 11 MEMORANDUM OF LAW by Korde and Associates, PC et al, Ocwen Loan Services, LLC. (Attachments: #1 Exhibit, #2 Exhibit, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit, #7 Exhibit, #8 Exhibit, #9 Exhibit)(Porr, Walter) |
| Filing 10 NOTICE of Appearance by James P. Ponsetto on behalf of Ocwen Loan Services, LLC (Ponsetto, James) |
| Filing 9 Given the pendency of Temporary Restraining Order and the foreclosure sale scheduled for tomorrow afternoon, the Court ORDERS parties to appear for a Hearing on Motion #2 MOTION Emergency Ex Parte Motion for Temporary Restraining Order: Motion Hearing set for 10/3/2018 11:00 AM in Courtroom 11 before Judge Denise J. Casper. Any written response to the motion should be filed today. The Court will consider an alternative briefing and hearing schedule if the parties agree that the foreclosure will be postponed for consideration of the Temporary Restraining Order and counsel files notice of same.(Hourihan, Lisa) |
| Filing 8 SUMMONS Returned Executed Ocwen Loan Services, LLC served on 10/2/2018, answer due 10/23/2018. (McKillop, Matthew) |
| Filing 7 NOTICE of Appearance by Walter H. Porr, Jr on behalf of Korde and Associates, PC et al (Porr, Walter) |
| Filing 6 Summons Issued as to Korde and Associates, PC et al, Ocwen Loan Services, LLC. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Castilla, Francis) |
| Filing 5 Filing fee/payment: $ 400.00, receipt number 1BST070599 for #1 Complaint (Vieira, Leonardo) |
| Filing 4 ELECTRONIC NOTICE of Case Assignment. Judge Denise J. Casper assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Judith G. Dein. (Finn, Mary) |
| Filing 3 MEMORANDUM in Support re #2 MOTION Emergency Ex Parte Motion for Temporary Restraining Order filed by Anthony Giannasca. (Castilla, Francis) |
| Filing 2 Emergency Ex Parte Motion for Temporary Restraining Order by Anthony Giannasca. (Attachments: #1 Affidavit in Support of injuctive relief)(Castilla, Francis) Modified on 10/1/2018 (Castilla, Francis). |
| Filing 1 COMPLAINT against All Defendants, filed by Anthony Giannasca. (Attachments: #1 Civil Cover Sheet)(Castilla, Francis) |
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