United States District Court, M.D. Florida, Orlando Division
PAUL A. GREEN, Plaintiff,
SPECIALIZED LOAN SERVICING LLC, Defendant.
DALTON JR., United States District Judge
action is before the Court on the following matters: (1)
Defendant Specialized Loan Servicing, LLC's Motion to
Dismiss Amended Complaint (Doc. 28); (2) Plaintiffs'
Response to Defendant Specialized Loan Servicing's Motion
to Dismiss Amended Complaint (Doc. 35); (3) Defendant
Specialized Loan Servicing, LLC's Reply to
Plaintiff's Response to Defendant's Motion to Dismiss
Amended Complaint (Doc. 38); and (4) Defendant, Specialized
Loan Servicing, LLC's Notice of Supplemental Authority in
Support of Defendant's Motion to Dismiss Amended
Complaint (Doc. 39).
Green (“Green”) is a borrower
under an Adjustable Rate Note dated September 18,
2006 (Doc. 20-1, pp. 6-9
(“Note”)), and is a mortgagor
under a related security interest (id. at 11-21
Doc. 21, ¶¶4-6.) As the servicer of the Mortgage,
Specialized Loan Servicing, LLC
(“SLS”) allegedly has acted as a
debt collector for purposes of the Fair Debt Collections
Practices Act (“FDCPA”).
initiated this FDCPA action against SLS by filing his initial
Complaint in the Circuit Court of the Eighteenth Judicial
Circuit in and for Brevard County, Florida
(“State Court”), and SLS filed a
timely notice of removal on July 20, 2016. (Docs. 1, 2.)
Pending resolution of a foreclosure case against
Green-Deutsche Bank v. Green, No. 05-2015-CA-32851
(“FC Case”)-the Court stayed
this action from August 9, 2016 until February 14, 2017.
(See Docs. 14, 18.) After the stay, SLS moved to
dismiss Green's initial Complaint (Doc. 20), and Green
responded by filing the Amended Complaint (Doc. 21).
Amended Complaint, Green claims that SLS violated the FDCPA
by attempting to collect sums under the Note and Mortgage
that are barred under Florida's five-year statute of
limitations (“Fla. SOL”).
(See id. ¶¶7, 12, 15-17, 32.) SLS's
allegedly improper collection efforts are reflected in three
documents filed as exhibits to the Amended Complaint
(“Communications”): (1) a
“Notice of Default” dated April 8,
2015 (“2015 Notice”);
(2) a complaint dated June 30, 2015
(“FC Complaint”), which was
filed in the FC Case; and (3) a “Mortgage
Statement” dated January 18, 2017
(See Doc. 21, ¶¶22-27 (alleging that the
Mortgage Statements violated §1692f, §1692e(2)(a),
and §1692e(10)); see also Doc. 20-1.) According
to the Amended Complaint, these Communications “would
easily confuse the least sophisticated consumer.”
(See Doc. 21, ¶36.)
motion to dismiss (Doc. 28
(“MTD”)), SLS argues that
Green's “allegations fail as a matter of law,
” and the Court should dismiss the Amended Complaint
with prejudice “and without leave to amend as amendment
would be futile” because: (1) any claim based on the
2015 Notice is untimely (see Doc. 28, pp. 6-7); (2)
the 2017 Statement “did not constitute ‘debt
collection'” (see id. at 10-12); (3) the
FDCPA does not provide “an affirmative cause of
action” based on an affirmative defense like the Fla.
SOL (see id. at 7-8); (4) the sums SLS sought to
collect are not barred by the Fla. SOL; and (5) Green failed
to comply with the pre-suit notice requirement set forth in
the Mortgage (id. at 13). After Green responded to
the MTD (Doc. 35), SLS replied (Doc. 38) and filed a notice
of supplemental authority (Doc. 39).
on Garrison v. Caliber Home Loans, Inc., 233
F.Supp.3d 1282, 1293-94 (M.D. Fla. 2017), the Court agrees
with SLS that Green's claims fail as a matter of law
because the Fla. SOL is a matter to be raised as a defense in
a foreclosure case-not as an affirmative claim under an FDCPA
claim related to a mortgage. As explained below, the SLS's
remaining arguments are similarly meritorious. Thus, the
Amended Complaint is due to be dismissed with prejudice.
the minimum pleading requirements of the Federal Rules of
Civil Procedure, plaintiffs must provide short and plain
statements of their claims with simple and direct allegations
set out in numbered paragraphs and distinct counts.
See Fed. R. Civ. P. 8(a), 8(d), & 10(b). If a
complaint does not comport with these minimum pleading
requirements, if it is plainly barred, or if it otherwise
fails to set forth a plausible claim, then it is subject to
dismissal under Rule 12(b)(6). See Ashcroft v.
Iqbal, 556 U.S. 662, 672, 678-79 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
claims must be founded on sufficient “factual
content” to allow “the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” See Iqbal, 556 U.S. at
679; see also Miljkovic v. Shafritz & Dinkin,
P.A., 791 F.3d 1291, 1296-97 (11th Cir. 2015) (affirming
dismissal of implausible FDCPA claim). In assessing the
sufficiency of factual content and the plausibility of a
claim, courts draw on their “judicial experience and
common sense” in considering: (1) the exhibits attached
to the complaint; (2) matters that are subject to judicial
notice; and (3) documents that are undisputed and central to
a plaintiff's claim. See Iqbal, 556 U.S. at 679;
Reese v. Ellis, Painter, Ratterree & Adams, LLP,
678 F.3d 1211, 1215-16 (11th Cir. 2012); Parham v.
Seattle Serv. Bureau, Inc., 224 F.Supp.3d 1268, 1271
(M.D. Fla. 2016). Courts do not consider other matters
outside the four corners of the complaint, and they must: (1)
disregard conclusory allegations, bald legal assertions, and
formulaic recitation of the elements of a claim; (2) accept
the truth of well-pled factual allegations; and (3) view
well-pled facts in the light most favorable to the plaintiff.
See Hayes v. U.S. Bank Nat'l Ass'n, 648 F.
App'x 883, 887 (11th Cir. 2016); Horsley v. Feldt,
304 F.3d 1125, 1134 (11th Cir. 2002).
order to protect consumers, Congress enacted the FDCPA
‘to eliminate abusive debt collection practices by debt
collectors.'” Hart v. Credit Control, LLC,
871 F.3d 1255, 1257 (11th Cir. 2017) (quoting 15 U.S.C.
§ 1692a)). To that end, the FDCPA “authorizes
private lawsuits and weighty fines.” See Henson v.
Santander Consumer USA, Inc., 137 S.Ct. 1718, 1720
(2017). For instance:
[A]ny debt collector who fails to comply with any provision
[of the FDCPA] with respect to any person is liable to such
person in an amount equal to the sum of-
(1) any actual damage sustained by such person as a result of
(2) . . . additional damages as the court may allow, but not