UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF …

1 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF florida HERBERT L. JONES, JR., Plaintiff, v. Case No. 1:18-cv-20389-UU SELECT PORTFOLIO SERVICING, INC., Defendant. / ORDER ON MOTION TO DISMISS THIS CAUSE is before the COURT upon Defendant s Motion to Dismiss the Complaint (the Motion ). 14. THE COURT has reviewed the Motion, the pertinent portions of the record and is otherwise fully advised in the premises. I. Factual Background Unless otherwise indicated, the following facts are taken from the well-pleaded allegations in Plaintiff s Complaint. 1. Plaintiff, Herbert Jones, Jr., executed a note and mortgage on September 22, 2006. Defendant is the loan servicer on the debt arising from Plaintiff s mortgage. 1 Plaintiff has not disputed this fact, although it is taken from Defendant s Motion to Dismiss.

2 14. 2 Federal Rule of Civil Procedure 10(c) provides A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes. Id. Similarly, under the incorporation by reference doctrine the COURT may consult documents attached to a motion to dismiss without converting the motion into a motion for summary judgment if the document is central to the Plaintiff s claim and undisputed, unchallenged. Horsley v. Feldt, 304 1125, 1134 (11th Cir. 2002); see also Harris v. Ivax Corp., 182 799, 802 n. 2 (11th ). Accordingly, the COURT reviews the exhibits attached to Plaintiff s complaint and Defendant s motion to dismiss for the purposes of this order.

3 Case 1:18-cv-20389-UU Document 28 Entered on FLSD Docket 05/02/2018 Page 1 of 142 Plaintiff was named as a defendant in a foreclosure action in Miami-Dade County Circuit COURT (the Foreclosure Action ) relating to the subject note and mortgage, and on September 12, 2016, Loan Lawyers, LLC entered an appearance as Plaintiff s counsel in that action. 1 14. On or about April 24, 2017, Loan Lawyers, LLC, Plaintiff s counsel, sent Defendant a letter that stated, in relevant part: Please be advised that this firm represents the above-referenced clients [Plaintiff] in the above referenced matter for the debt arising from the mortgage serviced by you. All communications regarding this matter, including, but not limited to: requests for payment, forbearance or modification questions or offers, discussions regarding status, or any other matter whatsoever in connection to the above mentioned mortgage must be made through our office.

4 You are hereby advised to cease all contacts with our client 1-1 (emphasis in original). Defendant received the letter on May 1, 2018. 1 18. Subsequently, Defendant mailed monthly mortgage statements (the Statements ) to Plaintiff s primary residence on May 15, 2017, 1-2 at 1-3, August 15, 2017, id. at 4-5, November 15, 2017, id. at 6-8, and January 11, 2018, id. at 9. The Statements contained account and billing information, including, inter alia, phone numbers for Defendant s customer service line, amount due, transaction activity, a delinquency notice, past payment breakdowns, and a monthly payment coupon. See 1-2. Plaintiff also contends that Defendant communicated with Plaintiff on a nearly monthly basis after May 15, 2017, in the same manner as described [with respect to the Statements].

5 Defendant communicated with Plaintiff a number of other times after Defendant was aware that Plaintiff was represented by counsel in regard to the disputed debt. 1 26-27. II. Procedural Background On January 31, 2018, Plaintiff filed a three-count Complaint, seeking injunctive relief and statutory damages arising out of allegations that Defendant: (1) violated the florida Consumer Case 1:18-cv-20389-UU Document 28 Entered on FLSD Docket 05/02/2018 Page 2 of 143 Collection Practices Act, Fla. Stat. (the FCCPA ) by communicating with Plaintiff, as a debtor, despite knowing that Plaintiff was represented by counsel with respect to the alleged debt, 1 28-33 (citing (18)); (2) violated the FCCPA, Fla. Stat. (7) by communicating with Plaintiff with such frequency and in such a manner as can be reasonably expected to harass Plaintiff, as a debtor, 1 34-52; and (3) violated the Fair Debt Collection Practices Act, 15 1692 et seq.

6 , (the FDCPA ) by communicating with Plaintiff in connection with the collection of a debt when Defendant knew that Plaintiff was represented by counsel with respect to the alleged debt. 1 53-67 (citing 1692c(a)(2)). On March 5, 2018, Defendant filed a Motion to Dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). 14. III. Legal Standard In order to state a claim, Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief. While a COURT , at this stage of the litigation, must consider the allegations contained in the plaintiff s complaint as true, this rule is inapplicable to legal conclusions. Ashcroft v. Iqbal, 556 662, 678 (2009). In addition, the complaint s allegations must include more than an unadorned, the-defendant- unlawfully-harmed-me accusation.

7 Id. (citing Bell Atlantic Corp. v. Twombly, 550 544, 555 (2007)). Thus, [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. (citing Twombly, 550 at 555). In practice, to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Id. (quoting Twombly, 550 at 570). 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 Case 1:18-cv-20389-UU Document 28 Entered on FLSD Docket 05/02/2018 Page 3 of 144 misconduct alleged. Id. The plausibility standard requires more than a sheer possibility that a defendant has acted unlawfully.

8 Id. Where a complaint pleads facts that are merely consistent with a defendant s liability, it stops short of the line between possibility and plausibility of entitlement to relief. Id. Determining whether a complaint STATES a plausible claim for relief is a context-specific undertaking that requires the COURT to draw on its judicial experience and common sense. Id. at 679. IV. Analysis A. Grounds Defendant s Motion to Dismiss argues that Plaintiff fails to state a claim under the FCCPA and FDCPA because: (1) mortgage statements sent pursuant to the Truth in Lending Act, 15 1601-1667f (the TILA ) do not constitute debt collection activity under the FDCPA or the FCCPA as a matter of law; and (2) the TILA preempts the FCCPA to the extent it is inconsistent therewith.

9 14. For the following reasons, the COURT agrees and Defendant s Motion to Dismiss is GRANTED. B. Mortgage Statements as Debt Collection Activity i. FDCPA and FCCPA As an initial matter, the FDCPA and the FCCPA are largely identical and the FCCPA is construed in accordance with the FDCPA. Lear v. Select Portfolio Servicing, Inc., No. 17- 62206-CIV, 2018 WL 1960108, at *1 ( Fla. Apr. 25, 2018) (quoting Lilly v. Bayview Loan Servicing, LLC, No: 2:17-cv-00345, 2017 WL 4410040 at *2 ( Fla. 2017) (other citations omitted)). Accordingly, although the COURT focuses its analysis on cases interpreting the FDCPA, conclusions drawn from these cases will also inform the COURT s decision as to Plaintiff s alleged FCCPA violations. See Kelliher v. Target Nat. Bank, 826 1324, 1327 ( ) Case 1:18-cv-20389-UU Document 28 Entered on FLSD Docket 05/02/2018 Page 4 of 145 (quoting Fla.)

10 Stat. (5) ( The FCCPA provides that [i]n applying and construing this section, due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices Act. )). ii. Potential Conflict between the FDCPA and the TILA This dispute requires the resolution of a perceived conflict between the FDCPA s communication prohibitions and the TILA s communication requirements. In Counts One and Three of his Complaint, Plaintiff alleges that the Statements and other communications from Defendant constitute prohibited debt collection communication under the FDCPA and FCCPA. 1. The FDCPA prohibits communications with debtors who are represented by counsel if such communication was made in connection with the collection of any debt.