Piester v. Franklin American Mortgage Company

S.D. Florida

Piester v. Franklin American Mortgage Company

District Court, S.D. Florida·Decided October 4, 2019·No. 9:19-cv-80651·Unknown

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 19-CV-80651-ROSENBERG/REINHART

TREVOR PIESTER & LESLIE PIESTER,

Plaintiffs,

v.

FRANKLIN AMERICAN MORTGAGE COMPANY,

Defendant. _____________________________/

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

This cause is before the Court on Defendant’s Motion to Dismiss [DE 21]. Plaintiffs filed a Response. Defendant did not file a Reply. For the reasons set forth below, the Motion is granted. I. FACTUAL ALLEGATIONS Plaintiffs executed and delivered a mortgage to Defendant to secure a debt. DE 1 at 1-2. In the summer of 2018, Plaintiffs allege that Defendant communicated with them (both by mail and by phone) in an effort to collect upon Plaintiffs’ debt. Id. Plaintiffs filed this suit, alleging in Count I and Count II that Defendant’s mail correspondence was illegal debt collection activity and alleging in Count III and Count IV that Defendant’s phone conversations were illegal debt collection activity. Defendant answered by filing the Motion to Dismiss before the Court, arguing that Plaintiffs’ operative First Amended Complaint should be dismissed. II. STANDARD OF REVIEW

When deciding a motion to dismiss, this Court must accept all factual allegations in a complaint as true and take them in the light most favorable to the plaintiff; however, a plaintiff is still obligated to provide grounds of his or her entitlement to relief which requires more than labels, conclusions and a formulaic recitation of the elements of a cause of action. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 561-563 (2007). The facts as pled must state a claim for relief that is plausible on the face of the pleading. Ashcroft v. Iqbal, 556 U.S. 662, 678-69 (2009). III. ANALYSIS

Each of Plaintiffs’ claims under the Fair Debt Collection Practices Act (“FDCPA”) (Count I and Count III) and under the Florida Consumer Collections Practices Act (Count II and Count IV) require that Defendant engaged in debt collection activity. See 15 U.S.C. § 1962e; Fla. Stat. § 559.77(5). Defendant argues in its Motion that it did not engage in debt collection activity as a matter of law. To analyze Defendant’s Motion, the Court first examines Plaintiffs’ correspondence-based claims (Count I and Count II) and then turns to Plaintiffs’ phone-based claims (Count III and Count IV). Count I and Count II. Plaintiffs’ correspondence-based claims are premised upon loan statements Plaintiffs

received in the mail from Defendant. Plaintiffs attached those statements to their Amended Complaint, alleging that the amounts on the statements were false and/or deceptive. The statements all follow the same format, and a sample statement appears below:

2 fh Franklin American EO TT ieee Sistoment ate: iar 2a 5 ORTGAGE STATEMENT ENCLOSED Account Number; OONTIIRdS Payment Due Date □□□ Amount Due 53,643.13 A ed ale SS bee veo net be © GATESLE ODIMOLSIOS OFLLST O4SS570 FF AFOWZS =F WAG Po i Contact We ‘este peers” | Customer Service Pay By Plone: 077-885-1073 53 2 nit 137 KENSINGTON Wait Wicbadlo: hemchcenie keen coe ROYAL PALM BEACH FL 14-4215 E-mall: □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□ “hatlhed Willian Requests. nolilleatiang et eer, a Uedagope [Ape font agp Legg ftvaiyey| □□□ □□□ gfesetfly ete for information conperniag yo lean maudl bes Mirected be PO Boe T7429 Eoring Md 0628

