Block v. Seneca Mortgage Servicing (221 F. Supp. 3d 559, 2016)

OPINION

Freda L. Wolfson, United States District Judge

Before the Court are the motions of Defendants Seneca Mortgage Servicing, Ocwen Loan Servicing, Fay Servicing, and ARLP Securitization Trust to dismiss the complaint of Plaintiff Florence Block, alleging breach of contract and violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, the Real Estate Settlement Procedures Act (“RES-PA”), 12 U.S.C. §§ 2601-2617, and the New Jersey Consumer Fraud Act (“NJCFA”) as the result of Defendants’ handling of Plaintiffs mortgage modification. For the reasons set forth below, Defendants’ motions are granted in part and denied in part as follows: All of Defendants’ motions to dismiss Count I, Plaintiffs breach of contract'claim, are denied; Defendant Ocwen’s motion to dismiss Count II, Plaintiffs FDCPA claim, is granted in part and denied in part (granted as to Plaintiffs claim under 15 U.S.C. § 1692d, granted as to Plaintiffs claim under 15 U.S.C. § 1692e based upon the February 2013 telephone call with Ocwen’s employee, granted on the basis of the statute of limitations for any conduct prior to January 26, 2015, and denied as to all other claims); Defendant Fay’s motion to dismiss Count II, Plaintiffs FDCPA claim is granted (with prejudice as to Plaintiffs 15 U.S.C. § 1692c(a) claim, without prejudice with respect to all other claims); Plaintiff is given leave to amend the complaint to address the status of Plaintiffs default at the time servicing responsibilities for her mortgage were transferred from Ocwen to Fay; Defendant Fay’s motion to dismiss Count III, Plaintiffs RES-PA claim, is granted; Defendant Seneca’s motion to dismiss Count IV, Plaintiffs NJCFA claim, is denied.

FACTUAL BACKGROUND & PROCEDURAL HISTORY

Unless otherwise identified as originating from another source, the facts alleged in the complaint are as follows. Plaintiff purchased the real property located at 40 Constitution Way, Bernards, New Jersey in 1997. Compl. ¶ 8. On or about May 22, 2007, Plaintiff entered into a refinance mortgage loan transaction. Id. at ¶ 10. As part of the refinance, Plaintiff executed a promissory note payable to the order of EquiFirst Corporation in the amount of $580,500.00 and a mortgage to secure the promissory note. Id. at ¶ 11. As has become de rigueur in the mortgage industry, since origination, Plaintiffs loan has been sold multiple times and the servicing rights of the loan have been transferred several times. Id. at ¶ 15. Plaintiff defaulted on her mortgage loan obligation in 2010. Id. at ¶ 16.

On January 4, 2013, the law firm of Pluese, Becker & Saltzman, LLC filed a debt collection foreclosure action in New Jersey Superior Court on behalf of The Bank of New York Mellon Trust Company seeking to enforce Plaintiffs promissory note. Id. at ¶ 18. After the foreclosure litigation had been filed, servicing of the mortgage loan transferred to Defendant Seneca. Id. at ¶ 19.

On or about May 12, 2014, Seneca provided Plaintiff a “Trial Modification Agreement” (“TMA”). Id. at ¶20. The relevant provisions of the TMA are as follows:

Section 1:

... In consideration of the mutual promises in this Agreement the receipt and sufficiency of which is hereby acknowledged, you and we agree as follows, notwithstanding anything to the contrary contained in the Note or Mortgage evidencing your Loan:

1. You [Plaintiff] acknowledge that default occurred and your loan has been properly accelerated and is fully due and payable.

2. You further acknowledge that a mortgage foreclosure proceeding was properly brought against you and your property as a result of your default.

3. You and we [Defendant Seneca] agree that your Loan will be reviewed for a permanent modification if the following payments are made, in certified funds:

A deposit in the amount of $ 4,887.73 to be made immediately.

Six trial monthly payments of $ 4,609.31 each, beginning 6-01-14, and the same day of each month after that as detailed on the attached Trial Payment Schedule.

Your trial monthly payments include principal, interest at a fixed rate of 6%, and escrow. That portion of your trial monthly payment used to pay escrow (the **Escrow Payment”) includes payments to cover taxes, insurance premiums, assessments and other escrow items.

Once you timely complete this payment schedule, you will be reviewed for a permanent modification. However, there is no guarantee that we will agree to permanently modify your Loan even if you make all trial payments, and even if you continue to make other payments. Acceptance by SMS or any of its agents, employees or other representatives of any payment or partial payment, including any trial modification payments, shall not be construed as a waiver of your default under the Loan unless and until SMA agrees to permanently modify your Loan and the permanent modification agreement is fully executed by all parties. A payment will be considered to be “timely” if we receive it before the date we can charge you a late charge as provided in the note evidencing your Loan.

Section 2:

You will qualify for a permanent modification at the end of the trial period if (1) you timely make all trial payments; and (2) we conclude, after review, that there has not been a material adverse change in your financial status or any other change in circumstances that render you ineligible for a permanent modification.

We will endeavor to complete our review and implement any permanent modification to which you may be entitled as soon as reasonably possible.

If you qualify for a permanent modification at the end of the trial period, your permanent modification will be as follows:

Your monthly installments of principal and interest will be $ 3,770.57, starting on 6-01-14, and the same day each month after that. You will additionally have to make an Escrow Payment. We will provide you with notice of the amount of your Escrow Payment. Your current Escrow Payment is $838.74. If your Escrow Payment remains the same when your permanent modification becomes effective, then your total monthly payment for principal and interest, plus your Escrow Payment, would be $4,609.31. However, your actual total monthly payment may vary depending on the actual amount of your Escrow Payment

If your Loan is permanently modified, the interest rate on your Loan will be fixed at 6% for the life of the Loan. .As of the date of this Agreement, the total amount necessary to pay off your Loan is $801,809.66. Your modified monthly payment was calculated by applying your interest rate to an adjusted principal balance of $650,000.00, If your loan is permanently modified, we will capitalize the other past due amounts of $138,491.27. This “balloon payment” of $138,491.27 will remain owed but will be deferred until maturity or payoff of the Loan.

