Coburn v. Gonzalez

141 F. Supp. 3d 1339, 2015 U.S. Dist. LEXIS 149644, 2015 WL 6680603
CourtDistrict Court, S.D. Florida
DecidedNovember 2, 2015
DocketCase No. 15-80852-CIV-COHN/SELTZER
StatusPublished
Cited by2 cases

This text of 141 F. Supp. 3d 1339 (Coburn v. Gonzalez) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coburn v. Gonzalez, 141 F. Supp. 3d 1339, 2015 U.S. Dist. LEXIS 149644, 2015 WL 6680603 (S.D. Fla. 2015).

Opinion

ORDER

JAMES I. COHN, United States District Judge

THIS CAUSÉ has come before the Court upon the Motion to Dismiss DE [15] filed by the Defendant, Caliber Home Loans, Inc.1 (“Caliber”). This .is an action for damages under the Federal Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. Caliber moves to dismiss the Complaint DE [1] pursuant to Fed. R. Civ. P. 12(b)(6) on the grounds that 1) the Plaintiff lacks standing under FDCPA, 2) Caliber did not engage in debt collection under FDCPA, 3) Caliber did not violate FDCPA as a matter of law, and 4) Caliber is immune from suit under the litigation privilege.

. Plaintiff, Darcie Coburn,’ was named as a defendant in a state court mortgage foreclosure action (the “Foreclosure Action”) filed by Caliber in the Circuit Court of the [1341]*1341Fifteenth Judicial Circuit in and for Palm Beach County, Florida, Case No.2014-CA-002596. Darcie Coburn inherited.the mortgaged property from her mother, Jane Coburn. DE [1],¶ 15. Darcie Cobum was not a party to the mortgage or the promissory note signed by her mother; she was named in the Foreclosure Action as a. party who may claim some inferior interest in the property.2 Coburn alleges that the Summons, the Foreclosure Complaint and a “Notice Required by Fair Debt Collection Practices Act” (the “Notice”) served upon her in the Foreclosure Action were deceptive and misleading in violation of the FDCPA, 15 U.S.C. §§ 1692e, specifically 1692e(10). . .

The Notice stated that the debt alleged in the Foreclosure Complaint “will be assumed to be valid by the creditor’s law firm, unless the debtor, within thirty days after receipt of [the] notice, disputes the validity of the debt or some portion thereof.” The Summons advised of the 20-day deadline to respond to the Foreclosure Complaint. Plaintiffs Complaint alleges that the two different deadlines contained in the Notice and the Summons could be misleading to the “least sophisticated consumer” who is protected by the FDCPA. She seeks actual damages and statutory damages under 15 U.S.C. § 1692k.

To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient facts to state a claim that is “plausible on its face.” Aronson v. Celebrity Cruises, Inc., 30 F.Supp.3d 1379, 1392 (S.D.Fla. 2014), quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). All factual allegations are accepted as true and all reasonable inferences are drawn in the plaintiffs favor. See Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371, 1379 (11th Cir.2010); see also Roberts v. Fla. Power & Light Co., 146 F.3d 1305, 1307 (11th Cir.1998).

Although a plaintiff need not provide “detailed factual allegations,” a plaintiffs complaint must provide “more than labels and conclusions.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal citations and quotations.omitted). Legal conclusions in a complaint must be supported by factual allegations and only a complaint which states a plausible, claim for relief shall survive a motion to dismiss. Randall v. Scott, 610 F.3d 701, 710 (11th Cir.2010) citing Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct.1937, 173 L.Ed.2d 868 (2009).

Caliber moves to dismiss, arguing that only a “consumer” as defined by the FDCPA may seek civil remedies for violations of that act. A “consumer” is defined as “any natural person obligated or allegedly obligated to pay any debt.” 15 U.S.C. § 1692a(3). Since Darcy Coburn was not [1342]*1342a party to the mortgage or promissory note, Caliber concludes that she is not a consumer and therefore lacks standing to sue.

In Johnson v. Ocwen Loan Servicing, 374 Fed.Appx. 868 (11th Cir.2010), the Eleventh Circuit considered a non-debtor’s standing to sue under the FDCPA. There, a plaintiff who was not a borrower or otherwise obligated on the loan filed suit under the FDCPA and other consumer protection statutes. The Eleventh Circuit held that the plaintiff lacked Article III standing because she was not a borrower and therefore did not suffer an injury-in-fact. The court also considered the prudential requirements for standing and found that the plaintiff failed to establish that she was in the “zone-of-interests” protected by the statute. Id. at 874. Similarly, this Court dismissed an FDCPA claim for lack of standing where the plaintiff never alleged that she was obligated to pay the debt about which she received phone calls. Deuel v. Santander Consumer USA, Inc., 700 F.Supp.2d 1306 (S.D.Fla.2010)(Plaintiff, who was not the debtor, lacked standing under FDCPA to sue under § 1692c(b)).

Coburn makes no allegations which would support a finding that she is a “consumer” as defined in the FDCPA. In her Response in Opposition DE [17], Coburn argues that she can be considered to have “consumer status” because the Summons and the Foreclosure Complaint reference potential damages, thus can be considered “an attempt to collect a debt.” This ignores the fact that Coburn owes no money to the Defendant and nothing in the Complaint or Foreclosure Action alleges or indicates Otherwise. As such, the Court finds that she lacks standing to sue for damages under the FDCPA and therefore, the Motion to Dismiss should be granted.

Even if standing were found to exist, the Motion to Dismiss should be granted because Court cannot conclude that the Notice and Summons violated the provisions of 15 U.S.C. § 1692e, 1692e(10). The standard for a violation of 15 U.S.C. § 1692e(10) is whether “the least sophisticated consumer” would tend to be misled. Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1303 (11th Cir.2014). That is generally a question for the jury, but whether the Plaintiff alleges facts sufficient to state a claim under § 1692e is a legal question for the Court. Miljkovic v. Shafritz and Dinkin, P.A., 791 F.3d 1291, 1307-08 n. 11 (11th Cir.2015).

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141 F. Supp. 3d 1339, 2015 U.S. Dist. LEXIS 149644, 2015 WL 6680603, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coburn-v-gonzalez-flsd-2015.