Green v. Specialized Loan Servicing LLC, Case No. 6:16–cv–1298–Orl–37KRS

• Decision Date: 30 November 2017
• Docket Number: Case No. 6:16–cv–1298–Orl–37KRS
• Parties: Paul A. GREEN, Plaintiff, v. SPECIALIZED LOAN SERVICING LLC, Defendant.
• Court: U.S. District Court — Middle District of Florida

280 F.Supp.3d 1349

Paul A. GREEN, Plaintiff,

v.SPECIALIZED LOAN SERVICING LLC, Defendant.

Case No. 6:16–cv–1298–Orl–37KRS

United States District Court, M.D. Florida, ORLANDO DIVISION.

Signed November 30, 2017

Richard Scot Shuster, Shuster & Saben, LLC, Satellite Beach, FL, for Plaintiff.

Joseph Andrew Apatov, McGlinchey Stafford, PLLC, Ft Lauderdale, FL, Nicholas Mark New, II, McGlinchey Stafford, PLLC, Robert C. Burgess, Holland & Knight, LLP, Jacksonville, FL, for Defendant.

ROY B. DALTON, JR., United States District Judge

ORDER

This action is before the Court on the following matters: (1) Defendant Specialized Loan Servicing, LLC's Motion to Dismiss Amended Complaint (Doc. 28); (2) Plaintiffs' Response to Defendant Specialized Loan Servicing's Motion to Dismiss Amended Complaint (Doc. 35); (3) Defendant Specialized Loan Servicing, LLC's Reply to Plaintiff's Response to Defendant's Motion to Dismiss Amended Complaint (Doc. 38); and (4) Defendant, Specialized Loan Servicing, LLC's Notice of Supplemental Authority in Support of Defendant's Motion to Dismiss Amended Complaint (Doc. 39).

I. BACKGROUND

Paul A. Green ("Green ") is a borrower under an Adjustable Rate Note dated September 18, 2006 (Doc. 20–1, pp. 6–9 ("Note ")), and is a mortgagor under a related security interest (Id. at 11–21 ("Mortgage ")). (See Doc. 21, ¶¶ 4–6.) As the servicer of the Mortgage, Specialized Loan Servicing, LLC ("SLS ") allegedly has acted as a debt collector for purposes of the Fair Debt Collections Practices Act ("FDCPA "). (See id. )

Green initiated this FDCPA action against SLS by filing his initial Complaint in the Circuit Court of the Eighteenth Judicial Circuit in and for Brevard County, Florida ("State Court "), and SLS filed a timely notice of removal on July 20, 2016. (Docs. 1, 2.) Pending resolution of a foreclosure case against Green—Deutsche Bank v. Green , No. 05–2015–CA–32851 ("FC Case ")—the Court stayed this action from August 9, 2016 until February 14, 2017. (See Docs. 14, 18.) After the stay, SLS moved to dismiss Green's initial Complaint (Doc. 20), and Green responded by filing the Amended Complaint (Doc. 21).

In his Amended Complaint, Green claims that SLS violated the FDCPA by attempting to collect sums under the Note and Mortgage that are barred under Florida's five-year statute of limitations ("Fla. SOL "). (See Id. ¶¶ 7, 12, 15–17, 32.) SLS's allegedly improper collection efforts are reflected in three documents filed as exhibits to the Amended Complaint ("Communications "): (1) a "Notice of Default" dated April 8, 2015 ("2015 Notice "); (2) a complaint dated June 30, 2015 ("FC Complaint "), which was filed in the FC Case; and (3) a "Mortgage Statement " dated January 18, 2017 ("2017 Statement "). (See Doc. 21, ¶¶ 22–27 (alleging that the Mortgage Statements violated § 1692f, § 1692e(2)(a), and § 1692e(10)); see also Doc. 20–1.) According to the Amended Complaint, these Communications "would easily confuse the least sophisticated consumer." (See Doc. 21, ¶ 36.)

In its motion to dismiss (Doc. 28 ("MTD ")), SLS argues that Green's "allegations fail as a matter of law," and the Court should dismiss the Amended Complaint with prejudice "and without leave to amend as amendment would be futile" because: (1) any claim based on the 2015 Notice is untimely (see Doc. 28, pp. 6–7); (2) the 2017 Statement "did not constitute 'debt collection' " (see id. at 10–12); (3) the FDCPA does not provide "an affirmative cause of action" based on an affirmative defense like the Fla. SOL (see id. at 7–8); (4) the sums SLS sought to collect are not barred by the Fla. SOL; and (5) Green failed to comply with the pre-suit notice requirement set forth in the Mortgage (Id. at 13). After Green responded to the MTD (Doc. 35), SLS replied (Doc. 38) and filed a notice of supplemental authority (Doc. 39).

Based on Garrison v. Caliber Home Loans, Inc. , 233 F.Supp.3d 1282, 1293–94 (M.D. Fla. 2017), the Court agrees with SLS that Green's claims fail as a matter of law because the Fla. SOL is a matter to be raised as a defense in a foreclosure case—not as an affirmative claim under an FDCPA claim related to a mortgage.¹ As explained below, the SLS's remaining arguments are similarly meritorious. Thus, the Amended Complaint is due to be dismissed with prejudice.

II. LEGAL STANDARDS

A. Pleading Requirements

Under the minimum pleading requirements of the Federal Rules of Civil Procedure, plaintiffs must 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), 8(d), & 10(b). If a complaint does not comport with these minimum pleading requirements, if it is plainly barred, or if it otherwise fails to set forth a plausible claim, then it is subject to dismissal under Rule 12(b)(6). 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) ).

