ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND REFERRING CASE TO BANKRUPTCY COURT
This matter is before the Court on Defendant Nationstar’s Motion to Dismiss [DE 97] and Defendant Udren’s Motion to Dismiss [DE 95]. The motions have been fully briefed by the parties. The Court has reviewed the documents in the case file and is fully advised in the premises. For the reasons set forth below, Defendants’ motions to dismiss are granted in part and Plaintiffs Count I, Count II, and Count III are dismissed with prejudice, Plaintiffs Count VIII, Count IX, Count X, and Count XI are dismissed without prejudice, and Plaintiffs Count IV, Count V, Count VI, and Count VII are referred to the United States Bankruptcy Court for the Southern District of Florida.
I. BACKGROUND
In 2004 Plaintiff refinanced a home mortgage loan with Bank of America. DE 91 ¶ 7. Bank of America later sold Plaintiffs mortgage to a third party. Id. at ¶ 8. Plaintiff subsequently filed for bankruptcy and her personal liability for her home mortgage loan was discharged in June of 2010. See id. at ¶ 9. On July 30, 2012, Plaintiff filed suit against Bank of America alleging, inter alia, that Bank of America had improperly attempted to collect upon a debt that had previously been discharged in bankruptcy
During the pendency of Plaintiffs Hel-man I suit, Defendant Udren sent a letter to Plaintiff on behalf of Defendant Na-tionstar. DE 97 ¶ 15. Plaintiff alleges that Udren’s letter, together with certain other communications, was an improper attempt to collect upon a debt for which Plaintiff was no longer personally liable. See id. at ¶ 15-26. On April 3, 2014, after Plaintiffs claims had been transferred to bankruptcy court in Helman I, Plaintiff filed the instant suit and brought claims against Defendants that were similar to the claims brought against Bank of America in Helman I. DE 1. Presently before the Court are Defendants’ motions to dismiss Plaintiffs second amended complaint.
II. LEGAL STANDARD
In considering a motion to dismiss, the Court must accept the allegations in a
III. ANALYSIS AND DISCUSSION
Plaintiff has a raised a number of different claims against Defendants under both federal and state law. Defendants’ arguments for dismissal are best grouped into six categories: (1) Counts I, II, and III, (2) Counts IV, V, VI, and VII, (3) Count VIII, (4) Count IX, (5) Count XI, and (6) Count X. Accordingly, the Court considers each group of claims in turn.
1. Counts I, II, and III.
Plaintiffs first three counts are all premised upon the Fair Debt Collection Practices Act. Defendants argue Plaintiffs claims fail as a matter of law. The Court begins its analysis by focusing on a central premise that underpins virtually all of Defendants’ arguments: Assuming all of Plaintiffs allegations are true, did Defendants engage in debt collection under the Fair Debt Collection Practices Act?
A prima facie claim under the FDCPA requires the following: (1) the plaintiff was the object of collection activity arising from consumer debt, (2) the defendant is a debt collector as that term is defined under the FDCPA, and (3) the defendant engaged in an activity that is prohibited by the FDCPA. McCorriston v. L.W.T., Inc.,
In Reese, the Eleventh Circuit considered the differences between the enforcement of a promissory note, which is debt collection activity under the FDCPA, and enforcement of a security interest in collateral that secures the note, which is not debt collection activity under the FDCPA.
In the instant case, Plaintiff has pled four different types of communication to establish that Defendants engaged in debt collection activity: (A) a letter to Plaintiff from Defendant Udren dated April 4, 2013, (B) a letter to Plaintiff from Defendant Nationstar dated December 9, 2013, (C) monthly statements sent to Plaintiff from Defendant Nationstar, and (D) a door hanger, allegedly left on Plaintiffs door, by Defendant Nationstar dated January 20, 2014.
