United States District Court, S.D. Florida
ORDER GRANTING DEFENDANT'S MOTION TO
L. ROSENBERG UNITED STATES DISTRICT JUDGE
cause is before the Court on Defendant's Motion to
Dismiss [DE 21]. Plaintiffs filed a Response. Defendant did
not file a Reply. For the reasons set forth below, the Motion
executed and delivered a mortgage to Defendant to secure a
debt. DE 1 at 1-2. In the summer of 2018, Plaintiffs allege
that Defendant communicated with them (both by mail and by
phone) in an effort to collect upon Plaintiffs' debt.
Id. Plaintiffs filed this suit, alleging in Count I
and Count II that Defendant's mail correspondence was
illegal debt collection activity and alleging in Count III
and Count IV that Defendant's phone conversations were
illegal debt collection activity. Defendant answered by
filing the Motion to Dismiss before the Court, arguing that
Plaintiffs' operative First Amended Complaint should be
STANDARD OF REVIEW
deciding a motion to dismiss, 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). The facts as pled must state a
claim for relief that is plausible on the face of the
pleading. Ashcroft v. Iqbal, 556 U.S. 662, 678-69
Plaintiffs' claims under the Fair Debt Collection
Practices Act (“FDCPA”) (Count I and Count III)
and under the Florida Consumer Collections Practices Act
(Count II and Count IV) require that Defendant engaged in
debt collection activity. See 15 U.S.C. §
1962e; Fla. Stat. § 559.77(5). Defendant argues in its
Motion that it did not engage in debt collection activity as
a matter of law. To analyze Defendant's Motion, the Court
first examines Plaintiffs' correspondence-based claims
(Count I and Count II) and then turns to Plaintiffs'
phone-based claims (Count III and Count IV).
I and Count II.
correspondence-based claims are premised upon loan statements
Plaintiffs received in the mail from Defendant. Plaintiffs
attached those statements to their Amended Complaint,
alleging that the amounts on the statements were false and/or
deceptive. The statements all follow the same format, and a
sample statement appears below:
argues that the statements were merely informational-they
were not intended to collect a debt-and Defendant argues that
it was required to send the statements pursuant to the Truth
in Lending Act (“TILA”). For support, Defendant
cites to a plethora of authority for the proposition that if
a loan statement is sent pursuant to TILA, that statement
does not qualify as debt collection activity, provided the
statement does not stray from the specific requirements of
the TILA statute. E.g., Green v. Specialized Loan Serv.
LLC, 766 Fed.Appx. 777, 784-85 (11th Cir. 2019).
Response, Plaintiffs do not argue that, in the general sense,
a TILA-generated loan statement is debt collection activity.
Instead, Plaintiffs argue that a TILA-generated loan
statement can be both informational and
debt-collection activity-a proposition supported in the law.
E.g., Pinson v. Albertelli Law LLC, Fed.Appx. 551,
553 (11th Cir. 2015) (“A communication can have more
than one purpose, for example, providing information to a
debtor as well [as] collecting a debt.”). Plaintiffs
point to three components of the statements in this case that
they argue qualify as debt collection: (1) the statements
contain an ...