Shirley Solis v. CitiMortgage, Inc.
699 F. App'x 891
11th Cir.2017Background
- In 2000 Grace Solis took a mortgage on Miami‑Dade property; in 2003 Allstate assigned the mortgage to Citi. Solis (Shirley) and Sylvia were later co‑owners but did not sign the promissory note.
- Grace defaulted in 2011; Citi filed a state foreclosure naming Shirley Solis as an owner-defendant but acknowledging only Grace signed the note. SFG and later RAS represented Citi in the foreclosure.
- In February 2016 Shirley Solis sued pro se in federal court against Citi, RAS, and SFG, alleging FDCPA and FCCPA violations for filing the foreclosure against her despite her not signing the note.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6); the district court dismissed the FDCPA claim for failure to plead that defendants are “debt collectors” and dismissed the FCCPA claim as barred by Florida’s litigation privilege.
- The foreclosure action remained pending in state court; the appellate court reviews the 12(b)(6) dismissal de novo and construes pro se pleadings liberally.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendants are "debt collectors" under the FDCPA | Solis: defendants are debt collectors for suing to collect the mortgage debt against her | Defendants: complaint lacks facts showing they are debt collectors; Citi acquired the debt before default | Court: Dismissed FDCPA claim — Solis failed to plead facts showing defendants are debt collectors; Citi excluded because it acquired the debt pre‑default |
| Whether filing the foreclosure violates the FCCPA given Florida's litigation privilege | Solis: filing the foreclosure against her violated FCCPA because she didn’t sign the note | Defendants: filing is an act in a judicial proceeding and protected by Florida’s litigation privilege | Court: Dismissed FCCPA claim — absolute litigation privilege bars the claim because filing the foreclosure related to a judicial proceeding |
Key Cases Cited
- Castro v. Sec'y of Homeland Sec., 472 F.3d 1334 (11th Cir.) (standard of review for Rule 12(b)(6) dismissal)
- Tannenbaum v. United States, 148 F.3d 1262 (11th Cir.) (liberal construction of pro se pleadings)
- Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir.) (definition and pleading requirements for FDCPA "debt collector")
- Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309 (11th Cir.) (entity that acquires debt pre‑default is not a "debt collector")
- Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So. 2d 606 (Fla. 1994) (Florida absolute litigation privilege for acts related to judicial proceedings)
- Jackson v. BellSouth Telecommunications, 372 F.3d 1250 (11th Cir.) (application of Florida law and litigation privilege in federal court)
- Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380 (Fla.) (litigation privilege bars statutory claims including FCCPA)