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Bruce v. U.S. Bank, N.A.

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

December 15, 2017

ROY W. BRUCE and ALICE BRUCE, Plaintiffs
v.
U.S. BANK, N.A., AS TRUSTEE SUCCESSOR IN INTEREST TO BANK OF AMERICA, NATIONAL ASSOCIATION, AS TRUSTEE, SUCCESSOR BY MERGER TO LASALLE BANK, NATIONAL ASSOCIATION, AS TRUSTEE FOR STRUCTURED ASSET SECURITIES CORPORATION MORTGAGE PASS-THROUGH and ALBERTELLI LAW, Defendants.

          ORDER

          VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE.

         This cause is before the Court pursuant to Defendants U.S. Bank, N.A., as Trustee Successor in Interest to Bank of America, National Association, as Trustee, Successor by Merger to Lasalle Bank, National Association, as Trustee for Structured Asset Securities Corporation Mortgage Pass-through and Albertelli Laws' Motions to Dismiss the Verified Complaint (Doc. ## 8, 27). Pro se Plaintiffs Roy Bruce and Alice Bruce have responded to the Motions. (Doc. ## 18, 29). The Court grants the Motions to Dismiss as explained below.

         I. Background

         The Bruces are the owners of real property in Ruskin, Florida. (Doc. # 1 at p.5, ¶ 9). Non-party Chad Hill, a previous owner of the property, executed a mortgage and note, which are now the subject of a separate state court mortgage foreclosure action. (Id. at p.7, ¶ 18).

         The Bruces explain that Roy Bruce and Hill filed a small claims complaint against U.S. Bank in 2015. (Id. at p.3, ¶ 10). The small claims case was based on Hill's purported rescission of the loan under the Truth in Lending Act. (Doc. # 1-1 at 2). Hill's “Notice of Rescission” stated, among other things:

This letter shall serve as my Notice of Rescission of the alleged transaction described in a Note and Mortgage dated 10/12/2004. The described transaction in the Note and Mortgage was not consummated. Pursuant to TILA and Regulation Z, you have twenty (20) days after receipt of this Notice of Rescission to return all monies paid and to take action necessary and appropriate to terminate the security interest. Please be advised that the mortgage is automatically voided by operation of law upon rescission under 15 U.S.C. § 1635(b). Therefore, any attempt to report this mortgage to a credit agency is a willful violation of TILA and the Fair Credit Reporting Act . . . . Please contact me . . . to arrange the delivery to me of all monies paid under the mortgage . . . please mail me conformation that the mortgage has been voided and that no negative information will be reported to the credit bureaus.

(Id.).

         Roy Bruce and Hill were successful in obtaining a default judgment against U.S. Bank in the small claims court with respect to Fair Debt Collection Practices Act and Florida Consumer Collection Practices Act claims, and the amount of the Judgment is $5, 310. (Doc. # 1-3 at 1). U.S. Bank paid the full amount of the Judgment on June 3, 2016. (Doc. # 1 at p.3, ¶ 12). The Bruces assert that the small claims default judgment operates as a complete bar against all efforts by U.S. Bank to foreclose the note and mortgage given by Hill. The Bruces likewise assert that U.S. Bank's separate state court foreclosure action, in which U.S. Bank is represented by Albertelli Law, constitutes a violation of the FDCPA and FCCPA.

         Accordingly, on August 24, 2017, the Bruces filed a three count Verified Complaint against U.S. Bank and Albertelli Law seeking (1) injunctive relief, (2) damages under the FDCPA, and (3) damages under the FCCPA. (Doc. # 1). U.S. Bank and Albertelli Law seek dismissal of the action with prejudice under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).

         II. Legal Standard

         A. Rule 12(b)(1), Fed. R. Civ. P.

         Federal courts are courts of limited jurisdiction. “[B]ecause a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case, and should itself raise the question of subject matter jurisdiction at any point in the litigation where a doubt about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292, 1299 (11th Cir. 2001).

         Motions to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) may attack jurisdiction facially or factually. Morrison v. Amway Corp., 323 F.3d 920, 924 n.5 (11th Cir. 2003). On a facial challenge, the plaintiff enjoys safeguards similar to those provided in the context of a Rule 12(b)(6) motion to dismiss. See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir. 1994)(“[T]he non-moving party receives the same protection as it would defending against a motion brought under Rule 12(b)(6).” (internal citations omitted)). Thus, the Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Id.

         B. Rule ...


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