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Baumann v. Prober & Raphael and Marinosci Law Group, PC

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

July 23, 2018




         This 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.

         I. BACKGROUND[1]

         Pro se Plaintiffs, James E. Baumann and Debora K. Baumann, [2] 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 (“Marinosci”). Plaintiffs 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 On December 7, 2012, Plaintiffs mailed BANA notices that the mortgage obligations were rescinded pursuant to the Truth in Lending Act (“TILA”), 15 U.S.C. §§ 1601-1667f.[3]

         The 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 claims.

         At this 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 Counts III and IV allege Marinosci violated the FDCPA and FCCPA by (1) attempting to collect a debt that was rescinded pursuant to the TILA, (2) “[f]iling documents in the courts claiming to have been owed an amount that far exceeds the settlement amount[4]and threaten[ing] to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).


         A 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 alleged.” Id.

         Though 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.

         The 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 Cir. 2010).


         As 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, 123).

         The 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, [5] the Amended Complaint fails to state a plausible claim by Plaintiff Debora Baumann against Marinosci. (See Doc. 11).

         IV. ...

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