Fillinger v. Lerner Sampson & Rothfuss, et al.
- Summarized by Jason Stitt , Keating Muething & Klekamp PLL
- 7 years 9 months ago
- Citation:
- No. 14-4097 (6th Cir. August 17, 2015)
- Tag(s):
-
- Ruling:
- The Sixth Circuit affirmed dismissal of claims brought under the Fair Debt Collection Practices Act ("FDCPA") because the claims were facially barred by the FDCPA's one-year statute of limitations and the plaintiff did not adequately plead fraudulent concealment for purposes of equitable tolling. The Sixth Circuit held that it was not answering the question of whether equitable tolling applied to claims brought under FDCPA, but held that even if equitably tolling did apply the fraudulent concealment was not adequately pled with particularity.
- Procedural context:
- Appeal of dismissal from the United States District Court for the Northern District of Ohio.
- Facts:
- In 2003, Plaintiff signed a note and mortgage to refinance her principal residence. The mortgagee sold the note to a Sequoia Mortgage Trust, whose trustee was HSBC Bank USA, NA. In 2008, Plaintiff received a letter from Cenlar Federal Savings Bank notifying her that she was in default A month later she received another letter from Cenlar notifying her of default. The letters were sent on the stationary masthead of Morgan Stanley Credit Corporation and were sent from Cenlar as the loan sub-servicer for Morgan Stanley.
It was not until December 2008 that the mortgage was actually assigned to Morgan Stanley and not until July 2009 that the note was actually endorsed to Morgan Stanley.
Lerner Sampson & Rothfus filed a foreclosure suit on behalf of Morgan Stanley. A foreclosure sale was held and Morgan Stanley assigned its bid in the sheriff's sale to Sequoia Mortgage trust.
The plaintiff field suit in the United States District Court for the Northern District of Ohio, claiming Morgan Stanley, Senlar, and Lerner Sampson & Rothfus were debt collectors under 15 U.S.C. 1692a()4) and 1692a(6). She argued that the entities violated FDCPA by failing to inform her of the name of the creditor to whom the debt was owed.
The plaintiff claimed that because she did not learn that the debt was held by Sequoia Mortgage Trust until 2012, she did not know the other entities were debt collectors - not creditors themselves.
- Judge(s):
- Batchelder, Stranch, and Hood
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