United States District Court, E.D. Michigan, Southern Division
Stephanie Dawkins Davis, United States Magistrate Judge
OPINION AND ORDER DENYING DEFENDANT'S MOTION TO
DISMISS COUNTS III AND IV OF PLAINTIFF'S SECOND AMENDED
GERSHWIN A. DRAIN, United States District Judge
Darcel Keyes commenced this action on May 10, 2017, alleging
the Defendant Ocwen Loan Servicing, LLC violated the
Telephone Consumer Protection Act (“TCPA”), 47
U.S.C. § 227, and certain state laws. Dkt. No. 1. Keyes
amended her Complaint for the first time on July 15, 2017,
and the Defendant moved to dismiss the First Amended
Complaint. See Dkt. Nos. 12, 17.
Court granted in part and denied in part Defendant's
Motion to Dismiss the First Amended Complaint. Dkt. No. 25.
The Court held that the statute of limitations had expired on
some of Plaintiff's TCPA claims, but allowed Keyes's
non-expired TCPA claims to proceed. See Id.
Plaintiff's negligence claim under Michigan law and her
Michigan Occupational Code claim did not survive the Motion
to Dismiss. See Id. But, the Court granted the
Plaintiff leave to amend the Complaint to add claims under
the Michigan Collection Practices Act (“MCPA”),
§§ 445.251 et seq. See id.
filed a Second Amended Complaint on November 7, 2017.
See Dkt. No. 29. On November 15, 2017, the Defendant
moved to dismiss Counts III and IV of Plaintiff's Second
Amended Complaint. Dkt. No. 31. Count III is a claim for
negligent violations of the MCPA, and Count IV is a claim for
willful violations of that Act. See Dkt. No. 29, pp.
13-14 (Pg. ID 295-96).
before the Court is the Defendant's Motion to Dismiss
Counts III and IV of the Plaintiff's Second Amended
Complaint . The motion is fully briefed. The Court held a
hearing on the motion on Tuesday, March 13, 2018 at 3:00 p.m.
Ruling from the bench, the Court DENIED the Defendant's
Motion to Dismiss Counts III and IV of the Second Amended
Complaint . Plaintiff's claims for negligent and
willful violations of the MCPA will therefore survive the
motion. The reasons for the Court's decision are detailed
Rule of Civil Procedure 12(b)(6) allows a court to assess
whether a plaintiff has stated a claim upon which relief may
be granted. See Fed. R. Civ. P. 12(b)(6).
“Federal Rule of Civil Procedure 8(a)(2) requires only
‘a short and plain statement of the claim showing that
the pleader is entitled to relief, ' in order to
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.' ” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
“[E]ven though the complaint need not contain
‘detailed' factual allegations, its ‘factual
allegations must be enough to raise a right to relief above
the speculative level on the assumption that all of the
allegations in the complaint are true.' ”
Ass'n of Cleveland Fire Fighters v. City of
Cleveland, 502 F.3d 545, 548 (6th Cir. 2007) (quoting
Twombly, 550 U.S. at 555).
must construe the complaint in favor of a plaintiff, accept
the allegations of the complaint as true, and determine
whether plaintiff's factual allegations present plausible
claims. Twombly, 550 U.S. at 570. But, “the
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662,
668 (2009). To survive a Rule 12(b)(6) motion, a
plaintiff's pleading for relief must provide “more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.”
Ass'n of Cleveland Fire Fighters, 502 F.3d at
548 (quoting Twombly, 550 U.S. at 553-54).
“Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.”
Iqbal, 556 U.S. at 678 (internal citations and
quotations omitted). Instead, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.” Id.
(internal citations and quotations omitted). The plausibility
standard requires “more than a sheer possibility that a
defendant has acted unlawfully.” Id.
“[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the
complaint has alleged-but it has not show[n]-that the pleader
is entitled to relief.” Id. at 679. (internal
citations and quotations omitted).
Defendant seeks dismissal of Counts III and IV of
Plaintiff's Second Amended Complaint. Dkt. No. 31. Counts
III and IV are for negligent and willful violations of the
MCPA, respectively. The parties do not dispute the merits of
Plaintiff's MCPA claims. Rather, they disagree about
whether the Defendant is subject to the MCPA. Because the
Court finds that the Act applies to the Defendant, the Court
will deny the Defendant's Motion to Dismiss Claims III
and IV of Plaintiff's Complaint . Plaintiff's
claims for negligent and willful violations of the MCPA,
then, will continue in this action.
“Regulated Person” under the MCPA The sole issue
for resolution here is whether Ocwen is a “regulated
person” under the MCPA. The answer to that question is
“yes, ” and thus, Claims III and IV of the Second
Amended Complaint will survive the Motion to Dismiss.
MCPA only applies to “regulated persons.”
See Mich. Comp. Laws § 445.251(g). In pertinent
part, the ...