Rajbhandari v. U.S. Bank
305 F.R.D. 689
S.D. Fla.2015Background
- Plaintiff filed initial complaint Jan 14, 2014 and amended Apr 21, 2014; court dismissed the amended complaint and granted leave to amend.
- Second amended complaint (SAC) filed Sept 30, 2014 naming Wells Fargo, U.S. Bank, RRW, and Gassel for FDCPA and FCCPA claims.
- SAC alleges improper debt collection related to a foreclosure proceeding; notes and mortgage allegedly transferred to U.S. Bank via Wells Fargo; robo-signers and improper notice alleged.
- Gassel previously quashed due to misdesignation of defendant; re-service issues arose; plaintiff served with a summons directing to Gassel's home address using an old complaint copy.
- Defendants move to dismiss for failure to state a claim (FDCPA and FCCPA) and to quash/insufficient service; court addresses service and 12(b) motions.
- Court concludes Wells Fargo and U.S. Bank are not debt collectors; RRW may be a debt collector but failure to plead proper FDCPA claim; service defects require dismissal of Gassel under Rule 12(b)(4)/(5) and dismissal without prejudice as to some claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wells Fargo and U.S. Bank are debt collectors under FDCPA. | Plaintiff asserts defendants engage in debt collection. | Defendants are not debt collectors; not subject to FDCPA. | Dismissed FDCPA claims against Wells Fargo and U.S. Bank. |
| Whether RRW can be liable under FDCPA for foreclosure filings. | RRW engaged in debt-collection activity via litigation. | Filing a foreclosure complaint is not an FDCPA communication. | Claim against RRW fails under FDCPA; not a protected initial communication. |
| Whether the SAC plausibly states a FDCPA claim against Gassel and service was proper. | SAC asserts fdcpapable acts by Gassel. | Improper service; faulty summons. | Rule 12(b)(4)/(5) granted; Gassel dismissed without prejudice for improper service. |
| Whether the court should exercise supplemental jurisdiction over state-law FCCPA claim. | FCCPA claim should proceed alongside FDCPA claims. | When federal claims are dismissed, discretionary supplemental jurisdiction not warranted. | Supplemental jurisdiction declined; FCCPA claim dismissed without prejudice. |
Key Cases Cited
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (facial plausibility required for claims to surviveRule 12(b)(6))
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard; factual content required)
- Heintz v. Jenkins, 514 U.S. 291 (U.S. 1995) (attorneys may be debt collectors if they regularly engage in debt-collection activity)
- Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573 (U.S. 2010) (FDCPA communications context; initial communications limitations)
- Vega v. McKay, 351 F.3d 1334 (11th Cir. 2003) (foreclosure-related pleadings not FDCPA communications)