Lorenzo Andrew Allen - Adversary Proceeding

CourtUnited States Bankruptcy Court, S.D. Florida.
DecidedMay 15, 2024
Docket23-01179
StatusUnknown

This text of Lorenzo Andrew Allen - Adversary Proceeding (Lorenzo Andrew Allen - Adversary Proceeding) is published on Counsel Stack Legal Research, covering United States Bankruptcy 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
Lorenzo Andrew Allen - Adversary Proceeding, (Fla. 2024).

Opinion

TAGGED OPINION

Poe Oy, Vx * OS aR’ if * □ iD 8 Ss 74 □□□ a Ways ZB tt AUR iB □□ \ om Ai eb — <3 a8 ORDERED in the Southern District of Florida on May 15, 2024.

Scott M. Grossman, Judge United States Bankruptcy Court

UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF FLORIDA FORT LAUDERDALE DIVISION In re: LORENZO ANDREW ALLEN, Case No. 22-10014-SMG Debtor. Chapter 13 ee LORENZO ANDREW ALLEN, Plaintiff, Adv. No. 23-1179-SMG THE BANK OF NEW YORK, HINSHAW & CULBERTSON, and PETER HERNANDEZ, ESQ., Defendants. ee ORDER GRANTING MOTION TO DISMISS ADVERSARY PROCEEDING WITH PREJUDICE Lorenzo Allen — who has been representing himself in a state court foreclosure action since 2014 — has alleged that his creditor and the plaintiff in that action, The

Bank of New York (“BONY”), together with its counsel Peter Hernandez, Esq. and his law firm, Hinshaw & Culbertson, violated the Florida Consumer Collection Practices Act1 (“FCCPA”) by sending him five emails over an 18-day period relating

to the logistics of vacating a final judgment erroneously entered by the state court. Mr. Allen asserts that these emails violated Fla. Stat. § 559.72(7), which prohibits excessively frequent communications related to debt collection; Fla. Stat. § 559.72(9), which prohibits collection of illegitimate debts; and Fla. Stat. § 559.72(18), which prohibits communications with a debtor known to be represented by counsel with respect to the debt at issue, unless the debtor initiated the communication. The Defendants have moved to dismiss Mr. Allen’s amended complaint with prejudice for

failure to state a claim upon which relief may be granted. Upon consideration of Mr. Allen’s amended complaint,2 the Defendants’ motion to dismiss,3 Mr. Allen’s response,4 and the Defendants’ reply,5 together with the arguments of Mr. Allen and of counsel for the Defendants at an April 2, 2024 hearing,6 for the reasons discussed below the Court will grant the Defendants’ motion and dismiss this adversary proceeding with prejudice.

I. LEGAL STANDARD. To avoid dismissal for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6),7 a complaint must state a claim for

1 Fla. Stat. §§ 559.55-559.785. 2 ECF No. 22. 3 ECF No. 32. 4 ECF No. 37. 5 ECF No. 38. 6 ECF No. 39. 7 Made applicable here by Federal Rule of Bankruptcy Procedure 7012. relief that is “plausible on its face.”8 The plaintiff must plead sufficient facts – which the court must accept as true at this stage – to allow the court “to draw the reasonable inference” of a defendant’s liability.9 The court must determine, based on “judicial

experience and common sense,” whether the well-pleaded facts in the complaint present a plausible claim for relief.10 If the allegations fail to “nudge” the claims “across the line from conceivable to plausible,” the complaint must be dismissed.11 Allegations containing only “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action,”12 and “conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts,”13 will not suffice. If the “well- pleaded facts do not permit the court to infer more than the mere possibility” of

liability, the complaint must be dismissed.14 II. BACKGROUND. A. The 2014 State Court Foreclosure Action and 2022 Chapter 13 Bankruptcy Case. On January 3, 2022, Mr. Allen filed a pro se voluntary chapter 13 bankruptcy petition.15 At that time, he was a pro se defendant in a pending state court foreclosure action filed by BONY in 2014.16 On January 5, 2022 – two days after he filed his

8 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 9 Id. (citing Twombly, 550 U.S. at 555-56). 10 Id. at 679. 11 Twombly, 550 U.S. at 570. 12 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 13 Warren Tech., Inc. v. UL LLC, 962 F.3d 1324, 1328 (11th Cir. 2020) (quoting Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004)). 14 Iqbal, 556 U.S. at 679. 15 Case No. 22-10014-SMG (the “Main Case”), ECF No. 1. 16 Def. Mot. to Dismiss, Ex. A. (Bank of New York Mellon v. Allen, Case No. CACE14009009 (Fla. 17th Jud. Cir.)). bankruptcy petition – the state court entered a final judgment of foreclosure in favor of BONY and against Mr. Allen, in violation of the automatic stay of 11 U.S.C. § 362(a). Three weeks later, on January 27, 2022, Mr. Allen’s chapter 13 bankruptcy

case was then dismissed after he failed to timely file his bankruptcy schedules and a chapter 13 plan.17 Although his bankruptcy case had been dismissed, on February 5, 2022 attorney Raysa Rodriguez, Esq. of Bigge & Rodriguez, P.A. proceeded to file for Mr. Allen all the missing bankruptcy schedules and a chapter 13 plan.18 Then on February 7, 2022, attorney Robert Bigge, Esq. of Bigge & Rodriguez filed an emergency motion to reinstate his bankruptcy case.19 After a hearing on February 16,

2022,20 the Court entered an order on February 18, 2022, at 12:23 p.m. reinstating Mr. Allen’s chapter 13 bankruptcy case.21 Just over a month later, Bigge & Rodriguez moved to withdraw as counsel for Mr. Allen.22 After a hearing on April 14, 2022,23 the Court entered an order granting the motion to withdraw on April 18, 2022.24 Mr. Allen then again proceeded pro se in his chapter 13 case until May 5, 2022, when attorney Chad T. Van Horn, Esq. entered

a notice of appearance on his behalf.25 Through Mr. Van Horn’s assistance, Mr. Allen

17 Main Case, ECF No. 13. 18 Main Case, ECF Nos. 15, 16, 17, 18, and 19. 19 Main Case, ECF No. 20. 20 Main Case, ECF No. 21. 21 Main Case, ECF No. 23. 22 Main Case, ECF No. 31. 23 Main Case, ECF No. 32. 24 Main Case, ECF No. 41. 25 Main Case, ECF No. 45. was able to confirm a sixth amended chapter 13 plan26 on November 28, 2022.27 Although Mr. Van Horn remains counsel of record for Mr. Allen in his main chapter 13 bankruptcy case, he does not represent Mr. Allen in this adversary proceeding.

Nor has Mr. Van Horn appeared for Mr. Allen in the state court foreclosure action. B. Emails Sent Between Dismissal and Reinstatement. As alleged in the amended complaint, on February 9, 2022 – while Mr. Allen’s chapter 13 case was dismissed – Mr. Hernandez emailed28 Mr. Allen a copy of BONY’s motion to vacate the state court’s final judgment of foreclosure and for entry of an amended final judgment of foreclosure, together with a proposed agreed order granting that motion. BONY’s motion sought to vacate the state court’s January 5,

2022 foreclosure judgment because it was entered in violation of the automatic stay.29 But because Mr.

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