Shaffer v. Servis One, Inc., Case No. 8:17-cv-00566-T-02TGW
| Decision Date | 05 November 2018 |
| Docket Number | Case No. 8:17-cv-00566-T-02TGW |
| Parties | Linda L. SHAFFER, Plaintiff, v. SERVIS ONE, INC. d/b/a BSI Financial Services, Law Firm Gary M. Singer, P.A., and McCormick 106, LLC, Defendants. |
| Court | U.S. District Court — Middle District of Florida |
David William Smith, Law Office of David W. Smith, Sarasota, FL, for Plaintiff.
This matter comes to the Court on Defendant Servis One, Inc.'s ("BSI") Motion to Dismiss Plaintiff's Second Amended Complaint With Prejudice. Dkt. 29. Following this Court's order on a prior motion to dismiss, BSI is the only remaining defendant. Dkt. 23. Plaintiff has filed a response in opposition to the instant motion. Dkt. 35. The Court hereby GRANTS in part BSI's Motion to Dismiss.
The Court outlined this case's factual and procedural background in its Order on a prior motion to dismiss. Dkt. 23 at 1-3. Essentially, Plaintiff brought claims in federal court following entry of a Florida state court judgment for foreclosure on a mortgage. Id. Finding that some of these claims were inextricably intertwined with the state court's foreclosure judgment and that Plaintiff had an opportunity to raise them in the prior proceeding, the Court dismissed with prejudice claims relating to the validity of the debt under the Rooker - Feldman doctrine.1 Dkt. 23 at 13. The Court left open the possibility, however, for Plaintiff to "allege[ ] improper debt collection activity by BSI that occurred after the entry of the Foreclosure Judgment that is not inextricably intertwined." Dkt. 23 at 11.
In response, Plaintiff filed her Second Amended Complaint (the "Complaint") alleging debt collection practices in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 ("FDCPA") and the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55 ("FCCPA"). Dkt. 24 ¶ 1. Count I alleges that BSI "sent multiple written communications to [Plaintiff] in an attempt to collect a debt...in violation of the FDCPA." Id. ¶ 14. Count II is for a violation of the FCCPA based on the same conduct. Id. ¶ 23.
Plaintiff attached to her Complaint two examples of the communications at issue. Dkt. 24 at 8, 10. One is a letter from BSI titled "Mortgage Statement" and dated July 18, 2016. Id. at 8. Plaintiff claims that this letter "misleads [her] about the legal status of the debt by failing to inform her the loan has been accelerated, the loan was in foreclosure, and the loan was reduced to judgment," that it "add[s] additional amounts due for costs and fees after a judgment was already entered [that] were not authorized expressly by the document creating the debt," and that it "seeks to collect an amount of debt to bring her loan current, but the amount stated was not accurate." Dkt. 24 ¶ ¶ 15-17. Plaintiff also argues that the letter improperly sought to collect debt from her directly, though BSI knew or should have known she had counsel. Id. ¶ 18.
The second attached document is a Form 1099-C Cancellation of Debt that lists BSI as the creditor and an "[a]mount of debt discharged" of $354,354.47. Dkt. 24 at 10. Plaintiff contends that this was misleading and a false representation of the legal status of the debt because, first, no money is owed to BSI, and second, McCormick 106, LLC continued to "pursue [Plaintiff] for a personal judgment for a deficiency judgment on the note in August of 2017." Dkt. 24 ¶ ¶ 19-20. She further argues the document is "false or misleads [Plaintiff] that the document was a document authorized [or] issued by the United States or creates a false impression as to its source, authorization, or approval." Id. ¶ 21.
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts to state a claim that is "plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). In considering the motion, the court accepts all factual allegations of the complaint as true and construes them in the light most favorable to the plaintiff. Pielage v. McConnell , 516 F.3d 1282, 1284 (11th Cir. 2008) (citation omitted).
Courts should limit their "consideration to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed." La Grasta v. First Union Sec., Inc. , 358 F.3d 840, 845 (11th Cir. 2004) (citations omitted). Courts may also consider documents attached to a motion to dismiss if they are (1) central to the plaintiff's claim; and (2) undisputed or, in other words, the "authenticity of the document is not challenged." Horsley v. Feldt , 304 F.3d 1125, 1134 (11th Cir. 2002) (citations omitted).
