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Tort/Negligence — Debt Collection – Real Property – Foreclosure – Notice – Civil Practice

Foh v. Chase (Lawyers Weekly No. 15-03-0906, 21 pp.) (William Osteen Jr., J.) 1:14-cv-00928; M.D.N.C.

Holding: Although plaintiff’s property has already been foreclosed on in state court, plaintiff’s claims against two attorneys and their law firm under federal and state debt collection laws are not barred by the Rooker-Feldman doctrine.

The court denies defendants’ motion to dismiss.

Plaintiff complains that she was given insufficient notice of the foreclosure proceedings and that defendants communicated with her directly, even though they knew she was represented by counsel.

The Rooker-Feldman doctrine prevents plaintiff from claiming injuries sustained as a result of the foreclosure of her property, but the doctrine does not prevent this court from determining plaintiff’s claims based on defendants’ alleged violations of the federal Fair Debt Collection Practices Act and the North Carolina Debt Collection Act.

The state court may have reached the conclusion that defendants’ communication with plaintiff provided sufficient notice of the foreclosure proceeding, but this finding does not strip this court of jurisdiction to hear arguments that any communication between the parties was in violation of federal or state debt collection laws. This court can find that defendants made material misrepresentations to plaintiff and the state court and find that these misrepresentations violated the FDCPA and the NCDCA without finding that the foreclosure ordered by the state court caused plaintiff’s injuries. Thus, the Rooker-Feldman doctrine does not strip this court of jurisdiction to decide these issues.

It is too early in the proceedings for the court to find that plaintiff’s claims are barred by res judicata or collateral estoppel.

Defendants claim that the FDCPA’s one-year statute of limitations generally begins to run on the date of the alleged violation, even if the plaintiff was unaware of the violation at the time. Plaintiff claims that this court should adopt a discovery rule, such that the statute of limitations should run from the date plaintiff learned of or should have learned of the violation. Neither party has cited binding precedent on this point, nor has this court found any such precedent. The court finds it inappropriate to decide such a matter at this stage of the proceedings.

Motion denied.


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