Kagan v. Selene Finance L.P.

210 F. Supp. 3d 535, 2016 WL 5660255, 2016 U.S. Dist. LEXIS 134482
CourtDistrict Court, S.D. New York
DecidedSeptember 28, 2016
DocketCase No. 15-CV-5936 (KMK)
StatusPublished
Cited by8 cases

This text of 210 F. Supp. 3d 535 (Kagan v. Selene Finance L.P.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kagan v. Selene Finance L.P., 210 F. Supp. 3d 535, 2016 WL 5660255, 2016 U.S. Dist. LEXIS 134482 (S.D.N.Y. 2016).

Opinion

OPINION & ORDER

Kenneth M. Karas, District Judge

Helen Sue Kagan (“Plaintiff’) brings this Action, on behalf of herself and a class, alleging that Selene Finance L.P. (“Selene Finance”) and Selene Ventures GP, LLC (“Selene Ventures,” and collectively, “Defendants”) engaged in unlawful credit and collection practices in violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. (Dkt. No. 1.) Before the Court is Defendants’ Motion To Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). (Dkt. No. 29.) For the following reasons, the Motion is granted in part and denied in part.

I. Background

A. Factual Background

The following facts are drawn from Plaintiffs Complaint and are taken as true for the purpose of resolving the instant Motion.1

Plaintiff is an individual who resides in a single-family home that she owns. (Compl. ¶ 4 (Dkt. No. 1).) Selene Finance is a limited partnership entity, (id. ¶ 5), and a “special servicer” of residential mortgages, (id. ¶ 6).2 Selene Finance was established in October 2007 to service nonperforming and subperforming residential mortgage loans, 1.e., to collect delinquent debts. (Id. ¶ 8.) By 2012, it expanded into servicing prime mortgage loans. (Id. ¶ 9.) Selene Finance regularly acquires delinquent loans, (id. ¶ 11), and then attempts to collect such loans through use of the mails and telephone system, (id. ¶ 12).3 Selene Ventures is a limited liability company and the general partner of Selene Finance. (Id. ¶ 14.)

Selene Finance.has been attempting to collect from Plaintiff a residential mortgage debt incurred for personal, family, or household purposes. (Id. ¶ 15, 17.) The debt was in default at the time Selene Finance first became involved with it. (Id. ¶ 16.) On or about September 4, 2014, Sel-ene Finance sent Plaintiff a letter regarding her debt, intended as the “Notice of Debt” required by § 1692g (the “Notice”). [539]*539(Id. ¶¶ 18-20; see also id. Ex. A (“Notice”).)4 Subsequently, on or about September 18, 2014, Selene Finance sent Plaintiff a letter seeking a loan modification. (Compl. ¶ 21; see also id. Ex. B (outlining loss mitigation and foreclosure alternative programs).) On September 80, 2014, Selene Finance sent Plaintiff another letter regarding her loan payments. (Compl. ¶ 22; see also id. Ex. C (advising Plaintiff to contact the Loan Resolution Department if she were having trouble making payments).) On or about October 1, 2014, Plaintiff submitted a written debt dispute. (Compl. ¶ 23; see also id. Ex. D.) Thereafter, Selene Finance acknowledged the receipt of Plaintiffs letter and provided a timeline for Selene Finance’s response. (Compl. ¶ 24; see also id. Ex. E.) On or about October 28, 2014, Selene Finance sent Plaintiff a “Notice of Default and Intent to Accelerate.” (Compl. ¶ 25; see also id. Ex. F.)5

Between June 8, 2015 and June 20, 2015, Plaintiff received the following voicemail messages from Selene Finance:

• “Hi this message is for Helen Sue Kagan. This is Maria from Selene Finance, if you could please return my call. 877-768-3759. Thank you.” (Wednesday, 6:58 p.m.)
• “Please call Selene Finance at 877-768-3759. It is very important that you return our call within 24 hours. Our hours of operation are Monday thru Thursday 8 a.m. to 9 p.m. and Friday 8 a.m. to 5 p.m. Please call Selene Finance at 877-768-3759.” (Friday, 11:53 a.m.)
• “Please call Selene Finance at 877-768-3759. It is very important that • you return our call within 24 hours. Our hours of operation are Monday thru Thursday 8 a.m. to 9 p.m. and Friday 8 a.m. to 5 p.m. Please call Selene Finance at 877-768-3759.” (Tuesday, 5:08 p.m.)
• “Hi this message is for Helen Sue Kagan. This is Maria from Selene Finance, if you could please return my call. 877-768-3759. Thank you.” (Wednesday, 6:11 p.m.)
• “Please call Selene Finance at 877-768-3759. It is very important that you return our call within 24 hours. Our hours of operation are Monday thru Thursday 8 a.m. to 9 p.m. and Friday 8 a.m. to 5 p.m. Please call Selene Finance at 877-768-3759.” (Friday, 11:25 a.m.)

(the “Voicemail Messages”). (Compl. ¶ 26.)

B. Procedural Background

Plaintiff commenced this putative Class Action against Defendants on July 29, 2015, alleging violations of the FDCPA. (Dkt. No. 1.) Pursuant to a briefing schedule adopted by the Court on November 30, 2015, (Dkt. No. 28), Defendants filed their Motion and supporting papers on January 12, 2016, (Dkt. Nos. 29-30). Plaintiff filed [540]*540her opposition on February 23, 2016, (Dkt. No. 39), and Defendants filed their reply on March 4, 2016, (Dkt. No. 40).

II. Discussion

A. Applicable Law

1. Standard of Review

The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiffs obligation to provide the grounds of [her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks omitted). Rather, a complaint’s “[f]aetual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, 127 S.Ct. 1955, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face,” id. at 570, 127 S.Ct. 1955, if a plaintiff has not “nudged [her] claims across the line from conceivable to plausible, the[ ] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.

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210 F. Supp. 3d 535, 2016 WL 5660255, 2016 U.S. Dist. LEXIS 134482, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kagan-v-selene-finance-lp-nysd-2016.