ORDER GRANTING MOTION TO DISMISS
THIS CAUSE is bеfore the Court upon Defendants’ Motion to Dismiss Plaintiffs Second Amended Complaint or in the Alternative for a More Definite Statement [DE-24], filed herein on December 7, 2010. The Court has carefully considered the Motion, Plaintiffs Opposition [DE-33], Defendants’ Reply [DE-35], and is otherwise fully advised in the premises,
I. BACKGROUND
Plaintiff commenced the instant action on June 4, 2010 [DE-1], Plaintiff subsequently amended his complaint two times [DE-15, 22], In the second amended complaint (“Complaint”) Plaintiff asserts five counts for violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 (“FDCPA”), the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55-559.785 (“FCCPA”), the Telephone Consumer Protection Act, 47 U.S.C. § 227
The instant action stems from Plaintiffs home mortgage debt as to an Arizona residence. [DE-22, ¶ 7]. Plaintiff alleges that Defendant Bank of America, N.A. currently services two mortgages on Plaintiffs Arizona residence. Id. at ¶ 15. Plaintiff further attaches loan statements to the Complaint indicating that as of December 2009 Defendаnts had servicing rights to Plaintiffs loan. [DE-22-1]. 1 Plaintiff alleges that in February of 2010 he fell behind in his mortgage payments and that in March of 2010 Defendants commenced attempts to collect on the debt. [DE-22, ¶¶ 20, 22].
II. DISCUSSION
A. Motion to Dismiss Standard
Until the Supreme Court decision in
Bell Atlantic Corp. v. Twombly,
B. Defendants’ Motion to Dismiss
Defendants filed the instant Motion on December 7, 2010, arguing that the Complaint should be dismissed on the following grounds: (1) the Complaint is inadequately pled and violates Rule 8(a)(2) by failing to identify the essentials as to the debt and improperly lumping Defendants together; (2) failure to state a claim under the FDCPA since Defendants are not debt collectors under the FDCPA; (3) failure to state a claim under the FCCPA since Defendants are not debt collectors under the FCCPA and the claim lacks the required factual allegations; (4) failure to state a claim under the TCPA since Defendants are exempted under the TCPA duе to the existence of an established business relationship and the claim lacks the required factual allegations; (5) failure to allege any oppressive treatment to support a claim
1. Failure to State a Claim Under the FDCPA
“In order to prevail on an FDCPA сlaim, a plaintiff must prove that: ‘(1) the plaintiff has been the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as defined by the FDCPA, and (3) the defendant has engaged in an act or omission prohibited by the FDCPA.’ ”
Kaplan v. Assetcare, Inc.,
Although Plaintiff alleges in the Complaint that Defendants are “debt collectors” [DE-22, ¶ 11], Plaintiff also alleges that Defendant Bank of America currently services two mortgages on Plaintiffs Arizona residence, Id. at ¶ 15, and Plaintiff attaches loan statements to the Complaint indicating that as of December 2009 Defendants had servicing rights to Plaintiffs loan, [DE-22-1]. Further, Plaintiff alleges that he did not fall behind in his mortgage payments until February of 2010, after Defendants admittedly already obtained servicing rights to Plaintiffs loan. [DE-22, ¶ 20], In his Opposition, importantly, Plaintiff does not address the exclusion of mortgage servicers from application of the FDCPA or otherwise demonstrate how Defendants are debt collectors covered under the FDCPA. Instead, the Complaint clearly establishes that neither Defendants are “debt collectors” as contemplated by the statute which explicitly excludes mortgage servicing companies where the debt was not in default at the time it was assigned and, therefore, the FDCPA claim in count I is dismissed with prejudice.
2. Failure to State a Claim under the FCCPA
Plaintiff alleges that Defendants violates section 559.72(7), 559.72(9), and 559.72(18) of the FCCPA. In pertinent part, the FCCPA provides that in collecting consumer debts, no person shall:
(7) Willfully communicate with the debt- or or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family.
(9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.
(18) Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the debtor’s attorney fails to respond within 30 days to a communication from the person, unless the debtor’s attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication,
Fla. Stat. § 559.72(7), (9) and (18).
