United States District Court, M.D. Florida, Tampa Division
LAZARITO GODOY and MADI L. OTERO PEREZ Plaintiffs,
ROBERTSON, ANSCHUTZ & SCHNEID, P.L. and OCWEN LOAN SERVICING, LLC, Defendants.
Charlene Edwards Honeywell, United States District Judge
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
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.
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.
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.
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.
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.
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.
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
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 ...