309 F. Supp. 3d 1237
S.D. Fla.2018Background
- Plaintiff Lonny Lear alleged SPS sent mortgage statements after being notified that he was represented by counsel on the mortgage debt.
- Plaintiff pleaded violations of the Florida Consumer Collection Practices Act (FCCPA) and the federal Fair Debt Collection Practices Act (FDCPA).
- Plaintiff attached to the complaint the attorney-notice letter and five periodic mortgage statements from SPS.
- SPS moved to dismiss, arguing (1) TILA required the periodic statements and thus preempted the FCCPA/FDCPA, and (2) the statements were not "in connection with the collection of any debt."
- The statements included payment-by-mail instructions and a printed notice: "This is an attempt to collect a debt. All information obtained will be used for that purpose."
- The Court treated the attached documents as part of the complaint, found the statements contained debt-collection language beyond TILA-required content, and denied SPS’s motion to dismiss.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TILA preempts FCCPA/FDCPA claims arising from periodic statements | Lear: TILA does not preempt state and federal debt-collection statutes when statements also collect debt | SPS: TILA requires servicers to send periodic statements and thus preempts/conflicts with FCCPA; compliance with TILA shields liability | Court: TILA does not preempt FCCPA/FDCPA; compliance with TILA does not immunize debt-collection conduct that violates those statutes |
| Whether the periodic mortgage statements were "in connection with the collection of any debt" | Lear: Statements contained debt-collection language and payment instructions, so they are collection communications | SPS: Statements were informational pursuant to TILA and not aimed at collecting debt | Court: Statements contained explicit and implicit collection language (payment instructions and a debt-collection notice) and plausibly violated FDCPA/FCCPA; dismissal denied |
Key Cases Cited
- Oppenheim v. I.C. Sys., Inc., 627 F.3d 833 (11th Cir.) (FCCPA construed in accordance with FDCPA)
- Caceres v. McCalla Raymer, LLC, 755 F.3d 1299 (11th Cir.) (factors for determining whether communications are debt-collection efforts)
- Kelliher v. Target Nat. Bank, 826 F. Supp. 2d 1324 (M.D. Fla.) (TILA does not preempt the FCCPA)