United States District Court, S.D. Florida
SUSAN SAVAGE, on Behalf of Herself and Others Similarly Situated, Plaintiff,
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
L. ROSENBERG UNITED STATES DISTRICT JUDGE.
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
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. 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.
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
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.
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.
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.
BARILLA V. SETERUS, INC.
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.
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
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 ...