Garrison v. Caliber Home Loans, Inc.

• Decision Date: 09 January 2017
• Docket Number: Case No. 6:16-cv-978-Orl-37DCI
• Citation: 233 F.Supp.3d 1282
• Parties: Denise GARRISON, Plaintiff, v. CALIBER HOME LOANS, INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

233 F.Supp.3d 1282

Denise GARRISON, Plaintiff,

v.CALIBER HOME LOANS, INC., Defendant.

Case No. 6:16-cv-978-Orl-37DCI

United States District Court, M.D. Florida, Orlando Division .

Signed January 09, 2017

Filed January 10, 2017

Catherine Jean Jones, LegalNinja, LLC, George Michael Gingo, Gingo & Orth, Titusville, FL, for Plaintiff.

Amanda Proffitt Berry, Angelica M. Fiorentino, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Orlando, FL, Teah Glenn Kirk, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Atlanta, GA, for Defendant.

ORDER

ROY B. DALTON JR., United States District Judge

This cause is before the Court on the following:

1. Defendant's Motion to Dismiss Counts II–VII of Plaintiff's Complaint with Prejudice (Doc. 19), filed August 1, 2016; and

2. Plaintiff's Opposition to Defendant Caliber Home Loans, Inc.'s Motion to Dismiss Complaint and Supporting Memorandum of Law (Doc. 21), filed August 15, 2016.

BACKGROUND

On June 7, 2016, Plaintiff Denise Garrison initiated this action against Defendant Caliber Home Loans, Inc. (Doc. 1.)¹ Defendant is the current servicer of a mortgage and a promissory note in the original amount of $296,000.00 ("Loan "), which Plaintiff executed and delivered to Bank of America, N.A. ("BOA ") in 2008 to purchase her residence ("Property "). (See Doc. 1, ¶¶ 17, 18, 23, 31, 36, 38; Doc. 18, ¶¶ 17, 18, 38; see also Doc. 1-1, pp. 4–20 ("Mortgage "); id. at 21–25 ("Note ").)

Plaintiff claims that certain of Defendant's communications and acts concerning her liability under the Loan violated various provisions of five consumer protection laws: (1) the Telephone Consumer Protection Act ("TCPA ") (see Doc. 1, ¶¶ 59–70 ("Count One ")); (2) the Fair Debt Collection Practices Act ("FDCPA ") (see id. ¶¶ 71–83 ("Count Two ")); (3) the Florida Consumer Collection Practices Act ("FCCPA ") (see id. ¶¶ 126–37 ("Count Seven ")); (4) the Real Estate Settlement Procedures Act ("RESPA ") (see id. ¶¶ 109–19 ("Count Five ")); and (5) the Fair Credit Reporting Act ("FCRA ") (see id. ¶¶ 84–95 ("Count Three "); & 96–108 ("Count Four ")). Plaintiff also claims entitlement to certain judicial declarations under the Declaratory Judgment Act ("DJA ") (see id. ¶¶ 120–25 ("Count Six ")). Plaintiff alleges that the Court has jurisdiction over her claims based on federal question and pendant jurisdiction under 28 U.S.C. §§ 1331 and 1367. (See id. ¶ 7.)

Defendant responded to the Complaint by filing an Answer and Affirmative Defenses to Count One (Doc. 18) and moving to dismiss Counts Two through Seven (Doc. 19 ("Motion ")). Plaintiff responded (Doc. 21 ("Response ")), and the matter is now ripe for adjudication.

LEGAL STANDARDS

I. Consumer Protection Laws

The "FCCPA is 'a Florida state analogue to the federal FDCPA,' "² and both statutes are intended to eliminate abusive practices used by debt collectors. See 15 U.S.C. § 1692a(6) ; Fla. Stat. § 579.72. RESPA also protects consumers from " 'certain abusive practices,' " see Freeman v. Quicken Loans, Inc. , 566 U.S. 624, 132 S.Ct. 2034, 2044, 182 L.Ed.2d 955 (2012), and the "FCRA seeks to ensure fair and accurate credit reporting" see Spokeo , Inc. v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1545, 194 L.Ed.2d 635 (2016) ; see also 15 U.S.C. § 1681b. Liberally construed in favor of consumer protection,³ each of these statutes and the TCPA authorize consumers to file private suits against those who violate the statutes by mishandling consumer information or attempting to collect debts from consumers through prohibited acts—particularly acts that are harassing, misleading, deceptive, or false.⁴

II. Pleading Requirements

The Federal Rules of Civil Procedure set forth minimum pleading requirements.

Rules 8 and 10 require plaintiffs to provide short and plain statements of their claims with simple and direct allegations set out in numbered paragraphs and distinct counts. See Fed. R. Civ. P. 8(a), (d) ( "Each allegation must be simple, concise, and direct."); see also Fed. R. Civ. P. 10(b). If a complaint fails to state a plausible or legally sufficient claim, the defendant may file a motion to dismiss under Rule 12(b)(6). See Popham v. Cobb Cty., Ga. , 392 Fed.Appx. 677, 678 (11th Cir. 2010).

In resolving a Rule 12(b)(6) motion, courts must accept as true all well-pled factual allegations and determine whether the complaint sets forth plausible claims—that is claims with sufficient "factual content" to allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See Ashcroft v. Iqbal , 556 U.S. 662, 672, 678–79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In assessing plausibility, courts also must consider the exhibits attached to a complaint, and—when contradictions arise between conclusory allegations and clear exhibits—the exhibits control.⁵ See Griffin Indus., Inc. v. Irvin , 496 F.3d 1189, 1205–06 (11th Cir. 2007).

