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Piester v. Franklin American Mortgage Co.

United States District Court, S.D. Florida

October 4, 2019

TREVOR PIESTER & LESLIE PIESTER, Plaintiffs,
v.
FRANKLIN AMERICAN MORTGAGE COMPANY, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

          ROBIN L. ROSENBERG UNITED STATES DISTRICT JUDGE

         This 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 is granted.

         I. FACTUAL ALLEGATIONS

         Plaintiffs 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 dismissed.

         II. STANDARD OF REVIEW

         When 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 (2009).

         III. ANALYSIS

         Each of 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).

         Count I and Count II.

         Plaintiffs' 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:

         (Image Omitted)

         DE 19-1 at 2.

         Defendant 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).

         In 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 ...


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