280 F. Supp. 3d 1349
M.D. Fla.2017Background
- Plaintiff Paul A. Green is the mortgagor/borrower on a 2006 adjustable-rate note and related mortgage; Specialized Loan Servicing, LLC (SLS) is the servicer.
- Green sued under the Fair Debt Collection Practices Act (FDCPA) alleging SLS attempted to collect amounts barred by Florida’s five-year statute of limitations (Fla. SOL).
- The Amended Complaint relied on three communications: a Notice of Default dated April 8, 2015 (2015 Notice); a foreclosure complaint filed June 30, 2015 (FC Complaint); and a mortgage statement dated January 18, 2017 (2017 Statement).
- SLS moved to dismiss arguing (inter alia) the 2015 Notice claims are time-barred by the FDCPA one-year limitations period, the 2017 Statement is a TILA periodic statement (not debt collection), the Fla. SOL is a defense in foreclosure (not an FDCPA affirmative claim), and amounts sought in the FC Complaint are not reduced by the Fla. SOL.
- The Court treated the Fla. SOL argument as dispositive (relying on Bartram and related authorities) and also found the 2015 Notice untimely and the 2017 Statement not actionable under the FDCPA.
- The Court granted SLS’s motion and dismissed the Amended Complaint with prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims based on the April 2015 Notice are timely under the FDCPA | Green contends the Notice was an actionable debt-collection communication | SLS argues the FDCPA has a one-year limitations period and the 2015 Notice was sent more than one year before suit | Dismissed — 2015 Notice claims barred by FDCPA one-year SOL |
| Whether the Jan. 18, 2017 mortgage statement constitutes "debt collection" under the FDCPA | Green argues certain "important messages" on the statement made it misleading and beyond a routine TILA statement | SLS contends the statement is a TILA periodic statement, which is not debt collection under FDCPA | Dismissed — 2017 Statement is a TILA periodic statement and not actionable |
| Whether the FC Complaint’s demands for full loan amounts violated the FDCPA by seeking time-barred installments under the Fla. SOL | Green alleges the foreclosure complaint sought installments and fees that were barred by the Fla. SOL and thus constituted misleading collection | SLS argues under Florida law (Bartram and related precedent) mortgages/notes are unique and foreclosure seeks the full secured amount; the Fla. SOL is a defense in foreclosure and does not reduce amounts recoverable if suit is timely | Dismissed — Fla. SOL is a defense in foreclosure; seeking full mortgage amount in foreclosure did not violate FDCPA |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard for Rule 12(b)(6) — plausibility requirement)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (Twombly pleading standard for plausibility)
- Bartram v. U.S. Bank Nat’l Ass’n, 211 So.3d 1009 (Fla. 2016) (Florida law: mortgage/foreclosure claims treated uniquely; Fla. SOL is defense and does not necessarily reduce foreclosure recovery)
- Midland Funding, LLC v. Johnson, 137 S. Ct. 1407 (2017) (FDCPA and scope of prohibited collection practices)
- Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012) (standards for evaluating whether communication is "in connection with" debt collection under the FDCPA)