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Delia v. Ditech Financial LLC

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

June 1, 2017

DENNIS DELIA, Plaintiff,



         This 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.

         I. Background

         According 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.)

         On July 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.

         On 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.)

         On 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.)

         On 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.)

         After 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.[1] (Doc. 34-2 at 15.)

         On 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 balance.

         Delia 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.

         II. Motion to Dismiss Standard

         A 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).

         Federal 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).

         In 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 Fed.R.Civ.P. 8(a)(2)).

         III. The FDCPA

         “The 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 FDCPA.

         A. 15 U.S.C. § 1692d - Count I

         Under § 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 ...

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