196 F. Supp. 3d 1282
M.D. Fla.2016Background
- Plaintiffs executed a mortgage and note in 2006; later filed Chapter 7 bankruptcy and listed the mortgage debt and counsel in the bankruptcy schedules and filings.
- Bankruptcy court granted in rem relief to lender but denied in personam relief for any unsecured portion; Plaintiffs’ remaining debts (including any in personam portion) were discharged in April 2012 and lender received notice.
- Property was foreclosed and title transferred to the condominium association in May 2013.
- After discharge, Defendant allegedly placed collection calls and sent mail seeking to collect the discharged debt.
- Plaintiffs sued alleging violations of the Florida Consumer Collection Practices Act (FCCPA) and the Telephone Consumer Protection Act (TCPA).
- Defendant moved to strike Plaintiffs’ jury demand based on a jury-waiver clause in the mortgage and moved to dismiss Counts III (FCCPA) and IV (TCPA); the court denied both motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the mortgage jury-waiver covers FCCPA/TCPA claims arising from post-bankruptcy collection attempts | Waiver does not apply because claims arise from post-discharge collection, not directly from mortgage performance | Waiver is broad and covers actions "arising out of or related to" the mortgage, so jury demand should be struck | Denied — claims arose from attempts to collect a discharged debt and are not sufficiently related to mortgage performance to trigger the waiver |
| Whether Count III (FCCPA §559.72(18)) states a claim for contacting a debtor represented by counsel | Listing the debt and counsel in the Chapter 7 case and Defendant’s receipt of notice provided actual knowledge of representation as to the debt | Notice of representation in a separate proceeding (foreclosure) is insufficient; Defendant contends bankruptcy notice likewise insufficient | Denied — allegations that Defendant received notice of the Chapter 7 case listing the debt and counsel are sufficient to plead actual knowledge and state a claim |
| Whether Count IV (TCPA) states a claim for autodialed/prerecorded calls without consent | Plaintiffs allege calls to cellular phones using autodialer/recorded voice without prior express consent (and allege revocation if consent existed) | Defendant argues insufficiency regarding consent/revocation | Denied — allegations that calls were made without prior express consent are sufficient; consent is an affirmative defense that does not warrant dismissal on the pleadings |
Key Cases Cited
- Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558 (1990) (Seventh Amendment jury-trial right overview)
- Sibley v. Fulton-DeKalb Collection Serv., 677 F.2d 830 (11th Cir. 1982) (jury-trial right extends to claims resembling historical actions at law)
- Burns v. Lauter, 53 F.3d 1237 (11th Cir. 1995) (jury-trial right may be waived if knowing and voluntary)
- Bah. Sales Assoc., LLC v. Byers, 701 F.3d 1335 (11th Cir. 2012) (contract-relatedness test: dispute must be fairly direct result of contractual duties)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (legal conclusions not accepted as true at pleading stage)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
- United Techs. Corp. v. Mazer, 556 F.3d 1260 (11th Cir. 2009) (pleading construed favorably to non-movant on Rule 12(b)(6))