United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Motions to Dismiss filed
by the Defendants, Bank of America, N.A. (“BANA”)
(Doc. 49); Liebler, Gonzalez & Portuondo (“LGP”)
(Doc. 50); and Gladstone Law Group, P.A. (“Gladstone
P.A.”) (Doc. 48); and the Response in in Opposition
(Doc. 51) filed by the Plaintiffs, Adrian Williams and Hope
to the allegations in the Amended Complaint (Doc. 43), which
are taken as true for the purposes of resolving this matter,
Phillips and Williams executed a promissory note and mortgage
in favor of FBC Mortgage LLC on April 19, 2010. (Id.
¶ 12.) BANA is the servicer of that loan. (Id.
¶ 22.) In late-2011, the Plaintiffs fell behind on their
payments and applied for a mortgage modification.
(Id. ¶ 32.) On May 8, 2013, Phillips executed
an amended and restated note (the Amended Note) and entered
into a loan modification agreement with BANA. Williams never
received or signed these documents. (Id.
¶¶ 39-40.) After the modification, BANA began
accepting payments from Phillips on the modified loan.
(Id. ¶ 43.)
September 29, 2015, BANA, through Gladstone P.A., filed a
foreclosure action (the Foreclosure Action) in state court
naming both Williams and Phillips as defendants and seeking
enforcement of the Amended Note and a deficiency judgment.
(Doc. 43 ¶ 47.) One day later, Gladstone P.A. sent a
debt validation letter to both Williams and Phillips.
(Id. ¶ 50.) On January 20, 2015, BANA
voluntarily dropped its claims against Williams in the
foreclosure action. (Id. ¶ 29.) And, on June
23, 2016, LGP entered a notice of appearance in the
foreclosure action as co-counsel on behalf of BANA.
(Id. ¶ 25.)
these facts, the Plaintiffs bring a five-count complaint
alleging that the Defendants violated the Fair Debt
Collection Practices Act (FDCPA), 15 U.S.C. §§
1692-1692p, and the Florida Consumer Collection Practices Act
(FCCPA), Florida Statutes §§ 559.55-.785. In Counts
I and II the Plaintiffs allege that the Defendants violated
the FDCPA and FCCPA by filing a wrongful foreclosure suit,
through representations made in that suit, and through the
September 30, 2015 debt-validation letter sent by Gladstone
P.A. In Count III, Phillips alleges that BANA violated the
FDCPA by mailing monthly mortgage statements to her home
address from October 2015 to January 2017. In Counts IV and
V, the Plaintiffs raise these same allegations but under the
Motion to Dismiss Standard
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).
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).
Ashcroft v. Iqbal, 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.'” 556 U.S. 662, 678 (2009)
(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.
The Fair Debt Collection Practices Act (FDCPA)
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.
Counts I and II
Counts I and II the Plaintiffs allege that BANA, Gladstone,
and LGP violated the FDCPA through the debt-validation letter
dated September 30, 2015; the filing of a foreclosure action
on September 29, 2015; and various representations made in
the foreclosure action. The Defendants argue that most of
these allegations are barred by the one-year statute of
limitations for FDCPA claims and that the Court should
abstain from exercising jurisdiction over the remainder. 15
U.S.C. § 1692k(d). The Court agrees.
it is clear that any FDCPA action based on the September 30,
2015 letter is time-barred. An FDCPA claim based on
representations made in a letter accrues on the day after the
letter was sent. Maloy v. Phillips, 64 F.3d 607, 608
(11th Cir. 1995). The current claim was filed on January 23,