ZVI Kurtzman v. Nationstar Mortgage LLC
709 F. App'x 655
11th Cir.2017Background
- Kurtzman obtained a $1.72M adjustable-rate mortgage in 2005; MERS was the named mortgagee and Nationstar serviced the loan.
- Kurtzman defaulted; Nationstar (through counsel) sent a statutory Georgia notice of non-judicial foreclosure and scheduled a sale for May 3, 2016.
- Kurtzman sued (April 27, 2016) alleging violations of the Fair Debt Collection Practices Act (FDCPA) based on the foreclosure notice and sought declaratory relief; he also sought a stay, which was denied.
- Nationstar moved to dismiss under Rule 12(b)(6), arguing Kurtzman failed to plead that Nationstar is a "debt collector" under the FDCPA and that declaratory relief was unwarranted.
- The magistrate judge recommended dismissal for failure to state a claim; the district court adopted that recommendation and dismissed the complaint. Kurtzman appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Nationstar is a “debt collector” under the FDCPA | Kurtzman alleges Nationstar regularly attempts to collect debts not owed to it and acquired the defaulted debt | Nationstar is a loan servicer/non-originating holder and is not plausibly alleged to be a debt collector under the FDCPA | Dismissed: complaint fails to plead factual support that Nationstar is a debt collector; conclusory allegations insufficient |
| Whether the foreclosure notice violated O.C.G.A. § 44-14-162.2 (and thus implicated the FDCPA) | The notice omitted the words “full” and “all” in describing the contact authorized to negotiate/modify the loan, rendering the notice deficient | The Georgia statutes and precedent require only substantial compliance; omission of two words does not make notice legally deficient | Dismissed: Georgia law and Eleventh Circuit precedent require only substantial compliance; omission did not create an FDCPA claim |
| Whether declaratory relief was appropriate | Kurtzman sought a declaration about Nationstar’s compliance and authority to foreclose to protect future interests | Nationstar argued declaratory relief was unnecessary because allegations concerned past acts and no immediate, imminent controversy requiring declaration existed | Dismissed: no substantial controversy of immediacy/necessity; claims were based on past events and would amount to an advisory opinion |
| Whether allegations about assignment/standing sustained claims | Kurtzman challenged Nationstar’s authority based on assignment; argued he could challenge validity | Nationstar argued Kurtzman lacked standing to challenge assignment (issue not resolved) | Court did not reach standing question; dismissal rested on other grounds |
Key Cases Cited
- Timson v. Sampson, 518 F.3d 870 (11th Cir.) (standard of review for Rule 12(b)(6))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for complaints)
- Ashcroft v. Iqbal, 556 U.S. 662 (labels and conclusions insufficient to survive dismissal)
- Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309 (11th Cir.) (non-originating holder is not a debt collector solely because debt was in default when acquired)
- Crawford v. LVNV Funding, LLC, 758 F.3d 1254 (11th Cir.) (FDCPA private right of action and scope)
- Chaparro v. Carnival Corp., 693 F.3d 1333 (11th Cir.) (court need not accept conclusory allegations)
- TKW Partners, LLC v. Archer Capital Fund, L.P., 691 S.E.2d 300 (Ga. Ct. App.) (OCGA § 44-14-162.2 does not require the specific words “full” and “all”)
- Haynes v. McCalla Raymer, LLC, 793 F.3d 1246 (11th Cir.) (Georgia requires only substantial compliance with foreclosure notice contact-information requirement)