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Godoy v. Robertson, Anschutz & Schneid, P.L.

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

November 5, 2019



          Charlene Edwards Honeywell, United States District Judge

         This matter comes before the Court upon Defendant Robertson, Anschutz & Schneid, P.L.'s Motion to Dismiss Plaintiffs' Lazarito Godoy and Madi L. Otero Perez's Amended Complaint (Doc. 13), and Plaintiffs' response thereto (Doc. 16). In the motion, Defendant Robertson, Anschutz & Schneid, P.L. (“RAS”) argues that Plaintiffs' claims under the Fair Debt Collection Practices Act (“FDCPA”) and Florida's Credit Consumer Practices Act (“FCCPA”) should be dismissed for failure to meet the pleading standard of Federal Rule of Civil Procedure 8. Doc. 13 at 4-7. Additionally, RAS moves to dismiss Plaintiffs' FDCPA claims because foreclosure does not constitute a debt collection activity under the FDCPA. Id. at 7-9. Finally, RAS argues that Plaintiffs' FCCPA claims are barred by Florida's litigation privilege. Id. at 9-11. The Court, having considered the motion and being fully advised in the premises, will deny RAS' Motion to Dismiss.

         I. BACKGROUND

         Plaintiffs, Lazarito Godoy and Madi L. Otero Perez, sue Defendants, Ocwen Loan Servicing, LLC (“Ocwen”) and Roberson, Anschutz & Schneid, P.L. (“RAS”), for violating the Federal Fair Debt Collection Practices Act, 15 U.S.C. § et. seq. (“FDCPA”) and Florida's Consumer Collections Practices Act, Florida Statutes, §559, Part VI, et. seq. (“FCCPA”) by engaging in improper debt collection efforts against Plaintiffs in connection with Plaintiffs' homesteaded property. Doc. 7. Ocwen answered the Amended Complaint, and RAS filed the instant Motion to Dismiss. Docs. 13, 20.

         Plaintiffs allege in the Amended Complaint that on or about October 25, 2018, Defendants sent Plaintiffs a pay-off-demand (the “Pay-Off Demand”) seeking to collect amounts that are either overstated, overinflated, illegal, or otherwise not permitted by applicable law or the underlying agreement between the parties. Doc. 7 ¶ 11. Plaintiffs claim that such amounts include but, are not limited to, overstated and overinflated late fees and escrow amounts, as well as attorneys' fees and court costs from a previous foreclosure case against Plaintiffs in which Defendants were not the prevailing party. Id. ¶ 11-12.

         Plaintiffs attached a copy of the Pay-Off Demand to their Amended Complaint. Doc. 7-1. In the Pay-Off Demand, RAS explains that it represents the lender for Plaintiffs' loan and it was acting as a debt collector trying to collect a debt. Id. at 1. The Pay-Off Demand further explains that it is a response to Plaintiffs' request for a payoff figure, and indicates the amount due to pay off the loan, as well as the amount of interest accruing over the seven days following the letter. Id. A description and breakdown of the charges was attached to the Pay-Off Demand. Id. at 2. The listed charges included litigation fees and attorneys' fees. Id.

         On the same date, RAS sent a reinstatement letter, that contained the same general information, but provided the amounts required for Plaintiffs to reinstate their loan. Id. at 7. The description of charges for the reinstatement amount also included litigation and attorneys' fees. Id. at 8.

         Based on these allegations, Godoy alleged one claim against RAS for violation of the FDCPA and one count against RAS for violation of the FCCPA. Id. ¶¶ 39-62. Perez alleged separate claims against RAS for violation of the FDCPA and FCCPA. Id. ¶¶ 87-110. In the FDCPA claims, Plaintiffs allege that by sending the Pay-Off Demand, RAS violated 15 U.S.C. § 1692(e)(2) and (10) because it falsely represented the character, amount or legal status of a debt, and used false representation or deceptive means to collect or attempt to collect a debt or obtain information concerning a consumer. Id. ¶¶ 45, 93. Additionally, Plaintiffs contend that RAS violated 15 U.S.C. § 1692(f)(1) by attempting to collect amounts that were not expressly authorized by the agreement creating the debt or permitted by law. Id. ¶¶ 46, 94. With respect to Plaintiffs claims under the FCCPA, Plaintiffs allege that RAS' demand for payment in the PayOff Demand violated section 559.72(9) of the Florida Statutes because RAS knew that the debt was not legitimate. Id. ¶¶ 58, 108.


         To survive a motion to dismiss, a pleading must include a “short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Fed.R.Civ.P. 8(a)(2)). Labels, conclusions and formulaic recitations of the elements of a cause of action are not sufficient. Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Furthermore, mere naked assertions are not sufficient. Id. A complaint must contain sufficient factual matter, which, if accepted as true, would “state a claim to relief that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). “A claim has facial plausibility 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. (citation omitted). The court, however, is not bound to accept as true a legal conclusion stated as a “factual allegation” in the complaint. Id.


         A. FDCPA

         Counts III and VII are claims under the FDCPA. “The FDCPA prohibits unfair or unconscionable collection methods, conduct which harasses, oppresses, or abuses any debtor, and the making of any false, misleading, or deceptive statements in connection with a debt, and it requires that collectors make certain disclosures.” Dash v. Midland Funding LLC, No. 8:16-CV-2128-T-36AAS, 2017 WL 841116 (M.D. Fla. Mar. 3, 2017). The FDCPA states, in relevant part, as follows:

A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the ...

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