United States District Court, M.D. Florida, Tampa Division
ANGELA HICKS, Plaintiff.
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.
D. WHITTEMORE, JUDGE
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
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).
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).
Plaintiff Has Not Sufficiently Pled a Claim
Under the FDCPA
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).
the FDCPA, a debt collector is "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  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.
Plaintiff Fails to Show That Wells Fargo is a "Debt
Collector" Under the FDCPA
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
Plaintiff Fails to Show That Ocwen is a "Debt
Collector" Under the FDCPA
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,