Bentley v. Bank of Am.

• Citation: 773 F.Supp.2d 1367
• Decision Date: 23 March 2011
• Docket Number: Case No. 10–60941–CIV.
• Parties: Matthew BENTLEY, as an individual, Plaintiff,v.BANK OF AMERICA, N.A., a corporation and BAC Home Loans Servicing, L.P., a limited partnership, Defendants.
• Court: United States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Southern District of Florida

773 F.Supp.2d 1367

Matthew BENTLEY, as an individual, Plaintiff,

v.BANK OF AMERICA, N.A., a corporation and BAC Home Loans Servicing, L.P., a limited partnership, Defendants.

Case No. 10–60941–CIV.

United States District Court, S.D. Florida.

March 23, 2011.

Chad Thomas Van Horn, Brown, Van Horn P.A., Fort Lauderdale, FL, for Plaintiff.Jeffrey Alan Trinz, Akerman Senterfitt, Miami, FL, for Defendants.

ORDER GRANTING MOTION TO DISMISS

WILLIAM P. DIMITROULEAS, District Judge.

THIS CAUSE is before the Court upon Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint or in the Alternative for a More Definite Statement [DE–24], filed herein on December 7, 2010. The Court has carefully considered the Motion, Plaintiff's Opposition [DE–33], Defendants' Reply [DE–35], and is otherwise fully advised in the premises,

I. BACKGROUND

Plaintiff commenced the instant action on June 4, 2010 [DE–1]. Plaintiff subsequently amended his complaint two times [DE–15, 22]. In the second amended complaint (“Complaint”) Plaintiff asserts five counts for violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (“FDCPA”), the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55–559.785 (“FCCPA”), the Telephone Consumer Protection Act, 47 U.S.C. § 227 (“TCPA”), invasion of privacy, as well as a claim for declaratory relief and a permanent injunction under 28 U.S.C. §§ 2201 and 2202. This Court has jurisdiction over the federal claims in this case pursuant to 15 U.S.C. § 1692k(d) and 28 U.S.C. § 1337(a), and supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367.

The instant action stems from Plaintiff's home mortgage debt as to an Arizona residence. [DE–22, ¶ 7]. Plaintiff alleges that Defendant Bank of America, N.A. currently services two mortgages on Plaintiff's Arizona residence. Id. at ¶ 15. Plaintiff further attaches loan statements to the Complaint indicating that as of December 2009 Defendants had servicing rights to Plaintiff's loan. [DE–22–1].¹ Plaintiff alleges that in February of 2010 he fell behind in his mortgage payments and that in March of 2010 Defendants commenced attempts to collect on the debt. [DE–22, ¶¶ 20, 22].

II. DISCUSSION

A. Motion to Dismiss Standard

Until the Supreme Court decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), courts routinely followed the rule that, “a complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). However, pursuant to Twombly, to survive a motion to dismiss, a complaint must now contain factual allegations which are “enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” 550 U.S. at 555, 127 S.Ct. 1955. “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations ... a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. Taking the facts as true, a court may grant a motion to dismiss when, “on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action.” Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir.1993). In Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009), the Supreme Court further stated that a court need not accept legal conclusions as true, but only well-pleaded factual allegations are entitled to an assumption of truth.

B. Defendants' Motion to Dismiss

Defendants filed the instant Motion on December 7, 2010, arguing that the Complaint should be dismissed on the following grounds: (1) the Complaint is inadequately pled and violates Rule 8(a)(2) by failing to identify the essentials as to the debt and improperly lumping Defendants together; (2) failure to state a claim under the FDCPA since Defendants are not debt collectors under the FDCPA; (3) failure to state a claim under the FCCPA since Defendants are not debt collectors under the FCCPA and the claim lacks the required factual allegations; (4) failure to state a claim under the TCPA since Defendants are exempted under the TCPA due to the existence of an established business relationship and the claim lacks the required factual allegations; (5) failure to allege any oppressive treatment to support a claim for invasion of privacy; and (6) the declaratory relief claim fails as there is no controversy, sufficient immediacy or need for a declaratory judgment.

1. Failure to State a Claim Under the FDCPA

“In order to prevail on an FDCPA claim, a plaintiff must prove that: ‘(1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.’ ” Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360–61 (S.D.Fla.2000) (internal citations omitted). The FDCPA defines a “debt collector” as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). However, “[u]nder the FDCPA, consumer's creditors, a mortgage servicing company, or an assignee of a debt are not considered ‘debt collectors,’ as long as the debt was not in default at the time it was assigned.” Reese v. JPMorgan Chase & Co., 686 F.Supp.2d 1291, 1308 (S.D.Fla.2009) (dismissing the FDCPA claim with prejudice where the complaint indicated that the defendants were creditors and mortgage servicers and, thus, were specifically excluded under the FDCPA); see also Locke v. Wells Fargo Home Mortg., Case No. 10–60286–CIV, 2010 WL 4941456, at *2 (S.D.Fla. Nov. 30, 2010) (dismissing FDCPA claim with prejudice and holding that “[s]ince Wells Fargo was the mortgage company servicing the Plaintiff's mortgage, it cannot be liable as a ‘debt collector’ under section 1692”).

Although Plaintiff alleges in the Complaint that Defendants are “debt collectors” [DE–22, ¶ 11], Plaintiff also alleges that Defendant Bank of America currently services two mortgages on Plaintiff's Arizona residence, Id. at ¶ 15, and Plaintiff attaches loan statements to the Complaint indicating that as of December 2009 Defendants had servicing rights to Plaintiff's loan, [DE–22–1]. Further, Plaintiff alleges that he did not fall behind in his mortgage payments until February of 2010, after Defendants admittedly already obtained servicing rights to Plaintiff's loan. [DE–22, ¶ 20]. In his Opposition, importantly, Plaintiff does not address the exclusion of mortgage servicers from application of the FDCPA or otherwise demonstrate how Defendants are debt collectors covered under the FDCPA. Instead, the Complaint clearly establishes that neither Defendants are “debt collectors” as contemplated by the statute which explicitly excludes mortgage servicing companies where the debt was not in default at the time it was assigned and, therefore, the FDCPA claim in count I is dismissed with prejudice.

2. Failure to State a Claim under the FCCPA

Plaintiff alleges that Defendants violates section 559.72(7), 559.72(9), and 559.72(18) of the FCCPA. In pertinent part, the FCCPA provides that in collecting consumer debts, no person shall:

(7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family.

(9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.

(18) Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney's name and address, unless the debtor's attorney fails to respond within 30 days to a communication from the person, unless the debtor's attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication,

Fla. Stat. § 559.72(7), (9) and (18).

Florida Statute § 559.55(6) defines the term “debt collector” as “any person who uses any instrumentality of commerce within this state, whether initiated from within or outside this state, in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” Courts have concluded that the language of Fla. Stat. § 559.55(6)(f) identifying those who are excluded from the definition of a debt collector in Florida mirrors the language defining a debt collector in the FDCPA. See Reynolds v. Gables Residential Servs., Inc., 428 F.Supp.2d 1260, 1265 (M.D.Fla.2006). Therefore, much like the FDCPA, the statute specifically provides that the term “debt collector” does not include

Any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent that such activity is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; concerns a debt which was originated by such person; concerns a debt which was not in default at the time it was obtained by such person; or...