Helman v. Udren Law Offices, P.C.

85 F. Supp. 3d 1319, 2014 U.S. Dist. LEXIS 181800, 2014 WL 7781199
CourtDistrict Court, S.D. Florida
DecidedDecember 18, 2014
DocketCase No. 0:14-CV-60808
StatusPublished
Cited by10 cases

This text of 85 F. Supp. 3d 1319 (Helman v. Udren Law Offices, P.C.) 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
Helman v. Udren Law Offices, P.C., 85 F. Supp. 3d 1319, 2014 U.S. Dist. LEXIS 181800, 2014 WL 7781199 (S.D. Fla. 2014).

Opinion

ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS AND REFERRING CASE TO BANKRUPTCY COURT

ROBIN L. ROSENBERG, District Judge.

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 bankruptcy1 (“Helman /”). In Hel-man /, presided over by Judge Ryskamp, Plaintiff essentially objected to Bank of America sending monthly statements to Plaintiff as those statements implied, under Plaintiffs argument, that Plaintiff still was personally liable for her mortgage. See id. at DE 82. In a written order, Judge Ryskamp determined that the majority of Plaintiffs claims properly were characterized as allegations that Bank of America had violated the bankruptcy court’s discharge injunction. See id. After Judge Ryskamp so concluded, Judge Ryskamp dismissed Plaintiffs claims in part and transferred the remaining claims to the United States Bankruptcy Court for the Southern District of Florida. See id. Plaintiff appealed and on December 1, 2014, the Eleventh Circuit Court of Appeals dismissed the appeal for lack of jurisdiction.

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 [1323]*1323complaint as true and construe them in a light most favorable to the plaintiffs. See Resnick v. AvMed, Inc., 693 F.3d 1317, 1321 (11th Cir.2012). At the pleading stage, the Complaint need only contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.CivJP. 8(a)(2). All that is required is that there are “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

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., 536 F.Supp.2d 1268, 1273 (M.D.Fla.2008). The parties’ arguments focus primarily on the first element— whether defendants engaged in debt collection activity — by focusing on the case of Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir.2012).

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.2 Id. at 1216. In Reese, the defendant argued that a letter sent to the plaintiff only communicated about the defendant’s enforcement of a security interest, via foreclosure, and did not communicate that the defendant was seeking to collect on the underlying debt. Id. at 1217. The Eleventh Circuit rejected this argument and held that the defendants had engaged in both debt collection and security interest enforcement. Id. By engaging in debt collection activity, the Reese court held that the defendants were subject to the FDCPA. Id. Reese therefore clearly stands for the proposition that a debt collector can engage in debt collection activity in the context of enforcement of a security interest and, as a result, Plaintiff analogizes Defendants’ actions in this case to the actions of the defendant in Reese. In response, Defendants argue the facts of the instant case are distinguishable from Reese and that the alleged activities in this case are limited to security interest enforcement. Accordingly, the Court carefully compares the facts of the instant case [1324]*1324with the facts before the Eleventh Circuit in Reese.

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:

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Cite This Page — Counsel Stack

Bluebook (online)
85 F. Supp. 3d 1319, 2014 U.S. Dist. LEXIS 181800, 2014 WL 7781199, Counsel Stack Legal Research, https://law.counselstack.com/opinion/helman-v-udren-law-offices-pc-flsd-2014.