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Savage v. Seterus, Inc.

United States District Court, S.D. Florida

January 15, 2020

SUSAN SAVAGE, on Behalf of Herself and Others Similarly Situated, Plaintiff,
v.
SETERUS, INC. and NATIONSTAR MORTGAGE, LLC, as Successor in Interest to Seterus, Inc., Defendants.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND TRANSFERRING CASE TO THE MIDDLE DISTRICT OF FLORIDA

          ROBIN L. ROSENBERG UNITED STATES DISTRICT JUDGE.

         THIS CAUSE comes before the Court on Defendants' Motion to Dismiss Plaintiff's Class Action Complaint. DE 16. The Court has carefully considered the Motion, Plaintiff's Response thereto [DE 25], Defendants' Reply [DE 29], and the record and is otherwise fully advised in the premises. For the reasons set forth below, the Motion to Dismiss is granted in part and denied in part and this case is transferred to the Middle District of Florida

         I. FACTUAL BACKGROUND

         Plaintiff Susan Savage filed the Class Action Complaint in this matter on July 25, 2019. DE 1. Savage alleges that Defendants are servicers of mortgages for residential housing loans and contract to collect payments, fees, and other amounts that homeowners owe.[1] Id. ¶¶ 28, 29. Defendants specialize in servicing mortgage loans that are in default or have an increased risk of default. Id. ¶¶ 38, 39, 42, 43. Defendants serviced Savage's mortgage loan while the loan was in default. Id. ¶¶ 16, 34, 54-56.

         On or around July 27, 2018, Defendants sent Savage a letter stating that her mortgage loan was in default and demanding that she bring the loan up to date by paying the default amount by the expiration date of August 31, 2018. Id. ¶ 47; DE 1-1. The demand letter stated, in part:

If full payment of the default amount is not received by us in the form of a certified check, cashier's check, or money order on or before August 31, 2018, we will accelerate the maturity date of your loan and upon such acceleration the ENIRE 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.

DE 1-1. On or around November 30, 2018, Defendants sent Savage a nearly identical demand letter with a higher default amount and an expiration date of January 4, 2019. DE 1 ¶ 48; DE 1-2.

         During a deposition for a case in North Carolina, a representative of Defendants testified that Defendants' policy is that they will not accelerate a mortgage loan if any payment, even a partial payment, is made by the expiration date that brings the loan less than 45 days delinquent. DE 1 ¶¶ 4, 66, 69. Thus, Savage maintains that the demand letters, by stating that the mortgage loan will be accelerated if full payment is not received by the expiration date, constituted a threat and a false, deceptive, and misleading method to collect a debt. S, e.g., id. ¶¶ 3, 5, 70-73, 76-85, 91, 92.

         Savage brings one count of violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., one count of violation of the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.55 et seq., and one count of negligent misrepresentation. Id. at 22-31. Savage brings her claims on behalf of herself and putative classes of all consumers throughout the Southern District of Florida who received demand letters from Defendants substantially similar or materially identical to the demand letters that she received. Id. at 16-22.

         II. BARILLA V. SETERUS, INC.

         On January 25, 2019, three plaintiff homeowners, Nicole Barilla, Lois Kerr, and Charles McDonald (“the Barilla plaintiffs”) filed a Class Action Complaint in the Middle District of Florida against Seterus, Inc., later adding Nationstar Mortgage, LLC as a defendant as successor in interest to Seterus, Inc. See Barilla v. Seterus, Inc., 2:19-cv-00046 (M.D. Fla.), DE 1, 39. The Barilla plaintiffs brought claims of violation of the FDCPA, violation of the FCCPA, and negligent misrepresentation. Id. at DE 1. They based these claims on demand letters that, like the demand letters at issue in this case, stated that Defendants would accelerate the maturity date of a mortgage loan if full payment of the default amount was not received by the expiration date. Id. at DE 1-5. Based on the same deposition testimony on which Savage relies, which indicates that Defendants' policy is that they will not accelerate a mortgage loan if any payment is made by the expiration date, the Barilla plaintiffs maintained that the demand letters constituted a threat and a false, deceptive, and misleading method to collect a debt. Id. at DE 1. The Barilla plaintiffs brought their claims on behalf of themselves and a putative class of Middle District of Florida consumers for the FDCPA claim and a putative class of Florida consumers for the FCCPA claim. Id.

         The District Court in the Middle District of Florida subsequently dismissed the Barilla plaintiffs' FCCPA and negligent misrepresentation claims. Id. at DE 47, 55. The operative complaint is the Third Amended Class Action Complaint, which Defendants have answered. Id. at DE 48, 56. No motion for class certification has been filed to date.

         III. ANALYSIS

         Defendants seek, in part, a transfer of this case to the Middle District of Florida under the first-filed rule. “Where two actions involving overlapping issues and parties are pending in two federal courts, there is a strong presumption across the federal circuits that favors the forum of the first-filed suit under the first-filed rule.” Manuel v. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir. 2005); see also Collegiate Licensing Co. v. Am. Cas. Co. of Reading, Pa., 713 F.3d 71, 78 (11th Cir. 2013) (“when parties have instituted competing or parallel litigation in separate courts, the court initially seized of the controversy should hear the case”). “The federal courts long have recognized that the principle of comity requires federal district courts-courts of coordinate jurisdiction and equal rank-to exercise care to avoid interference with each other's affairs.” Young v. West Publ'g Corp., No. 09-22426-CIV, 2010 WL 11597583, *1 (S.D. Fla. Jan. 6, 2010) (quotation marks omitted). The purposes of the first-filed rule are to avoid the waste of ...


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