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Negron v. Citi Mortgage Inc.

United States District Court, S.D. Florida

April 7, 2017




         THIS CAUSE is before the Court on Defendant Safeguard Properties' (“Safeguard”) Motion to Dismiss, ECF No. [46], and Defendant Sea Moore, Inc.'s (“Sea Moore”) Motion to Dismiss, ECF No. [65], (collectively, the “Motions to Dismiss”), both of which seek dismissal of Counts II and III of Plaintiff William Negron's (“Plaintiff”) Second Amended Complaint, ECF No. [43]. The Court has reviewed the Motions to Dismiss, the record, and the applicable law, and is otherwise fully advised. In addition, the Court had the benefit of oral argument during a hearing held on April 5, 2017. For the reasons set forth below, the Motions to Dismiss are denied.

         I. BACKGROUND

         On July 25, 2016, Plaintiff, proceeding pro se, filed suit against Defendant CitiMortgage Inc. (“CitiMortgage”) and Safeguard, asserting thirteen claims, including claims for violations of the Fair Debt Collection Practices Act (“FDCPA”) and the Florida Consumer Collection Practices Act (“FCCPA”). See ECF No. [1]. On October 18, 2016, the Court granted in part a motion to dismiss filed by Safeguard, dismissing without prejudice Plaintiff's FDCPA and FCCPA claims against Safeguard. ECF No. [26] (“October 18, 2016 Order”).[1] On February 7, 2017, Plaintiff, through counsel, filed a Second Amended Complaint, ECF No. [43], which reasserted, among other claims that were previously dismissed, the FDCPA claim against Safeguard (as well as against a newly named defendant-Sea Moore) (Count II) and the FCCPA claim against Safeguard (as well as against CitiMortgage and Sea Moore) (Count III). At issue here are the FDCPA and FCCPA claims against Safeguard and Sea Moore.

         The facts of this case were set forth in the October 18, 2016 Order. However, those facts bear repeating here. According to the Second Amended Complaint, on or about October 23, 2013, Plaintiff took possession of property located at 7735 Yardley Dr., # 402, Tamarac, FL 33321 (the “Property”), through a bankruptcy trustee sale. Id. at ¶¶ 26-27. On or about August 27, 2015, CitiMortgage, “the mortgage servicing agent for [Plaintiff's mortgage on the Property], ” initiated foreclosure proceedings on the Property.[2] See Id. at ¶¶ 1, 28.

         On December 20, 2015, Plaintiff arrived to the Property after having been away and discovered that Safeguard, a “property preservation firm, ” “and/or its agent/contractors had trespassed and broken into his Property, changed the locks to his front door, damaged and stole his personal property, and furthermore charged Plaintiff for such activity masked as ‘winterization' charges.” Id. at ¶¶ 1, 30. All of this was done despite Plaintiff having previously “confirmed and verified with [CitiMortgage] that he was occupying the Property and that there was a change of ownership[, ]” and despite “obvious external signs at the Property [indicating] that it was occupied . . . .” Id. at ¶ 31. The Second Amended Complaint specifically alleges that Safeguard was acting on behalf of CitiMortgage and that Safeguard hired Sea Moore to perform the “lock-out” and conduct the property preservation services on the Property. See Id. at ¶¶ 1, 32.

         CitiMortgage filed an Answer and Affirmative Defenses to the Second Amended Complaint on February 21, 2017. See ECF No. [47]. In their respective Motions to Dismiss, Safeguard and Sea Moore seek dismissal of the FDCPA and FCCPA claims against them (Counts II and III), arguing that the Second Amended Complaint fails to sufficiently allege collection activity arising from a consumer debt by Safeguard and Sea Moore and that neither Safeguard nor Sea Moore constitute “debt collectors” under the FDCPA. See ECF No. [46] at 4-6; ECF No. [65] at 4-7. The Court heard oral argument on the Motions to Dismiss at a hearing held on April 5, 2017.[3]


         A pleading in a civil action must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To satisfy the Rule 8 pleading requirements, a complaint must provide the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, (2002). While a complaint “does not need detailed factual allegations, ” it must provide “more than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

         (explaining that the Rule 8(a)(2) pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation”). Nor can a complaint rest on “‘naked assertion[s]' devoid of ‘further factual enhancement.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)). The Supreme Court has emphasized that “[t]o survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570); see also Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir. 2010).

         When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353 (S.D. Fla. 2009) (“On a motion to dismiss, the complaint is construed in the light most favorable to the non-moving party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal, 556 U.S. at 678. A court considering a Rule 12(b) motion is generally limited to the facts contained in the complaint and attached exhibits, including documents referred to in the complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity.”) (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). While the court is required to accept as true all allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. “Dismissal pursuant to Rule 12(b)(6) is not appropriate ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Magluta v. Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).


         A. FDCPA Claim against Safeguard and Sea Moore (Count II)

         The FDCPA, 15 U.S.C. § 1692 et seq., was enacted to “eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The FDCPA therefore prohibits debt collectors from using “false, deceptive, or misleading representation[s] or means” and “unfair or unconscionable means” while collecting or attempting to collect any debt. Id. §§ 1692(e), (f). “In order to prevail on an FDCPA claim, a plaintiff must prove that: (1) the plaintiff has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector as defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.” Bentley v. Bank of America, N.A., 773 F.Supp.2d 1367, 1371 (S.D. Fla. 2011) (quoting Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1360-61 (S.D. Fla. 2000)). Under 15 U.S.C. § 1692f(6), the specific provision of the FDCPA under which Plaintiff alleges liability on the parts of Safeguard and Sea Moore, see ...

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