Plausible claims must be founded on sufficient "factual content" to allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ; see also Miljkovic v. Shafritz & Dinkin, P.A. , 791 F.3d 1291, 1296–97 (11th Cir. 2015) (affirming dismissal of implausible FDCPA claim). In assessing the sufficiency of factual content and the plausibility of a claim, courts draw on their "judicial experience and common sense" in considering: (1) the exhibits attached to the complaint; (2) matters that are subject to judicial notice; and (3) documents that are undisputed and central to a plaintiff's claim. See Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 ; Reese v. Ellis, Painter, Ratterree & Adams, LLP , 678 F.3d 1211, 1215–16 (11th Cir. 2012) ; Parham v. Seattle Serv. Bureau, Inc. , 224 F.Supp.3d 1268, 1271 (M.D. Fla. 2016). Courts do not consider other matters outside the four corners of the complaint, and they must: (1) disregard conclusory allegations, bald legal assertions, and formulaic recitation of the elements of a claim; (2) accept the truth of well-pled factual allegations; and (3) view well-pled facts in the light most favorable to the plaintiff. See Hayes v. U.S. Bank Nat'l Ass'n , 648 Fed.Appx. 883, 887 (11th Cir. 2016) ;² Horsley v. Feldt , 304 F.3d 1125, 1134 (11th Cir. 2002).

B. The FDCPA

"In order to protect consumers, Congress enacted the FDCPA 'to eliminate abusive debt collection practices by debt collectors.' " Hart v. Credit Control, LLC , 871 F.3d 1255, 1257 (11th Cir. 2017) (quoting 15 U.S.C. § 1692a )). To that end, the FDCPA "authorizes private lawsuits and weighty fines." See Henson v. Santander Consumer USA, Inc. , ––– U.S. ––––, 137 S.Ct. 1718, 1720, 198 L.Ed.2d 177 (2017). For instance:

[A]ny debt collector who fails to comply with any provision [of the FDCPA] with respect to any person is liable to such person in an amount equal to the sum of—

(1) any actual damage sustained by such person as a result of such failure;

(2) ...additional damages as the court may allow, but not exceeding $1,000;...and

(3) ...the costs of the action, together with a reasonable attorney's fee as determined by the court.

15 U.S.C. § 1692k(a). Consumers must bring their FDCPA claims "within one year from the date on which the" alleged FDCPA violation occurred. 15 U.S.C. § 1692k(e) ; see Moskovits v. Aldridge Pite, LLP , 677 Fed.Appx. 510, 519 (11th Cir. 2017). When it is apparent from the face of the Complaint that more than a year has passed since an alleged violation, then a debt collector may raise this one-year statute of limitations ("FDCPA SOL ") defense in a motion to dismiss.³ See Hampton–Muhamed v. James B. Nutter & Co. , 687 Fed.Appx. 890, 893 (11th Cir. 2017) ; Rivas v. The Bank of N.Y. Mellon , 676 Fed.Appx. 926, 929–30 (11th Cir. 2017).

The FDCPA broadly proscribes the use of: (1) a "false, deceptive, or misleading representation or means in connection with the collection of any debt" ( 15 U.S.C. § 1692e ); and (2) "unfair or unconscionable means" to collect, or attempt to collect, a debt (Id. § 1692f). See Midland Funding, LLC v. Johnson , ––– U.S. ––––, 137 S.Ct. 1407, 1410, 197 L.Ed.2d 790 (2017) ; see also Bourff v. Rubin Lublin, LLC , 674 F.3d 1238, 1241 (11th Cir. 2012). When a consumer's sophistication is pertinent, courts analyze alleged violations of these proscriptions under the "least sophisticated consumer" ("LSC ") standard. See LeBlanc v. Unifund CCR Partners , 601 F.3d 1185, 1201 (11th Cir. 2010) ; see also Landeros v. Pinnacle Recovery, Inc. , 692 Fed.Appx. 608, 613 (11th Cir. 2017) (noting that the LSC standard "will not apply to FDCPA claims in which the consumer's sophistication is irrelevant").

III. DISCUSSION

A. The 2015 Notice

Because Green initiated this action in State Court on June 6, 2016 (see Doc. 2), his claims must be limited to FDCPA violations that allegedly occurred on or after June 6, 2015 . See 15 U.S.C. § 1692k(e). Green's claims are not so limited because he seeks relief based on the 2015 Notice, which SLS sent to Green via certified mail in April 2015 . (See Doc. 21, pp. 15–17; see also Doc. 35 (conceding that the 2015 Notice "was sent by SLS more than one year before Green filed suit").) Accordingly, the Court finds that Green's claims based on the 2015 Notice are barred by the FDCPA SOL and are due to be dismissed with prejudice. See also Hampton–Muhamed , 687 Fed.Appx. at 893 (affirming dismissal of time-barred FDCPA claim); Rivas , 676 Fed.Appx. at 930 (same); Leahy–Fernandez v. Bayview Loan Servicing, LLC , 159 F.Supp.3d 1294, 1303 (M.D. Fla. 2016).

B. The 2017 Statement

To state a plausible FDCPA claim, Green must allege, "among other things," that "the challenged conduct is related to debt collection.' " Cilien v. U.S. Bank Nat'l Assoc. , 687 Fed.Appx. 789, 792 (11th Cir. 2017) (quoting Reese , 678 F.3d at 1216 ). "When determining whether a communication is 'in...