Florida Statute § 559.55(6) defines the term “debt collector” as “any person who uses any instrumentality of commerce within this state, whether initiated from within or outside this state, in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” Courts have concluded that the language of Fla. Stat. § 559.55(6)(f) identifying those who are excluded from the definition of a debt collector in Florida mirrors the language defining a debt collector in the FDCPA.
See Reynolds v. Gables Residential Servs., Inc.,
Any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent that such activity is incidental to a bona fide fiduciary obligation or a bona fide escrow arrangement; concerns a debt which was originated by such person; concerns a debt which was nоt in default at the time it was obtained by such person; or concerns a debt obtained by such person as a secured party in a commercial credit transaction involving the creditor.
Fla. Stat. § 559.55(6)(f). Based upon this language Defendants argue that they are not debt collectors and, therefore, the FCCPA claim should be dismissed with prejudice.
In his Opposition, Plaintiff argues that there is one importаnt distinction between the FDCPA and the FCCPA — that is, the FCCPA is not restricted to debt collectors, as Fla. Stat. § 559.72(7) specifically provides that “in collecting consumer debts,
no person shall
...” engage in the prohibited collection practices delineated in the statute.
See Schauer v. General Motors Acceptance Corp.,
On the other hand, Defendants also contend that the FCCPA claim lacks thе required factual allegations as Plaintiff does not allege which Defendant called him, the specific substance of any call, how the calls were harassing, the legal right asserted, why the legal right did not exist, Defendants’ relationship to him, the amount of the debt, or the instrument reflecting the debt. To establish a violation under section 559.72(9) of the FCCPA, “it must be shown that a legal right that did not exist was asserted and that thе
As in Reese, Plaintiff simply makes the conclusory allegation that Defendants (again improperly lumping them together) “knew they did not have a legal right to use such collection techniques,” without any specific factual allegations as to each Defendants’ knowledge, much less what legal right was asserted and how that legal right somehow did not exist. In fact, Plaintiff admits that he had a mortgage loan [DE-22, ¶ 12], that he defaulted on the loan, id. at ¶ 20, and that Defendants have servicing rights as to that loan, id. at ¶ 15; [DE-22-1]. As such, it is unclear to the Court what illegitimate debt Defendants are alleged to have attempted to enforce or a how Defendants asserted legal rights that did not exist in violation of section 559.72(9). Regardless, such conclusory allegations are clearly insufficient under Twombly, and fail to put Defendants on notice as to the specific violations alleged against each of them. As such, Plaintiffs claim for violation of section 559.72(9) of the FCCPA in count II is hereby dismissed without prejudice. If Plаintiff attempts to amend this claim he must delineate the conduct at issue as to each Defendant, allege facts showing knowledge or intent as to each Defendant, and identify facts showing how the debt at issue was illegitimate or what legal right was asserted and how that legal right somehow did not exist as to each Defendant.
In regard to Plaintiffs claims under sections 559.72(7) and 559.72(18), the Court finds that these claims likewisе should be dismissed without prejudice as Plaintiff improperly lumps Defendants together in these claims despite that Defendants are separate and distinct legal entities. In regard to the section 559.72(7) claim, Plaintiff alleges that “Defendants have on many occasions called Plaintiff directly, multiple times a day, attempting to collect the debt,” [DE-22, ¶ 61]. Similarly, in regard to the section 559.72(18) claim, Plaintiff allegеs that he “communicated to Defendants he was represented by counsel and requested that all information be forwarded to counsel from then on,” but that “Defendants ... still incessantly call Plaintiff, multiple times a day.” Id. at 68, 70. Yet there are no factual allegations showing which Defendant made the purportedly harassing calls or contacted Plaintiff. Instead, Plaintiff improperly lumps Defendants together such that Defendants do not have notice of the purported conduct they are alleged to have committed. It is inconceivable to the Court that both Defendants could have somehow made each alleged call, yet that is exactly what Plaintiff appears to be alleging. As such, the claims under sections 559.72(7) and 559.72(18) are dismissed without prejudice. If Plaintiff elects to amend these claims he must treat each Defendant as a separate and distinct legal entity and delineate the conduct at issue as to each Defendant.
