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Roberto v. Shendell & Associates, P.A.

United States District Court, S.D. Florida

March 16, 2018




         This cause is before the Court on Defendant's Motion to Dismiss [DE 13]. The Motion has been fully briefed. For the reasons set forth below, the Motion is granted in part and denied in part.


         Plaintiff Eduardo Ferro is the owner of real property. Plaintiff Mayra Roberto received a letter from Defendant.[1] Plaintiffs allege that the letter was an improper attempt to collect upon a debt (pertaining to homeowner's association dues owed by Mr. Ferro) because, inter alia, Defendant misstated the amount owed by approximately four hundred dollars. In response, Plaintiffs initiated this lawsuit, bringing four claims under the Fair Debt Collection Practices Act.


         When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), this Court must accept all factual allegations in a complaint as true and take them in the light most favorable to the plaintiff; however, a plaintiff is still obligated to provide grounds of his or her entitlement to relief which requires more than labels, conclusions and a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-563 (2007). Unwarranted deductions of fact in a complaint cannot be admitted as true for the purposes of testing the sufficiency of the allegations. Aldana v. Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). The facts as pled must state a claim for relief that is plausible on the face of the pleading. Iqbal, 556 U.S. at 678-69.

         III. ANALYSIS

         Defendant argues that this Court should take judicial notice of certain documents and, after notice is taken, Plaintiffs' claims must be dismissed with prejudice. The Court addresses each of these points in turn.

         A. Judicial Notice

         Defendant requests that the Court take judicial notice of certain public records: a warranty deed, declarations and bylaws of a homeowner's association, and a complaint filed in state court. On a motion to dismiss, a court may take judicial notice of public records without converting the motion to dismiss into a motion for summary judgment. Gastaldi v. Sunbest Cmtys. USA, LLC, 637 F.Supp.2d 1045, 1054 (S.D. Fla. 2009) (citing Bryant v. Avado Brands, Inc., 187 F.3d 1271 (11th Cir. 1999)).

         In response, Plaintiffs cite to Doss v. Clearwater Title Co., 551 F.3d 634, 640 (7th Cir. 2008) for the proposition that this Court should not take judicial notice of the public records cited by Defendant, but Doss has no application to the facts before this Court. In Doss, the district court erred by considering a deed attached to a motion to dismiss. The appellate court found that the district court had erred for three reasons. First, the deed injected new facts into the case. Id. at 636 (“That motion introduced a new factual assertion into the case.”). Second, the deed was a challenged document-the plaintiff contended that the deed was a forgery. Id. at 637. Third, as a result of the two foregoing factors, the district court could not have determined that the deed was “not subject to a reasonable dispute.” Id. at 640. None of these facts apply here.

         First, in this case Defendant has not proffered the public records for the purpose of introducing new facts in this case, but primarily to demonstrate that the allegations in Plaintiffs' Complaint are objectively false. Second, Defendant's proffered public records are central to Plaintiffs' claims and Plaintiffs' Complaint. Third, Plaintiffs do not challenge in any way the authenticity of the public records, nor can the Court discern any reason to conclude that the statements in the public records are subject to a reasonable dispute.[2] For the foregoing reasons, the Court takes judicial notice of the public records attached to Defendant's Motion to Dismiss.

         B. Plaintiffs' Complaint

         Based upon the Court's judicial notice of the documents referenced above, many of Plaintiffs' central allegations are false. For example, Plaintiffs allege that “[t]he Claim of Lien stated that Mayra Roberto and Eduardo Ferro failed to make [payments], ” however, it is clear that the Lien was only addressed to Mr. Ferro, the owner of the property. DE 1-3 at 2. Plaintiffs allege that the Defendant filed a “Complaint to foreclose on a lien and take the Plaintiffs [sic] property, ” but Ms. Roberto does not own the real property in this case. DE 1 at 4. Plaintiffs allege that Defendant “sent Mayra Robert an ...

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