Thebert v. Potestivo & Associates, P.C. - Opinion and Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss

Sep 15, 2026

Opinion and order in a federal debt-collection case arising from foreclosure-related communications. Timothy A. Thebert alleges Potestivo & Associates and its representative violated the Fair Debt Collection Practices Act after Potestivo sent a foreclosure commencement letter and a subsequent debt-verification letter without adequately breaking down the total amount owed. The court evaluates the plausibility of claims tied to FDCPA provisions concerning notice, representations, and collection practices, grants part of the motion to dismiss, and denies part, allowing certain allegations to proceed.

LanguageEnglish

CategoryLetters

FormatPDF

Pages29

Reading Time10 min

AccessFree to download

Opinion and Order

Case Background and Allegations

Legal Standard for Motion to Dismiss

Foreclosure Commencement Letter and Disputed Debt

Debt Verification Letter

2:16-cv-14341-LJM-SDD Doc \# 21 Filed 08/18/17 Pg 1 of 29 Pg ID UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION TIMOTHY A. THEBERT, Plaintiff, v. POTESTIVO & ASSOCIATES, P.C., and BRIAN A. POTESTIVO, Defendants. Case No. 2:16-cv-14341 Honorable Laurie J. Michelson OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS [12] Defendant Potestivo & Associates, [P.C. is](P.C. is) a law firm that, among other things, collects debts. Potestivo sent Plaintiff Timothy Thebert a letter stating that it would be commencing foreclosure proceedings on his house. Because the letter did not break down the total amount owed, Thebert believes the letter violated the Fair Debt Collection Practices Act. After Thebert disputed the debt, Potestivo sent a verification letter. Because the verification letter also did not adequately break down the amount owed, Thebert believes that this letter also violated the FDCPA. Potestivo proceeded to foreclose and, as Michigan law requires, published a foreclosure notice in a county newspaper. But foreclosure is debt collection, and so Thebert believes that this too violated the FDCPA. Thebert has thus filed this lawsuit alleging that Potestivo violated the FDCPA and Michigan’s analog in numerous ways. Potestivo responds that none of Thebert’s claims are plausible and asks this Court to dismiss Thebert’s (amended) complaint. The Court agrees in part with Potestivo. But the Court finds that Potestivo has not shown that Thebert’s claims that it 2:16-cv-14341-LJM-SDD Doc \# 21 Filed 08/18/17 Pg 2 of 29 Pg ID violated 15 U.S.C. § 1692c(b), § 1692e, § 1692f, and § 1692g(b) are implausible. Accordingly, the Court will grant in part and deny in part Potestivo’s motion. I. As Potestivo seeks to dismiss Thebert’s complaint under Federal Rule of Civil Procedure 12(b)(6), the Court presents as fact the non-conclusory allegations of the complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678–79 (2009) . The following also relies on documents attached to the complaint. See Bassett v. NCAA, 528 F.3d 426, 430 (6th Cir. 2008) . In 2003, Thebert borrowed $125,000 from non-party Standard Federal Bank, N.A. (See R. 12, PID 558.) He secured the loan with a mortgage on his home. (See R. 12, PID 564.) At some point (the complaint does not say when), Fay Servicing began servicing the loan. (See R. 11, PID 491.) On October 28, 2016, Thebert received a letter from Potestivo. The letter and two other documents are key to the claims in this case. So the Court reproduces them in some detail. The October 28, 2016 letter states: Dear Timothy A. Thebert THIS FIRM IS A DEBT COLLECTOR ATTEMPTING TO COLLECT A DEBT. ANY INFORMATION WE OBTAIN WILL BE USED FOR COLLECTING A DEBT. IF THE DEBT WAS DISCHARGED IN A BANKRUPTCY PROCEEDING, THIS NOTICE IS NOT AN ATTEMPT TO COLLECT THAT DEBT. Please be advised that this office has been retained by Fay Servicing to commence proceedings to foreclose the mortgage securing the debt. Under the terms of the mortgage, our client has elected to accelerate the total debt due and owing under the mortgage. As of the date of this letter, the total amount of the debt is: $115,267.00. Because of interest, late charges, and other charges that may vary from day to day, the amount due on the day you pay may be greater. Hence, if you pay the amount shown above, an adjustment may be necessary after we receive your check, in which event we will inform you before depositing the check. The 2:16-cv-14341-LJM-SDD Doc \# 21 Filed 08/18/17 Pg 3 of 29 Pg ID amount due must be tendered via certified funds. For further information, including an updated amount, please call 248-853-4400. Wilmington Savings Fund Society, [FSB . . . is](FSB . . . is) the creditor to whom the debt is owed. Fay Servicing is the servicer of the debt on behalf of Wilmington Savings Fund Society, FSB . . . . The mortgage loan pay

FAQs

Why did Thebert file this lawsuit?

Thebert alleges Potestivo violated the FDCPA and Michigan’s analog based on letters and foreclosure notice connected to debt collection and foreclosure proceedings.

What were the key documents in the case?

The court identifies an October 28, 2016 foreclosure commencement letter and a later debt verification letter as central to the claims, along with other attached materials.

What did the court decide on the motion to dismiss?

The court granted in part and denied in part Potestivo’s motion to dismiss, agreeing with Potestivo on some asserted FDCPA claims but finding other claims not implausible.

Sep 15, 2026

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