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Blake v. Select Portfolio Servicing, Inc.

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

January 18, 2018

DUDLEY BLAKE, Plaintiff,
v.
SELECT PORTFOLIO SERVICING, INC. and BURR & FORMAN, LLP, Defendants.

          ORDER

          GREGORY A. PRESNELL UNITED STATES DISTRICT JUDGE.

         This 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 the Plaintiff.

         In the 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 III).

         I. Factual Background

         On May 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.

         II. Standard of Review

         In 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).

         In 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).

         III. Analysis

         A. Legal Standards

         “The 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)).

         Section 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.

         The 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.”

         Blake 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 2017 ...


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