Rojas v. Law Offices of Daniel C. Consuegra, P.L.

142 F. Supp. 3d 1206, 2015 U.S. Dist. LEXIS 151373, 2015 WL 6777609
CourtDistrict Court, M.D. Florida
DecidedApril 22, 2015
DocketCase No: 6:14-cv-1374-Orl-22GJK
StatusPublished
Cited by4 cases

This text of 142 F. Supp. 3d 1206 (Rojas v. Law Offices of Daniel C. Consuegra, P.L.) 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
Rojas v. Law Offices of Daniel C. Consuegra, P.L., 142 F. Supp. 3d 1206, 2015 U.S. Dist. LEXIS 151373, 2015 WL 6777609 (M.D. Fla. 2015).

Opinion

ORDER

ANNE C. CONWAY, United States District Judge

This cause comes before the Court on the Motion to Dismiss (Doc. No. 14) of Defendant Dyck-O’Neal, Inc. (“Dyck-O’Neal”), to which Plaintiff Larry Rojas (“Rojas”) filed a Memorandum in Opposition (Doc. No. 16.). With leave of court, Dyck-O’Neal filed a Reply (Doc. No. 20) to Rojas’s Memorandum in Opposition.

In his Complaint (Doc. No. 1), Rojas alleges that ^Defendants Law Offices of Daniel C. Consuegra, P.L., and Dyck-O’Neal (“Defendants”) violated the Fair Debt Collection Practices Act (“FDCPA”) and the Florida Consumer Collection Practices Act (“FCCPA”) (collectively, “the Acts”) by filing a lawsuit against him in an attempt to collect an illegitimate debt in an improper venue. Dyck-O’Neal argues that the lawsuit is an action for a post-foreclosure deficiency judgment and is.not a “debt” collection, activity subject to the provisions of the Acts. Dyck-O’Neal moves to dismiss for failure to state a claim upon which relief can be granted. Because the post-foreclosure deficiency in this case meets-the statutory definition of a “debt,” the action for a deficiency judgment constitutes a debt collection activity that could give rise to liability under the Acts. Accordingly, the Court denies the Motion to Dismiss!

I. BACKGROUND

1, The Complaint

At this stage in the litigation, the Court must accept as true the facts alleged in the Complaint. The ‘Complaint identifies Dyck-O’Neal as a for-profit collection company that constitutes a “debt collector” as defined by the Acts.1 (CompU 15).' Rojas identifies himself as a “consumer” and a “debtor” under the Acts.2 (Id. at HIT 9-10). Rojas, a permanent resident of California, [1209]*1209“executed a Note and Mortgage on residential property in Orange County, Florida, for primarily personal, family, or household purposes, which is, therefore, a ‘debt’ as that term is defined •by” the FDCPA and the FCCPA.3 (Id. at ¶ 17). The property was intended to be used as a temporary residence for Rojas’s daughter while she was in college. (Id. at ¶24). Rojas defaulted, and a Final. Judgment of Foreclosure was entered by the state court against the property ón May 4, 2009. (Id. at ¶ 18). The Note and Final Judgment of Foreclosure were then assigned to Dyck-O’Neal. (Id. at ¶ 19). On February 7, 2014, Defendants filed a lawsuit against Rojas in Orange County, Florida. (Id. at ¶ 20). The Complaint does not specify the cause of action for the February 7 lawsuit; however, the Complaint provides that “[t]he obligation upon which [Rojas] is being sued is based on the purchase by him of real estate for personal, family or household use.” (Id. at ¶ 24). Rojas does not mention the word deficiency anywhere in his Complaint.

The Complaint asserts six causes of action. Counts I, III, and V are against the Law Offices of Daniel C. Consuegra, P/L. Because this defendant has not filed a motion to dismiss, Counts I, III, and V are not addressed in this order. In Count II, Rojas alleges that Dyck-O’Neal violated the venue provision of the FDCPA, which provides that “[a]ny debt collector who brings any legal action on a debt against a consumer shall ... bring such action" only in the judicial district .., in which such consumer signed the contract sued, upon; or in which such consumer resides at the commencement of the action.” 15 U.S.C. § 1692i. In Count IV of the Complaint, Rojas alleges that Dyck-O’Neal violated Section 807 and Section 808 of the FDCPA. Section 807 provides that a debt collector may not use unfair or unconscionable means to collect or attempt to collect a debt. 15 U.S.C. § 1692f. Section. 808 provides that a debt collector may not use any false or misleading representation when attempting to collect a debt. 15 U.S.C.§ 1692e.4 In Count VI, Rojas alleges that Dyck-O’Neal violated the FCCPA. (Id. at ¶ 68). Rojas cites Section 559.72, Florida Statutes, which provides: “In collecting consumer debts, no person shall ... [c]laim, attempt, or threaten to enforce a debt .when such person knows that the debt is not legitimate, or assert the exisr tence of some , other legal right when, such person knows that the right does not exist.” (Id. at -¶ 62). Rojas asks the Court: to declare that Dyck-O’Neal’s conduct violated the FDCPA and the FCCPA; to enjoin Dyck-O’Neal from any further illegal .collection practices; to award statutory and actual damages; and to award reimbursement for legal expenses.

2. The Motion to Dismiss

Dyck-O’Neal moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. The crux of Dyck-O’Neal’s argument is [1210]*1210that the February 7 lawsuit is an action for deficiency judgment, which is not an “obligation of a consumer to pay money arising out of a transaction.” 15 U.S.C. § 1692a(5); Fla. Stat. § 559.55(6). Thus, Dyck-O’Neal argues, the lawsuit does not meet the statutory definition of a “debt.” (Mot. Dismiss 9). In the absence of any debt, neither the FDCPA nor the FCCPA is applicable, and, according to Dyck-O’Neal, any such claims arising from the deficiency action are subject to be dismissed with prejudice. (Id.).5

■3. Public Documents

Rojas’s Complaint does not specify the cause of action for the February 7, 2014, lawsuit. Indeed, Rojas does not'mention the word deficiency anywhere in his Complaint. Thus, Dyck-O’Neal has filed a Request for Judicial Notice (Doc. No. 15), attached to which are several documents from public records, including the promissory note, (Doc. No. 15-1), the final judgment of foreclosure in the Orange County foreclosure action, (Doc. No. 15-2), a certificate of title, (Doc. No. 15-3),- and the complaint in the February 7 Orange County case, (Doc. No. 15-4). These documents establish that the February 7, 2014, lawsuit is, in fact, an action for deficiency judgment.

This Court may — and does — take judicial notice of public records. See Haddad v. Dudek, 784 F.Supp.2d 1308, 1324 (M.D.Fla.2011) (noting that “the Court may take judicial notice of and consider documents which are public records, that are attached to the motion to dismiss, without converting the motion to dismiss into a motion for summary judgment”); Fed. R. Evid. 201(b) (providing that the court may judicially notice a fact that is “generally known within the trial court’s territorial jurisdiction” or “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned”); Fed. R. Evid. 201

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Cite This Page — Counsel Stack

Bluebook (online)
142 F. Supp. 3d 1206, 2015 U.S. Dist. LEXIS 151373, 2015 WL 6777609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rojas-v-law-offices-of-daniel-c-consuegra-pl-flmd-2015.