Destefano v. Udren Law Offices PC ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-2309
_____________
LUCIANA DESTEFANO,
Appellant
v.
UDREN LAW OFFICES PC;
*DEUTSCHE BANK NATIONAL TRUST CO, as trustee for Morgan Stanley ABS
Capital I Inc. Trust 2006-HE8 Mortgage Pass-through Certificates, Series 2006-HE8;
*OCWEN LOAN SERVICING LLC
*(Dismissed pursuant to Clerk’s Order dated September 5, 2018)
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 3-16-cv-7559)
District Judge: Hon. Freda L. Wolfson
_______________
Submitted Under Third Circuit LAR 34.1(a)
January 24, 2019
Before: JORDAN, KRAUSE, and ROTH, Circuit Judges.
(Opinion Filed: February 20, 2020)
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OPINION
_______________

This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
PER CURIAM
Appellant Luciana DeStefano challenges the District Court’s dismissal of her claims
under the Fair Debt Collection Practices Act (“FDCPA”) as time-barred. She also contests
the Court’s denial of her motion to reconsider that dismissal order. The gravamen of
DeStefano’s appeal is that the District Court’s dismissal and reconsideration decisions
suffer from the same fundamental error: each relies on the incorrect determination that she
was served with process in the foreclosure action that prompted her FDCPA claims more
than a year before filing her FDCPA suit. However, the Supreme Court has recently
confirmed (by affirming our existing precedent) that it is the occurrence of an FDCPA
violation, and not a plaintiff’s knowledge of that violation, that triggers the statute’s one-
year limitations period. Because it is undisputed that the alleged FDCPA violation here,
the wrongful filing of a foreclosure action, occurred more than one year before DeStefano
brought her FDCPA lawsuit, we will affirm.
I. BACKGROUND1
On August 13, 2015, Appellee Deutsche Bank National Trust Company (“Deutsche
Bank”), as trustee for Morgan Stanley ABS Capital I Inc. Trust 2006-HE8 Mortgage Pass-
through Certificates, Series 2006-HE8, filed a foreclosure action against DeStefano in New
Jersey state court with respect to a mortgage on a property located in Union Beach, New
1
The background is drawn from DeStefano’s complaint and the attachments
thereto, with all reasonable inferences drawn in her favor. See Blanyar v. Genova Prods.
Inc., 861 F.3d 426, 431 (3d Cir. 2017) (“When considering a Rule 12(b)(6) motion, we
‘accept all factual allegations as true, [and] construe the complaint in the light most
favorable to the plaintiff[.]’” (citation omitted)).
2
Jersey (the “Foreclosure Action”). DeStefano, however, alleges that she was not properly
served in the Foreclosure Action until December 14, 2015. Appellee Udren Law Firm,
P.C. (“Udren”) served as counsel for Deutsche Bank and Appellee Ocwen Loan Servicing,
LLC (“Ocwen,” and together with Deutsche Bank and Udren, the “Appellees”) “in
connection with the Foreclosure Action.”2 (App. at 109-10.)
On October 19, 2016, more than one year after the Foreclosure Action was
commenced, but less than one year after DeStefano had been served in that matter,
DeStefano filed suit against Appellees in the District Court, alleging violations of the
FDCPA with respect to their “commencement and continued prosecution” of the
Foreclosure Action. (App. at 107.) Specifically, DeStefano alleged that the Foreclosure
Action was “wrongful,” because “the debt upon which [it] was based had been cancelled
approximately five (5) years earlier[,]” and, thus, did not exist at the time that action was
brought. (App. at 112.) DeStefano also alleged that Appellees further violated the FDCPA
by making false representations about the status of her debt “during the course” of the
Foreclosure Action. (App. at 113.)
Appellees moved to dismiss DeStefano’s complaint on several grounds, including
that her claims were time-barred. DeStefano argued that the claims were timely because
her suit against Appellees was filed on October 19, 2016 and the FDCPA’s one-year statute
of limitations did “not commence to run until 12/14/2015[,] the date that the Court [in the
2
DeStefano stipulated to Deutsche Bank’s and Ocwen’s dismissal from this appeal
with prejudice. Accordingly, Udren is the sole remaining “Appellee” in this matter. We
also note the posture of this appeal is unusual in that Udren, despite prevailing before the
District Court, has not filed any briefing.
