Desir v. LoanCare, LLC
8:25-cv-01073
M.D. Fla.Aug 29, 2025Background
- Plaintiffs Carlyne Desir and Flint Edwards sued LoanCare, LLC alleging FDCPA, FCCPA, FCRA, defamation, misrepresentation, and intentional infliction of emotional distress based on efforts to collect an allegedly invalid mortgage debt.
- The original complaint was partly dismissed with leave to amend; Plaintiffs filed an amended complaint and Defendant moved to dismiss for failure to state claims.
- The amended complaint contains many legal conclusions but few factual allegations identifying specific collection communications, dates, or conduct by LoanCare.
- Plaintiffs assert LoanCare is a loan servicer and debt collector and that LoanCare reported false information to credit bureaus and failed to protect data in a July 2023 breach.
- The court found pleading defects as to each statutory and tort claim (lack of facts showing debt-collector status or actionable communications; no allegation that credit reporting disputes were sent via CRAs; failure to plead malice for defamation; misrepresentation not pleaded with Rule 9(b) particularity).
- Ruling: Counts I–V dismissed without prejudice with one final leave to amend; Count VI (IIED) dismissed with prejudice. Plaintiffs were ordered to file a second amended complaint by September 19, 2025.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA/FCCPA liability | LoanCare engaged in unlawful debt-collection and harassing conduct on an invalid mortgage | Pleading fails to show LoanCare is a debt collector or that any prohibited communications occurred; statute of limitations may bar older claims | Dismissed without prejudice for failure to plead facts showing debt-collector status or any prohibited conduct; one final chance to amend |
| FCRA (furnisher liability) | LoanCare furnished false information to credit reporting agencies | Plaintiffs did not allege the required notice-of-dispute from a CRA to trigger a private right of action under § 1681s-2(b) | Dismissed without prejudice; may amend only if they can plead CRA notice to LoanCare |
| Defamation (based on credit reporting) | False credit reports harmed Plaintiffs' reputations | FCRA preempts state-law defamation claims absent factual allegations of malice or willfulness | Dismissed without prejudice; amendment allowed but malice/willfulness must be pled with factual support |
| Misrepresentation (fraud/negligent) | LoanCare made false statements or omissions about the debt | Plaintiffs failed to plead the who/what/when/where/how required by Rule 9(b) for fraud-based claims | Dismissed without prejudice; plaintiffs must plead the elements and particularity required for fraud claims |
| Intentional Infliction of Emotional Distress | LoanCare’s threats to foreclose, false reporting, and data-breach failures caused severe distress | Conduct alleged does not rise to the outrageousness or severity required under Florida law | Dismissed with prejudice; IIED claim cannot be cured by amendment |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading must contain factual allegations showing plausibility)
- Scheuer v. Rhodes, 416 U.S. 232 (court must accept well-pleaded facts as true at the pleading stage)
- Reese v. JPMorgan Chase & Co., 686 F. Supp. 2d 1291 (creditors, servicers, or assignees are not debt collectors if debt was not in default when assigned)
- In re Harris, 3 F.4th 1339 (elements and standards for fraudulent and negligent misrepresentation under Florida law)
- Plowright v. Miami Dade County, 102 F.4th 1358 (elements and outrageousness standard for IIED under Florida law)
- Stroud v. Bank of America, 886 F. Supp. 2d 1308 (FCRA can preempt state defamation claims absent malice or willfulness)
- McGee v. JP Morgan Chase Bank, NA, [citation="520 F. App'x 829"] (fraud-based claims require Rule 9(b) particularity)
- Linville v. Ginn Real Estate Co., 697 F. Supp. 2d 1302 (misrepresentation requires specific allegations of statements, timing, and reliance)