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Garrison v. Caliber Home Loans, Inc.

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

January 10, 2017



          ROY B. DALTON 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.


         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.


         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., 132 S.Ct. 2034, 2044 (2012)), and the “FCRA seeks to ensure fair and accurate credit reporting” see Spokeo v. Robins, 136 S.Ct. 1540, 1545 (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 Further, the FCCPA specifies that, in construing its provisions, “due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices Act.” See Fla. Stat. § 559.77(5). defendant may file a motion to dismiss under Rule 12(b)(6). See Popham v. Cobb Cty., Ga., 392 F. App'x 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 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (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).


         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”- .

         (Image Omitted)

         Important Messages. This is an attempt by a debt collector to collect a consumer debt and any information obtained will be used for that purpose 'Partial Payments: Any partial payments that you make are not applied to your mortgage, but Instead are held in a separate suspeni account If you pay the balance of a partial payment the funds will then be applied to your mortgage.

         We show that your loan has been referred to Foreclosure.

         (See id.) According to Plaintiff: (1) Defendant's assertions that Plaintiff was “2299 days delinquent on [her] mortgage” and owes a $188, 099.70 payment are false due to the SOL Issue; and (2) Defendant's statement that Plaintiff's Loan had “been referred to Foreclosure” also was false because no foreclosure case had been filed against Plaintiff since Defendant began servicing the Loan. (See Doc. 1, ¶¶ 44, 50, 51, 53; see also Doc. 18, ¶ 53).

         In early April 2016, Attorney Gingo sent correspondence to Defendant (Doc. 1-1, pp. 75-76 (“RESPA Letter”)), which: (1) provided Loan Dispute and error notices concerning the Loan; (2) requested Loan validation and information; and (3) advised that Attorney Gingo represented Plaintiff and further direct contact with Plaintiff must cease. (See id.; see also Doc. 1, ¶¶ 45, 46, 47; Doc. 18, ¶ 45). After acknowledging receipt of the RESPA Letter (see Doc. 1-1, pp. 77-79 (“RESPA Acknowledgments”); id. at 80 (“FDCPA Acknowledgment”)), Defendant: (1) dispatched agents to the Property to communicate with Plaintiff and her son about the Loan (see Doc. 1, ¶¶ 50-51); and (2) “posted papers purporting to be loan modification documents on [Plaintiff's] door” (see id. ¶ 52; Doc. 1-1, pp. 83-86 (“Posted Documents”)); and (3) sent another mortgage statement to Plaintiff, which included updated account information, Delinquency Notice, and Important Messages sections (see Doc. 1-1, at 87-89 (“April Statement”)).

         Plaintiff alleges that Defendant's actions caused her “mental and emotional pain, ” “loss of privacy, diminished credit score, ” “embarrassment, ” “loss of credit, ” and “credit denial.” (See id. ¶¶ 80, 92, 106, 116, 133.) Plaintiff further alleges that Defendant is liable to her for actual, statutory, and punitive damages, costs, and attorney fees. (See id. ¶¶ 81, 82, 93, 107, 117, 118, 134, 135, 136.)


         Defendant first argues that Counts Two through Seven of the Complaint fail to the extent they are premised on the Fraudulent Document and SOL Issues because: (1) Plaintiff's allegations concerning the Fraudulent Document Issue are untimely, “conclusory, and unsubstantiated [as] this issue was never adjudicated by any court” (“Fraudulent Document Argument”); and (2) allegations concerning the SOL Issue reflect Plaintiff's impermissible attempt “to bootstrap an affirmative defense into an affirmative cause of action” (“SOL Argument”). (See Doc. 19, pp. 1-7.) Defendant further argues that:

(1) Counts Three and Four fail because Plaintiff simply parroted FCRA provisions (“FCRA Argument”) (see id. at 9, 10);
(2) Count Five fails because Plaintiff did not properly allege that Defendant's RESPA violation caused Plaintiff “actual harm” (“RESPA Argument”) (see id. at 10); and
(3) any claims in Counts Two and Seven concerning pre-April 5, 2016 communications fail because Plaintiff's “own recital of the dates and events contradict” her assertions that Defendant knew or had reason to know about Attorney Gringo before receipt of the RESPA Letter in April 2016 (“Knowledge Argument”) (see id. at 8, 9, 11, 12).

         Plaintiff counters that Defendant misunderstands the nature of her claims, which are adequately pled and supported ...

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