United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
C. Irick, Judge
cause comes before the Court for consideration without oral
argument on the following motions:
MOTION: DEFENDANT WELLS FARGO BANK, N.A.'S MOTION
TO DISMISS AMENDED COMPLAINT (Doc. 46)
FILED: February 1, 2019
THEREON it is RECOMMENDED
that the motion be GRANTED in part and
DENIED in part.
MOTION: DEFENDANT BROCK AND SCOTT, PLLC'S MOTION
TO DISMISS AMENDED COMPLAINT (Doc. 64)
FILED: March 5, 2019
THEREON it is RECOMMENDED
that the motion be GRANTED.
matter first came to this Court in December 2016 when
Plaintiffs Ansari and Shameena Mohamad (Plaintiffs) filed an
action against, among others, HSBC Bank N.A. and
America's Servicing Company, a division of Wells Fargo.
See Mohamad et al. v. H.S.B.C. et al,
6:16-cv-2239-ORL-41DCI (M.D. Fla.). Ultimately, that
underlying case settled following a settlement conference
before United States Magistrate Judge Thomas B. Smith.
See Id. at Doc. 59. Thus, on May 15, 2018, the Court
dismissed the case with prejudice, subject to the parties
moving to re-open the case within 60 days. Id. at
Doc. 61. The parties never sought to re-open the case within
the time permitted.
on August 22, 2018, Plaintiffs filed a complaint initiating
this action. Doc. 1.
Plaintiffs filed a seven-count Amended Complaint that remains
the operative pleading. Doc. 34. In the Amended Complaint,
Plaintiffs alleged the following claims:
. Counts I and II: violations by Wells Fargo
of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.
§ 1692. Doc. 34 at 10-12.
. Count III: violation by Wells Fargo of the
Florida Consumer Collections Practices Act (FCCPA), Florida
Statutes § 559.72(9). Doc. 34 at 12-13.
. Count IV: breach by Wells Fargo, Brock and
Scott, and HSBC (collectively, Defendants) of a settlement
agreement (the Settlement Agreement) entered into between
Defendants and Plaintiffs that had resolved Mohamad et
al. v. H.S.B.C. et al, 6:16-cv-2239-ORL-41DCI (M.D. Fla.
March 27, 2018). Doc. 34 at 13-14.
. Count V: breach by Brock and Scott and
HSBC of an implied duty of good faith and fair dealing
arising from the terms of the Settlement Agreement. Doc. 34
. Count VI: violation by Brock and Scott and
HSBC of Florida Statutes section 701.04(2). Doc. 34 at 16-17.
. Count VII: request for declaratory relief
in the form of a declaration of the rights of the parties
under the Settlement Agreement. Doc. 34 at 17-18.
alleged, the FDCPA claims in the Amended Complaint relate to
a mortgage statement dated July 16, 2018, that was sent from
Wells Fargo to Plaintiffs' attorney. Doc. 34, Exhibit
to Federal Rule of Civil Procedure 12(b)(6), Wells Fargo and
Brock and Scott separately move to dismiss the alleged
violations contained within the Amended Complaint.
Specifically, Wells Fargo moves to dismiss Counts I, II, III,
IV, and VII of the Amended Complaint. Doc. 46. In its own
motion, Brock and Scott moves to dismiss Counts IV, V, VI,
and VII. Doc. 64.
it appears from a review of the docket that Plaintiff has
never served HSBC and, as such, it is recommended that the
Court dismiss HSBC from this action without
prejudice.See Fed. R. Civ. P. 4(d). This
report shall serve as notice of the potential of that
dismissal as required by Rule 4(d), and Plaintiffs may object
to this Report if they seek to prosecute this case against
The Allegations in the Complaint - Counts I, II, and
the undersigned is considering motions to dismiss made
pursuant to Rule 12(b)(6), the undersigned must take as true
the factual allegations in the Complaint. Specifically
relevant to the FDCPA and FCCPA violations are the following
factual allegations, all of which were incorporated by
reference in Counts I, II, and III (all paragraph citations
are to the Amended Complaint (Doc. 34)):
. Plaintiffs have been subjected to the
WELLS FARGO's [sic] false representations of its right to
collect on a promissory note, which led to the Plaintiffs
being named as defendant in a wrongful mortgage foreclosure.