hecaumt information Explanation of Amount Que + sR fata) ale Pratt Paanced Daley: You rrp cad Bes WS, Departs of diozeng Progeny Address 127 KENSINGTON Wey vi Linwun flewckooesan PU) at EDD Tar ge ACYAL Path SEACH, FL 4 i415 □□□□□□□□□□□□□□□□□□□□□□□ SOMO IT for) bu of eRe ie BUMAEIOS Oe Cour □□□ aoe, a poe Oulslanding Principal 8294,500.70 Principal S368 0 Oeterred Principal S000 inlorest S810 i Fooow Balance -3G7_16 j Excry lor Taxes and Insurance) 5473.08 Maburity Deter October apag | | ther 5.00 Iniorest ale 2 Current Pay erenk Chae 4st SUaTd repayment Panalty : HOME Total Pees Gheged Sinne Last Staiement SLO} aocbaemem Panmiy OE Chron Aang und 51,971.35 ho Toda! funount Diep 5a/003.19 a superna fama Transactlon Activity (1202078 te 1207/2078) ier: | Baie Deseriniatn Charges ‘Ay ners ome | LEUNG TEAS UST TRAM, Si — | Se ir SS Fast Payments Breakdavm anand STS Seen □□□ re el ee □□ RN ENT TT Pail Sines Last Bintemnent Paid Yoor bo Date Pringpal 3368.63 Sa, 30152 wilereal SH52.29 SLOT. 10 Fanti (Taade and Insurance| S070 $5,500.82 ; Other S000 S00 Fons 50,00 Samah ‘Unappied Funds S000 5000 Total SLar.78 BD 91275 ee — Eee □ IMPORTANT MESSAGES Visi our website tor impovtant loan inicemalion, Tired af writing chacks and paying poslage? We afer a convenient systern thal ausomalically debits your payimen! e@eh manth from your checking of savings account. To lake advantage of ihis FREE server, weil Our website Bhd Complete he Aulomaic Payment (ACH) Aulhorizaiion of coctacl Gusbomer Service.

= See Reverse Side For Additioned important infermetion Picase: mlum this porien wih your payment Trevor Pigeber inks Cnecks Papakea To: FF Ledie Piesige Ghinck thas boars! cece i i; 1357 Kensiregion Way perusnsl eesti tose és Franklin American Payal Palm Baach FL 39404-4405 upela bed on this reece! Bo FPORTGAGE COMPFANT payrraet! roupo: Payreerd Due Bac: Brig Aceguré Numb tr Amount Curent Payment: BLL Fa DOB Tia £5 Enclosed 8 Fast Dus Amount: SLAP td Lanai Lolo Chiag es: $2595.65 fim Fees: Sh.00 □□ Pp TOTAL AMOUNT DUE: S3,845,13 Pharse ano! Rayac arty cavenT OC ESSING CENTER eer SA 00.08 “ ee te arbine NEWARK, MJ Ov 101-4733 Late ha 5 me eatmonsPiecpal = Eo a og otf gE fidibonal Escrow 5 Oho Fees § Titel Amand pure 5 . “Bins Mower? ake: ke PG Wich J]

DE 19-1 at 2. Defendant argues that the statements were merely informational—they were not intended to collect a debt—and Defendant argues that it was required to send the statements pursuant to the Truth in Lending Act (“TILA”). For support, Defendant cites to a plethora of authority for the proposition that if a loan statement is sent pursuant to TILA, that statement does not qualify

as debt collection activity, provided the statement does not stray from the specific requirements of the TILA statute. E.g., Green v. Specialized Loan Serv. LLC, 766 F. App’x 777, 784-85 (11th Cir. 2019). In Response, Plaintiffs do not argue that, in the general sense, a TILA-generated loan statement is debt collection activity. Instead, Plaintiffs argue that a TILA-generated loan statement can be both informational and debt-collection activity—a proposition supported in the law. E.g., Pinson v. Albertelli Law LLC, F. App’x 551, 553 (11th Cir. 2015) (“A communication can have more than one purpose, for example, providing information to a debtor as well [as] collecting a debt.”). Plaintiffs point to three components of the statements in this case that they

argue qualify as debt collection: (1) the statements contain an amount due and payment due date, (2) the statements contain a payment coupon, and (3) the statements warn the Plaintiffs what may occur if payment was not made. DE 22 at 4. Other plaintiffs have made similar arguments in this District and in this Circuit. For example, in Brown v. Select Portfolio Servicing, Inc., No. 16-CV-62999, 2017 WL 115723 (S.D. Fla. Mar. 24, 2017), the district court considered a loan statement similar to the loan statement in the instant case. In Brown, the loan statement appeared as follows:

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