United States District Court, M.D. Florida, Orlando Division
Antoon II United States District Judge.
United States of America and three Intervenor-Plaintiffs
bring this action under the Fair Housing Act (FHA) against
Advocate Law Groups of Florida, P.A. (ALG), Jon Lindeman,
Jr., and Ephigenia Lindeman-a law firm, its general managing
partner, and its chief financial officer, respectively.
(Compl., Doc. 1; Compl. in Intervention, Doc. 30). Plaintiffs
allege that Defendants violated several of the FHA's
anti-discrimination provisions by targeting Hispanic
homeowners for "unfair and predatory loan modifications
and foreclosure rescue services." (Doc. 1 ¶ 11;
see also Doc. 30 ¶¶ 2-3 (alleging a
"mortgage modification scam" and "predatory
now move under Federal Rule of Civil Procedure 12(b)(6) to
dismiss Plaintiffs' claims for failure to state a claim
for which relief can be granted, arguing that even taken as
true, Plaintiffs' allegations do not state a cause of
action under the FHA. (Mots., Docs. 12 & 50). Defendants
alternatively move for a more definite statement under
Federal Rule of Civil Procedure 12(e). Having reviewed the
parties' submissions and pertinent law, the Court grants
Defendants' motions but will allow repleading of some of
pleading that states a claim for relief must contain ... a
short and plain statement of the claim showing that the
pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
"[D]etailed factual allegations" are not required,
but "[a] pleading that offers 'labels and
conclusions' or' a formulaic recitation of the
elements of a cause of action will not do.'"
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). "To survive a [Rule 12(b)(6)] motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Id. (quoting
Twombly, 550 U.S. at 570). In considering a motion
to dismiss brought under Rule 12(b)(6), a court limits its
"consideration to the well-pleaded factual allegations,
documents central to or referenced in the complaint, and
matters judicially noticed." LaGrasta v. First Union
Sec, Inc., 358 F.3d 840, 845 (11th Cir. 2004).
Factual and Procedural Background
Allegations in the Complaints (Docs. 1 &
ALG is a law firm with its principal place of business in
Miami Lakes, Florida, and several offices throughout the
state, including in Orlando. (Doc. 1 ¶ 8). "From
2009 through at least 2015, ALG purported to be a legal
services provider and offered loan modification and
foreclosure rescue services." (Id.). Defendant
Jon Lindeman (Mr. Lindeman) is an attorney who opened ALG
with his wife, Defendant Ephigenia K. Lindeman (Mrs.
Lindeman) in 2008. (Id. ¶ 9). Mr. Lindeman
serves as the General Managing Partner and President of ALG,
(Id., while Mrs. Lindeman-a non-lawyer-is ALG's
Chief Financial Officer, Director of Marketing, and Chief
Mortgage Investigator and Auditor, (id. ¶ 10).
allegedly "deliberately targeted . . . homeowners
because of their Hispanic national origin for a scheme
involving unfair and predatory loan modifications and
foreclosure rescue services." (Id. ¶ 11).
They did so by using "Spanish-language advertising that
falsely promised to cut . . . mortgage payments in
half." (Id. ¶ 12). Defendants allegedly
charged thousands of dollars in advance fees as well as
ongoing monthly fees of up to $550, urging homeowners
"to stop making monthly mortgage payments and to stop
communication with their lenders." Id.
their advertisements, Defendants misrepresented that they
"could quickly obtain mortgage modifications that would
reduce homeowners' mortgage payments, " but
"Defendants took little action to obtain
modifications." (Id. ¶ 14). Defendants
allegedly "exploited the limited English proficiency of
homeowners by advertising and conducting meetings in Spanish
but then requiring "clients to sign English-language
contracts, with only payment provisions translated."
(Id. ¶ 17). The three Intervenor-Plaintiffs
owned homes in Orlando, and the stories of their dealings
with Defendants are similar.