4. We agree to suspend taking further action in your foreclosure proceeding, including any scheduled foreclosure sale, so long as you meet all obligations under this Agreement, including the obligation to make timely payments. You agree that our suspension of foreclosure proceeding will not affect any of our rights to continue our foreclosure proceeding against you and your property and will not be deemed to be a waiver of our rights to continue our foreclosure proceeding if you do not timely make all payments required by this Agreement, or if we otherwise determine that you do not qualify for a permanent modification. You further agree that your Loan was properly accelerated and that you received proper notice of acceleration, including pursuant to a Notice of Intention to Foreclose dated May 24, 2012. Moreover, you agree that no new notice of default, notice of intent to accelerate, notice of acceleration, or similar notice will be necessary to continue the foreclosure action, and all rights to such notices are hereby waived to the extent permitted by applicable law. You also waive any right to mediation, conciliation or arbitration in the foreclosure proceeding to the extent permitted by applicable law.

8. If you fail to meet all of your obligations under this Agreement, including timely making the deposit and your trial payments:

Your Loan will remain in default and your Loan will be governed by the Note and Mortgage evidencing your Loan as If this Agreement had not been entered Into.

You will be deemed to have waived any statute of limitations related to acceleration of your Loan.

We will have the right to continue the foreclosure proceeding of the Mortgage securing your Loan, without further notice to you, except as required by applicable law. You waive all claims and defenses of any kind that you might allege in the foreclosure proceeding, whether related to the origination of your Loan, your payments on the Loanl your default, the right to bring the foreclosure proceeding or otherwise.

Compl. Ex. A. The copy of the TMA was signed by Plaintiff on June 16, 2014. It is not signed by Defendant Seneca, although there is a signature line available, above which is printed “Seneca Mortgage Servicing, LLC, Asset Manager.” Id.

Plaintiff alleges that at some point after she received the TMA, Seneca agreed to change the due dates under the TMA so that an initial deposit would be due in the middle of June 2014 and the six monthly payments would be due commencing on June 15,2014. Compl. ¶ 24.

On or about June 15, 2014, Plaintiff made an initial deposit in the amount of $4,887.73 to Seneca. Id. at ¶25. Plaintiff has attached a copy of a PNC Bank personal check from Plaintiff made payable to the'order of Seneca Mortgage Servicing in the amount of $4,887.73 and dated June 15, 2014. Compl. Ex. A. On June 15, 2014, Plaintiff also conveyed a check in the amount of $4,609.31 to Seneca as the first payment under the TMA. Compl. ¶26. Plaintiff has attached a copy of the check, dated June 15,2014. Compl. Ex. A.

According to Plaintiffs bank statement, attached to the Complaint, the initial down payment check and the first monthly payment check were paid on June 25, 2014. It is not clear from the Complaint or the attached documents whether this reflects the date on which the checks were conveyed, or more likely, merely the date on which Defendant Seneca deposited Plaintiffs checks.

Plaintiff made subsequent payments in the amount of $4,609.31 to Seneca for the months of July, August, September, October, and November 2014, pursuant to the Trial Modification Agreement. Id. at ¶ 27. Plaintiff has attached to the complaint, checks made out to Seneca, dated July 15, 2014; August 15, 2014; September 15,2014; and October 15,2014. Compl. Ex. A.

Seneca deposited all of Plaintiffs payments, totaling $32,543.59 during the trial modification period. Id. at ¶ 28. As alleged in the Complaint, therefore, Plaintiff had fully performed under the Trial Modification Agreement by November 15, 2014.

On or about December 1, 2014, Plaintiffs mortgage loan was sold and servicing of the loan transferred to Defendant Ocwen. Id. at ¶ 32. Seneca did not review Plaintiff for a permanent modification pri- or to the transfer of loan servicing to Ocwen. Plaintiff also alleges that Seneca did not send a notice of the servicing transfer from Seneca to Ocwen.

The foreclosure action in New Jersey Superior Court was scheduled to go to trial on December 15, 2014. Id. at ¶ 34. On December 4, 2014, however, Pluese, Becker & Saltzman, LLC, again on behalf of its client the Bank of New York Mellon, together with Plaintiff, wrote to the state court, submitting a joint request for an adjournment of the trial. The letter stated:

Please accept this joint request for a sixty day adjournment of the trial in the above referenced matter.

The Defendant has completed all six of her trial modification payments and is going to be reviewed for a permanent modification, however, the Defendant’s loan has been sold and the servicing transferred to a' new servicer effective December 1, 2014.

We respectfully request this adjournment to give the Defendant and the servicer additional time for the modification review process.

Id. at ¶ 35. The state court denied the parties’ request. Id. at ¶ 36.

On December 17, 2014, the parties to the foreclosure action submitted a stipulation of dismissal, providing that:

1. This matter is hereby dismissed without prejudice, and subject to the right of the Plaintiff to reinstate the matter pursuant to paragraph two.

2. The Plaintiff shall have the right to reinstate this matter, within the next sixty (60) days, upon filing a certification with this Court that any of the following events have occurred: the Defendant, Florence Block, was presented with a permanent modification and rejected the permanent modification; the Defendant, Florence Block, has been reviewed for a permanent modification and has been denied due to a change in her financial status since the implementation of the Trial Payment Plan; or the Defendant, Florence Block, fails to abide by the terms of any Permanent Modification presented to her.

Id. at ¶ 37; Ex. C. The foreclosure action was not refiled. As of the date of the filing of the Complaint, there was no active foreclosure litigation involving Plaintiffs mortgage. On December 20, 2014, Defendant Ocwen sent Plaintiff a delinquency notice letter. The letter stated that Plaintiffs account first became delinquent on March 2, 2011, and that Plaintiff had failed to make payments in July, August, September, October, November, and December of 2014. Compl. ¶ 39.

Plaintiff contacted Ocwen in response to the letter and was provided with the contact information for Ocwen employee Adarsh, identification number 5048. Compl. ¶ 40. Plaintiff then contacted Ocwen and was told that Ocwen would not convert the TMA into a permanent loan modification. Id. at ¶41. It is unclear from the Complaint whether this refusal was conveyed by Adarsh or some other Ocwen employee. Counsel for Plaintiff then provided Ocwen with proof of Plaintiffs full compliance with the Trial Modification Agreement entered into with Seneca. Id. at ¶42.

On or about February 6, 2015, Ocwen representative Adarsh confirmed by phone with Plaintiffs Counsel, that Ocwen would send documentation to permanently modify the mortgage loan. Id. at ¶ 43. Ocwen never sent a permanent loan modification contract to Plaintiff. Id. at ¶44.

