Bentley v. Bank of America, N.A.
2011 U.S. Dist. LEXIS 34600
S.D. Fla.2011Background
- Plaintiff Matthew Bentley sues Bank of America, N.A. and BAC Home Loans Servicing, L.P. in SD Florida over mortgage debt from an Arizona residence.
- Defendants service two mortgages on plaintiff's Arizona property; loan statements attached show servicing rights as of December 2009.
- Plaintiff alleges delinquency began in February 2010 and defendants initiated collection efforts in March 2010.
- Second amended complaint asserts five counts: FDCPA, FCCPA, TCPA, invasion of privacy, and declaratory relief/injunction.
- Court has federal-question and supplemental jurisdiction; motion to dismiss the second amended complaint filed by defendants.
- Defendants move to dismiss on grounds of improper pleading, non-applicability of FDCPA/FCCPA due to non-debt-collector status, TCPA exemptions, invasion-of-privacy pleading defects, and lack of declaratory-judgment controversy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA applicability as to debt collector | Bentley alleges BoA/BA Servicing are debt collectors under FDCPA. | Defendants are mortgage servicers not debt collectors when debt was not in default at assignment. | FDCPA claim dismissed with prejudice; defendants are not debt collectors under the statute. |
| FCCPA applicability and sufficiency of allegations | FCCPA applies; defendants violated multiple subsections with improper collection tactics. | Defendants may not be debt collectors under FCCPA and allegations lack specificity. | Counts under 559.72(9) dismissed without prejudice for lack of specific facts; counts 7 and 18 dismissed without prejudice for improper lumping. |
| TCPA claims and established business relationship | Defendants made autodialed calls to plaintiff's cell without consent. | Established business relationship exempts certain TCPA calls; defendants may be exempt. | Count III § 227(b)(1)(B) dismissed with prejudice; § 227(b)(1)(A) dismissed without prejudice for improper lumping of defendants. |
| Invasion of privacy claim viability | Oppressive debt-collection conduct invades privacy. | No specific, actionable alleging against each defendant. | Count IV dismissed without prejudice; plaintiff must plead conduct by each defendant separately. |
| Declaratory relief viability | Plaintiff seeks declaratory judgment that defendants' practices violate FDCPA/FCCPA/TCPA. | With claims dismissed, no live controversy for declaratory relief. | Count V dismissed without prejudice. |
Key Cases Cited
- Conley v. Gibson, 355 U.S. 41 (1957) (notice pleading standard; must provide grounds to relief)
- Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
- Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (court may reject conclusory allegations; must plead factual content)
- Marshall County Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171 (11th Cir.1993) (disposition on Rule 12(b)(6) when no plausible claim)
- Reese v. JPMorgan Chase & Co., 686 F. Supp. 2d 1291 (S.D. Fla. 2009) (FDCPA debt-collector exclusion for creditors/mortgage servicers when debt non-default at assignment)
- Reynolds v. Gables Residential Servs., Inc., 428 F. Supp. 2d 1260 (M.D. Fla. 2006) (Florida FCCPA/exclusion language mirrors FDCPA)
- Sibley v. Fulton DeKalb Collection Serv., 677 F.2d 830 (11th Cir. 1982) (FCCPA considerations; knowledge/intent required)
- Berg v. Merchants Ass'n Collection Div., 586 F. Supp. 2d 1336 (S.D. Fla. 2008) (equitable relief under FCCPA; FDCPA not available for civil liability in equity)