February 2014, while current on her mortgage but facing a
scheduled payment increase, Intervenor Lucia Hurtado-a native
of Colombia who is limited English proficient-went to
ALG's office in Orlando seeking mortgage modification
assistance after viewing a Spanish-language ALG advertisement
on television. (Doc. 1 ¶¶ 5, 24-27; Doc. 30
¶¶ 28, 30-33). Hurtado signed a retainer agreement
that required an advance fee of $5, 700 for mortgage
modification assistance. (Doc. 1 ¶ 28; Doc. 30 ¶
41). An ALG employee instructed Hurtado to stop making
mortgage payments, and Hurtado complied. (Doc. 1 ¶29).
paying ALG about $2, 000 within a few weeks of signing the
retainer agreement, Hurtado paid monthly installments of $535
to ALG. (Id. ¶ 31). The ALG employee with whom
she met told her "that she would be fined if she ever
stopped paying ALG the monthly fee." Id. ¶
30). And when Hurtado called ALG, she "was never able to
speak with anyone about the details of her case."
(Id. ¶ 35).
the course of about fourteen months, Hurtado paid ALG
approximately $8, 420, "but she never received a
mortgage modification or an offer of a modification while
working with ALG." (Id. ¶ 37; see also
Doc. 30 ¶ 55). In March 2015, Hurtado's loan
servicer initiated foreclosure proceedings, and ALG entered
an appearance in the case the following month. (Doc. 1 ¶
36). In June 2015, Hurtado asked ALG to cancel its services,
but ALG did not withdraw from her case until July 23, 2015.
(Id. ¶ 38). Ultimately, Hurtado "resorted
to selling her house in a short sale" after not
obtaining a mortgage modification. (Id. ¶ 39;
see also Doc. 30 ¶ 54).
Noemi Roman is a native of Puerto Rico who is limited English
proficient. (Doc. 1 ¶ 6; Doc. 30 ¶ 57). In February
2010, after not paying her mortgage for two months, Roman
went to ALG's office in Orlando to seek mortgage
modification assistance after hearing and viewing
advertisements on Spanish-language radio and television.
(Doc. 1 ¶¶ 41-43). The ALG employee with whom Roman
met falsely promised "that ALG could reduce the
mortgage payment by half, " advised Roman to stop making
mortgage payments, and told her not to accept correspondence
or calls from her bank. (Id. ¶¶ 44-45; see
also Doc. 30 ¶¶ 61 & 63). Roman followed these
instructions and made no further mortgage payments. (Doc. 1
¶45; Doc. 30 ¶ 74). Roman paid $4, 800 for
ALG's promised loan modification services, taking out a
loan to do so. (Doc. 1 ¶ 48; Doc. 30 ¶¶
2010, Roman's lender filed a foreclosure complaint in
state court and two weeks later offered Roman a mortgage
modification. (Doc. 1 ¶ 52). ALG, however, advised Roman
to reject the modification offer. (Id., ). Roman
paid over $13, 500 for ALG's services but never obtained
a mortgage modification, (id. ¶ 61; Doc. 30
¶ 86). Ultimately, the lender was granted summary
judgment and Roman's home was sold to a third party at a
foreclosure sale. (Doc. 1 ¶¶ 56-58).
Argentina Roque is a native of the Dominican Republic who is
limited English proficient. (Id. ¶ 7; Doc. 30
¶ 88). In January 2010, after seeing an advertisement on
Spanish-language television for ALG's services, Roque
went to ALG's Orlando office seeking assistance with a
mortgage modification. (Doc. 1 ¶¶ 64-65; Doc. 30
¶¶ 90-91). There, an ALG employee told Roque not to
make further mortgage payments and that "she should use
the money set aside for the mortgage payment to pay ALG
instead." (Doc. 1 ¶ 66; see also Doc. 30 ¶
93). Doing as instructed, Roque stopped making mortgage
payments. (Doc. 1 ¶ 66; Doc. 30 ¶ 99). Roque paid
ALG a fee of $2, 800 in installments from January to May
2010. (Doc. 1 ¶ 67; Doc. 30 ¶ 99).
lender initiated foreclosure proceedings in April 2010. (Doc.
1 ¶ 71; Doc. 30 ¶ 105). After the first case was
dismissed for lack of prosecution in June 2013, the lender
filed again in March 2014. (Doc. 1 ¶¶ 71-72; Doc.