By letter dated March 4, 2015, Ocwen advised Plaintiff that servicing of the mortgage loan was being transferred to Fay Servicing, LLC, effective March 20, 2015. Id. at ¶ 45. By letter dated July 28, 2015, Fay Servicing notified Plaintiff that on June 29, 2015 the mortgage loan had been sold to ARLP SECURITIZATION TRUST, SERIES 2015-1. ARLP SECU-RITIZATION TRUST, SERIES 2015-1 remains the owner of the loan as of the date of the filing of the complaint. Id. at ¶46. At some point after receiving the transfer notice from Ocwen, Plaintiff contacted Defendant Fay and Fay refused to provide Plaintiff with a permanent loan modification. Id. at ¶ 47.

Instead, in July 2015, Fay Servicing, LLC provided Plaintiff with a new Trial Loan Modification that required Plaintiff to make a down payment and six subsequent trial payments. Id. at ¶ 48. Plaintiff did not make additional “trial payments” and again requested that a permanent modification be provided pursuant to the Trial Modification Agreement with Seneca. Id. at ¶ 49.

Plaintiff sent Defendant Fay a letter dated July 27, 2015, in which Plaintiff requested information, including the servicing file on her loan, the identity of the current and past owners of her loan, and an accounting of all payments received and credited against her account. Id. at ¶ 88; Ex. F. The letter also set forth what purported to be a notice of error, informing Fay of the existence of the trial modification with Seneca and alleging that Seneca and Ocwen failed to properly credit Plaintiffs $32,543.59 in trial modification payments to her loan balance. Id. Lastly, the letter requested that all future communication from Fay be directed to Plaintiffs attorney. Id.

In a letter dated July 28, 2015, Defendant Fay notified Plaintiff that her mortgage loan had been sold to defendant ARLP on June 29, 2015. Id. at ¶ 46. In a separate letter dated September 11, 2015, Fay responded to Plaintiffs requests for information. Id. at ¶ 92. Fay did not respond to Plaintiffs purported notice of error. Id. at ¶ 93.

Plaintiff filed the four count complaint in this case on January 26, 2016. In Count I Plaintiff claims breach of contract against Seneca, Ocwen, Fay, and ARLP for the failure to consider Plaintiff for a permanent mortgage loan modification pursuant to the terms of the TMA, and for failure to provide a permanent mortgage loan modification pursuant to the terms of the TMA. In Count II, Plaintiff claims that Ocwen and Fay violated the Fair Debt Collection Practices Act (“FDCPA”) in their servicing of Plaintiffs loan. In Count III, Plaintiff claims that Fay violated the Real Estate Settlement Procedures Act in failing to acknowledge and respond to Plaintiffs purported notice of error. In Count IV, Plaintiff alleges that Seneca violated the New Jersey Consumer Fraud Act by failing to consider Plaintiff for and to provide a permanent mortgage loan modification pursuant to the terms of the TMA.

Defendants Ocwen, ARLP, and Fay moved to dismiss the complaint on March 31, 2016. Defendant Seneca moved to dismiss the complaint on April 1, 2016. All four defendants have also joined in one another’s motions.

STANDARD OF REVIEW

In reviewing a motion to dismiss on the pleadings, the court “accept[s] all factual allegations as true, construed the complaint in the light most favorable to the plaintiff, and determined whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation and quotations omitted). As such, a motion to dismiss for failure to state a claim upon which relief can be granted does not attack the merits of the action but merely tests the legal sufficiency of the complaint. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009); see also Fed. R. Civ. P. 8(a)(2) (“[a] pleading that states a claim for relief ... must contain a short and plain statement of the claim showing the pleader is entitled to relief’). In other words, to survive a Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

However, “the tenet that a court must accept as true all the allegations contained in the complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955). A plaintiff must show that there is “more than a sheer possibility that the defendant has act unlawfully.” Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). This plausibility determination is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In other words, for the plaintiff to prevail, the “complaint must do more than allege the plaintiffs entitlement to relief;” it must “ ‘show’ such an entitlement with its facts.” Fowler, 578 F.3d at 211 (citing Phillips, 515 F.3d at 234-35).

The Third Circuit has cautioned, however, that Twombly and Iqbal “do not provide a panacea for defendants,” rather, “they merely require that plaintiff raise a ‘plausible claim for relief.’” Covington v. Int’l Ass’n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (quoting Iqbal, 556 U.S. at 679, 129 S.Ct. 1937). Thus, factual allegations must be more than speculative, but the pleading standard “is not akin to a ‘probability requirement.’” Id. (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937; Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

ANALYSIS

I. Count I: Breach of Contract — All Defendants

To state a claim for breach of contract under New Jersey law, a plaintiff “must allege (1) a contract between the parties; (2) a breach of that contract; (3) damages flowing therefrom, and (4) that the party stating the claim performed its own contractual obligations.” Frederico v. Home Depot, 507 F.3d 188, 203 (3d Cir. 2007). Defendants challenge Plaintiffs claims under all four factors.

A. Existence of Consideration for the Contract

Defendants first argue that the Seneca TMA is not a valid contract due to the absence of consideration. As an initial matter, looking to the contract itself, Defendants’ claim is immediately undermined; the TMA on its face purports to be supported by adequate consideration. See TMA, Section 1, p.l (“In consideration of the mutual promises in this Agreement the receipt and sufficiency of which is hereby acknowledged, you and we agree as follows”). Because not every contract that purports to be supported by consideration is so supported, the Court shall proceed to consider Defendants’ arguments raised in their motions to dismiss.

“Consideration is a bargained-for exchange of promises or performance that may consist of an act, a forbearance, or the creation, modification, or destruction of a legal relation. In general, contracts are enforceable only if they are supported by consideration. If the consideration requirement is met, there is no additional requirement of gain or benefit to the promisor, loss or detriment to the promisee, equivalence in the values exchanged, or mutuality of obligation.” Sipko v. Koger, Inc., 214 N.J. 364, 380, 70 A.3d 512, 521-22 (2013) (citations omitted).

Plaintiff identifies two categories of consideration for the promises under the TMA. First, Plaintiff alleges that the down payment and modified monthly payments she sent to Seneca constituted consideration. Second, Plaintiff alleges that the legal rights she surrendered in the TMA constituted consideration.

In response, Defendants assert that the modified loan payments, as payments in satisfaction of a preexisting debt, cannot serve as new consideration for Defendant Seneca’s alleged promises. Segal v. Lynch, 211 N.J. 230, 253, 48 A.3d 328 (2012) (stating that “consideration cannot be a promise to perform a pre-existing legal duty”) (citing Williston on Contracts § 7:37 (4th ed.2008)). See Bernetich, Hatzell & Pascu, LLC v. Med. Records Online, Inc., 445 N.J. Super. 173, 183-84, 136 A.3d 955, 961 (App. Div. 2016) (“consideration generally may not be furnished by fulfilling, a preexisting legal duty. ‘Performance of a legal duty owed to a promisee which is neither doubtful nor the subject of honest dispute is not consideration(quoting Restatement (Second) of Contracts, § 73 (1981)). In other words, Defendants argue that Plaintiff cannot have offered as consideration the payment of monies she already owed.

