675 F. App'x 892
11th Cir.2017Background
- In 2006 the Thomases took a mortgage secured by a security deed listing MERS as nominee for the lender; MERS assigned the deed to U.S. Bank in June 2011. The Thomases had defaulted before that assignment and never cured the default.
- Nationstar (servicer) sent a December 3, 2013 acceleration letter (attached to defendants’ motion); the Thomases disputed its authenticity. The Rubin law firm (counsel for U.S. Bank) sent January 2014 letters attached to the amended complaint declaring the full debt due and threatening foreclosure.
- The Thomases alleged U.S. Bank reported a foreclosure default to credit agencies and advertised the home for foreclosure, causing credit damage and emotional distress; they did not allege an actual foreclosure sale occurred.
- On February 18, 2014 the Thomases sent a letter they characterized as a RESPA Qualified Written Request (QWR); they sued seven days later alleging U.S. Bank failed to respond.
- The district court dismissed the amended complaint (breach of contract, wrongful attempted foreclosure, FDCPA, RESPA), and the Eleventh Circuit affirmed on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Breach of contract: failure to give proper acceleration notice under the security deed | Improper acceleration/notice caused credit reporting and emotional damages | Thomases defaulted years earlier and never cured; harms stem from default, not notice defect | Dismissed — damages not shown to be caused by alleged notice breach |
| Wrongful attempted foreclosure | U.S. Bank lacked enforceable interest; attempted foreclosure was improper | Thomases never pleaded facts showing a false publication or how Bank of America obtained an interest; claim not in amended complaint | Dismissed — claim not pleaded and no allegation of false derogatory publication |
| FDCPA (§§1692e, 1692f) | U.S. Bank and Rubin are debt collectors who threatened illegal action by improper acceleration | Plaintiffs pled no facts showing defendants meet the FDCPA definition of "debt collector" | Dismissed — plaintiffs failed to allege defendants fit statutory definition |
| RESPA (QWR, failure to respond) | February 18 letter was a QWR; U.S. Bank did not respond and caused damages | Plaintiffs did not plead that U.S. Bank was a "servicer" or that they suffered RESPA damages | Dismissed — no servicer allegation and no cognizable damages pleaded |
Key Cases Cited
- Glover v. Liggett Grp., Inc., 459 F.3d 1304 (11th Cir. 2006) (on motion to dismiss, courts accept complaint allegations as true)
- Day v. Taylor, 400 F.3d 1272 (11th Cir. 2005) (authenticity of documents outside the pleadings may preclude consideration on a Rule 12(b)(6) motion)
- Bates v. JPMorgan Chase Bank, NA, 768 F.3d 1126 (11th Cir. 2014) (elements and causation analysis for breach-of-contract claims premised on improper acceleration/foreclosure)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (complaint must state a plausible entitlement to relief)
- Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309 (11th Cir. 2015) (acquiring a debt after default does not by itself make the acquirer a "debt collector" under the FDCPA)
- Renfroe v. Nationstar Mortg., LLC, 822 F.3d 1241 (11th Cir. 2016) (damages are essential to plead a RESPA claim)
- Aetna Fin. Co. v. Culpepper, 320 S.E.2d 228 (Ga. Ct. App. 1984) (wrongful attempted foreclosure requires knowing publication of untrue derogatory information and damages)