United States District Court, M.D. Florida, Tampa Division
ROY W. BRUCE and ALICE BRUCE, Plaintiffs
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.
VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT
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.
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).
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.
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.
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).
Rule 12(b)(1), Fed. R. Civ. P.
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).
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.