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Williams v. Bank of America, N.A.

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

August 24, 2017

ADRIAN WILLIAMS and HOPE PHILLIPS, Plaintiffs,
v.
BANK OF AMERICA, N.A., GLADSTONE LAW GROUP, P.A. and LIEBLER, GONZALEZ & PORTUONDO, P.A., Defendants.

          ORDER

          GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE.

         This 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 Phillips.

         I. Background

         According 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.)

         On 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.)

         On 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 FCCPA.[1]

         II. Motion to Dismiss Standard

         A 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).

         Federal 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).

         In 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. 8(a)(2)).

         III. The Fair Debt Collection Practices Act (FDCPA)

         “The 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. 2000)).

         A. Counts I and II

         In 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.

         First, 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, 2017, ...


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