United States District Court, M.D. Florida, Fort Myers Division
NICOLE BARILLA, LOIS KERR and CHARLES MCDONALD, on behalf of themselves and others similarly situated, Plaintiffs,
SETERUS, INC. and NATIONSTAR MORTGAGE LLC, Defendants.
OPINION AND ORDER
SHERIPOLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE.
the Court is Defendants Seterus, Inc. and Nationstar Mortgage
“Defendants”) Motion to Dismiss the Third Amended
Complaint (Doc. 49) and Plaintiffs Nicole Barilla, Louis
Kerr, and Charles McDonald's Response in Opposition.
(Doc. 54). For the following reasons, the Motion is granted
in part and denied in part.
case is about debt collection letters Defendants sent to
Plaintiffs. The Court recounts the factual background as pled
in Plaintiffs' Third Amended Complaint (Doc. 48), which
it must accept as true to decide whether Plaintiffs state a
plausible claim. See Chandler v. Sec'y Fla. Dep't
of Transp., 695 F.3d 1194, 1198-99 (11th Cir. 2012).
early 2018 and early 2019, Plaintiffs fell behind on mortgage
payments and defaulted, and Defendants sent them letters
(Doc. 48-1; Doc. 48-2) demanding that they get current,
referred to as the “Florida Final Letters.” The
letters each listed the default amount, provided a deadline
to cure the default, and specified consequences for failure
to cure. The letters warned:
[i]f full payment of the default amount is not received [by
the deadline], we will accelerate the maturity date of your
loan and upon such acceleration the ENTIRE balance of the
loan, including principal, accrued interest, and all other
sums due thereunder, shall, at once and without further
notice, become immediately due and payable.
(Doc. 48 at 7-8; Doc. 48-1 at 2; Doc. 48-2 at 2). Immediately
following that sentence, the letters stated:
[f]ailure to cure the default on or before the Expiration
Date may result in acceleration of the sums secured by the
Security Instrument, foreclosure by judicial proceeding, and
sale of the property. If you only send a partial payment, the
loan will still be in default. Additionally, we will keep the
payment and may accelerate the maturity date.
(Doc. 48 at 8; Doc. 48-1 at 2; Doc. 48-2 at 2).
with these threats of foreclosure, the letters also stated
that “FORECLOSURE PROCEEDINGS WILL NOT BE COMMENCED
UNLESS AND UNTIL ALLOWED BY APPLICABLE LAW.” (Doc. 48-1
at 3; see Doc. 48 at 8 (alleging that all Florida Final
Letters sent to all borrowers in Florida who became 45 days
delinquent were “substantially the same”)). The
letters further advised that Plaintiffs “ha[d] the
right to reinstate [their] loan after acceleration”
after which “the loan no longer [would] be immediately
due in full.” (Doc. 48-1 at 3).
Plaintiffs did not realize that Defendants had an internal
policy of showing mercy to debtors who failed to fully cure
their default before the deadline, which was explained by
Seterus' 30(b)(6) representative in a similar case filed
in North Carolina. (Doc. 48 at 8-9). Under this policy,
Defendants would not accelerate defaulted loans that are less
than 45 days delinquent. This 45-day clock would reset
whenever debtors made any payment - partial or full -
preventing acceleration each time. Thus, Plaintiffs allege
that Defendants created a false sense of urgency by
threatening to accelerate the entire indebtedness of a
consumer's loan if “full payment of the default
amount is not received. . . on or before the Expiration
Seterus could not “immediately” foreclose a loan
upon the expiration date because the original contracts and
the Real Estate Settlement Procedures Act, 12 U.S.C. §
1024.41(f)(1), required at least 120 days delinquency before
initiating foreclosure. Thus, the letters' threats to
accelerate if Plaintiffs sent anything less than full payment
before the deadline were untrue and unfair. And because
Plaintiffs were coerced into paying what they owed and
deprived “of information that would be important . . .
in responding to Seterus' debt collection attempts,
” Defendants violated federal and Florida debt
collection laws (Counts I-V).
deciding a motion to dismiss under Rule 12(b)(6), a court
must accept as true all well-pleaded facts and draw all
reasonable inferences in the light most favorable to the
non-moving party. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “To survive a motion to dismiss, the
plaintiff's pleading must contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Id. A claim is
facially plausible when the court can draw a reasonable
inference from the facts pled that the opposing party is
liable for the alleged misconduct. See id.; Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 553 (2007). But
“[f]actual allegations that are merely consistent with
a defendant's liability fall short of being facially
plausible.” Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012). Thus, the court engages in
a twostep approach: “When there are well pleaded
factual allegations, a court should assume their veracity and
then determine whether they plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at
Counts I-III, Plaintiffs allege the letters violate the Fair
Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692e
generally and subsections (5) and (10) individually. In Count
IV, Plaintiffs allege the letters violate 15 U.S.C. §
1692f generally. In Count V, Plaintiffs allege that the
letters violate the Florida Consumer Protection Act, Fla.
Stat. § 559.72(9). Defendants dispute all five counts,
arguing that Plaintiffs mischaracterize the applicable law,