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Griesenauer v. Millsap and Singer, P.C.

United States District Court, E.D. Missouri, Eastern Division

May 4, 2015



RONNIE L. WHITE, District Judge.

This matter is before the court on Millsap & Singer, P.C.'s Motion to Dismiss Plaintiffs First Amended Petition (ECF No. 13). This matter is fully briefed and ready for disposition.


On April 5, 2005, Plaintiff Debra Griesenauer, then a married person, was the recipient of a General Warranty Deed executed by Troy M. Brown and Donna M. Brown, as husband and wife, to "Debra L. Griesenauer, A MARRIED PERSON". The Deed conveyed the property located at 565 Mcintosh Hill Road, Foley, MO 63347 ("Property") to the Plaintiff.[2]On the same day the General Warranty Deed was executed, Plaintiff separated from her husband and moved into the residence at 565 Mcintosh Hill Road. (First Amended Complaint ("Complaint" or "Compl."), ¶¶15-16). On April 19, 2006, Plaintiff and her ex-husband, Gregory Griesenauer, were divorced. (Compl., ¶ 18). Plaintiff was awarded the Property as her separate, non-martial property. (Compl., ¶18). Plaintiffs ex-husband has never been an owner of record of the Property, has never lived at the Property, and has never been subject to any indebtedness securing any interest in the Property. (Compl., ¶19). On or about December 21, 2006, Plaintiff signed a Note and Deed of Trust as A SINGLE PERSON to secure a loan on the Property in favor of DAS Acquisition. (Compl., ¶¶5, 20). Sometime after January 25, 2007, DAS Acquisition indorsed the Note over to JPMorgan Chase Bank. (Compl., ¶21). Prior to May 28, 2014, Plaintiff defaulted on her Note and Deed of Trust and JPMorgan Chase turned the defaulted debt to Defendant to enforce its security interest in the Property. (Compl., ii23).

On or about May 28, 2014, Defendant sent a foreclosure letter addressed to Plaintiffs exhusband regarding Plaintiffs default on her mortgage payments and pending foreclosure sale. (Compl., ¶24). Defendant also informed a "Third Party" that the Property would be sold at a foreclosure sale on June 27, 2014 at 11:10 a.m. at the Troy Court House. (Compl., ¶25). Plaintiff resided at the Property until May 31, 2014, separate from her ex-husband. (Compl., ¶26). Plaintiff alleges that this attempt to communicate with her ex-husband was a prohibited communication with third parties under 15 U.S.C. §1692c(B), 1692d, 1692d(3), 1692e, 1692e(10), 1692f. (Compl., ¶27).

In its First Amended Complaint, Plaintiff alleged the following causes of action: Violations of the Fair Debt Collection Practices Act ("FDCPA") (Count I), Invasion of Privacy by Intrusion Upon Seclusion and by Revelation of Private Financial Facts to Third Party (Count II).


In ruling on a motion to dismiss, the Court must view the allegations in the Complaint liberally in the light most favorable to Plaintiff. Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th Cir. 2008) (citing Luney v. SGS Auto Servs., 432 F.3d 866, 867 (8th Cir. 2005)). Additionally, the Court "must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." Coons v. Mineta, 410 F.3d 1036, 1039 (8th Cir. 2005) (citation omitted). To survive a motion to dismiss, a complaint must contain "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating the "no set of facts" standard for Fed.R.Civ.P. 12(b)(6) found in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555; Huang v. Gateway Hotel Holdings, 520 F.Supp.2d 1137, 1140 (E.D. Mo. 2007).



"The FDCPA was enacted to eliminate abusive debt collection practices by debt collectors [and] to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.'" McIvor v. Credit Control Servs., Inc., 773 F.3d 909, 913 (8th Cir. 2014) (citing 15 U.S.C. § 1692(e)). Under 15 U.S.C. §1692e, "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." The FDCPA further precludes communications with third parties unless the creditor receives the express permission of the debtor or the Court:

Except as provided in section 1692b of this title, without the prior consent of the conswner given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a conswner reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

15 U.S.C. §1692c(b).

Plaintiff alleges that Defendant violated the FDCPA by sending a "Notice of Trustee's Sale" to her own address but to the attention of her ex-husband. Plaintiff argues in her briefing, "[t]he fact that Plaintiffs ex-husband never actually received the illegal communication is irrelevant." (ECF No. 18 at 14). However, the Court finds that the actual recipient of the information is relevant to her claims. Here, Plaintiff does not allege that her ex-husband received the communication from Defendant. Rather, the recipient of Defendant's statement was Plaintiff. For that basis alone, the Court does not believe that Plaintiff states a claim under the FDCPA because it is undisputed that Plaintiffs ex-husband never received Defendant's "Notice of Trustee's Sale." Moreover, Defendant never communicated any false, deceptive or misleading financial information because Plaintiff, the true recipient of the communication, could not have been misled by ...

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