Gann v. BAC Home Loans Servicing LP
145 So. 3d 906
| Fla. Dist. Ct. App. | 2014Background
- Gann alleged FCCPA and FDUTPA violations by Bank Home Loans Servicing LP (n/k/a Bank of America, N.A.) over alleged improper debt collection related to a loan modification.
- Gann claimed she kept payments current under a modification, but Bank notified her of a default and pursued collection actions.
- Two letters from Bank to Gann were attached; Gann argued they violated FCCPA §559.72(9) by attempting to collect a debt.
- Trial court granted Bank’s motion to dismiss with prejudice, holding the letters were mere security-enforcement, not debt collection.
- Court reviewed de novo the legal sufficiency of the complaint and concluded the letters could be construed as debt collection.
- Court reversed to the extent the FCCPA count was dismissed, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Bank’s letters constitute debt collection under FCCPA | Gann: letters attempt to collect a debt | Bank: letters enforce security interest, not debt collection | Letters could be seen as debt collection; count not properly dismissed |
| Whether FCCPA applies to original creditors like Bank (not just debt collectors) | FCCPA applies to Bank as a “person” | Bank argues not a debt collector and FDCPA guidance limits scope | FCCPA applies to Bank; original creditor liability recognized |
| Whether the trial court erred in its de novo review on a motion to dismiss | Gann—proper legal standard applied; complaint sufficient | Bank—no debt collection shown | Trial court erred; dismissal reversed as to count one |
Key Cases Cited
- Trent v. Mortgage Electronic Registration Systems, Inc., 618 F. Supp. 2d 1356 (M.D. Fla. 2007) (FCCPA scope; foreclosure not debt collection per se; dual purpose communications)
- Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012) (debt is still a debt even when secured; communications can have dual purposes)
- Schauer v. General Motors Acceptance Corp., 819 So.2d 809 (Fla. 4th DCA 2002) (FCCPA applies to a ‘person,’ including creditors; not limited to debt collectors)
- Morgan v. Wilkins, 74 So.3d 179 (Fla. 1st DCA 2011) (FCCPA applies to original creditors as well as debt collectors)
- Kelliher v. Target Nat'l Bank, 826 F. Supp. 2d 1324 (M.D. Fla. 2011) (FCCPA interpretive guidance; federal act used for consumer debt interpretations)