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Cummings v. Rushmore Loan Management Service

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

September 12, 2017

SALLIE A. CUMMINGS, Plaintiff,
v.
RUSHMORE LOAN MANAGEMENT SERVICE and U.S. BANK, N.A., as Trustee for the RMAC Trust, Series 2016-CTT, Defendants.

          ORDER

          VIRGINIA M. HERNANDE COVINGTON, UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court pursuant to Defendants Rushmore Loan Management Service and U.S. Bank, N.A.'s Motion to Dismiss Count III for Failure to State a Claim or, Alternatively, Motion for More Definite Statement as to Count III, filed on August 11, 2017. (Doc. # 19). Cummings responded on August 31, 2017. (Doc. # 22). For the reasons that follow, the Motion is granted.

         I. Background

         In 2008, Cummings obtained a mortgage for her property. (Doc. # 2 at ¶ 21). Later, in March of 2012, the bank that then held the debt called Cummings in an attempt to collect the debt and initiated foreclosure proceedings. (Id. at ¶¶ 24, 25). Cummings informed the bank she was represented by counsel. (Id.). Her counsel notified the bank of his contact information and directed the bank to cease all direct communication with Cummings. (Id.).

         The bank eventually transferred the mortgage debt and its servicing. (Id. at ¶ 28). Cummings's counsel informed the new servicer that Cummings was represented with respect to the debt and to cease communication with Cummings. (Id. at ¶ 29). “[U]pon every servicing transfer thereafter, Cummings, or her legal counsel verbally and explicitly withdrew any consent for Cummings to be contacted directly by mail or telephone with respect to the [d]ebt.” (Id. at ¶ 30).

         On January 1, 2017, the servicing of the debt was “transferred to Rushmore to collect on behalf of U.S. Bank.” (Id. at ¶ 31). “At the time of the transfer, Rushmore and U.S. Bank, and its representatives, agents, or employees were advised of the Debt Collection Action, that Cummings is represented by legal counsel, the contact information for such legal counsel, and were provided business records and servicing files which included all of the aforementioned communications from [Cummings] and her legal counsel.” (Id. at ¶ 32).

         Nevertheless, in February of 2017, “Cummings received a call from a representative named Rubin who indicated that he was an employee of Rushmore.” (Id. at ¶ 34). “Cummings again informed Rubin from Rushmore that she was represented by legal counsel with respect to the Debt, provided legal counsel's contact information, that all future communications with regard to the Debt be directed to legal counsel, and requesting that Rushmore cease communicating with Cummings directly.” (Id. at ¶ 35).

         “In addition to contacts by mail, Rushmore made calls to Cummings'[s] cellular and home telephone numbers . . . using an automatic telephone dialing system (“ATDS”), a predictive telephone dialing system (“PTDS”), or an artificial or prerecorded voice (“APV”), ” for the purpose of collecting the debt. (Id. at ¶¶ 46, 51). “At no time herein did Rushmore have Cummings'[s] prior express consent to call her telephone numbers using an ATDS, PTDS, or APV.” (Id. at ¶ 48). Even if Rushmore had consent, “such consent was revoked to make auto-dialed debt collection calls the moment Rushmore was advised of Cummings'[s] representation by legal counsel with respect to the Debt and to cease and desist.” (Id. at ¶ 49). According to Cummings,

All calls and messages which occurred after Rushmore took over servicing this consumer Debt and attempting to collect on the consumer Debt were made in willful violation of the TCPA because Rushmore knew it was making a call to Cummings'[s] cell phone, knew that the system used to make the call qualifies as an autodialer, and knew that it did not have consent to make the autodialed call.

(Id. at ¶ 53).

         Cummings initiated this action in state court on June 1, 2017, asserting claims under 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.; and the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. §§ 559.55 et seq. (Doc. # 2). Defendants removed the case to federal court on July 10, 2017, and filed the instant Motion regarding the TCPA claim on August 11, 2017. (Doc. ## 1, 19). Cummings responded to the Motion on August 31, 2017. (Doc. # 22). The Motion is ripe for review.

         II. Legal Standard

         On a 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.”). However,

[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 ...

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