United States District Court, M.D. Florida, Tampa Division
VIRGINIA M. HERNANDEZ COVINGTON, Judge
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.
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).
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).
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).
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).
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).
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).
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.
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.”).
[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
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).
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.
Court will analyze each of Owens-Benniefield's eleven
counts in turn.
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.
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.
Debt Collector and Debt Collection Activity
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)).
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).
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)).
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).
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.
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.
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.
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
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).
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.
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.
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