18-1045 Qurashi v. Ocwen Loan Servicing UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER Rulings by summary order do no t have precedential effect. Cita tion to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Fole y Square, in the City of New York, on the 24 th day of January, two thousand nineteen.
PRESENT: ROBERT A. KATZMANN, Chief Judge , PETER W. HALL, GERARD E. LYNCH, Circuit Judges

.

_____________________________________ SHAHNEWAZ QURASHI, Plaintiff-Appellant , NAHID A. QURASHI, Plaintiff , v. 18-1045 OCWEN LOAN SERVICING, LLC, MERSCORP HOLDINGS, INC., FKA MERS/MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, Defendants-Appellee s, SENECA MORTGAGE SERVICING, Defendant

.

_____________________________________2 For Plaintiff-Appellant: S HAHNEWAZ Q URASHI , pro se , Hollis, NY. For Defendants-Appellees: B RETT L. M ESSINGER and B RIAN J. S LIPAKOFF , Duane Morris LLP, New York, NY.
Appeal from a judgment of the United States Di strict Court for the Eastern District of New York (Azrack, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. Shahnewaz Qurashi and Nahid A. Qurashi (c ollectively “the Qurashis”), appearing pro se , sued Ocwen Loan Servicing, LLC (“Ocwen”), Me rscorp Holdings, Inc. (“MERS”), and Seneca Mortgage Servicing (“Seneca”), 1 for violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, and state law in c onnection with a mortgage on real property in Coram, New York. Broadly construed, the Qurashis alleged that the defendant s failed to validate a debt request and that MERS’s predecessor compa ny invalidly assigned their mortgage to another entity. They also sought to quiet title and allege d various state-law viola tions. The district court adopted the magistrate judge’s Report and Reco mmendation (“R&R”) finding the complaint devoid of the factual allegations needed to state the elem ents of a plausible FDCP A claim and declining to exercise supplemental jurisdiction over any pot ential state law claims. Shahnewaz Qurashi (“Qurashi”) 2 appeals the district court’s grant of the defendants’ motion to dismiss the complaint

1 By electronic order dated March 29, 2017, the district court dismissed the complaint as against Seneca upon consent and with prejudice. Qurashi does not challenge Seneca’s dismissal on appeal.
2 Only Shahnewaz Qurashi appealed the district court’s judgment.3 for failure to state a claim under th e FDCPA. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. This Court “review[s] the grant of a motion to dismiss de novo , accepting as true all factual claims in the complaint and drawing all reas onable inferences in the plaintiff’s favor.” Fink v. Time Warner Cable , 714 F.3d 739, 740–41 (2d Cir. 2013) (per curiam). 3 To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead “enough f acts to state a claim to re lief that is plausible on its face.” Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007). Although allegations in a complaint are assumed to be true, this tenet “is in applicable to legal conc lusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009). Although the defendants argue that we should deem all appellate issues waived given “Qurashi’s brief, two sentence argument in suppor t of reversal,” Appellees’ Br. 8, we liberally construe Qurashi’s pro se brief as raising a genera l challenge to the district court’s dismissal of the FDCPA claim, see Ortiz v. McBride , 323 F.3d 191, 194 (2d Cir. 2003) (“This court construes appellate briefs submitted by pro se litigants liberally and reads such submissions to raise the strongest arguments they suggest.” ). However, Qurashi has not challenged either (1) the district court’s decision to refrain from exercising supple mental jurisdiction or (2 ) the district court’s determination that granting leave to amend would be futile. Therefore, these two issues are waived for purposes of this appeal. See Moates v. Barkley , 147 F.3d 207, 209 (2d Cir. 1998) (stating that

3 Unless otherwise indicated, case quotations omit all internal quotation marks, alterations, footnotes, and citations.4 while pro se litigants are afforded some latitude, this Cour t need not decide issues that a party fails to raise clearly in his or her appellate brief). The only federal cause of action identifiable in the Qurashis’ complaint is a violation of the FDCPA. The FDCPA aims to “eliminate abusive de bt collection practices by debt collectors” and to “protect consumers against debt collection abus es.” 15 U.S.C. § 1692(e). With certain exceptions inapplicable here, creditors are generally not considered “debt co llectors” subject to the FDCPA. Vincent v. The Money Store , 736 F.3d 88, 96 (2d Cir. 2013) (explaini ng that the FDCPA gives rights to consumers “whose debts are placed in the hands of professional debt colle ctors for collection”). The Qurashis’ complaint fails adequately to allege that the defe ndants qualify as debt collectors for purposes of the FDCPA, which only applies to statutorily de fined “debt collectors.” 15 U.S.C. § 1692a(6) (defining “deb t collector” as “any person who uses . . . interstate commerce or the mails in any business the principal purpose of which is the collecti on of any debts, or who regularly collects or attempts to collect . . . debt s owed . . . or due another”). The FDCPA excludes from this definition of debt coll ector “any person collecting or atte mpting to collect any debt owed . . . or due another to the extent such activity . . . concerns a debt which was not in default at the time it was obtained by such person.” Id . § 1692a(6)(F). The Qurashis have not alleged that either Ocwen or MERS obtained an interest in the mortgage while the obligation was in default. To th e contrary, MERS is iden tified in the mortgage as the nominee for the lender at the time of origin ation of the loan. Addi tionally, the Qurashis do not allege that MERS itself undertook any efforts to collect on the obligation. Thus, the Qurashis have not plausibly alleged that MERS is a debt collector under the FDCPA.5 As for Ocwen, the complaint is devoid of any allegations concerning its role as a loan servicer and the status of the Qurashis’ loan at the time Ocwen began servicing it. A loan servicer acting on behalf of the owner of a debt obligation is not a debt coll ector unless it began its servicing duties after the loan entered default status. See Roth v. CitiMortgage Inc. , 756 F.3d 178, 183 (2d Cir. 2014); accord Obduskey v. Wells Fargo , 879 F.3d 1216, 1219–20 (10th Cir.), cert

. granted on other grounds sub nom. Obduskey v. McCarthy & Holthus LLP , 138 S. Ct. 2710 (2018) (mem.); Glazer v. Chase Home Fin. LLC , 704 F.3d 453, 457 (6th Cir. 2013); Perry v. Stewart Title Co. , 756 F.2d 1197, 1208 (5th Cir. 1985). Theref ore, a complaint that “does no t allege that [a servicer] acquired [the plaintiff’s] debt afte r it was in default . . . fails to pl ausibly allege that [the servicer] qualifies as a debt collector under FDCPA.” Roth , 756 F.3d at 183. Because the Qurashis do not allege that their home loan was already in default at the time Ocwen became the servicer of their mortgage, they have not plausi bly alleged that Ocwen was a de bt collector under the FDCPA. For these reasons, the Qurashis have failed to plead facts demonstrating that the FDCPA applies to defendants Ocwen and MERS. Accordi ngly, the district court properly granted the defendants’ motion to dismiss. The j udgment of the district court is AFFIRMED

. FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court