Neither Plaintiff nor any of the Defendants has provided the Court with controlling precedent on whether Plaintiffs modified monthly payments themselves may constitute adequate consideration for the TMA, and the Court is not persuaded by the other district court opinions briefly touching upon it. However, the Court does not need to determine the sufficiency of Plaintiffs modified loan payments as consideration because the complaint clearly alleges that Plaintiff offered other valuable consideration to secure Defendants’ promises.

Specifically, under the TMA, Plaintiff surrendered valuable legal rights, including (i) acknowledging that default occurred; (ii) acknowledging that Plaintiffs loan \yas properly accelerated and is fully due and payable; (iii) acknowledging that a mortgage foreclosure proceeding was properly brought against Plaintiff and Plaintiffs property as a result of Plaintiffs default; (iv) agreeing that Plaintiff received proper notice of the loan acceleration; (v) agreeing that no new notice of default, notice of intent to accelerate, notice of acceleration, or similar notice would be necessary to restart the foreclosure action; (vi) waiving all rights to all such notices to the extent permitted by law; (vii) waiving any right to mediation, conciliation or arbitration in the foreclosure proceeding to the extent permitted by law; and (viii) waiving all claims and defenses of any kind that Plaintiff might allege in the foreclosure proceeding, whether related to the origination of Plaintiffs Loan, payments on Plaintiffs Loan, Plaintiffs'default, the right to bring the foreclosure proceeding, or otherwise. The Court is particularly persuaded by Plaintiffs forfeiture of defenses in the foreclosure action that was pending, in June 2014, when Plaintiff signed the TMA, giving up her legal rights as the defaulting party. As discussed below, the law is clear the Plaintiffs forfeiture of such valuable legal rights can be sufficient consideration for a new contract.

In perhaps the seminal case on TMAs, or Trial Payment Plans (TPPs) as they are also known, the Seventh Circuit in Wigod found that separate and apart from any monetary payments on the loan by Plaintiff, “the TPP contained sufficient consideration because, under its terms,.... (the promisee) incurred cognizable legal detriments," Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 564 (7th Cir. 2012) (alterations in original). Wigod was decided under the law of Illinois. “Under Illinois law, consideration consists of some detriment to the offeror, some benefit to the offeree, or some bargained-for exchange between them. ‘If a debtor does something more or different in character from that which it was legally bound to do, it will constitute consideration for the promise.’ ” Id. at 563-64 (certain quotations omitted) (quoting 3 Williston on Contracts, § 7:27). The law of New Jersey is substantially similar, and provides a broad definition of consideration. Indeed, “[v]ery little, would be needed in New Jersey to uphold. a contract. In ... [one] case, ... the [New Jersey] Court of Errors and Appeals[, now the New Jersey Supreme Court,] said:

The consideration to support a promise may be either a benefit accruing to the promisor of a loss or disadvantage to the promisee. (Citing New Jersey cases) The detriment to the promisee necessary to constitute a consideration is sufficient if it consists of the simple surrender of a legal right. And in fact any act which constitutes a change of the legal position of the promisee may be a valid consideration. * * * It was not necessary to the validity of the contract that the consideration should move directly to the respondent. It was sufficient if it passed to third persons at her request. * * * Nor does the matter of the adequacy or inadequacy of the consideration enter into the question of validity. That is left to the free choice and personal judgment of the parties.”

In re Cent. R. Co. of N.J., 163 F.2d 44, 51-52 (3d Cir. 1947) (quoting Headley v. Leavitt, 65 N.J. Eq. 748, 55 A. 731 (1903)) (alterations in original). Here, Plaintiffs surrender of her legal rights alone is sufficient consideration for Defendants’ promise under the TMA.

The Fifth Circuit’s decision in Pennington v. HSBC Bank USA, N.A., relied upon by Defendants, does not hold to the contrary. Defendants contend that Pennington stands for the proposition that a TMA is not a valid contract where the only consideration offered is the payment of a preexisting debt and the TMA itself is unsigned. This Court reads Pennington differently. Significantly, the decision in Pennington was limited to its facts. Pennington v. HSBC Bank USA, N.A., 493 Fed.Appx. 548, 553 (5th Cir. 2012) (“We need not determine whether TPPs in general are contracts, because these plaintiffs have not met the conditions set by the TPPs and Modification Agreements. Smith’s allegations demonstrate her financial disqualification from the program; the bank never signed the TPP for the Penningtons or the Modification Agreement for Smith, which is required for the provisions to take effect.”). The TMA, or TPP, at issue in Pennington had an explicit clause requiring it to be executed by the defendant servicer before it became a binding agreement. Id. at 554 (“The Penningtons’ claim for breach of the TPP fails for an even more basic reason: Their TPP did not form a contract, because the bank never expressed an intent to be bound. The TPP expressly requires that before the contract is final, the lender must send a signed copy to the borrower. The Pen-ningtons never alleged that they received such a signed copy. Their contract contained the same language ... that the TPP does not take effect until the borrower and the lender sign it and the lender provides the borrower a signed copy.”). There is no similar clause here. On the contrary, the express terms of the TMA indicate that it took the form of a unilateral offer by Defendant to Plaintiff, which Plaintiff could accept by executing the agreement and performing under it.

Even were there a signature requirement under the TMA, the Court is not convinced that the absence of a signature would defeat the existence of an agreement given Defendant’s subsequent course of conduct. At least one court in this District has found that it would not. See Beals v. Bank of Am., N.A., No. CIV.A. 10-5427 KSH, 2011 WL 5415174, at *10 (D.N.J. Nov. 4, 2011) (“failure to sign the document is not dispositive” because “Defendant's] decision to cash the [Plaintiffs] check[s] and remain silent ..., without any indication that the agreement was still under review, is a sufficiently meaningful signal of an intention to be bound to state a claim for breach contract.”). Here, Defendant Seneca allowed half a year to pass, in which Plaintiff is alleged to have made payments in compliance with the TMA, without Seneca ever expressing that its failure to sign the document meant that no agreement was in force.