THE COMPLAINT

When Defendant began servicing the Loan on November 1, 2015, Plaintiff had been in default since December 1, 2009 ("Default "). (See Doc. 1, ¶ 20; Doc. 21, pp. 1, 2, 6, 12.) Based on the Default, BOA filed a foreclosure case—Case Number 05-2010-CA-26735 ("Foreclosure Case ")—against Plaintiff in the Circuit Court of the Eighteenth Judicial Circuit, in and for Brevard County, Florida ("State Court "). (See Doc. 1, ¶¶ 19, 20; Doc. 1-1, pp. 1–3.)

Attorney George M. Gingo ("Attorney Gingo ") represented Plaintiff in the Foreclosure Case. (See Doc. 1, ¶ 24.) Contending that BOA could not establish standing to foreclose because the version of the Note filed by BOA—("Filed Note ")—"more likely than not" included a "fraudulent insertion" at page three ("Fraudulent Document Issue "),⁶ Attorney Gingo filed a motion for summary judgment ("SJ Motion ") and a related affidavit ("Drexler Report ") from forensic document examiner Steven G. Drexler ("Drexler ").⁷ (See id. ; Doc. 1-1, pp. 31–35 (contending that the court should enter summary judgment against BOA "because as the complaint is currently pled," BOA cannot "prove that it has possession of the original, wet ink promissory note").) Before the State Court ruled on the SJ Motion, BOA successfully moved for return of the Note from the State Court, and it voluntarily dismissed the Foreclosure Case without prejudice on October 23, 2014 (see Doc. 1, ¶¶ 25–27; see also Doc. 1-1, pp. 53–54 & 63–64 ("BOA Dismissal ")).⁸ A year after dismissal of the Foreclosure Case, BOA sold the Loan to "LSF9 Master Participation Trust" ("LSF9 Trust ") (see Doc. 1-1, pp. 67–68 ("Sale Notice ")),⁹ and notified Plaintiff that the LSF9 Trust was the new owner and BOA would no longer service the Loan (see id. at 65–66 ("Transfer Notice ")).

On November 1, 2015, Defendant began servicing the Loan and allegedly reviewed the Loan's "collateral file" and servicing documents ("Loan Review "). (See Doc. 1, ¶¶ 17, 18, 23, 31, 36, 38; Doc. 18, ¶¶ 17, 18, 38.) Based on the alleged Loan Review, Plaintiff claims that Defendant knew certain facts at the outset of the servicing arrangement ("Institutional Knowledge "), including that: (1) Attorney Gingo represented Plaintiff in relation to the Loan; (2) Plaintiff disputed the Loan based on the Fraudulent Document Issue; and (3) a portion of the Loan could not be recovered because Florida has a five-year statute of limitations ("SOL "), and more than five years had passed since the Default ("SOL Issue ").¹⁰ (See Doc. 1, ¶ 36). Plaintiff further alleges that: (1) she never gave Defendant the number for her cellular phone or "prior express consent" to contact her in any manner; (2) notwithstanding its Institutional Knowledge, Defendant began placing at least fifty collection calls to Plaintiff's cellular telephone ("Collection Calls "); and (3) on every completed Collection Call, Plaintiff told Defendant "that she had an attorney and asked [Defendant] to stop calling her." (See id. ¶¶ 36, 40–43.)

On March 14, 2016, Plaintiff "accessed her Experian credit report and found that" Defendant had reported an inaccurate "amount due" on the Loan and it had failed to note Plaintiff's dispute of the Loan based on the Fraudulent Document Issue ("CRA Report "). (See id. ¶¶ 54–55; Doc. 1-1, pp. 72–73 (reflecting that the balance of the Note as of February 2016 was $400,334.00, and the "past due" amount was $183,247.00 ).) Two weeks later, Plaintiff disputed the CRA Report in writing to the CRA and Defendant. (See Doc. 1, ¶ 56.) Specifically, Plaintiff complained to Experian that: (1) the reported balance of $400,334.00 "includes sums due more than five years ago and the [SOL] has passed on the collection of those sums;" and (2) the Loan should not be reported "at all because [Plaintiff] was in foreclosure on this debt and [she] won...." (See Doc. 1-1, p. 74 ("Dispute Notice ").) Despite the Dispute Notice, Plaintiff alleges that Defendant: (1) "failed to conduct a reasonable investigation and continued to report false and inaccurate adverse information" about Plaintiff and the Loan; and (2) "asserted that it was furnishing accurate information" to the CRAs "and that no changes would be made." (See Doc. 1, ¶¶ 56–58, 85, 91; Doc. 1-1, pp. 72–73.)

In March 2016, Defendant sent a mortgage statement ("March Statement ") to Plaintiff, which advised that: (1) the "Past Due Amount" on the Loan was $184,401.84; (2) the "Amount Due" (including fees and uncollected late charges) was $188,099.70; (3) the "Outstanding Principal" was $292,143.23; and (4) the "Maturity Date" for the Loan is October 1, 2038. (See Doc. 1-1, pp. 69–71.) The March Statement also included the following "Delinquency Notice" and "Important Messages"—

Delinquency Notice

You are late on your mortgage payments, Failure to bring your loan current may result in fees and foreclosure — the loss of your home. As of 03/18/2016, you are 2299 days delinquent on your mortgage.

Total Payment Due: $188,099.70

If you are...