United States District Court, S.D. Florida, Miami Division
GEOFFREY BLAKE, on behalf of himself and all others similarly situated, Plaintiff,
SETERUS, INC., Defendant.
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
LAWRENCE KING, UNIITED STATES DISTRICT JUDGE
CAUSE comes before the Court upon Defendant SETERUS,
INC.'s Motion to Dismiss (DE 23), filed on October 20,
2016. The Court has considered Plaintiffs Response (DE 30),
filed on November 17, 2016, as well as Defendant's Reply
thereto (DE 31), filed on December 1, 2016. After careful
review, the Court grants dismissal as to Count I of the
complaint, and denies dismissal as to Counts II and III.
putative class action arises from a dispute between a
Plaintiff mortgagor and his Defendant loan servicer. The
Plaintiff, Geoffrey Blake, executed a promissory note and
mortgage for $333, 750 in August 2007. DE 26-1 at 2-3.
Plaintiff alleges that he defaulted on his loan in October
2010, and foreclosure proceedings were initiated on June 28,
2012. DE 26 at 7. In June 2014, Plaintiff, through his
foreclosure attorney, wrote a letter to Defendant inquiring
as to the amount of money required to reinstate his loan.
Id. On June 30, Defendant wrote Plaintiff a response
letter stating that the reinstatement loan amount was $92,
938.74 if received by June 30, 2014, or $94, 895.49 if
received by July 18, 2014. Id. at 7-8.
Defendant's letter contained an itemized list of charges,
including $28, 695 in estimated costs for inspections,
attorney's fees, broker fees, and "other
costs." DE 26-3. On July 10, 2014, Defendant sent
Plaintiff a nearly identical letter, the only difference
being that the reinstatement amount was decreased to $86, 975
if paid by July 17, 2014, and the updated estimated charges
decreased to $20, 760. See DE 26-4.
alleges that Defendant was not authorized to include
estimated fees and costs in the reinstatement amount.
Accordingly, on March 7, 2016, Plaintiff sent a cure letter
to Defendant. When Defendant failed to remove the estimated
charges, Plaintiff filed the instant lawsuit. DE 26 at
damages, Plaintiff alleges that had Defendant not included
estimated fees in the loan reinstatement charges, Plaintiff
could have and would have initially paid the full
reinstatement amount. Plaintiff additionally seeks damages for
the costs and fees he has incurred as a result of litigation,
the interest incurred on his loan, the $106, 277 increase of
his principal balance on the loan, and the emotional distress
he has suffered.
that, Plaintiffs Amended Complaint alleges that by tacking
estimated fees onto the reinstatement amount, Defendant
knowingly violated the federal Real Estate Settlement
Procedures Act (RESPA), the Florida Deceptive and Unfair
Trade Practices Act (FDUPTA), and the Florida Consumer
Collection Practices Act (FCCPA). Defendant has moved to
dismiss the Amended Complaint, asserting that 1) Plaintiff
failed to plead that Defendant had the requisite actual
knowledge of its FCCPA violation, 2) the state claims are
barred by Florida's litigation privilege, and 3)
reinstatement letters are not protected by RESPA, or
alternatively, the reinstatement letters satisfied
RESPA's requirements. The Court has considered the motion
and the responses thereto, making this matter fully ripe for
this Court's review.
Motion to Dismiss alleges that the Complaint fails federal
pleading standards and should be dismissed, under Rule 12 of
the Federal Rules of Civil Procedure, for failure to state a
claim upon which relief can be granted. Fed.R.Civ.P. 12. Rule
8 requires that a complaint include a "short and plain
statement" demonstrating that the claimant is entitled
to relief. Fed R. Civ. P. 8. To survive a Rule 12(b)(6)
motion, a complaint must include "enough facts to state
a claim to relief that is plausible on its face, "
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Ashcroft v. Iqbal,
556 U.S. 662, 663 (2009). As a corollary, allegations absent
supporting facts are not entitled to this presumption of
veracity. Id. at 681.
evaluating a motion to dismiss, the Court must take all of
the well-pled factual allegations as true. Id. at
664. However, "threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice." Id. at 663. And, the Court's
duty to accept the factual allegations in the complaint as
true does not require it to ignore specific factual details
"in favor of general or conclusory allegations."
Griffin Indus., Inc. v. Irvin, 496 F.3d 1189,
1205-06 (11th Cir. 2007). The Court must dismiss a complaint
that does not present a plausible claim demonstrating
entitlement to relief.
first alleges that, by including unincurred estimated fees in
the reinstatement letters, Defendant violated the Florida
Deceptive and Unfair Trade Practices Act (FDUPTA).
state a claim under FDUTPA, a plaintiff must allege that a
deceptive or unfair practice occurred in the course of trade
or commerce. Benjamin v. CitiMortgage, Inc., No.
12-62291-CIV, 2013 WL 1891284, at *4 (S.D. Fla. May 6, 2013)
(citing Rollins, Inc. v. Butland,951 So.2d 860, 869
(Fla. 2d DCA 2006)). FDUPTA defines trade or commerce as
"advertising, soliciting, providing, offering, or
distributing, whether by sale, rental, or otherwise, of any
good or service, or any property, whether tangible or
intangible, or any other article, commodity, or thing of
value, wherever situated." Fla. Stat. Ann. §
501.203(8) (2016). An FDUPTA claim cannot be asserted against
a defendant who is simply collecting a debt. Williams v.
Nationwide Credit, Inc.,890 F.Supp.2d 1319, 1321 (S.D.
Fla. 2012) ("Several courts have held that debt
collection activities are not "trade or commerce"
for FDUTPA purposes.") (citing State v. Shapiro
& Fishman, LLP,59 So.3d 353, 355-57 (Fla. 4th DCA
2011); Law Office of David J. Stern, P.A. v. State,83 So.3d 847, 849-50 (Fla. 4th DCA 2011); Kelly v.
Palmer, Reifler & Assocs., P.A.,681 F.Supp.2d 1356,
1371-77 (S.D.Fla.2010); Trent v. Mortgage Electronic
Registration Sys., Inc.,618 F.Supp.2d 1356, 1365 n. 12
(M.D.Fla.2007)). Courts have thus repeatedly found that
"the 'trade and commerce' requirement is often
not met in cases dealing with borrowers alleging FDUPTA
claims against their mortgage servicers." Bank of