Leahy-Fernandez v. Bayview Loan Servicing, LLC

159 F. Supp. 3d 1294, 2016 U.S. Dist. LEXIS 12947, 2016 WL 409633
CourtDistrict Court, M.D. Florida
DecidedFebruary 3, 2016
DocketCase No. 8:15-cv-2380-T-33TGW
StatusPublished
Cited by11 cases

This text of 159 F. Supp. 3d 1294 (Leahy-Fernandez v. Bayview Loan Servicing, LLC) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Leahy-Fernandez v. Bayview Loan Servicing, LLC, 159 F. Supp. 3d 1294, 2016 U.S. Dist. LEXIS 12947, 2016 WL 409633 (M.D. Fla. 2016).

Opinion

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE

This cause comes before the Court upon Defendant Bayview Loan Servicing, LLC’s Motion to Dismiss filed on December 4, 2015 (Doc. # 19). Plaintiff Cynthia Leahy-Fernandez filed a response on January 20, 2016. (Doc. # 29). The Court grants in part and denies in part the Motion for the reasons below.

I. Background

Bayview is a loan servicing company, and was the servicer of a mortgage securing a promissory note (the Debt) on real property owned by Leahy-Fernandez. (Doc. # 1 at ¶¶ 33-34). When Bayview began servicing Leahy-Fernandez’s Debt, she was already in default. (Id. at ¶34).

On July 15, 2008, Leahy-Fernandez filed for Chapter 13 bankruptcy; Leahy-Fernan-dez listed her Debt that was serviced by Bayview in her bankruptcy schedules. (Id. at ¶ 35). On March 13, 2013, Leahy-Fer-nandez’s bankruptcy counsel sent Bayview a letter stating that the Debt was surrendered and listed in Leahy-Fernandez’s Chapter 13 bankruptcy. (Id. at ¶ 39). And on August 16, 2013, Leahy-Fernandez successfully completed her Chapter 13 plan and the Debt was discharged. (Id. at ¶ 37). Nevertheless, Bayview allegedly continued [1299]*1299to attempt to collect the Debt by sending billing statements each month that indicated Leahy-Fernandez was past due in her payments. (Id. at ¶¶ 38, 41-42).

On March 3, 2015, Leahy-Fernandez’s bankruptcy counsel sent another letter informing Bayview that Leahy-Fernandez had received a discharge in bankruptcy. (Id. at ¶ 48). The March 3, 2015, letter also instructed Bayview to cease communications with Leahy-Fernandez. (Id.). Yet, Bayview allegedly continued to send Le-ahy-Fernandez billing statements. (Id. at ¶ 49).

On December 8, 2015, Leahy-Fernandez filed the instant Complaint. (Doc. # 1). The Complaint brings three counts: violation of the Florida Consumer Collections Practices Act, Section 559.55 et seq., Florida Statutes (FCCPA) (Count I); violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1962 et seq. (FDCPA) (Count II); and seeks injunctive relief and monetary sanctions for discharge injunction violations (Count III). (Id.). Specifically as to the FCCPA Count, Leahy-Fernandez alleges Bayview violated Sections 559.72(7), (9), and (18). (Id. at ¶ 59). And as for the FDCPA Count, Leahy-Fernandez alleges Bayview violated Sections 1692c, 1692d, 1692e, and 1692f. (Id. at ¶ 67). Bayview filed the pending Motion to Dismiss on December 4, 2015.

II. Legal Standard

On a motion to dismiss, this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir.2004). Further, this Court favors the plaintiff with all reasonable inferences from the allegations in the complaint. Stephens v. Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir.1990) (stating “[o]n a motion to dismiss, the facts stated in [the] complaint and all reasonable inferences therefrom are taken as true”). However:

[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.

Bell Atl. Corp v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). Courts are not “bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). Furthermore, “[t]he scope of review must be limited to the four corners of the complaint.” St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir.2002). A “court may consider a document attached to a motion to dismiss without converting the motion into one for summary judgment if the attached document is (1) central to the plaintiffs claim and (2) undisputed. In this context, ‘undisputed’ means that the authenticity of the document is not challenged.” Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir.2005) (internal citation omitted).

III. Analysis

A. Implied Repeal and Preemption

The current version of the Bankruptcy Code’s discharge injunction, 11 U.S.C. § 524(a), was enacted in 1978. See Pub. L. No. 95-958, 92 Stat. 2549, 2592 (1978). The provisions of the FDCPA under which Le-ahy-Fernandez brings suit were enacted in 1977, and Section 1692e was amended in 1996. Pub. L. No. 95-109, 91 Stat. 876, 877, 879 (1977); Pub. L. No. 104-208 § 2305(a), 110 Stat. 3009-425 (1996). Bayview argues the Bankruptcy Code impliedly repealed [1300]*1300the FDCPA and preempts the FCCPA. Bayview further argues the Truth in Lending Act, 15 U.S.C. § 1601, et seq., (TILA), and the related Regulation Z, which was amended in 2013, 78 Fed. Reg. 205, 63001 (Oct. 23, 2013), precludes Leahy-Fernan-dez’s FDCPA claim and preempts her FCCPA claim.

1. The Federal Statutes

“While a later enacted statute ... can sometimes operate to amend or even repeal an earlier statutory provision ..., repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal [is] clear and manifest.” Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 662, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (internal quotation marks and citations omitted). A court “will not infer a statutory repeal unless the later statute expressly contradict[s] the original act or unless such a construction is absolutely necessary.. .in order that [the] words [of the later statute] shall have any meaning at all.” Id. (internal quotation marks and citations omitted) (alterations, except second, in original).

To find that a statute has been impliedly repealed, a court must first find a clear and manifest intent to repeal. Rodriguez v. United States, 480 U.S. 522, 524, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987). A clear and manifest intent may be inferred from the existence of an irreconcilable conflict. Id. An irreconcilable conflict exists between two statutes when there is a “positive repugnancy between them or.. .they cannot mutually coexist.” Radzanower v. Touche Ross & Co., 426 U.S. 148, 155, 96 S.Ct.

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Bluebook (online)
159 F. Supp. 3d 1294, 2016 U.S. Dist. LEXIS 12947, 2016 WL 409633, Counsel Stack Legal Research, https://law.counselstack.com/opinion/leahy-fernandez-v-bayview-loan-servicing-llc-flmd-2016.