30 ¶¶ 105-06). Although ALG entered an appearance
in the foreclosure case, it did not file a responsive
pleading. (Doc. 1 ¶ 72; Doc. 30 ¶ 106). Roque tried
to terminate her relationship with ALG, but ALG staff told
her "that if she did not continue making payments to ALG
she could lose her home to foreclosure." (Doc. 1 ¶
74; see also Doc. 30 ¶ 108). ALG eventually
withdrew as counsel in the foreclosure case in February 2015,
(Doc. 1 ¶ 77), and Roque obtained a loan modification
offer from her lender with the free assistance of a nonprofit
organization, (Id. ¶ 79; see also Doc. 30
¶ 112). Roque had paid ALG more than $18, 500. (Doc. 1
¶ 78; Doc. 30 ¶ 111).
FHA, which reflects "the policy of the United States to
provide ... for fair housing, " 42 U.S.C. § 3601,
creates several mechanisms for enforcement of its provisions.
See 42 U.S.C. §§ 3610 & 3612
("Administrative enforcement" and "Enforcement
by Secretary, " respectively); id. § 3613
("Enforcement by private persons"); id.
§ 3614 ("Enforcement by Attorney General").
This case originated under both the administrative
enforcement provisions of §§ 3610 and 3612 as well
as the Attorney General enforcement provisions of §
Roman, and Roque filed complaints of national origin
discrimination with the Secretary of Housing and Urban
Development under 42 U.S.C. § 3610(a). (Doc. 1 ¶81;
Doc. 30 ¶ 113). The Secretary then investigated the
complaints, "determined that reasonable cause existed to
believe that Defendants engaged in illegal discriminatory
housing practices against each of the" Intervenors,
(Doc. 1 ¶ 83; see also Doc. 30 ¶ 115),
and, on September 6, 2018, issued a Charge of Discrimination
against Defendants under 42 U.S.C. § 3610(g)(2)(A),
(Doc. 1 ¶ 84; Doc. 30 ¶ 116).
a charge is filed under section 3610 ..., a complainant, a
respondent, or an aggrieved person on whose behalf the
complaint was filed may elect to have the claims asserted
in that charge decided in a civil action" in lieu of an
administrative hearing. 42 U.S.C. § 3612(a). Defendants
made such an election, (Doc. 1 ¶ 85; Doc. 30 ¶
118), and the Secretary then authorized the Attorney General
to commence a civil action,  (Doc. 1 ¶ 87; Doc. 30 ¶
119). The Attorney General accordingly filed this lawsuit on
October 29, 2018, recounting the experiences of the Hurtado,
Roman, and Roque families and alleging violations of several
of the FHAs anti-discrimination provisions-42 U.S.C.
§§ 3604(a), 3604(b), 3605, and 3617. (Doc. 1). And,
invoking its authority under § 3614, the United States
also alleges in its Complaint that the Defendants engaged in
a pattern or practice of FHA violations. (Doc. 1 at 22-23);
see 42 U.S.C. § 3614(a) (allowing the Attorney General
to commence a civil action "[w]henever the Attorney
General has reasonable cause to believe that any person ...
is engaged in a pattern or practice of resistance to the full
enjoyment of any rights granted by this subchapter or that
any group of persons has been denied any of the rights
granted by this subchapter and such denial raises an issue of
general public importance").
FHA allows "[a]ny aggrieved person with respect to the
issues to be determined in a civil action . . . [to]
intervene as of right in that civil action." 42 U.S.C.
§ 3612(o)(2). Hurtado, Roman, and Roque moved to
intervene under this provision, (see Doc. 28), and
the Court granted that motion, (see Doc. 29).
Intervenor-Plaintiffs then filed their Complaint in
Intervention on March 18, 2019, alleging, like the United
States, violations of §§ 3604(a), 3604(b), 3605,
and 3617. (Doc. 30). Defendants now move to dismiss all
claims in both the United States' Complaint and the
Complaint in Intervention under Federal Rule of Civil
Procedure 12(b)(6), asserting that their alleged actions do
not amount to housing discrimination under the FHA.
42 U.S.C. § 3604(a) (Interveners' Count I and part