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. HERNANDEZ COVINGTON, UNITED STATES DISTRICT
matter comes before the Court pursuant to Defendants Rushmore
Loan Management Service and U.S. Bank, N.A.'s Motion to
Dismiss Count III of Amended Complaint for Failure to State a
Claim or, Alternatively, Motion for More Definite Statement
as to Count III, filed on October 9, 2017. (Doc. # 32).
Plaintiff Sallie A. Cummings responded on October 20, 2017.
(Doc. # 46). For the reasons that follow, the Motion is
initiated this action in state court on June 1, 2017,
asserting claims under the Florida Consumer Collection
Practices Act (FCCPA), Fla. Stat. §§ 559.55 et
seq.; the Fair Debt Collection Practices Act (FDCPA), 15
U.S.C. §§ 1692 et seq.; and the Telephone Consumer
Protection Act (TCPA), 47 U.S.C. §§ 227 et seq.
(Doc. # 2). Defendants removed the case to federal court on
July 10, 2017, and filed a motion to dismiss the TCPA claim,
Count III of the Complaint, on August 11, 2017. (Doc. ## 1,
19). Cummings responded to that motion on August 31, 2017.
(Doc. # 22).
Court granted the first motion to dismiss on September 12,
2017, because “[t]he Complaint [was] devoid of factual
allegations to support the inference that an” automatic
telephone dialing system (ATDS) “or artificial or
prerecorded voice was used for the calls to Cummings's
cell phone.” (Doc. # 23 at 8). The Court identified
examples of allegations that support that an ATDS was used:
the number of calls and their frequency; that the plaintiff
“heard an artificial or prerecorded voice during a
call”; or that the “conversation with
[d]efendants' employee began with a pause.”
(Id.) (citing Neptune v. Whetstone Partners,
LLC, 34 F.Supp.3d 1247, 1250 (S.D. Fla. 2014);
Padilla v. Whetstone Partners, LLC, No.
14-21079-CIV, 2014 WL 3418490, at *2 (S.D. Fla. July 14,
filed the Amended Complaint on September 28, 2017. (Doc. #
30). The facts alleged by the Amended Complaint are
2008, Cummings obtained a mortgage for her property.
(Id. at ¶ 21). The bank that then held the debt
called Cummings in March of 2012 in an attempt to collect it,
and Cummings provided the bank with her counsel's contact
information. (Id. at ¶ 24). Once foreclosure
proceedings were initiated, attorneys representing Cummings
directed the bank to cease all direct communication with
Cummings on two occasions. (Id. at ¶¶ 25,
27). The mortgage debt and its servicing were transferred
multiple times and Cummings or her counsel “explicitly
withdrew any consent for Cummings to be contacted directly by
mail or telephone with respect to the [d]ebt” from each
transferee. (Id. at ¶ 28-30).
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).
Importantly, the Amended Complaint alleges that, upon
answering this call but before Rubin began to speak,
“Cummings was greeted by a noticeable period of
‘dead air' and audible clicks while the
caller's phone system attempted to connect Cummings to a
live telephone employee.” (Id. at ¶35).
Cummings directed all future communications to her attorney,
provided his contact information, and “request[ed] that
Rushmore cease communicating with Cummings directly.”
(Id. at ¶ 36).
alleges that “[w]ithin the four year period immediately
preceding this action” Defendants or their agents
called Cummings's cellular and home telephones,
“for the purpose of collecting on the alleged
debt.” (Id. at ¶¶ 47, 52). Cummings
states these calls were made “without prior express
consent and without an emergency purpose.”
(Id. at ¶ 99). Furthermore,
the  calls to Plaintiff's cellular telephone were
placed using an automated telephone dialing system or
employed a prerecorded voice message. These calls which
utilize a prerecorded message or have a noticeable pause or
gap and audible clicks between the time the call is answered
until a live human comes onto the line are telltale signs of
an automated telephone dialing system.
(Id. at ¶100). According to Cummings,
[a]ll 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] cellular telephone, knew that the system
used to make the call qualifies as ...