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Hicks v. Wells Fargo Bank, National Association

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

August 15, 2017

ANGELA HICKS, Plaintiff.
v.
WELLS FARGO BANK, NATIONAL ASSOCIATION AS TRUSTEE FOR BNC MORTGAGE LOAN TRUST 2007-4, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-4, and OCWEN LOAN SERVICING, LLC, Defendants.

          ORDER

          JAMES D. WHITTEMORE, JUDGE

         BEFORE THE COURT are Defendants' Motion to Dismiss Plaintiffs Amended Complaint (Dkt. 10) and Plaintiffs Memorandum in Opposition (Dkt. 13). Upon consideration, the motion is GRANTED in part and DENIED in part.

         I. BACKGROUND

         Angela Hicks alleges that she "executed a promissory note secured by a residential mortgage for a loan on her personal residence located in Tampa, Florida" on May 10, 2007. (Dkt, 8 ¶ 9). Wells Fargo Bank, National Association is the principal of its agent, Ocwen Loan Servicing, LLC, (Id. ¶ 7-8), and is the owner of the Original Note and Mortgage. (Dkt. 9). On February 12, 2014, Plaintiff filed suit against Ocwen, as the loan servicing agent for her mortgage, for multiple violations of the Federal Debt Collection Practices Act ("FDCPA") and the Florida Consumer Practices Act ("FCCPA") relating to her note and mortgage. (Id. ¶ 10). In early 2015, following a mediation settlement, "the parties... entered into a Loan Modification Agreement relating to [Plaintiffs] Note and Mortgage." (Id. ¶ 13; Dkt. 9). Wells Fargo filed a foreclosure action on Plaintiffs home on February 22, 2015 and voluntarily dismissed the foreclosure action on June 6, 2016, (Dkt. 8 ¶ 14). Both Wells Fargo and Ocwen sent confirmation and acknowledgment that Plaintiff retained counsel and that future correspondence regarding her note and mortgage would be sent to Plaintiffs attorneys. (Id. ¶ 15-17). Plaintiff brought this action against Wells Fargo and Ocwen for violating the provisions of the FDCP A and FCCPA. (Id. ¶ 18-19). Defendants move to dismiss the complaint for failure to state a claim. (Dkt. 10).

         II. STANDARD

         A complaint must contain "a short plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Plaintiff must "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The factual allegations within a complaint "must be enough to raise a right to relief above a speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). A sufficient pleading "require[s] more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 558. All factual allegations contained in the complaint must be accepted as true for the purposes of a motion to dismiss, but this tenet is "inapplicable to legal conclusions." Iqbal, 556 U.S. 662 at 678. "[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal." Oxford Asset Management, Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

         III. DISCUSSION

         A. Plaintiff Has Not Sufficiently Pled a Claim Under the FDCPA

         To state a claim under the FDCPA, a plaintiff must establish that the Defendant is a "debt collector." Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012).

         Under the FDCPA, a debt collector is "any person [1] 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] who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another, " 15 U.S.C. §1692a(6).

         1. Plaintiff Fails to Show That Wells Fargo is a "Debt Collector" Under the FDCPA

         Defendants argue that Wells Fargo is aprincipal, or trustee of the secured mortgage, or owner of the loan documents and therefore cannot meet the statutory definition of "debt collector" under the FDCPA. (Dkt. 10 at 5). Plaintiff concedes that she is not suing Wells Fargo under the FDCPA. (Dkt. 13 at 5). Count I against Wells Fargo will therefore be dismissed.

         2. Plaintiff Fails to Show That Ocwen is a "Debt Collector" Under the FDCPA

         Defendants argue that Plaintiff has not sufficiently alleged that Ocwen is a "debt collector." Plaintiffs conclusory allegation that the Defendant is a "debt collector" as defined by 15 U.S.C. §1692a(6) is insufficient to state a FDCPA claim. See Farquharson v. Citibank, N.A., 664 F.App'x 793, 800 (11th Cir. 2016) ("In their Amended Complaint, Plaintiffs assert that [Defendants] are each 'debt collectors'; however, such 'threadbare recitals of a cause of action's elements' do not suffice." (quoting Iqbal, 556 U.S. at 663)); Collins v. BSIFinancial Services, No. ...


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