Negron v. Selene Finance, LP
8:16-cv-02231
M.D. Fla.Jun 23, 2017Background
- Plaintiff William Negron (pro se) alleges Selene Finance, LP and CitiMortgage improperly locked him out, changed locks, removed personal property, and attempted eviction of real property located at 818 Eagle Lane, purchased by his company FTB Partners LLC at a bankruptcy sale.
- Negron claims violations of the FDCPA (including §1692f(6)), FCCPA, unlawful eviction, trespass, IIED, negligence, and conversion against Selene and/or CitiMortgage.
- Selene moved to dismiss or for a more definite statement, arguing (among other things) it is a loan servicer not a ‘‘debt collector’’ under the FDCPA and that the Complaint is vague and fails to plead entitlement to relief.
- The Complaint incorporated prior allegations into every count, was factually vague about ownership/possessory interests, and appended additional factual assertions improperly in response to the motion.
- The Court concluded the Complaint is an impermissible shotgun pleading, dismissed it without prejudice, and granted Negron 14 days to file an amended complaint pleading standing, specific facts for each claim, and compliance with the rules.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Complaint is a shotgun pleading | Compl. pleads multiple counts and incorporated allegations (as drafted) | Selene argued the pleading is vague and prevents a proper response | Court: Complaint is a shotgun pleading; dismissed without prejudice and leave to amend |
| Whether Selene is a "debt collector" under the FDCPA | Selene sought to enforce CitiMortgage's lien and thus is a debt collector subject to FDCPA | Selene: as a loan servicer it is not a debt collector unless it acquired a defaulted debt | Court: Liberally construed, complaint arguably alleges debt-collector status but plaintiff must better plead facts (including whether debt was in default when acquired) and plaintiff's standing |
| Standing to bring FDCPA and property-based claims | Negron asserts he resided at the Property and his company purchased it at bankruptcy sale | Selene notes plaintiff is not the title-holder and may lack Article III and statutory standing | Court: Plaintiff failed to adequately allege ownership/possessory interest or zone-of-interests; must plead standing in amended complaint |
| §1692f(6) and right to possession of collateral | Plaintiff alleges Selene took nonjudicial actions to dispossess without right (violating §1692f(6)) | Selene contends lender/servicer had lien/right to possession and Bankruptcy order authorizes actions | Held: Court will not consider documents not attached; plaintiff failed to plead sufficient facts that Selene lacked right to possession; must provide more definite statement |
| Civil trespass, IIED, negligence, conversion claims | Plaintiff alleges trespass, IIED, negligence, and conversion for removal/disposal of personal property | Selene: plaintiff lacks ownership/possessory interest, allegations insufficient to show outrageous conduct, duty, breach, or statutory prerequisites (e.g., written demand for civil theft) | Court: Claims inadequately pleaded; dismissed without prejudice; plaintiff must plead possessory interest, factual bases, and statutory prerequisites |
| FCCPA claim | Plaintiff alleges collection attempts on discharged debt and unlawful assertion of rights | Selene argues mortgagee may have lien rights after bankruptcy; mere demand on legitimate debt insufficient for FCCPA | Court: Allegations insufficient to show Selene knew it lacked legal right; must plead facts showing actual knowledge and bring FCCPA as separate count |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading standard: plaintiffs must plead factual matter showing plausible claim)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must contain more than labels and conclusions)
- Wagner v. First Horizon Pharm. Corp., 464 F.3d 1273 (11th Cir. 2006) (definition and problems of shotgun pleadings)
- Fenello v. Bank of Am., N.A., [citation="577 F. App'x 899"] (11th Cir.) (loan servicer is not a debt collector if loan was not in default when assigned)
- Deutsche Bank Nat. Trust Co. v. Foxx, 971 F. Supp. 2d 1106 (M.D. Fla.) (similar rule on servicer/debt-collector status)
- Universal Am. Mortg. Co. v. Bateman, 331 F.3d 821 (11th Cir.) (bankruptcy discharge affects personal liability but not lien rights)