United States District Court, M.D. Florida, Orlando Division
JAMES E. BAUMANN and DEBORA K. BAUMAN N, Plaintiffs,
PROBER & RAPHAEL and MARINOSCI LAW GROUP, PC, Defendants.
G. BYRON UNITED STATE DISTRICT JUDGE.
cause comes before the Court following the U.S. Court of
Appeals for the Eleventh Circuit's decision (Doc. 123)
affirming in part and vacating in part this Court's
September 1, 2016, Order located at Docket Entry 47. The
following discussion only addresses Plaintiffs' claims
against Marinosci Law Group, PC, that were given new life by
Plaintiffs' appeal. On remand, the Court now addresses
Defendant Marinosci Law Group, PC's Amended Motion to
Dismiss (Doc. 16 (“Motion”)).
Upon review, the Motion is due to be granted in part and
denied in part.
se Plaintiffs, James E. Baumann and Debora K. Baumann,
brought this action on November 17, 2015, against Defendants,
Bank of America, N.A. (“BANA”),
Quarles & Brady, LLP
(“Q&B”), Prober &
Raphael, and Marinosci Law Group, PC
executed two mortgage agreements secured by real property
owned by Plaintiffs, one with BANA, the other with
Countrywide Home Loans, Inc., which was thereafter assigned
to BANA. On December 7, 2012, Plaintiffs mailed BANA notices
that the mortgage obligations were rescinded pursuant to the
Truth in Lending Act (“TILA”),
15 U.S.C. §§ 1601-1667f.
Amended Complaint brought claims against Defendants under
TILA, the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C.
§§ 1692-1692p, the Florida Consumer Collection
Practices Act (“FCCPA”), Fla.
Stat. §§ 559.55-559.785, and a settlement agreement
with BANA. The majority of the claims stated in the Amended
Complaint have been dismissed by the Court or voluntarily by
the parties. (See, e.g., Docs. 47, 115). Critically,
the Court dismissed Counts III and IV-which assert FDCPA and
FCCPA claims-as against Marinosci. (Doc. 47, p. 8). The
Court's grant of Defendant Marinosci's Motion to
Dismiss was vacated in part by the Eleventh Circuit, with
instructions for the Court to “address the viability of
the settlement-based claims in the first instance.”
(Doc. 123, pp. 10-14). The Court therefore revisits these
time, Plaintiffs' only surviving claims against Marinosci
are Counts III and IV. Counts III and IV allege Marinosci
violated the FDCPA and FCCPA by (1) attempting to collect a
debt that was rescinded pursuant to the TILA, (2)
“[f]iling documents in the courts claiming to have been
owed an amount that far exceeds the settlement
amountand threaten[ing] to foreclose on the
Executive property when Plaintiff fully complied with the
settlement agreement, ” and (3) “[f]iling false
proof of claims in federal courts in an attempt to collect a
debt.” (Doc. 11, ¶¶ 70-76, 107, 147).
Defendant Marinosci moved to dismiss all claims against it
for failure to state a claim upon which relief could be
granted. (Doc. 16).
STANDARD OF REVIEW
complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(1). Thus, in order to
survive a motion to dismiss made pursuant to Rule 12(b)(6),
the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
plausible on its face when the plaintiff “pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
a complaint need not contain detailed factual allegations,
mere legal conclusions or recitation of the elements of a
claim are not enough. Twombly, 550 U.S. at 555.
Moreover, courts are “not bound to accept as true a
legal conclusion couched as a factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286 (1986).
“While legal conclusions can provide the framework of a
complaint, they must be supported by factual
allegations.” Iqbal, 556 U.S. at 679. Courts
must also view the complaint in the light most favorable to
the plaintiff and must resolve any doubts as to the
sufficiency of the complaint in the plaintiff's favor.
Hunnings v. Texaco, Inc., 29 F.3d 1480, 1483 (11th
Cir. 1994) (per curiam). In sum, courts must (1) ignore
conclusory allegations, bald legal assertions, and formulaic
recitations of the elements of a claim; (2) accept well-pled
factual allegations as true; and (3) view well-pled
allegations in the light most favorable to the plaintiff.
Iqbal, 556 U.S. at 679.
Court has a duty to liberally construe a pro se
plaintiff's filings and to afford greater leeway in
alleging a claim for relief than what is given to licensed
attorneys. Tennyson v. ASCAP, 477 Fed.Appx. 608,
609-10 (11th Cir. 2012) (per curiam). Nevertheless, “a
pro se party must follow the rules of procedure and
evidence, and the district court has no duty to act as [a
pro se party's] lawyer.” Id. at
610 (internal quotation marks omitted). Moreover, the Court
may not “rewrite an otherwise deficient pleading in
order to sustain an action” for a pro se
party. GJR Invs., Inc. v. Cty. of Escambia, 132 F.3d
1359, 1369 (11th Cir. 1998), overruled on other grounds
as recognized by Randall v. Scott, 610 F.3d 701 (11th
noted above, Counts III and IV are the only surviving claims
against Marinosci. Before addressing Marinosci's conduct
vis-à-vis the settlement agreement and the alleged
false claims, the Court notes that Plaintiffs'
allegations that Marinosci violated the FDCPA and FCCPA by
attempting to collect a debt that was rescinded under TILA
fail to state a claim. Plaintiffs' purported notices of
rescissions were ineffective, thus foreclosing any claims
based on these allegations. (See, e.g., Docs. 47,
remaining allegations sustaining Counts III and IV are as
follows: (1) Marinosc i filed legal papers attempting to
collect an amount in excess of a settlement to which James
Baumann, and (2) Marinosci filed false proofs of claim in
federal court. (Doc. 11, ¶ 76). Filing an unenforceable
proof of claim in a bankruptcy proceeding constitutes an
unlawful debt collection practice violative of the FDCPA and
FCCPA. Crawford v. LVNV Funding, LLC, 758 F.3d 1254,
1259-61 (11th Cir. 2014); LeBlanc v. Unifund CCR
Partners, 601 F.3d 1185, 1190-92 (11th Cir. 2010).
Accordingly, Counts III and IV state plausible claims by
Plaintiff James Baumann against Marinosci. Because Plaintiff
Debora Baumann was not a party to the alleged settlement or
bankruptcy proceeding,  the Amended Complaint fails to state a
plausible claim by Plaintiff Debora Baumann against
Marinosci. (See Doc. 11).