Finally, in Pennington, the Fifth Circuit found that the only consideration offered by the plaintiff was the modification payments made under the TMA/TPP. That court did not consider whether the debtor had surrendered any legal rights. In contrast, I find that Plaintiff has identified ample consideration, outside of pure monetary payments, in the form of her forfeiture of legal rights.

B. Plaintiffs Performance Under the Contract

Defendants argue that Plaintiff cannot bring a breach of contract action because she failed to fulfill her obligations under the TMA in the first instance. Under New Jersey law, to state a claim for breach of contract, the party stating a claim must allege, inter alia, that it performed its own contractual obligations. Beals, 2011 WL 5415174, at *9 (citing Frederico, 507 F.3d at 203). Defendants present two alleged breaches by Plaintiff. First, Plaintiff allegedly failed to make her trial payments in “certified funds,” as required by the TMA. Second, Plaintiff allegedly failed to make her six trial payments in a timely manner. Specifically, Defendants contend that the down payment and five of the six trial payments were submitted late.

As to Defendants’ first claim, the allegations in the Complaint assert that Defendant Seneca, and the then owner of Plaintiffs mortgage loan, the Bank of New York Mellon, clearly accepted Plaintiffs mortgage payments and made no mention at the time of any payments being late or not in certified funds. Compl. ¶¶ 25-27. Seneca is alleged to have deposited Plaintiffs down payment and all six of her trial monthly payments in the total amount of $32,543.59. Id. at ¶28. Furthermore, the Bank of New York Mellon is alleged, through counsel, to have submitted a letter in a New Jersey state court foreclosure proceeding stating that Plaintiff had complied with the TMA. See Complaint, Ex. B (Plaintiff “has completed all six of her trial modification payments and is going to be reviewed for a permanent modification”).

The out-of-circuit, unreported decision in Pennington is again distinguishable, despite its holding that “[r]egardless of whether the TPP modifies a loan when a borrower meets his obligations, it does not modify a loan when he fails to meet the conditions the TPP specifies are necessary to obtain a modification.” Pennington, 493 FedAppx. at 551. The Fifth Circuit in Pennington found Defendant’s acceptance of trial payments to be unpersuasive as proof of compliance because “[although the bank’s acceptance of the trial payments from the Penningtons lends some support to finding that the parties intended to be bound, that weight is reduced, because the Penningtons already owed regular payments. Although the fact that they paid under the TPP indicates that they hoped to be bound, the question is whether the bank expressed a similar intent despite the fact that conditions in the TPP remained unfulfilled. The bank deposited the payments, but the Penningtons owed more than that. Even if the bank intended to refuse to accept the TPP, it would still take the money in partial satisfaction of the amount owed while interest accrued.” Id. at 555. The court’s decision, however, turned on the fact that the TPP or TMA in that case required Defendant’s signature for full execution. The Court found that in the absence of Defendant’s signature, there was no allegation that Defendant intended to be bound by the TPP in the first instance. Thus, although acceptance of payments was consistent with the TPP being in force, it was equally consistent with Defendant simply partially collecting on the still defaulted loan. Here, by contrast, there is no term of the TMA requiring some action by Defendant for the TMA to go into effect. As alleged, the TMA purports to give Plaintiff the power to accept the agreement through signature and performance, and Plaintiff has alleged that she did so. Coupled with Defendant’s alleged acceptance of her performance, the Court finds sufficient allegations of compliance even without “certified funds,” at least to survive a motion to dismiss.

As to the second point, Defendant’s arguments concerning the untimeliness of Plaintiffs down and monthly payments raise questions of fact not properly before the Court on a motion to dismiss. Plaintiff alleges in her complaint that she paid the down payment and all six of her monthly trial payments on time, with on time payment being the fifteenth of the month. Compl. ¶ 24. Plaintiff further provides copies of five of the six monthly checks and the down payment check, all dated the fifteenth of their respective months. Defendant contends that the due date for payments was not the fifteenth of the month, but the first, and that even if the due date were the fifteenth, Plaintiffs bank statement, attached to the Complaint, shows that the down payment, the June monthly payment and the August monthly payment were all “paid” late. Firstly, the meaning of “paid” is not alleged in the Complaint or explained in the attached documents, but, by common sense alone, in the absence of additional facts, the bank statements appear to show the date on which Defendant deposited Plaintiffs checks, rather than the date that they were transmitted by Plaintiff and received by Defendant. As such, the date of their deposit by Seneca would not be relevant to timeliness, so long as Defendant had received them on time. Secondly, the dispute about whether Plaintiffs representations and the dates on the check copies attached to the complaint, or Defendant’s representations and the dates of Plaintiffs bank statements should govern, raise questions of credibility and comparative weight of the evidence that this Court is not permitted to adjudicate on these motions to dismiss.

C. Damages

Defendants further argue that Plaintiff has failed to allege any damages resulting from Defendants’ alleged breach. As in the case of consideration, both Plaintiffs and Defendants focus their briefing primarily upon the question of whether the modified mortgage payments themselves can serve as adequate damages. Again, however, the Court need not decide that question because Plaintiff alleges other damages of a type broadly recognized by the courts in the mortgage modification context.

