Helman v. Udren Law Offices, P.C.
85 F. Supp. 3d 1319
S.D. Fla.2014Background
- Mortgage refinanced in 2004 with Bank of America; mortgage later sold to a third party.
- Plaintiff’s personal liability for the mortgage was discharged in bankruptcy in June 2010.
- Plaintiff sued Bank of America in Helman I (case transferred to bankruptcy court; some claims dismissed).
- During Helman I, Udren’s letter to Plaintiff on Nationstar’s behalf referenced foreclosure alternatives.
- Plaintiff filed the instant suit on April 3, 2014, asserting similar claims against Nationstar and Udren.
- Court grants motions to dismiss Counts I–III with prejudice, refers Counts IV–VII to bankruptcy court, and dismisses Counts VIII–XI without prejudice; case may be amended within 10 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| FDCPA viability of Counts I–III | Plaintiff asserts communications were debt collection activity | Defendants contend communications were not FDCPA activity and primarily security-interest enforcement | Counts I–III dismissed for lack of FDCPA activity |
| Whether state-law claims (Counts IV–VII) fall under bankruptcy jurisdiction | Claims premised on discharge injunction; could violate discharge | Discharge injunction preempts state-law remedies; must transfer | Counts IV–VII referred to Bankruptcy Court; dismissal noted with respect to jurisdiction |
| Quiet title viability (Count VIII) | Nationstar’s asserted interest clouds title | Assignment authority not challenged; pleading deficiencies present | Count VIII dismissed without prejudice |
| RESPA, FCRA, and declaratory relief viability (Counts IX, XI, X) | Allegations and requests for relief under RESPA and FCRA; broad declaratory relief sought | Claims lack requisite specifics or proper statutory basis | Counts IX and XI dismissed without prejudice; Count X dismissed without prejudice for amendment |
Key Cases Cited
- Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir.2012) (duality of debt-collection and security-interest enforcement; FDCPA scope debated)
- Warren v. Countrywide Home Loans, Inc., 342 F.Appx. 458 (11th Cir.2009) (security-interest enforcement not within the FDCPA scope)
- Gburek v. Litton Loan Servicing LP, 614 F.3d 380 (7th Cir.2010) (notices offering foreclosure alternatives can be debt-collection activity; context matters)
- Alderwoods Grp., Inc. v. Garcia, 682 F.3d 958 (11th Cir.2012) (discretion to transfer and preemption in bankruptcy proceedings)
- In re Toledo, 170 F.3d 1340 (11th Cir.1999) (bankruptcy-subject matters; exclusive jurisdiction considerations)