Duran v. Wells Fargo Bank, N.A.

878 F. Supp. 2d 1312, 2012 WL 3001568, 2012 U.S. Dist. LEXIS 101610
CourtDistrict Court, S.D. Florida
DecidedJuly 23, 2012
DocketCase No. 12-20362-Civ
StatusPublished
Cited by4 cases

This text of 878 F. Supp. 2d 1312 (Duran v. Wells Fargo Bank, N.A.) 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
Duran v. Wells Fargo Bank, N.A., 878 F. Supp. 2d 1312, 2012 WL 3001568, 2012 U.S. Dist. LEXIS 101610 (S.D. Fla. 2012).

Opinion

ORDER GRANTING IN PART MOTION TO DISMISS

MARCIA G. COOKE, District Judge.

THIS CASE is before me on Defendant Wells Fargo Bank, N.A.’s Motion to Dismiss Plaintiffs Complaint (ECF No. 6). I have reviewed the record, the arguments, and’ the relevant legal authorities. For the reasons provided, the Motion is granted in part and denied in part. '

I. Background

Plaintiff, Eddy O. Duran, filed a four-count complaint against Defendant, Wells Fargo Bank, N.A., for violations of the Florida Consumer Collection Practices Act, Fla. Stats. §§ 559.55-559.785 (“FCCPA”), and the Telephone Consumer [1314]*1314Protection Act, 47 U.S.C. § 227, et seq. (“TCPA”).

The facts set forth here are from Plaintiffs Complaint. On around March 10, 2010, Plaintiff retained Loan Lawyers, LLC, to represent him in connection with a mortgage loan on which he defaulted. (Compl. ¶¶ 11, 13). Defendant services Plaintiffs defaulted mortgage loan; part of Defendant’s servicing business includes collecting payments on mortgage accounts. (Id. ¶ 11).

In. July 2010, Plaintiff sent a letter to the Defendant indicating that Loan Lawyers, LLC, represented him in connection with the mortgage loan debt. (Id. ¶ 14). The letter stated that all communications regarding the mortgage loan debt should be directed to counsel. (Id.) The letter included counsel’s contact information, including address and phone number. (Id.) According to Plaintiff, Defendant received the letter around August 3, 2010. (Id. ¶ 14). Defendant responded on around October 7, 2011, stating that a cease-and-desist order was on file. (Id. ¶ 16).

Plaintiff claims Defendant’s representative and/or employee contacted Plaintiff by telephone on four occasions to attempt to collect the mortgage loan debt, in violation of the FCCPA.. (Id. ¶26). The incidents occurred on about November 17, 2011, at around 2:30 p.m., on about November 17, 2011, at around 5:15 p.m., on about November 18, 2011, at around 5:15 p.m., and on about December 5, 2011, at around 11:47 a.m. (Id. ¶¶ 23-25, 34). Plaintiff claims that the phone calls were for non-emergency purposes, and he did not consent to the calls. (Id. ¶¶ 19-20). On each call, Defendant’s representative requested that Plaintiff make arrangements to pay the mortgage debt, and Plaintiff told the representative that he was represented by counsel and that Defendant should contact Plaintiffs counsel directly. (Id. ¶¶ 26-27, 35-36).

Plaintiff also claims Defendant attempted to collect the mortgage loan debt by using an automatic dialing system or prerecorded or artificial voice in violation of the TCPA. (Id. ¶ 53). Plaintiff states these calls occurred “many” times, but only specifically identifies the November and December 2011 calls listed above. (Id.)

II. Legal Standard

A plaintiff must articulate “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (abrogating Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Detailed factual allegations are not required, but a pleading “that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ ” Id. at 678, 129 S.Ct. 1937 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). “[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679, 129 S.Ct. 1937. “[C]onclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts will not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir.2002).

When considering a motion to dismiss filed under Rule 12(b)(6), the court must accept all of the plaintiffs allegations as true and construe them in the light most favorable to the plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir.2008). A court’s consideration when ruling [1315]*1315on a motion to dismiss is generally limited to the complaint and any incorporated exhibits. See Grossman v. Nationsbank, N.A., 225 F.3d 1228, 1231 (11th Cir.2000). In a securities fraud case, however, a court may take judicial notice of public documents required by, and filed with, the SEC. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1278 (11th Cir.1999).

III. Analysis

A. The National Bank Act Does not Preempt Plaintiffs FCCPA Claim

Defendant argues that the National Bank Act, 12 U.S.C. § 1, et seq. (“NBA”), preempts laws such as the FCCPA, which restrict a national bank’s ability to service a mortgage loan. Specifically, Defendant argues that the FCCPA obstructs, impairs, or conditions its ability to fully exercise its lending powers.

The NBA preempts a state consumer financial law if such a law “prevents or significantly interferes with the exercise by the national bank of its powers.” 12 U.S.C. § 25b(b)(l)(B). Under § 25b(b)(l)(B), a court must consider whether there is an “irreconcilable conflict” between the NBA and the state statute. Baptista v. JPMorgan Chase Bank, N.A., 640 F.3d 1194, 1197 (11th Cir.2011). The FCCPA is a Florida consumer financial law that prohibits debt collectors from employing abusive, deceptive, and unfair collection practices. Specifically, Fla. Stat. § 559.72(18) prohibits debt collectors from communicating with a debtor if that collector knows that an attorney represents the debtor in connection with the debt.

At least one district court recently has analyzed the precise question of whether the NBA preempts the FCCPA. In In re Bate, the court distinguished between the “business of banking,” which the NBA governs, and the “business of debt collection,” which the FCCPA regulates. 454 B.R. 869, 882 (Bankr.M.D.Fla.2011). - The court concluded that the NBA did not preempt the FCCPA:

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Bluebook (online)
878 F. Supp. 2d 1312, 2012 WL 3001568, 2012 U.S. Dist. LEXIS 101610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duran-v-wells-fargo-bank-na-flsd-2012.