. On August 24, 2006, the Plaintiffs
executed and delivered a promissory note and mortgage
securing payment to Dream House Mortgage Association. ¶
38 . The mortgage and note on which WELLS
FARGO are [sic] attempting to collect money is
“debt” within the meaning of section 15 U.S.C.
§ 1692a(5), as the foreclosure lawsuit addresses an
alleged obligation of a consumer to pay money arising out of
transaction [sic] in which the money, property, insurance, or
services which were the subject of the transaction were
primarily for personal, family, or household purposes. ¶
. WELLS FARGO is “debt
collector(s)” [sic] as that term is defined by 15
U.S.C. § 1692a(6), to wit: WELLS FARGO used the mail in
a business the principal purpose of which was to collect
debt; regularly [sic] attempts to collect debts owed or due
to another; attempted to collect a debt that was already in
default when it acquired the debt. ¶ 36.
. WELLS FARGO is a “debt
collector(s)” because the debt was in default when
acquired by the Defendants. . . . ¶ 37.
. The foreclosure sale of the Mohamad's
property took place on September 11, 2018. ¶ 39.
. The Plaintiff is not indebted to the
Defendant for any sums of money due under a mortgage, note,
or contract. ¶ 42.
. Wells Fargo mailed to the Plaintiffs'
counsel a monthly mortgage statement(s) (Exhibit C) that
contained the loan number of xxxxxx9317 with a minimum amount
due of $334, 517.93 to reinstate the Plaintiffs' account.
The mortgage statement mailed by WELLS FARGO provided a
payment coupon that was pre-addressed to Wells Fargo, P.O.
Box 14591, Des Moines, IA 50306-3591. ¶ 43.
. The mortgage statements were mailed by
WELLS FARGO for the purpose to [sic] induce the Plaintiffs to
pay a phantom debt by misleading the Plaintiffs into
believing that Plaintiffs could keep their home if the
delinquent amount due $334, 517.94 is paid rather that [sic]
the amount need [sic] to satisfy the final judgment of
foreclosure to exercise their right of redemption [of $679,
333.42]. ¶ 44.
. As “least sophisticated consumer(s),
” the Plaintiffs would reasonably believe that WELLS
FARGO, by mailing monthly mortgage statements, was attempting
to induce payment on a phantom debt and/or that the
Plaintiffs could keep their home by reinstating the subject
loan and keep their home by making a payment of $334, 517.93
to WELLS FARGO instead of satisfying the nearly $700, 000.00
amount now due under the final judgment ¶ 45.
The Allegations in the Complaint - Counts IV, V, VI, and
relevant to the remaining counts are the following factual
allegations, all of which were incorporated by reference in
Counts IV, V, VI, and VII (all paragraph citations are to the
Amended Complaint (Doc. 34)):
. On August 24, 2006, the Mohamads executed
and delivered a promissory note and mortgage securing payment
under the note in favor of Dream House Mortgage Association.
On November 14, 2007, HSBC Bank USA, National Association, as
Trustee for the Holders of Nomura Home Equity Loan, Inc.,
Home Equity Loan Trust, Series 2007-1 (“HSBC” or
“Lender”) sought to foreclose the mortgage
executed by Plaintiffs for failure to make payments in the
above-styled action. ¶ 14.
. On September 8, 2008, the [state] Court
entered in-personam Final Summary Judgment of
Foreclosure was entered [sic] in the Foreclosure Action (the
“Foreclosure Judgment”) when HSBC requested and
the court reserved jurisdiction to enter a deficiency
judgment against the Mohamads. ¶ 14.
. Post-judgment, the Mohamad's [sic]
commenced two federal court actions against various entities,
including Wells Fargo, the Plaintiffs servicer, and Brock and
Scott, PLLC (“B & S”), the Plaintiffs counsel
in the foreclosure complaint, alleging violation of the 15
U.S.C. 1692 - Fair Debt Collections Practices Act.
. On May 11, 2018, the Plaintiff, WELLS
FARGO, B&S, the Mohamad's, and their respective
counsel entered into a confidential settlement agreement as
part of a court-ordered mediation before United States
Magistrate Judge Thomas B. Smith. As part of the settlement,
Plaintiffs voluntarily dismissed with prejudice all
their actions and claims, including those against Wells
Fargo, in exchange for a complete release of all debts and
judgments the ...