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Keyes v. Ocwen Loan Servicing, LLC

United States District Court, E.D. Michigan, Southern Division

March 14, 2018

Darcel Keyes, Plaintiff,
v.
Ocwen Loan Servicing, LLC Defendant.

          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 COMPLAINT [31]

          GERSHWIN A. DRAIN, United States District Judge

         I. Introduction

         Plaintiff 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.

         The 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.

         Keyes 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).

         Presently before the Court is the Defendant's Motion to Dismiss Counts III and IV of the Plaintiff's Second Amended Complaint [31]. 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 [31]. 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 below.

         II. Legal Standard

         Federal 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).

         A court 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).

         III. Discussion

         The 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 [31]. Plaintiff's claims for negligent and willful violations of the MCPA, then, will continue in this action.

         A. “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.

         The MCPA only applies to “regulated persons.” See Mich. Comp. Laws ยง 445.251(g). In pertinent part, the ...


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