United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Motion to Dismiss (Doc.
37) filed by the Defendant, Ditech Financial LLC
(“Ditech”), and the Response in Opposition (Doc.
49) filed by the Plaintiff, Dennis Delia.
to the allegations in the First Amended Complaint (Doc. 34),
which are taken as true for the purposes of this order, Delia
financed the purchase of his home in Orlando, Florida, with a
mortgage loan from USAA Federal Savings Bank
(“USAA”). (Doc. 34 ¶¶ 12-14.) GMAC
Mortgage Corporation (“GMAC”) serviced
Delia's loan. (Doc. 49 at 2.)
28, 2006, USAA sent Delia a letter informing him that he was
in default as of May 1, 2006. (Doc. 34-1 at 49-51.) Five
months later, GMAC filed a foreclosure action against Delia.
(Doc. 34 ¶ 20.) While the foreclosure action was
pending, GMAC became insolvent and transferred the servicing
of the mortgage to Ditech, which took over the suit.
December 10, 2013, the state court granted judgment for
Ditech and set Delia's property for auction. (Doc. 34
¶ 28; Doc. 34-1 at 70.) Delia filed an appeal on January
7, 2014, but while the appeal was still pending, the property
was sold to the Federal National Mortgage Association
(“Fannie Mae”). A certificate of sale and title
were issued accordingly. (Doc. 34 ¶¶ 30-32.)
October 17, 2014, the Fifth District Court of Appeal ruled in
Delia's favor, reversing the judgment of the trial court
and remanding the action for retrial. (Doc. 34-2 at 85-88.)
Before the foreclosure action was retried, Delia sued Ditech,
alleging violations of the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692, and the Florida
Consumer Collection Practices Act (“FCCPA”), Fla.
Stat §§ 559.55-.785. But on July 15, 2015, Delia
and Ditech entered into a settlement agreement in regard to
the FDCPA/FCCPA suit, with Delia releasing his then-existing
claims against Ditech. (Doc. 34 ¶ 37.)
November 24, 2015, the foreclosure action was retried and
Delia prevailed. (Doc. 34-1 at 111-12.) On February 23, 2016,
Ditech and Delia entered into a second settlement agreement,
which resolved Delia's claim to attorneys' fees and
costs incurred in the foreclosure action and appeal. (Doc. 34
¶ 47.) On March 7, 2016, the first judgment in the
foreclosure action was vacated, along with the certificates
of sale and title that had been issued to Fannie Mae. (Doc.
34-1 at 113.)
the foreclosure action concluded, Ditech continued sending
monthly billing statements to Delia, which stated that he
owed principal, interest, and other various charges from May
2, 2006, to present. (Doc. 34 ¶ 45.) Beginning on
February 16, 2016, the billing statements included a notice
that “[a] first notice of filing to initiate
foreclosure on your account has occurred.” (Doc. 34
¶ 46.) The March 16, 2016 billing statement included a
“corporate advance balance” of $22,
517.82. (Doc. 34-2 at 15.)
April 1, 2016, Delia sent a qualified written request (the
“QWR”) to Ditech claiming that it had improperly
calculated sums due, misapplied payments, and improperly
included attorneys' fees in the balance sought.
(Id. at 20.) Ditech acknowledged receipt of the QWR
on April 7, 2016. (Id. at 23.) Before Ditech replied
to the QWR, Delia received the April 16, 2016, billing
statement from Ditech, showing that the advance corporate
balance had increased from $22, 517.82 to $97, 542.82. On May
3, 2016, Ditech responded to the QWR, attaching what appears
to be ledger of corporate advance fees that it charged Delia
from October 10, 2001, to May 2, 2016. (Id. at
32-55.) From the May 2016 statement onward, Ditech's
billing statements included the $97, 532.82 corporate advance
brings this action against Ditech alleging that its pursuit
of foreclosure, representations at trial, delay in re-vesting
him with title, and representations in billing statements
violated the FDCPA and the FCCPA. Delia also alleges that
Ditech violated the Real Estate Settlement Procedures Act, 12
U.S.C. §§ 2601-17, by failing to adequately respond
to the QWR. And, finally, Delia alleges that Ditech's
pursuit of foreclosure constituted malicious prosecution
under Florida law.
Motion to Dismiss Standard
Federal Rule of Civil Procedure 12(b)(6) motion to dismiss
for failure to state a claim tests the sufficiency of the
complaint-it does not reach the merits of the case.
Milburn v. United States, 734 F.2d 762, 765 (11th
Cir.1984). In ruling on a motion to dismiss, the Court
accepts factual allegations as true and construes the
complaint in the light most favorable to the plaintiff.
SEC v. ESM Group, Inc., 835 F.2d 270, 272 (11th
Cir.1988). The Court limits its consideration to the
pleadings and any exhibits attached thereto. Fed.R.Civ.P.
10(c); see also GSW, Inc. v. Long Cty., Ga., 999
F.2d 1508, 1510 (11th Cir. 1993).
Rule of Civil Procedure 8(a)(2) mandates that pleadings
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, ” so as
to give the defendant fair notice of what the claim is and
the grounds upon which it rests. Conley v. Gibson,
35 U.S. 41, 47 (1957), overruled on other grounds,
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
The plaintiff must allege facts that raise a right to relief
above the speculative level and indicate the presence of the
required elements. Twombly, 550 U.S. at 555;
Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1302
(11th Cir. 2007). Conclusory allegations, unwarranted factual
deductions, or legal conclusions masquerading as facts will
not prevent dismissal. Davila v. Delta Air Lines,
Inc., 326 F.3d 1183, 1185 (11th Cir. 2003).
Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme
Court explained that a complaint need not contain detailed
factual allegations, “but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.' Nor does a complaint suffice if it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Id.
at 678 (quoting Twombly, 550 U.S. at 555, 557)
(internal citations omitted). “[W]here the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not ‘show[n]'-‘that the plaintiff is
entitled to relief.'” Id. at 679 (quoting
FDCPA regulates what debt collectors can do in collecting
debts.” Miljkovic v. Shafritz & Dinkin,
P.A., 791 F.3d 1291, 1297 (11th Cir. 2015) (citing 15
U.S.C. §§ 1692-1692p). To establish a valid claim
under the FDCPA, a plaintiff must show that (1) he was 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 engaged in an act or omission
prohibited by the FDCPA. Goodin v. Bank of America,
N.A., 114 F.Supp.3d 1197, 1204 (M.D. Fla. 2015) (citing
Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355,
1360-61 (S.D. Fla. 2000)). Ditech does not challenge
Delia's allegation that it is a debt collector under the
FDCPA. Therefore, the Court limits its analysis to the two
remaining elements: whether Delia was subjected to debt
collection activity, and whether Delia has sufficiently
alleged that Ditech engaged in an act prohibited by the
15 U.S.C. § 1692d - Count I
§ 1692d, a debt collector “may not engage in any
conduct the natural consequence of which is to harass,
oppress, or abuse any person in connection with the
collection of a debt.” 15 U.S.C. § 1692d.
“Banned conduct includes the ‘use of violence,
' the ‘use of obscene or profane language, '
and repeated phone calls intended to annoy or harass any
person in connection with the collection of a debt.”
Miljkovic, 791 F.3d at 1305. Claims under this
section are viewed “from the perspective of a consumer
whose circumstances make him relatively more susceptible to
harassment, oppression, or abuse.” Jeter v. Credit
Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985).
Delia claims that Ditech violated § 1692d when it
“omitted revesting title in the home to [him] when [he]
won the foreclosure appeal and ...