Plaintiff alleges that Defendants violated sections 227(b)(1)(A) & (B) of the TCPA which makes it unlawful
to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telеphone dialing system or an artificial or prerecorded voice ... (in) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call;
47 U.S.C. § 227(b)(1)(A), or
to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without the prior express consent of the called party, unless the call is initiated for emergency purposes or is exempted by rule or order by the [Federal Communications] Commission under paragraph (2)(B).
47 U.S.C. § 227(b)(1)(B).
The Eleventh Circuit has noted that the Federal Communications Commission (“FCC”) exempts from the TCPA’s statutory prohibition in 47 U.S.C. § 227(b)(1)(B) “any call ‘made to any person with whom the caller has an established business relationship at the time the call is made[.]’ ”
Meadows v. Franklin Collection Serv., Inc.,
Case No. 10-13474,
In comparisоn, Defendants have cited to no authority demonstrating that the exemption of section 227(b)(1)(B) for an established business relationship likewise applies to claims brought under section 227(b)(1)(A). In the absence of such authority, and when considering that the exemption appears to only qualify the language of section 227(b)(1)(B), the Court is not persuaded at this time that the exemption similarly applies to section 227(b)(1)(A). Plaintiff alleges that Defendants “used an automatic telephone dialing system or prerecorded or artificial voice to place numerous telephone calls to Plaintiffs cellular telephone.” [DE-22, ¶23]. Plaintiff then proceeds to identify specific dates upon which he purportedly received calls from Defendants.
Id.
at ¶¶ 28-32. However, nowhere in the Complaint dоes Plaintiff identify which Defendant made each call, but instead he simply lumps the Defendants together despite that they are separate and distinct legal entities. As such, the Court finds that to the extent Plaintiff attempts to assert a claim against Defendants under 47 U.S.C. § 227(b)(1)(A) in count III, such a claim is dismissed without prejudice for improperly lumping together Defendants such that Defendants do not have fair notice of the precise na
4. Failure to State a Claim for Invasion of Privacy
Plaintiff alleges that “oppressive treatment of a debtor by a creditor in attempting to collect even a just debt may be an invasion of privacy.” [DE-22, ¶ 80 (quoting
Brandt v. I.C. System, Inc.,
Case No. 8:09-cv-126-T-26MAP,
5. Failure to State a Claim for Declaratory Relief
In count V, Plaintiff seeks a declaration that Defendants’ practices are in violation of the FDCPA, FCCPA and the TCPA and a permanent injunction prohibiting Defendants from continuing to engage in violative practices. At the outset, the Court notes that having dismissed the FDCPA, the. FCCPA and the TCPA claims there is no basis for the Court to declare Defendants to have violated these statutes or to impose a permanent injunction. As such, this claim is dismissed. Moreover, although equitable relief is available under the FCCPA,
see Berg v. Merchs. Ass’n Collection Div.,
III. CONCLUSION
Accordingly, based upon the foregoing, it is ORDERED AND ADJUDGED as follows:
1. Defendants’ Motion to Dismiss Plaintiffs Second Amended Complaint or in the Alternative for a More Definite Statement [DE-24] is hereby GRANTED;
2. The Second Amended Complaint [DE-22] is hereby DISMISSED in its entirety as follows:
a. The FDCPA claim in count 1 is hereby DISMISSED with prejudice;
b. The FCCPA claims under sections 559.72(7), (9) and (18) in Count II are hereby DISMISSED without prejudice;
c. The TCPA claim under 47 U.S.C. § 227(b)(1)(B) in count III is hereby DISMISSED with prejudice;
d. The TCPA claim under 47 U.S.C. § 227(b)(1)(A) in count III is hereby DISMISSED without prejudice;
e. The claim for invasion of privacy in count IV is hereby DISMISSED without prejudice;
f. The claim for declaratory relief in count V is hereby DISMISSED without prejudice.
3. Plaintiff may file an amended complaint, in accordance with the express parameters of this Order, on or before April 4, 2011.
Notes
. Having attached the loan statements to the Complaint, pursuant to Federal Rule of Civil Procedure 10(c), they are "part of the pleading for all purposes."
. In addition, the Court notes that if Plaintiff is unable to properly amend his complaint to state a claim for violation of the FCCPA or the TCPA, it is unclear how Defendants’ would have engaged in "illegal means” to invade Plaintiff’s privacy as alleged in the present Complaint.