Freire v. Aldridge Connors, LLP
994 F. Supp. 2d 1284
S.D. Fla.2014Background
- Plaintiffs Patricia and Christian Freire defaulted on a promissory note secured by a mortgage on their home.
- Bank of America, N.A. hired Aldridge Connors, LLP to collect on the note and to foreclose if necessary.
- Foreclosure complaint filed in Florida state court on September 21, 2012 sought the amount due and foreclosure, with a deficiency-judgment option.
- Defendant attached a FDCPA notice to the foreclosure complaint stating Bank of America as creditor and a 30-day dispute period for written disputes.
- Plaintiffs allege the notice misidentifies the creditor, imposes a non-FDCPA writing requirement to dispute, and creates conflicting timelines with summons.
- Court evaluates whether the foreclosure filing and attached notice constitute FDCPA debt-collection activity and whether the notice violated the FDCPA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether foreclosure with note collection constitutes debt collection under the FDCPA | Freire argues the action seeks to collect on the note as debt | Aldridge Connors contends foreclosure is enforcement of a security interest, not debt collection | Yes; the filing sought payment on the note and a deficiency, constituting debt collection |
| Whether Aldridge Connors is a debt collector under the FDCPA | Plaintiffs contend the firm regularly engages in consumer-debt-collection litigation | Firm argues it is simply foreclosing on a security instrument | Yes; the firm is a debt collector under the FDCPA |
| Whether the attached notice was deceptive under 15 U.S.C. § 1692e(10) | Notice misidentified creditor, misstated the dispute-writing requirement, and created conflicting timelines | Notice attempted to comply with FDCPA duties but misled consumers | Yes; the notice could deceive the least-sophisticated consumer |
Key Cases Cited
- Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012) (promissory note debt is FDCPA debt; filing foreclosure with note collection fits)
- Heintz v. Jenkins, 514 U.S. 291 (U.S. 1995) (law firms can be FDCPA debt collectors)
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573 (U.S. 2010) (initial communication requirement under FDCPA governing debt validation)
- LeBlanc v. Unifund CCR Partners, 601 F.3d 1185 (11th Cir. 2010) (least-sophisticated consumer standard for deception)
- Glazer v. Chase Home Finance LLC, 704 F.3d 453 (6th Cir. 2013) (mortgage foreclosure can be debt collection under the FDCPA)