United States District Court, M.D. Florida, Tampa Division
SALLIE A. CUMMINGS, Plaintiff,
RUSHMORE LOAN MANAGEMENT SERVICE and U.S. BANK, N.A., as Trustee for the RMAC Trust, Series 2016-CTT, Defendants.
VIRGINIA M. HERNANDE COVINGTON, UNITED STATES DISTRICT JUDGE.
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.
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.).
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
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
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
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).
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.
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.”).
[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 ...