Specifically, in addition to the $82,543.59 in payments under the TMA, Compl. ¶73, Plaintiff alleges, inter alia, that she was overbilled for interest owed on the loan, overbilled for tax and insurance escrows owed on the loan, id. at ¶ 80(b), and suffered damage to her credit score, id. at ¶ 111, loss of equity in her home, id. at ¶ 111, and economic loss associated with counsel fees from defending against Defendants’ allegedly erroneous collection actions id. at ¶ 111. District courts in this circuit have routinely recognized these trial modification related injuries as cognizable breach of contract damages. See Cave v. Saxon Mortg. Servs., Inc., No. CIV.A. 12-5366, 2013 WL 1915660, at *7 (E.D. Pa. May 9, 2013) (finding damages where plaintiff claimed “payment of increased interest, longer loan payoff times, higher princip[al] balances, deterrence from seeking other remedies to address their default and/or unaffordable mortgage payments, damage to their credit, additional income tax liability, [and] costs and expenses incurred to prevent or fight foreclosure” and defendant “argue[d] that these damages were not the result of its refusal to provide Plaintiffs with permanent modifications, [and] that they would have arisen in any event because Plaintiffs’ mortgages were in default”); see id. at *8 (“The Complaint alleges that [defendant] did not provide Plaintiffs with permanent modifications, and thus, their mortgage payments were never reduced and they never received those other financial benefits that permanent modifications would have bestowed.... If [defendant] had-provided Plaintiffs with permanent modifications, it is reasonable to infer that they would not have incurred, inter alia, increased principal, interest, and longer loan payoff times that accrued after the end of their trial periods, and may have sought other remedies to address their unaffordable mortgage payments,”); Giordano v. Saxon Mortg. Servs., Inc., No. CIV.A. 12-7937 MAS, 2014 WL 4897190, at *7 (D.N.J. Sept. 30, 2014) (“as a result of [defendant’s] breach, Plaintiffs suffer and continue to suffer damages, including increased interest payments, longer loan payoff times, deterrence from timely seeking other remedies, damage to their credit, additional income tax liability, and costs and expenses incurred to modify their loan.... Plaintiffs have sufficiently alleged damages resulting from [defendant’s] breach.”); Sarlo v. Wells Fargo Bank, N.A., 175 F.Supp.3d 412, 424 n.7 (D.N.J. 2015) (on summary judgment “[i]t would be premature to rule out the possibility of damages beyond [monetary] loss” where “Plaintiffs state that they have suffered ‘adverse credit consequences’ because of Defendant’s breach,” “Plaintiffs will need to submit additional evidence at trial to prove damages beyond that amount as a result of Defendant’s failure to properly evaluate them for a loan modification.”). See also Wigod, 673 F.3d at 575 (rejecting trial court’s conclusion that plaintiff had not shown any pecuniary loss and pointing to the plaintiffs allegations that she “incurred costs and fees, lost other opportunities to save her home [and] suffered a negative impact to her credit.”)- I concur with the reasoning of these cases and find, accordingly, that Plaintiff has, on these motions to dismiss, adequately alleged damages arising from the claimed breach.

D. Privity of Contract

Defendants further argue that, even were the TMA a binding contract, it could not be enforced against them because they are not in privity of contract with Plaintiff. “Generally, if a person has validly assigned all of his interest in a claim before an action is brought he is no longer the real party in interest.” Beneficial Commercial Corp. v. Railserv Mgmt. Corp., 563 F.Supp. 114, 116 (E.D. Pa. 1983), aff'd, 729 F.2d 1445 (3d Cir. 1984). Seneca argues that any obligations it had related to Plaintiffs mortgage note were passed along with the mortgage servicing responsibilities to Ocwen. Ocwen and Fay, for their part, contend that the TMA binds, if any servicer, only Seneca, who was a party to the TMA, and did not pass with the mortgage because there never was a permanent modification. In short, each defendant claims that Plaintiff has no breach of contract cause of action against it, because, according to their assignment relationships, some other defendant bears exclusive contractual liability, if any.

Defendants’ arguments concerning contractual privity, however, are misplaced in the context of motions to dismiss because the outcome turns on the factual nature of the assignments from Seneca to Ocwen and from Ocwen to Fay. Plaintiff has alleged that Defendant Seneca’s alleged obligation under the TMA passed to Ocwen and from Ocwen to Fay along with the servicing responsibilities for Plaintiffs mortgage. Compl. ¶¶ 61, 65. Indeed, Plaintiff has attached a letter from counsel for the then creditor of Plaintiffs loan, Bank of New York Mellon, from December 2014, which suggests that, at the very least, the creditor holding Plaintiffs loan believed that the TMA had survived the assignment from Seneca to Ocwen. Compl. Ex. B.

Plaintiff also alleges that each of the three defendant servicers was bound by and breached the TMA. Compl. ¶¶ 52-71. This form of pleading in the alternative is permissible at this stage, as Plaintiff presumably does not have access to the assignment contracts governing the Defendants’ relationships and therefore cannot know which of the defendants, if any, breached the TMA as a legal matter. Factually, however, Plaintiff has alleged that were each defendant liable under the TMA, each would have breached the agreement for failure to perform the required review of Plaintiffs loan for permanent modification. Seneca failed to review the loan in the period from November 15, 2014 to December 1, 2014, during which time Seneca was Plaintiffs loan servicer and Plaintiff had allegedly fully performed under the TMA. Ocwen could be in breach in the period from December 2014 to March 2015, during which it was the servicer of Plaintiffs loan and failed to review it for permanent modification, and Fay could be in breach during the period after March 20, 2015, when it failed to so perform.

To require Plaintiff to allege additional facts about the assignment agreements between Defendants, to which she does not have access without the benefit of discovery, would be unjust and premature. The factual question of what the relationships were between Defendants, and what obligations they incurred, must therefore be resolved on summary judgment or at trial. It simply cannot be decided on a motion to dismiss upon the available pleadings.

E. Defenses to Breach — Defendants Argue that the TMA Does Not Obligate Defendants to Provide Permanent Modification, Only Review, and Review is Discretionary (Illusory Contract)

Defendants also argue that Plaintiff fails to allege that Defendants breached the TMA, because the TMA requires Seneca, or Defendants, only to “review” Plaintiff for a modification, not award one. Further, Defendants argue that Seneca, or the other Defendants if the TMA is binding on them, were entitled under the TMA to deny Plaintiff a permanent modification based on “a material adverse change in [Plaintiffs] financial circumstances or any other change in circumstances that rendered] [Plaintiff] ineligible for a permanent modification.” Because, Defendants argue, Plaintiff has failed to allege that Seneca or another Defendant actually conducted the review required by the TMA and concluded that Plaintiffs circumstances had not changed, Plaintiff has failed to allege that Seneca or another Defendant breached the TMA. The clear implication of Defendants’ argument is that the existence of the TMA as a binding contract was dependent upon a subsequent discretionary act by a Defendant, and thus in the absence of any allegations that Defendants actually conducted the review of Plaintiffs mortgage required as a condition precedent for Plaintiff to be entitled to a permanent modification, no breach has been alleged. I do not agree.

The Court in Wigod faced a similar but not identical TPP and argument from the defendant. There, the TPP provided only that the defendant would review the plaintiffs eligibility for a modification at the time the TPP was offered and would offer a permanent modification provided that the plaintiff complied with the requirements of the TPP and her “representations ... continue[d] to be true in all material respects.” The defendant argued that it had the discretion to review the plaintiffs eligibility again after her compliance with the TPP terms before offering a permanent modification, in order to verify that the representations made at the time the TPP was offered continued to be true. The defendant contended that because its own discretionary action was required to trigger its obligations under the contract, there was no binding offer of a permanent modification, and, therefore, there was no breach. The Seventh Circuit rejected defendant’s position:

That is not a reasonable reading of the TPP. Certainly, when the promi-sor conditions a promise on his own future action or approval, there is no binding offer. But when the promise is conditioned on the performance of some act by the promisee or a third party, there can be a valid offer. See 1 Richard A. Lord, Williston on Contracts § 4:27 (4th ed. 2011) (hereinafter “Williston on Contracts”) (“[A] condition of subsequent approval by the promisor in the promisor’s sole discretion gives rise to no obligation.... However, the mere fact that an offer or agreement is subject to events not within the promisor’s control ... will not render the agreement illusory.”)