A. The April 4, 2013 Letter.
Defendant Udren sent Plaintiff a letter that contained the following:
Our client, Nationstar Mortgage, LLC, has referred your loan to us. You may have foreclosure prevention alternatives available to you. You may have had an unexpected expense, loss of income, or another circumstance that has prevented you from making your mortgage payments. If you provide information to Nationstar Mortgage, LLC about your situation, Nationstar Mortgage, LLC may determine whether you qualify for lony-term relief, includiny options that allow you to stay in your home (forbearance, repayment, modification) or leave your home while avoid-iny foreclosure (short sale, deed-in-lieu of foreclosure).
Nationstar Mortgage, LLC may have previously sent you a letter advising you of possible alternatives to foreclosure .... Even if you have previously indicated you are not interested in saviny your home, you may still be evaluated for alternatives to foreclosure.
DE 91-1 (emphasis added). Relying upon the bolded language above, Udren characterizes the letter as providing information on alternatives to foreclosure that would prevent Plaintiffs home from being foreclosed upon. The language of the letter stands in stark contrast to the letter found to be debt collection activity in Reese, which read as follows:
This letter is to advise you that your Note has been and is declared to be in default for non-payment and Lender hereby demands full and immediate payment of all amounts due and owiny thereunder.
In accordance with Georgia law, you are-hereby notified that unless you pay all amounts due and owiny under the Note and Security Deed within ten (10) days of the date you receive this letter, reasonable attorney’s fees will be added to the total amount for which collection is sought.
Unless your loan is satisfied in accordance with this demand, the foreclosure sale of the above-referenced real property will be conducted....
Reese,
Courts considering such notices routinely hold that the inclusion of a notice stating that the sender is a debt collector attempting to collect a debt does not automatically trigger the protections of the FDCPA. See Gburek v. Litton Loan Servicing LP,
The Court’s inquiry is necessarily based upon the text of the communications in this case viewed in the, context of applicable case law. On the one hand, persuasive case law in this circuit holds that communications that pertain to the enforcement of a security interest,
In Gburek, the Seventh Circuit considered a letter that, like the instant case, notified the recipient that alternatives existed to foreclosure. Id. at 382. Notably, the letter in Gburek sought to compel the plaintiff in that case to take action: “Again, we would like to emphasize that it is not too late to save your home. Options may be available to help preserve your home ownership. To determine options that best fit your financial situation, you must complete and return the enclosed form and provide the requested documentation.” Id. (emphasis added). The letter also sought to impose a deadline upon the plaintiff by requiring the plaintiff to respond “within 14 business days.” Id. In the event the plaintiff failed to respond to the letter, the defendant would “not
One other case that is helpful for comparison purposes is Gillespie v. Chase Home Finance, LLC, No. 09-CV-191,
A Homeowner’s Assistance specialist will discuss with you any changes in your financial situation and determine your ability to repay the Loan and avoid foreclosure of the Property. Based upon the information you provide, the specialist may be able to offer a workout option designed to cure your delinquency and keep you in your home.
We look forward to working with you and, while no guarantee can be made, we believe it would be beneficial for all parties to attempt to work out a resolution.
Id. at *2-3. The plaintiff in Gillespie also received a second letter that was identical to the letter quoted above, however, the second letter was accompanied by a notice that stated the defendant in that case “was attempting to collect a debt, and any information obtained [would] be used for that purpose.” Id. at *4. The district court ultimately concluded that the letters were not debt collection activity because the letters “were in the nature of providing information as opposed to being in the nature of a debt collection demand.” Id. at *5. The district court further noted that although the ultimate goal of the letters was ensuring payment of the underlying debts, the letters themselves did not provide terms of payment, establish deadlines, or threaten collection proceedings. Id.