3
Foreclosure Action] determined that [she] was served” in that case, or, “[a]t the earliest,”
started running on November 18, 2015, the date she filed a motion to vacate in the
Foreclosure Action. (App. at 130-31.) The District Court, relying largely on the record
from the Foreclosure Action, found that DeStefano was served with process in that case on
August 21, 2015. Because, given that finding, DeStefano’s October 2016 lawsuit was
untimely under the FDCPA irrespective of whether the FDCPA’s one-year limitations
period began to run when the Foreclosure Action was filed or when she received service
of process in that matter, the Court dismissed her complaint.
DeStefano moved the District Court to reconsider its dismissal order pursuant to
Federal Rule of Civil Procedure 60. The central argument of her reconsideration motion
was that, under New Jersey law, the August 21, 2015 service in the Foreclosure Action was
invalid and ineffective and that the Court erred in concluding otherwise. The District Court
denied DeStefano’s motion, prompting this timely appeal.
II. DISCUSSION3
Although DeStefano points to several supposed missteps by the District Court in
dismissing her claims and denying reconsideration, each asserted error pertains to the
3
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction pursuant to 28 U.S.C. § 1291. “We review de novo a district court’s grant of
a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6).” Foglia v. Renal Ventures Mgmt., LLC, 754 F.3d 153, 154 n.1 (3d Cir. 2014).
“[W]e may affirm a judgment of a lower court for any reason supported by the record….”
In re Ross, 858 F.3d 779, 786 (3d Cir. 2017). We exercise that same standard of review
over the District Court’s denial of DeStefano’s motion for reconsideration. McAlister v.
Sentry Ins. Co., 958 F.2d 550, 552–53 (3d Cir. 1992) (“Because an appeal from a denial of
a Motion for Reconsideration brings up the underlying judgment for review, the standard
of review varies with the nature of the underlying judgment.”).
4
single issue of when she should be deemed to have received service of process in the
Foreclosure Action. For all intents and purposes, the Supreme Court has rendered those
arguments moot by clarifying that “[t]he FDCPA limitations period begins to run on the
date the alleged FDCPA violation actually happened.” Rotkiske v. Klemm, No. 18-328,
2019 WL 6703563, at *3 (U.S. Dec. 10, 2019). The Court expressly rejected the argument
that the limitations period only commences upon a plaintiff’s discovery of that violation.
Id. at *4. The FDCPA violation alleged in DeStefano’s complaint is the initiation and
prosecution of the Foreclosure Action, and she has not argued at any stage of this case that
her claims implicate any FDCPA violations independent of the Foreclosure Action. It is
undisputed that the Foreclosure Action was filed in August 2015 and that DeStefano did
not file this lawsuit until October 2016, more than a year later.4 Under Rotkiske,
DeStefano’s claims plainly are time-barred. Accordingly, the District Court did not err in
dismissing DeStefano’s claims or denying her motion for reconsideration, even assuming
that the Court erred in determining when she received service of process in the Foreclosure
Action or otherwise learned of that action’s existence.
III. CONCLUSION
For the foregoing reasons, the District Court’s orders will be affirmed.
4
Although we have recognized “the availability of equitable tolling for civil suits
alleging an FDCPA violation,” Rotkiske v. Klemm, 890 F.3d 422, 428 (3d Cir. 2018), cert.
granted, 139 S. Ct. 1259 (2019), and aff’d, No.18-328, 2019 WL 6703563 (U.S. Dec. 10,
2019), the Supreme Court declined to “decide whether the text of 15 U.S.C. § 1692k(d)
permits the application of equitable doctrines.” Rotkiske, 2019 WL 6703563, at *4 n.3.
DeStefano has raised no argument, either before the District Court or on appeal, that the
limitations period for her FDCPA claims should be equitably tolled.
5