Wells Fargo’s proposed reading of section 2 would nullify other express provisions of the TPP Agreement. Specifically, it would nullify Wells Fargo’s obligation to “send [Wigod] a Modification Agreement” if she “complied] with the requirements” of the TPP and if her “representations ... continue to be true in all material respects.” TPP § 3. Under Wells Fargo’s theory, it could simply refuse to send the Modification Agreement for any reason whatsoever — interest rates went up, the economy soured, it just didn’t like Wigod — and there would still be no breach. Under this reading, a borrower who did all the TPP required of her would be entitled to a permanent modification only when the bank exercised its unbridled discretion to put a Modification Agreement in the mail. In short, Wells Fargo’s interpretation of the qualifying language in section 2 turns an otherwise straightforward offer into an illusion.

The more natural interpretation is to read the provision as saying that no permanent modification 'existed “unless and until” Wigod (i) met all conditions, (ii) Wells Fargo executed the Modification Agreement, and (iii) the effective modification date passed. Before these conditions were met, the loan documents remained unmodified and in force, but under paragraph 1 and section 3 of the TPP, Wells Fargo still had an obligation to offer Wigod a permanent modification once she satisfied all her obligations under the agreement. This interpretation follows from the plain and ordinary meaning of the contract language stating that “the Plan is not a modification ... unless and until” the conditions precedent were fulfilled. TPP § 2.G. And, unlike Wells Fargo’s reading, it gives full effect to all of the TPP’s provisions .... Once Wells Fargo signed the TPP Agreement and returned it to Wig-od, an objectively reasonable person would construe it as an offer to provide a permanent modification agreement if she fulfilled its conditions.

Wigod, 673 F.3d at 561-63.

The language of the TMA here is certainly more explicit than that in Wigod, in that Defendant Seneca was only bound to review Plaintiff for a permanent modification rather than award her one. Compl. Ex. A, Sec. 1, p. 2 (“Once you timely complete this payment schedule, you will be reviewed for a permanent modification. However, there is no guarantee that we will agree to permanently modify your Loan even if you make all trial payments”). Accordingly, Defendant initially appears to have reserved discretion to reevaluate Plaintiffs eligibility for the permanent modification, even after her compliance with the TPP. Importantly, however, as in Wigod, Defendant limited its discretion by providing that Plaintiff would be awarded a permanent modification as long as Defendant’s review uncovered no material change in her circumstances. Id, at Sec. 2, p.l (“You will qualify for a permanent modification at the end of the trial period if (1) you timely make all trial payments; and (2) we conclude, after review, that there has not been a material adverse change in your financial status or any other change in circumstances that render you ineligible for a permanent modification.”). This Court finds this requirement substantially similar to the requirement in Wigod that the plaintiffs representations underlying her eligibility for modification had to remain true in order for a permanent modification to be awarded. Therefore, as in Wigod, Defendant was not empowered to deny Plaintiff a permanent modification for no reason, but only for the specific reason of a material change in circumstances. See also Arias, 439 N.J.Super. at 279, 108 A.3d 21 (“Based on our reading of the TPP Agreement, we conclude that it was ‘a unilateral offer,’ pursuant to which the bank promised to. give plaintiffs a loan modification, if and only if plaintiffs complied fully and timely with their obligations under the TPP, including making all payments timely and providing documentation establishing that the financial representations they made to the bank in applying for the TPP were accurate when made and continued to be accurate.”).

Accordingly, it is not a reasonable reading of the TMA to find, as Defendants suggest, that this provision gave Defendant unbridled discretion to deny Plaintiff a permanent modification for any reason, unrelated to her financial wherewithal, so as to make the existence of the TMA dependent upon Defendant’s action and render the provision illusory. Defendant promised to provide a permanent modification if certain conditions were met by Plaintiff. Furthermore, Plaintiff has alleged in her Complaint that “[d]uring the Trial Modification Agreement payment period, Plaintiff did not experience a material adverse change in her financial status or any other change in circumstances that rendered Plaintiff ineligible for a permanent modification.” Compl. ¶29. On this motion to dismiss, the Court must accept Plaintiffs allegation as true..

Lastly the Court again observes that “[w]hether or not [defendant] had an obligation to offer the permanent loan modification, and whether or not [defendant] performed in accordance with any alleged obligations, is a fact issue. Therefore, at [the motion to dismiss] stage of the proceedings, the Court will deny [defendant’s] motion to dismiss ..., without prejudice.” Laughlin v. Bank of Am., N.A., No. CIV.A. 13-4414, 2014 WL 2602260, at *8 (D.N.J. June 11, 2014). See also Sarlo, 175 F.Supp.3d at 424 (Where there were allegations “that Defendant never bothered to conduct a proper evaluation for a loan modification, or that any final response was communicated to Plaintiffs,” the court found that “[b]ased on this evidence, a reasonable jury could conclude that Defendant failed to properly assess whether Plaintiffs qualified for a loan with a lower interest rate and monthly payment, and breached its obligation to Plaintiffs.”).

F. Defenses to Breach — Defendants Argue that the TMA Does Not Obligate Defendants to Provide Review Within a Specific Time

Defendant Ocwen contends that because the TMA is silent on the time for Defendants’ performance of the obligation to review Plaintiffs loan for a permanent modification after Plaintiffs performance, Defendants had a reasonable time in which to do so, and no such reasonable time period elapsed before Seneca’s transfer to Ocwen and Ocwen’s transfer to Fay. “While a party’s mere failure to perform within a contract’s time deadline is not necessarily a material breach, the breach becomes material if that party fails to perform within a reasonable time.” Bapu Corp. v. Choice Hotels Int’l, Inc., No. 07CV5938(WJM), 2008 WL 2559306, at *4 (D.N.J. June 24, 2008) (citing 23 Richard A. Lord, Williston on Contracts § 63:18 (4th ed.1990)) aff’d, 371 Fed.Appx. 306 (3d Cir. 2010).