After reviewing the above-cited cases and other applicable case law, the Court finds that the instant letter is distinguishable from both Reese and Gburek. The instant letter is not a “dunning” letter that seeks collection. The letter does not demand payment. The letter does not deliver an ultimatum or establish an arbitrary deadline. The letter in Reese clearly sought to collect upon a debt. The letter in Gburek, when read in its entirety, does exhibit a tangible pressure upon the recipient through a combination of looming deadlines, threatened action, and demands for information and explanations — none of which is present in the instant letter. Instead, the instant letter more closely resembles the letter in Gillespie that was held not to be debt collection activity.
The letter in Gillespie addressed the existence of alternatives to foreclosure and it also included a notice that asserted the sender was a debt collector — like the instant case. Although Gillespie was decided prior to Gburek, the instant case is distinguishable from Gburek as discussed
B. The December 9, 2013 Letter.
Plaintiff argues that a letter sent by Defendant Nationstar to Plaintiff was debt collection activity. The letter included the following: “Printed above is the name of your Dedicated Loan Specialist. This person will serve as your single point of contact to help you explore available options that could help you avoid foreclosure.” DE 91-6 (emphasis added). The letter does not demand payment and, viewed in its entirety, the letter contains even less text relevant to Plaintiffs claims than the aforementioned April 4, 2013 letter. For the same reasons as set forth above, the Court finds that this letter is distinguishable from Reese and was not debt collection activity.
C. Monthly Statements Sent to Plaintiff.
Plaintiff also asserts that Defendants engaged in debt collection activity by sending monthly statements to Plaintiff that established, among other things, the balance Plaintiff would be required to pay to satisfy the mortgage on her residence. DE 91-4. The monthly statements included, however, the following language: “This statement is sent for informational purposes only and is not intended as an attempt to collect, assess, or recover a discharged debt from you.If this account is active or has been discharged in a bankruptcy proceeding, be advised this communication is for informational purposes only and is not an attempt to collect upon a debt.” Id. (emphasis added). Because the monthly statements did not demand payment and instead included express language for persons who had received a bankruptcy discharge, the monthly statements do not fall under the scope of Reese and the Court finds, after reviewing the statements and case-specific circumstances in their entirety, that the monthly statements in the instant case, as a matter of law, did not constitute debt collection activity.
D. The January 20, 2014 Door Hanger.
Plaintiffs final alleged basis to establish Defendants engaged in debt collection activities is a door hanger left at Plaintiffs residence on January 20, 2014. DE 91-7. This hanger contained the following text: “Important information enclosed. Important. Please Call Nations-tar Mortgage.... Please be ready to give your account number. We are expecting your call today.” Id. Although a small amount of text on the hanger is omitted from the quotation above, the door hanger does not demand payment and, other than requesting that Plaintiff call Nationstar, the hanger contained virtually no information whatsoever. For the same reasons as set forth above, the Court finds that Nationstar’s alleged usage of the door hanger was not debt collection activity..
In summary, the Court finds that even accepting all of Plaintiffs allegations as true and even viewing all inferences in the light most favorable to Plaintiff, the Defendants’ communications were not debt collection activity as a matter of law. The Court finds that the activities at issue merely sought to communicate information. Even viewing' the facts in the Complaint in the light most favorable to Plaintiff, the Court still finds, at best, the communications related to the enforcement of a security interest. Under Warren v. Countrywide Home Loans, Inc., “an enforcer of a security interest, such as a [mortgage company] foreclosing on mortgages of real property .... falls outside of the ambit of the FDCPA.”
2. Counts IY, Y, VI, and VII.
Plaintiffs fourth, fifth, sixth, and seventh counts are all alleged under state law causes of action. Each of these claims, however, is premised upon the allegation that Defendants essentially violated a bankruptcy court discharge injunction. For. example, Plaintiffs fourth count under the Florida Consumer Collections Practices Act alleges “Nationstar attempted to collect interest and late fees, not due and owing because the debt was not owed, thereby misrepresenting the debt and its status.” DE 91 ¶ 206. Plaintiffs fifth and sixth count, both of which are also asserted under the FCCPA, allege “Defendants claimed, attempted, or threatened to enforce a debt knowing that the debt was not legitimate” and “Defendants have engaged in unfair and .deceptive collection practices” respectively. DE 91 ¶¶212, 218.
