United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE.
Matter comes before the Court on the Motion to Dismiss the
Amended Complaint with Prejudice (Doc. 17) filed by Burr
& Forman LLP (“BF”), the Motion to Dismiss
with Prejudice (Doc. 18) filed by Select Portfolio Servicing,
Inc. (“SPS”), and the Response (Doc. 22) filed by
Amended Complaint, the Plaintiff alleges a violation of the
Florida Consumer Collection Practices Act, Florida Statute
559.55-.785 (“FCCPA”) by SPS (Count I); a
violation of the Fair Debt Collection Practices Act, 15
U.S.C. 1692e(2)(A) and 1692e(5)91 (“FDCPA”) by
SPS (Count II); and a violation of the FDCPA by BF (Count
2, 2007, Blake executed a note and a mortgage, and on
November 1, 2009, Blake allegedly defaulted on that note.
Amend. Compl., Doc. 16, ¶ 15-17. The original
foreclosure complaint (“2010 Complaint”) was
filed on May 7, 2010, by EMC Mortgage Corporation
(“EMC”). Id. ¶ 19. Attached to that
original foreclosure complaint was a note that did not
contain endorsements following the signatures of Dudley and
Edna Blake. Id. ¶ 25. The original foreclosure
complaint was dismissed on November 8, 2013, for lack of
prosecution. Id. ¶ 20. After a hearing and upon
EMC's motion, the state court re-opened the case on March
3, 2015. Id. ¶ 21. On January 23, 2017, Wells
Fargo Bank, N.A., who had been substituted as party
plaintiff, filed an amended complaint (“2017 Amended
Foreclosure Complaint”) and attached a promissory note
that contained two undated endorsements following the
signatures of Dudley and Edna Blake. Id. ¶ 26.
Standard of Review
ruling on a motion to dismiss, the Court must view the
complaint in the light most favorable to the Plaintiff,
see, e.g., Jackson v. Okaloosa County, Fla., 21 F.3d
1531, 1534 (11th Cir. 1994), and must limit its consideration
to the pleadings and any exhibits attached thereto.
See Fed. R. Civ. P. 10(c); see also GSW, Inc. v.
Long County, Ga., 999 F.2d 1508, 1510 (11th Cir. 1993).
The Court will liberally construe the complaint's
allegations in the Plaintiff's favor. See Jenkins v.
McKeithen, 395 U.S. 411, 421 (1969). However,
“conclusory allegations, unwarranted factual deductions
or legal conclusions masquerading as facts will not prevent
dismissal.” Davila v. Delta Air Lines, Inc.,
326 F.3d 1183, 1185 (11th Cir. 2003).
reviewing a complaint on a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), “courts must be
mindful that the Federal Rules require only that the
complaint contain ‘a short and plain statement of the
claim showing that the pleader is entitled to relief.'
” U.S. v. Baxter Intern., Inc., 345 F.3d 866,
880 (11th Cir. 2003) (citing Fed.R.Civ.P. 8(a)). This is a
liberal pleading requirement, one that does not require a
plaintiff to plead with particularity every element of a
cause of action. Roe v. Aware Woman Ctr. for Choice,
Inc., 253 F.3d 678, 683 (11th Cir. 2001). However, a
plaintiff's obligation to provide the grounds for his or
her entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 554-555 (2007). The
complaint's factual allegations “must be enough to
raise a right to relief above the speculative level, ”
id. at 555, and cross “the line from
conceivable to plausible.” Ashcroft v. Iqbal,
556 U.S. 662, 680 (2009).
FDCPA regulates what debt collectors can do in collecting
debts.” Miljkovic v. Shafritz & Dinkin,
P.A., 791 F.3d 1291, 1297 (11th Cir. 2015) (citing 15
U.S.C. §§ 1692-1692p). To establish a valid claim
under the FDCPA, a plaintiff must show that (1) he was the
object of collection activity arising from consumer debt; (2)
the defendant is a debt collector as defined by the FDCPA;
and (3) the defendant engaged in an act or omission
prohibited by the FDCPA. Goodin v. Bank of America,
N.A., 114 F.Supp.3d 1197, 1204 (M.D. Fla. 2015) (citing
Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355,
1360-61 (S.D. Fla. 2000)).
1692e generally prohibits the use of “any false,
deceptive, or misleading representation or means in
connection with the collection of any debt.” Section
1692e(2)(A) more specifically prohibits the false
representation of “the character, amount, or legal
status of any debt.” Section 1692e(5) proscribes debt
collectors from threatening “action that cannot legally
be taken or that is not intended to be taken.” Alleged
violations of § 1692e(5) are subject to a two-prong
analysis. First, courts consider whether the language used by
the debt collector is a threat. LeBlanc v. Unifund CCR
Partners, 601 F.3d 1185, 1193 (11th Cir. 2010). If so,
courts then “consider whether the action threatened is
one which could be legally taken.” Id.
Florida Consumer Collection Practices Act
(“FCCPA”), Fla. Stat. §§ 559.55-.785,
was enacted as an “addition to the requirements and
regulations of the [FDCPA], ” and its goal is “to
provide the consumer with the most protection possible under
either state or federal statute.” Fla. Stat. §
559.565; LeBlanc, 601 F.3d at 1192. Section
559.72(9) prohibits a person collecting consumer debts from
claiming, attempting, or threatening “to enforce a debt
when such person knows that the debt is not legitimate, or
assert[ing] the existence of some other legal right when such
person knows that the right does not exist.”
alleges that the Defendants violated the FDCPA and FCCPA in
two ways: first, by pursuing debts barred by the statute of
limitations, and second, by listing inconsistent dates on the