Bohringer v. Bayview Loan Servicing, LLC
141 F. Supp. 3d 1229
S.D. Fla.2015Background
- Peter and Aprill Bohringer obtained a mortgage in 2006; Bank of America (BANA) later serviced the loan and entered a modification with Plaintiffs in 2013.
- BANA told Plaintiffs Bayview would begin servicing the loan on March 16, 2014; Bayview later indicated in correspondence it believed the loan was past due when it acquired servicing rights.
- Plaintiffs allege they remained current, made payments after transfer, and that Bayview (a servicer) placed some payments in suspense, assessed charges (e.g., "Corp. Advance Adjustment," "Attorney Advances," and "Property Preservation"), and failed to provide FDCPA §1692g(a) validation notices.
- Plaintiffs sued Bayview under the FDCPA (15 U.S.C. §1692e(2)(A), §1692e(10), §1692f(1), §1692g(a)) and under Florida’s FCCPA §559.72(9); BANA/TILA claim was settled separately.
- The district court previously dismissed the original complaint with leave to amend; Plaintiffs filed an amended complaint. Bayview moved to dismiss the amended complaint and sought dismissal with prejudice.
- The court concluded Plaintiffs adequately alleged Bayview could be a "debt collector" (because Bayview may have treated the loan as in default at transfer) but dismissed all FDCPA counts for failure to plead the required nexus to "collection activity" and declined supplemental jurisdiction over the FCCPA claim; dismissal of FDCPA counts was with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bayview is a "debt collector" under the FDCPA (§1692a(6)) or excluded because loan was not in default when acquired | Plaintiffs: Bayview treated the loan as in default at transfer (September 11 letter, assessed charges, placed payments in suspense), so (F)(iii) exclusion does not apply | Bayview: loan was not in default at transfer so (F)(iii) exclusion applies and Bayview is not a debt collector | Court: Plaintiffs plausibly alleged Bayview treated the loan as in default; Bayview not dismissed on this basis |
| Whether Bayview’s communications (e.g., May 21 letter, December 4 statement) were "in connection with the collection of any debt" (threshold for §1692e and §1692g) | Plaintiffs: May 21 letter and other statements implicitly demanded payment and the disclaimer that it was a debt-collection attempt shows collection purpose | Bayview: letters were informational statements of account or responses to inquiries, lacking demands, threats, payment instructions, or consequences | Court: May 21 and December 4 communications were informational/statements of account, not debt-collection communications; Counts I, II, IV dismissed |
| Whether assessment or attempted collection of disputed fees supports a §1692f(1) claim ("collecting amount not authorized by agreement or law") | Plaintiffs: Bayview assessed unauthorized charges and failed to identify/validate them — actionable under §1692f(1) | Bayview: Plaintiffs did not allege correspondence showing Bayview demanded payment of those charges or otherwise show they were assessed to collect a debt | Court: Plaintiffs failed to plead that the unauthorized charges were assessed "to collect or attempt to collect" a debt; Count III dismissed |
| Whether court should allow leave to amend further (dismissal with prejudice requested) | Plaintiffs: previously given leave to amend; may be able to cure defects | Bayview: undue delay, stage of case, and prejudice justify dismissal with prejudice | Court: Given prior amendment, earlier briefing, approaching deadlines, and prejudice, further amendment denied; FDCPA claims dismissed with prejudice; FCCPA claim dismissed for lack of supplemental jurisdiction |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading must state a plausibe claim to relief)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (complaint must contain more than labels and conclusions)
- Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309 (servicer may be a debt collector if it treated loan as in default at transfer)
- Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355 (loan servicer not exempt when loan treated as in default by transferor/servicer)
- Schlosser v. Fairbanks Capital Corp., 323 F.3d 534 (servicer’s mistaken assertion of default can remove (F)(iii) exclusion)