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Owens-Benniefield v. Nationstar Mortgage, LLC

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

June 15, 2017

VICKIE OWENS-BENNIEFIELD, Plaintiff,
v.
NATIONSTAR MORTGAGE LLC, Defendant.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON, Judge

         This matter comes before the Court pursuant to Defendant Nationstar Mortgage LLC's Amended Motion to Dismiss (Doc. # 23), filed on May 15, 2017. Pro se Plaintiff Vickie Owens-Benniefield filed a response on May 23, 2017. (Doc. # 25). For the reasons that follow, the Motion is granted in part and denied in part.

         I. Background

         In January of 2008, Owens-Benniefield took out a mortgage to purchase a property in Tampa, Florida. (Doc. # 17 at ¶¶ 14-15). Owens-Benniefield struggled to pay the mortgage, so she “completed a deed in lieu of foreclosure in which the debt was forgiven by Federal Home Loan Mortgage Corporation on February 24, 2015.” (Id. at ¶ 15). Owens-Benniefield received a letter, which was addressed to the Comptroller of the Currency and indicated “the Deed in Lieu of Foreclosure was approved by the investor Federal Home Loan Mortgage Corporation.” (Id. at ¶ 17). Defendant Nationstar Mortgage LLC “was a party to the transaction for the Deed in Lieu as they had to execute an Assignment of Mortgage in order for the transaction to be completed on February 24, 2015.” (Id. at ¶ 18); see also (Doc. # 17-1 at 9)(assigning Nationstar's interest in the mortgage to Federal Home Loan Mortgage Corporation). Owens-Benniefield's “obligation at that point as of February 2015, was forgiven.” (Doc. # 17 at ¶ 19); see also (Doc. # 17-1 at 11)(recording the release of mortgage).

         Yet, on March 17, 2016, despite the mortgage debt having “been recorded and released by Federal Home Loan Mortgage Corporation, ” Nationstar began attempting to collect the debt. (Doc. # 17 at ¶ 21). Owens-Benniefield “began to receive numerous telephone calls from [Nationstar's] agents in attempts to collect a debt.” (Id. at ¶ 22). Nationstar “placed multiple automated calls per day to [Owens-Benniefield's] cellular telephone for several months prior to the filing of this action.” (Id. at ¶ 23). Nationstar also used a “prerecorded or artificial voice” during some phone calls. (Id. at ¶ 76). Between March and April of 2016, Nationstar “placed at least 9 collection calls to [Owens-Benniefield's] cellular telephone.” (Id. at ¶ 24). Owens-Benniefield also “received letters and mortgage statements” from Nationstar, even though its “rights were assigned to Federal Home Loan Mortgage Corporation.” (Id. at ¶ 26; Doc. # 17-1 at 65-66; 79-80).

         Nationstar then “prepared and recorded another assignment of mortgage to Community Loan fund of New Jersey, ” which was “recorded on August 22, 2016, and dated June 27, 2016.” (Id. at ¶ 27; Doc. # 17-1 at 31). According to Owens-Benniefield, this was an “[i]nvasion of [her] personal information as [Nationstar] had no right to give personal information to [a] third party.” (Doc. # 17 at ¶ 27). Indeed, Nationstar “has transferred [Owens-Benniefield's] confidential information to several third parties, ” including an attorney in Michigan who “has stated he does not know [her] and is un[a]ware of why [her] personal information was sent to his office.” (Id. at ¶ 30; Doc. # 17-1 at 33-35).

         Nationstar also “placed debt on [Owens-Benniefield's] credit report which caused [her] to be denied credit and has caused [her] great emotional stress to try and clear this matter.” (Doc. # 17 at ¶ 28). But, Nationstar denied they were trying to collect a debt in their communications with the Consumer Protection Bureau. (Id. at ¶ 31). Nationstar “sent the Internal Revenue Service a mortgage interest statement which shows [Owens-Benniefield as] owing a balance of $132, 009.33.” (Id. at ¶ 32).

         Owens-Benniefield filed suit in state court against Nationstar and other defendants in April of 2016, alleging various statutory and common law causes of action. (Doc. # 7 at 11; Doc. # 7-1). Subsequently, all claims except for a TCPA claim against Nationstar were dismissed in that action. The case remains pending as to the sole TCPA claim. (Doc. # 7 at 12).

         Owens-Benniefield then initiated the present action in this Court on March 6, 2017. (Doc. # 1). Nationstar filed its motion for more definite statement or to dismiss on March 30, 2017. (Doc. # 6). The Court granted that motion on April 21, 2017. (Doc. # 14). Since initiation of this action, but before Owens-Benniefield filed her Amended Complaint, Nationstar acknowledged in a letter to the Florida Attorney General's Office that the debt was waived when Owens-Benniefield's deed-in-lieu was executed. (Doc. # 17 at ¶¶ 52, 199, 252; Doc. # 15-1).