Each of Plaintiffs counts, as set forth above, is therefore necessarily premised upon the allegation that Defendants improperly attempted to collect upon a debt that Plaintiff was no longer personally liable for because of a prior bankruptcy discharge.
Proceedings to enforce an injunction under section 524(a)(2) of the Bankruptcy Code are core proceedings under 28 U.S.C. § 157 that .arise under the Bankruptcy Code. See Alderwoods Grp., Inc. v. Garcia,
Artful pleading cannot allow a plaintiff to avoid jurisdictional restrictions; a court must look to the true nature of an action, instead of relying upon a plaintiffs characterizations, to determine whether a claim falls under the exclusive jurisdiction of another court. See Roberts v. United States,
The remedy for a violation of a discharge order is to seek sanctions from the bankruptcy court that issued the injunction. See Alderwoods,
In summary, Plaintiff has attempted to draft her Complaint in such a way as to avoid the jurisdiction of the bankruptcy court. But Plaintiff cannot, through artful pleading, avoid the fact that the Bankruptcy Code has preempted private state law remedies in the context of the allegations in this case. Nor can Plaintiff through artful pleading avoid the exclusive jurisdiction of the bankruptcy court to enforce its own injunctions. Finally, Plaintiff cannot, through artful pleading, avoid the fact that local Administrative Order 84-12-Civ-Misc and Local Rule 87.2 compel the Court to transfer bankruptcy matters to the bankruptcy court,
3. Count VIII.
Plaintiff argues that a cloud exists on the title to her property because Defendant Nationstar has asserted an ownership interest in her property. Plaintiff argues that Nationstar’s asserted interest is wrongful because non-party Bank of America’s recorded assignment of mortgage in favor of Nationstar was filed when Bank of America was no longer the owner of Plaintiffs mortgage. Notably, Plaintiff does not allege, however, that Bank of America lacked the authority to file the assignment.
Quiet title actions are of common law origin, but have been codified in chapter 65 of the Florida Statutes. In order to bring a quiet title action to real property, the complaint must “allege sufficient facts to present a judiciable matter to a court of competent jurisdiction.” Woodruff v. Taylor,
1. plaintiffs title to the property in controversy;
2. how plaintiff obtained title to the property;
3. the chain of title;
4. the alleged cloud or defect on title and the basis upon which defendant claims an interest in or claims the title; and
5. why defendant’s claim is not well founded. •
Fla. Stat. § 65.061 (2014); Woodruff,
Because Plaintiff has not alleged Defendant’s ownership interest is derived from an entity that lacked the authority to execute the assignment in question, because Plaintiffs allegations do not clearly conform to the requirements delineated in Woodruff, because Plaintiff has not deraigned title for a period of at least seven years prior to filing suit, and because Plaintiff has failed to allege specific facts with “clearness, accuracy, and certainty,” Count VIII is dismissed without prejudice.
4. Count IX.
Plaintiffs ninth count asserts that Defendant Nationstar violated the Real Estate Settlement Procedures Act. Plaintiff substantiates her claim by attaching copies of the documents in which she made a qualified written request, to Nationstar, under RESPA. DE 91 -2, 91-8. For a document to fall within the definition of a qualified written request under RESPA, the document must contain information that (i) shows why a plaintiff believes his or her loan account servicing was in error or (ii) seeks information pertaining to the servicing of the loan. 12 U.S.C. § 2605(e) (2014). Plaintiffs letters satisfy neither of the aforementioned requirements. See Echeverria v. BAC Home Loans Servicing, LP,