The Court is skeptical whether the loan servicing transfers, which are brought about through multiple sales of Plaintiffs loan, could provide an excuse for non-compliance. At this juncture, the Court, however, merely declines Defendant Ocwen’s invitation to find, as a matter of law, that the period of weeks and then months in which Defendants Seneca and Ocwen, respectively, had to perform on the TMA were necessarily insufficient to perform a review of Plaintiffs loan such that performance by them should have been excused. The parties have not briefed the issue of what a reasonable time for compliance would have been, and, on its face, it is a fact-based inquiry, not appropriate on a motion to dismiss.

G. Defense to Breach — Ocwen in Fact Provided Some Review

Lastly, Defendant Ocwen alleges that Plaintiffs allegations that Ocwen employee Adarsh informed Plaintiff that she would be receiving a permanent modification indicates that some review was undertaken, and accordingly, no breach of contract on that basis can be found. Defendant’s argument, however, assumes numerous facts not in the pleadings, that, for example, Adarsh was in a position to bind Ocwen, Adarsh’s representation that Plaintiff would receive a permanent modification was necessarily based upon some review, and that whatever review was undertaken was sufficient under the TMA and limited to the appropriate criteria set forth therein. In short, as with many of Defendants’ previous arguments, the question of whether Plaintiffs loan was ever reviewed by any servicer is a question of fact not now before the Court. For now it is sufficient to observe that Plaintiff alleges that no such review took place, or,- in the alternative, that if Adarsh did conduct such a review, no permanent modification was ever offered to Plaintiff, despite her continued qualification for modification under the TMA.

In finding these issues of fact, the Court is in accord with the most recent precedent on mortgage modifications in this District. See, e.g. Hawkins v. Seterus, Inc., No. CV 16-1407(KM), 2016 WL 5477995, at *4 (D.N.J. Sept. 27, 2016) (“Whether the TPP letter, which is subject to interpretation, was intended as such a binding offer, poses factual issues. Whether the borrower fully complied with its express and implied terms, and so on, remain issues as well. I cannot say, however, that the plaintiffs theory is so clearly foreclosed as a matter of New Jersey law that his claim must be dismissed at the pleading stage. Further exploration of both the law and the facts must await summary judgment.”).

II. Count II: FDCPA — Ocwen and Fay

While Plaintiffs claim for breach of contract is raised against all Defendants, the remaining claims in the complaint are raised against select Defendants only. Plaintiff brings FDCPA claims against Defendants Ocwen and Fay. Plaintiff alleges that Defendant Ocwen violated 15 U.S.C. sections 1692d and 1692e on February 6, 2015, when Ocwen employee Adarsh represented by phone that Ocwen would be sending a permanent loan modification contract pursuant to the terms of the TMA, Compl. ¶ 79a; and separately violated section 1692e by sending monthly loan statements to Plaintiff “demanding payment for a sum of money that was not owed.” Compl. ¶ 80b.

Ocwen moves to dismiss on the grounds that (i) neither the February phone call, nor the transfer letter attached to the complaint are communications in connection with the collection of a debt; (ii) that any FDCPA claim arising from the transfer letter attached to the complaint is barred by the applicable statute of limitations; and (iii) that the February 6, 2015 phone call was not abusive or harassing within the meaning of the Act.

The Fair Debt Collection Practices Act “is a consumer protection statute that prohibits certain abusive, deceptive, and unfair debt collection practices.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 133 S.Ct. 1166, 1171 n. 1, 185 L.Ed.2d 242 (2013) (citing 15 U.S.C. § 1692). By its terms, the purpose of the FDCPA is to “eliminate abusive debt collection practices by debt collectors” while insuring that “debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged.” 15 U.S.C. § 1692. Relevant to the present matter, the Act requires that within five days of the initial communication with a consumer in connection with the collection of a debt, debt collectors must provide the consumer with written notice containing certain information regarding the debt. 15 U.S.C. § 1692g. Additionally, the Act prohibits the use of any “false, deceptive, or misleading representations or means in connection with the collection of any debt.” 15 U.S.C. § 1692e.

The statute creates a private right of action against debt collectors who fail to comply with its provisions. 15 U.S.C. § 1692k; Marx, 133 S.Ct. at 1171 n. 1; Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3rd Cir. 2006). To state a claim under the FDCPA, a plaintiff must establish that “(1) he or she is a ‘consumer’ who is harmed by violations of the FDCPA; (2) the ‘debt’ arises out of a transaction entered into primarily for personal, family, or household purposes; (3) the defendant collecting the debt is a ‘debt collector’; and (4) the defendant has violated, by act or omission, a provision of the FDCPA.” Grant v. JP Morgan Chase Bank, No. 12-CV-06248, 2013 WL 1558773, at *2 (D.N.J. Apr. 10, 2013) (quoting Berk v. J.P.Morgan Chase Bank, N.A., No. 11-CV-2715, 2011 WL 4467746, at *3 (E.D. Pa. Sept. 26, 2011) (citing 15 U.S.C. §§ 1692a-o)). Additionally, “[a] threshold requirement for application of the FDCPA is that the prohibited practices are used in an attempt to collect a ‘debt’.” Zimmerman v. HBO Affiliate Grp., 834 F.2d 1163, 1167 (3rd Cir. 1987).

Because the FDCPA is a remedial statute, the Third Circuit has construed its language broadly so as to give effect to its purpose. Brown, 464 F.3d at 453. Accordingly, courts analyze “any lender-debtor communications potentially giving rise to claims under the FDCPA” from the perspective of an objective “least sophisticated debtor.” Id, at 454. The Third Circuit has expounded that the least sophisticated debtor standard “is lower than the standard of a reasonable debtor” such that “a communication that would not deceive or mislead a reasonable debtor might still deceive or mislead the least sophisticated debtor.” Rosenau v. Unifund Corp., 539 F.3d 218, 221 (3rd Cir. 2008) (internal quotations and citations omitted). Applying this standard gives effect to “the basic purpose of the FDCPA: ... to protect all consumers, the gullible as well as the shrewd, the trusting as well as the suspicious, from abusive debt collection practices.” Brown, 464 F.3d at 454 (internal quotations and citations omitted). Nevertheless, “the standard does not go so far as to provide solace to the willfully blind or non-observant.” Caprio v. Healthcare Revenue Recovery Grp., 709 F.3d 142, 149 (3rd Cir. 2013) (quoting Campuzano-Burgos v. Midland Mgmt. Inc., 550 F.3d 294, 299 (3rd Cir. 2008)). In other words, although the least sophisticated debtor standard is “less demanding than one that inquires whether a