         Owens-Benniefield filed her Amended Complaint, alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq.; the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §§ 227 et seq.; the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq.; the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601, et seq.; the Graham-Leach-Bliley Act (GLBA), 15 U.S.C. §§ 6801, et seq.; the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. §§ 559.55 et seq.; and Chapter 494, Fla. Stat., governing mortgage brokerage and lending. (Doc. # 17). The Amended Complaint also asserts various common law claims including fraud, negligence, and intentional infliction of emotional distress. (Id.). Nationstar filed its Amended Motion to Dismiss the Amended Complaint on May 15, 2017. (Doc. # 23). Owens-Benniefield filed a response on May 23, 2017. (Doc. # 25). The Motion is ripe for review.

         II. Legal Standard

         On a motion to dismiss, this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, this Court favors the plaintiff with all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990)(“On a motion to dismiss, the facts stated in [the] complaint and all reasonable inferences therefrom are taken as true.”). However,

[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal citations omitted). Courts are not “bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). “The scope of review must be limited to the four corners of the complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002).

         Furthermore, the Court construes pro se pleadings liberally and holds them to a less stringent standard than those drafted by attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). But, “a pro se litigant is still required to conform to procedural rules, and a district judge is not required to rewrite a deficient pleading.” McFarlin v. Douglas Cty., 587 F. App'x 593, 595 (11th Cir. 2014).

         III. Analysis

         The Court will analyze each of Owens-Benniefield's eleven counts in turn.

         A. FDCPA

         Count 1 alleges Nationstar violated numerous provisions of the FDCPA. The Court notes as a preliminary matter that the FDCPA contains a one-year statute of limitations. 15 U.S.C. § 1692k(d). This action was initiated on March 6, 2017, so any communications sent before March 6, 2016, are time-barred under the FDCPA.

         Nationstar contends the Amended Complaint does not state a claim under the FDCPA because Owens-Benniefield has insufficiently pled that Nationstar is a debt collector, engaged in debt collection activity, or otherwise violated the subsections identified by Owens-Benniefield.

         1. Debt Collector and Debt Collection Activity

         First, Nationstar argues Owens-Benniefield has not sufficiently alleged facts to support a reasonable inference that it is a debt collector. (Doc. # 23 at 2). A “debt collector” includes, among others, (1) “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, ” or (2) any person “who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” Davidson v. Capital One Bank, N.A., 797 F.3d 1309, 1314 (11th Cir. 2015)(quoting 15 U.S.C. § 1692a(6)).

         An allegation merely tracking the statutory definition of debt collector is insufficient. See Farquharson v. Citibank, N.A., 664 F. App'x 793, 799-800 (11th Cir. 2016)(“In their Amended Complaint, Plaintiffs assert that Citigroup and Wolfe are each ‘debt collectors'; however, such ‘threadbare recitals of a cause of action's elements' do not suffice.”). Nationstar argues that its self-identification as a debt collector attempting to collect a debt in its letters and other communications with Owens-Benniefield, (Doc. # 17-1 at 65-66, 79-80), does not support that it is, in fact, a debt collector. See Fenello v. Bank of Am., NA, 577 F. App'x 899, 902 (11th Cir. 2014)(“An entity cannot transform itself into a ‘debt collector' within the meaning of the FDCPA simply by noting in a letter that it may be considered one under the Act.”). Still, while it is not determinative, self-identification as a debt collector is relevant. See Bohringer v. Bayview Loan Servicing, LLC, 141 F.Supp.3d 1229, 1240 (S.D. Fla. 2015)(“[A]lthough not determinative, it is nevertheless relevant Bayview identified itself as a debt collector in the May 21 Letter.” (internal citation omitted)). Here, Nationstar labeled itself as a debt collector in a letter stating that Owens-Benniefield's loan was in default, a $50, 000 payment was due within a month, and that the letter “[was] an attempt to collect a debt.” (Doc. # 17-1 at 65).

         Nationstar also asserts the other allegations do not plausibly show it is a debt collector. But, construing the Amended Complaint liberally, Owens-Benniefield has sufficiently alleged Nationstar is a debt collector. She alleges Nationstar is “engaged in the collection of debts from Florida consumers using the mail, internet and telephone” and “regularly attempts to collect consumer debt alleged to be due.” (Doc. # 17 at ¶¶ 8, 11-12); see also Tharpe v. Nationstar Mortg. LLC, 632 F. App'x 586, 588 (11th Cir. 2016)(“Nationstar contends that Tharpe's allegations that it is a ‘debt collector' are vague and conclusory. They are not. Tharpe has alleged that Nationstar's business involves the regular collection of thousands of debts from thousands of consumers. That allegation, if true, would support a finding that Nationstar is a ‘debt collector' within the scope of the FDCPA.”). And Nationstar does not argue that, in the event it otherwise qualifies as a debt collector, it is nevertheless exempt from the FDCPA because the loan was not in default when it became the servicer. § 1692(a)(6)(F)(iii); see also Davidson, 797 F.3d at 1314 n.4 (stating that, regarding § 1692(a)(6)(F)(iii), “[e]ntities falling within this exclusion include mortgage service companies and others who service outstanding debts for others, so long as the debts were not in default when taken for servicing” (citation and internal quotation marks omitted)).