5. Count XI.
Plaintiff alleges that Defendant Nationstar violated the Fair Credit Reporting Act by accessing Plaintiffs personal credit report when Nationstar knew that Plaintiff was not personally liable for the mortgage on her residence. A facially sufficient claim under the FCRA requires, however, that Defendant’s actions were willful or negligent and that Defendant used the credit report for an impermissible purpose. See Braun v. Client Servs. Inc.,
6. Count X.
Finally, Plaintiffs tenth count seeks general declaratory relief. The declaratory relief sought by Plaintiff, however, is broad in scope and encompasses Plaintiffs federal claims that have been dismissed with prejudice, Plaintiffs state claims that will be referred to the Bankruptcy Court, and Plaintiffs remaining claims that have been dismissed without prejudice. Accordingly, Plaintiffs tenth count is dismissed without prejudice for Plaintiff to amend her request for declaratory relief in light of the Court’s rulings herein.
IV. CONCLUSIONS AND RULING
Accordingly, it is ORDERED AND ADJUDGED that Defendant Nationstar’s Motion to Dismiss [DE 97] and Defendant Udren’s Motion to Dismiss [DE 95] are both GRANTED IN PART. Count I, Count II, and Count III are all DISMISSED WITH PREJUDICE. Count IV, Count V, Count VI, and Count VII are all REFERRED to the United States Bankruptcy Court for the Southern District of Florida. Count VIII, Count IX, Count X, and Count XI are DISMISSED WITHOUT PREJUDICE. All pending motions are DENIED AS MOOT. Plaintiff may amend her Complaint within ten (10) days of the date of rendition of this order. In the event Plaintiff does not amend her Complaint within the specified period of time, the Court will close this case.
Notes
. The Court takes judicial notice of Plaintiffs prior suit in the Southern District of Florida before Judge Ryskamp, case 9:12-CV-80808, for background information purposes and for the purpose of evaluating the order referring Plaintiff's claims to bankruptcy court in that case. See, e.g., United States v. Jones, 29 F.3d 1549, 1553 (11th Cir.1994).
. Reese avoided deciding whether exclusive security interest enforcement invokes the protections of the FDCPA, however, other Eleventh Circuit case law does hold that the scope of the FDCPA does not encompass security interest enforcement as discussed in greater detail, infra. See Reese,
. With one exception — the enforcement of a security interest can trigger the protections of the FDCPA under 15 U.S.C. § 1692f(6), however, this exception does not apply to the instant case. See Warren v. Countrywide Home Loans, Inc.,
. See Johnstone v. Aldridge Connors, LLP, No. 61757,
. See Reese,
. In Marshall v. Deutsche Bank National Trust Co. the district court noted: “The loan statements merely provided information to Plaintiff about her mortgage such as payment due dates and amounts owed. While ostensibly related to the collection of a debt, it would be impractical to find that loan statements must comply with the FDCPA. A loan statement is essentially a communication from a creditor to a debtor, not a communication from a debt collector for the purposes of collecting a debt.” 10-CV-00754 at p. 8,
. The Discharge Order entered in Plaintiffs bankruptcy case provides, in relevant part: “The discharge prohibits any attempt to collect from the debtor(s) a debt that has been discharged. For example, a creditor is not permitted to contact a debtor by mail, phone, or otherwise, to file or continue a lawsuit, to attach wages or other property, or to take any other action to collect a discharged debt from the debtor(s).... A creditor who violates this order can be required to pay damages and attorney’s fees to the debtor.” In re Helman, No. 09-19174, DE 19 (Bankr.S.D.Fla. Aug. 24, 2009); see In re Minbatiwalla,
. On July 11, 1984, the Chief United States District Judge for the Southern District of Florida entered an Order of Reference. The Order of Reference provides, in relevant part, "... it is hereby ORDERED that any and all cases arising under Title 11 and any or all proceedings arising in or related to a case ' under Title 11 shall be referred to the Bankruptcy Judges for the District.”
. A precise definition for "deraigning title” is not evident from Florida case law or the Florida Legislature. However, the term has been used to describe both the duty of a party