The FDCPA prohibits a "debt collector" from using a "false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. This includes falsely representing the amount or legal status of a debt, § 1692e(2)(A), threatening to take an unlawful action, § 1692e(5), distributing a written communication which simulates or is falsely represented to be a document authorized by an official source, § 1692e(9), or using false or deceptive means to collect a debt, § 1692e(10).
BSI first argues that res judicata and Rooker - Feldman bar Plaintiff's claims. Dkt. 29. Even if the claims are not barred, BSI contends its conduct does not constitute "debt collection" and the FDCPA and FCCPA therefore do not apply. Id. BSI lastly claims that 12 C.F.R. § 1026.41 requires BSI to send monthly statements to Plaintiff, thereby preempting Fla. Stat. § 559.72(18), and that Plaintiff's claim that BSI should have sent communications to Plaintiff's lawyer is conclusory and deficient. Id.
Though Plaintiff's claims are not barred by res judicata or Rooker - Feldman , the conduct alleged is not debt collection under the FDCPA and FCCPA. As such, because all of Plaintiff's claims are premised on violations of the FDCPA and FCCPA, dismissal is appropriate.
"Res judicata bars the filing of claims which were raised or could have been raised in an earlier proceeding." Ragsdale v. Rubbermaid, Inc., 193 F.3d 1235, 1238 (11th Cir. 1999) (citation omitted). Res judicata requires (1) a final judgment on the merits; (2) rendered by a court of competent jurisdiction; (3) the parties, or those in privity with them, are identical in both suits; and (4) the same cause of action is involved in both cases. Id.
BSI argues that Plaintiff could have raised these arguments at the state proceeding. Indeed, Plaintiff included the purported mortgage statement (but not the 1099-C) in her motion to vacate the judgment of foreclosure and demand for evidentiary hearing. Dkt. 29 at 41.2 The state court denied the motion without elaboration. Id. at 42.
Even assuming the court denied the motion on the merits, res judicata does not preclude claims In re Piper Aircraft Corp., 244 F.3d 1289, 1298 (11th Cir. 2001) (emphasis in original) (internal quotations and citation omitted). Plaintiff's claims concern alleged debt collection activity that followed the filing—and judgment—of the foreclosure action.
Similarly, Rooker - Feldman does not bar Plaintiff's claims because Plaintiff's claims are independent from the state court judgment. To bar claims under Rooker - Feldman , the claim must be "inextricably intertwined" with a state court decision, meaning that (1) "the success of the federal claim would ‘effectively nullify’ the state court judgment"; or (2) "the federal claim would succeed ‘only to the extent that the state court wrongly decided the issues.’ " Alvarez v. Attorney Gen. for Fla. , 679 F.3d 1257, 1262-63 (11th Cir. 2012) (citation omitted).
The Court has already determined that Rooker - Feldman does not bar claims based on alleged debt collection activity following entry of the state court judgment, only claims that seek to dispute the debt. This is because a court could find that the judgment was valid but attempts to collect the judgment nonetheless unlawful; such a finding would not nullify or contravene the underlying state court decision. BSI raises no new arguments in this regard. Dkt. 29 at 5-6; see also Target Media Partners v. Specialty Mktg. Corp. , 881 F.3d 1279, 1286 (11th Cir. 2018) ().
Plaintiff's only claims allege violations of the FDCPA and FCCPA. "[T]o state a plausible FDCPA claim under § 1692e, a plaintiff must allege, among other things, (1) that the defendant is a debt collector and (2) that the challenged conduct is related to debt collection." Reese v. Ellis, Painter, Ratterree & Adams, LLP , 678 F.3d 1211, 1216 (11th Cir. 2012) (internal quotation marks omitted). Furthermore, the FDCPA and FCCPA are largely similar and "the FCCPA is construed in accordance with the FDCPA." Lilly v. Bayview Loan Servicing, LLC , No. 2:17-cv-00345, 2017 WL 4410040, at *2 (M.D. Fla. Oct. 4, 2017) ; see also Kelliher v. Target Nat'l Bank, 826 F.Supp.2d 1324, 1327 (M.D. Fla. 2011) ().
"[T]he Eleventh Circuit has not established a bright-line rule" as to what qualifies...
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