         Next, Nationstar argues Owens-Benniefield has not sufficiently alleged its activities were connected with the collection of a debt. (Doc. # 23 at 4). “Although the FDCPA does not expressly set forth what constitutes collection-related activity, the Eleventh Circuit has held that ‘if a communication conveys information about a debt and its aim is at least in part to induce the debtor to pay, it falls within the scope of the Act.'” Roth v. Nationstar Mortg., LLC, No. 2:15-cv-783-FtM-29MRM, 2016 WL 3570991, at *2 (M.D. Fla. July 1, 2016)(quoting Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1302 (11th Cir. 2014)). In determining whether a communication is made in connection with the collection of a debt, some factors to look at are whether the communication references the amount owed, contains an “implicit or explicit demand for payment, ” or discusses “the repercussions if payment [is] not tendered.” Pinson v. Albertelli Law Partners LLC, 618 F. App'x 551, 553-54 (11th Cir. 2015).

         The Court agrees that Nationstar's assigning the mortgage to another company, transferring its servicing rights to another servicer, and notifying Owens-Benniefield of both events is not debt collection activity. Cf. Bohringer, 141 F.Supp.3d at 1234 (“[T]he letter was not made in connection with the collection of a debt: it was simply an initial communication to Plaintiffs that Bayview was the new servicer of the Loan.”). Indeed, under RESPA, Nationstar had a duty to inform Owens-Benniefield of any assignment or transfer of servicing. See 12 U.S.C. § 2605(b)(1). And the letters sent by BSI Financial Services, the mortgage servicer to whom Nationstar's servicing rights were transferred in June of 2016, do not qualify as debt collection activity by Nationstar.

         But the earlier letters Nationstar sent, which noted the default balance and specified a due date for payment, are attributable to Nationstar. A March 15, 2016, letter from Nationstar asserts Owens-Benniefield's “loan is currently past due” and that “[f]ailure to pay $50, 410.73 by 4/14/2016 [], may result in acceleration of the sums secured by the Security Instrument, foreclosure proceedings and sale of the property.” (Doc. # 17-1 at 65-66). The letter explains the acceptable forms of payment and warns “Nationstar is a debt collector” and “[t]his is an attempt to collect a debt.” (Id. at 65). Since the letter contains a demand for payment and highlights repercussions of nonpayment, this letter qualifies as debt collection activity.

         Thus, the Court concludes that Nationstar is plausibly a debt collector and at least some of the conduct alleged qualifies as debt collection activity. Next, the Court will address each alleged violation of the FDCPA in turn.

         2. Section 1692c

         Owens-Benniefield alleges Nationstar violated § 1692c by communicating “in connection with debt collection as it relates with third parties, as [Owens-Benniefield] did not give prior consent to the ‘debt collector' [Nationstar] to communicate this debt to an attorney in Michigan and also to [its] affiliates and also by way of another Mortgage Company via a recorded assignment of mortgage.” (Doc. # 17 at 4).

         Although she does not specify the subsection, it appears Owens-Benniefield is alleging a violation of § 1692c(b), which states, in relevant part,

without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector.

15 U.S.C. § 1692c(b).

         Owens-Benniefield has not plausibly alleged that Nationstar communicated, in connection with the collection of the debt, with the attorney in Michigan, its affiliates, or the mortgage company to whom the mortgage was assigned. As already discussed, Nationstar's assigning the mortgage to another company, and notifying Owens-Benniefield of the assignment, was not debt collection activity. Nor does Owens-Benniefield's vague allegation that Nationstar communicated with its affiliates create the plausible inference that the communications were made in connection with collection of the debt from Owens-Benniefield.

         Nationstar did send a letter - a notice of servicing transfer - to an attorney in Michigan, apparently under the incorrect belief that this attorney represented Owens-Benniefield. (Doc. # 17-1 at 33). But, the notice was not sent in connection with the collection of a debt - it merely stated Nationstar was no longer the mortgage servicer. Owens- Benniefield does not allege whether Nationstar sent other communications to the Michigan attorney. And the other letters Owens-Benniefield attaches were sent to the attorney by the subsequent servicer. Thus, the FDCPA claim is dismissed to the extent it is brought under § 1692c.

         3. Section 1692d

         Section 1692d states that “[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 at the called number.'” Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1305 (11th Cir. 2015). Claims under this section are viewed “from the perspective of a consumer whose ...


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