Rosemary Arbuckle Anderman v. JP Morgan Chase Bank National Association

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 11, 2020
• Docket: 19-13734
• Status: Unpublished

Opinion

Case: 19-13734 Date Filed: 02/11/2020 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13734 Non-Argument Calendar ________________________

D.C. Docket No. 8:19-cv-01034-WFJ-CPT

ROSEMARY ARBUCKLE ANDERMAN, CAROLYN ARBUCKLE PLATT, MARILYN ARBUCKLE SCHEIDT,

Plaintiffs - Appellants,

versus

JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, PHELAN HALLINAN DIAMOND & JONES, PLLC,

Defendants - Appellees.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(February 11, 2020)

Before NEWSOM, GRANT, and LUCK, Circuit Judges.

PER CURIAM: Case: 19-13734 Date Filed: 02/11/2020 Page: 2 of 10

Plaintiffs—Rosemary Arbuckle Anderman, Carolyn Arbuckle Platt, and

Marilyn Arbuckle Scheidt—appeal the dismissal of their complaint, filed on behalf

of themselves and a putative class. The plaintiffs alleged that JP Morgan Chase

Bank and its law firm, Phelan Hallinan Diamond & Jones, PLLC, violated the Fair

Debt Collection Practices Act by naming them in a state-court foreclosure action

relating to their deceased brother’s home. The district court dismissed the

plaintiffs’ complaint, deciding that Chase was not a “debt collector” within the

meaning of the FDCPA and that the conduct alleged in the complaint was not

actionable under the FDCPA. We agree with the district court and affirm.

I

The parties are familiar with the facts, so we state them only briefly here.

The plaintiffs are the sisters and heirs of Clinton Arbuckle, who passed away in

2012 while in default on his mortgage. The promissory note and the mortgage

both identify Chase as the lender and Clinton Arbuckle as the borrower. Chase

foreclosed on the mortgage and, in an amended state-court complaint (filed by its

lawyers at Phelan), stated that the full amount was payable. All of the plaintiffs

here—Anderman, Platt, and Scheidt—were listed as foreclosure defendants.

Chase’s complaint alleged that each of the plaintiffs “may have or claim an interest

in the property that is subject to this foreclosure action by virtue of being a possible

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heir” of Clinton Arbuckle and that any such interest “is subordinate in time and

inferior in right” to Chase’s.

As relevant to the plaintiffs’ claims, the foreclosure complaint requested that

the state court enter a judgment foreclosing the mortgage and “retaining

jurisdiction . . . to make any and all further orders and judgments as may be

necessary and proper, including . . . the entry of a deficiency judgment if the

proceeds of the sale are insufficient.” The defendants also served Scheidt and

Anderman a summons, which stated: “If you do not file your response on time,

you may lose the case, and your wages, money, and property may thereafter be

taken without further warning from the court.”

The plaintiffs filed a federal class-action complaint against Chase and

Phelan, alleging that the summons and state-court complaint violated the Fair Debt

Collection Practices Act. The district court dismissed the plaintiffs’ complaint.

This is their appeal.

II

“We review de novo a district court’s interpretation of a statute.” Davidson

v. Capital One Bank (USA), N.A., 797 F.3d 1309, 1312 (11th Cir. 2015). We also

review de novo a district court’s dismissal under Federal Rule of Civil Procedure

12(b)(6), “accepting the allegations in the complaint as true and construing them in

the light most favorable to the plaintiff.” Reese v. Ellis, Painter, Ratterree &

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Adams, LLP, 678 F.3d 1211, 1215 (11th Cir. 2012) (quotation omitted). “To

survive a motion to dismiss, a complaint must ‘state a claim to relief that is

plausible on its face,’ meaning it must contain ‘factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct

alleged.’” Davidson, 797 F.3d at 1312 (quoting Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009)). It cannot simply provide “a formulaic recitation of the elements of a

cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).1

III

The plaintiffs’ claims arise under the Fair Debt Collection Practices Act, 15

U.S.C. §§ 1692–1692p, which “was passed ‘to eliminate abusive debt collection

practices,’ to ensure that ‘debt collectors who refrain from using abusive debt

collection practices are not competitively disadvantaged,’ and to promote

consistent state action in protecting consumers against debt collection abuses.”

Davidson, 797 F.3d at 1312–13 (quoting 15 U.S.C. § 1692(e)). In their complaint,

the plaintiffs allege violations of § 1692e, which prohibits a “debt collector” from

using “any false, deceptive, or misleading representation or means in connection

with the collection of any debt.” They also claim that the defendants violated

§ 1692f, which prohibits a “debt collector” from using “unfair or unconscionable

1 To the extent that documents are attached to the complaint, “we treat them as part of the complaint for Rule 12(b)(6) purposes.” Reese, 678 F.3d at 1215–16.

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means to collect or attempt to collect any debt.” To state a claim under the

FDCPA then, “a plaintiff must allege, among other things (1) that the defendant is

a ‘debt collector’ and (2) that the challenged conduct is related to debt collection.”

Reese, 678 F.3d at 1216.2

A

The first issue is whether the plaintiffs have sufficiently alleged that Chase

and Phelan are “debt collector[s]” under the FDCPA. The district court held that

because Chase originated the debt at issue and sought to collect it on its own

behalf, it was not a “debt collector.” The court did not make a determination as to

whether Phelan was a “debt collector,” instead deciding that because the alleged

conduct did not violate the FDCPA, the complaint did not state a claim against

either Chase or Phelan.

For the plaintiffs to survive the motions to dismiss, they “must plead ‘factual

content that allows the court to draw the reasonable inference that’ [Chase and

Phelan are] ‘debt collector[s]’ under the FDCPA and therefore liable for the

misconduct alleged.” Davidson, 797 F.3d at 1313 (quoting Iqbal, 556 U.S. at 678).

The FDCPA defines a “debt collector,” in relevant part, as “any person” (1) “who

uses any instrumentality of interstate commerce or the mails in any business the

2 Reese arose in the context of § 1692e. 678 F.3d at 1216. But because both § 1692e and § 1692f use the term “debt collector” and refer to debt collection, we utilize the same inquiry.

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principal purpose of which is the collection of any debts,” or (2) “who regularly

collects or attempts to collect, directly or indirectly, debts owed or due or asserted

to be owed or due another.” 15 U.S.C. § 1692a(6); see also Reese, 678 F.3d at

1218 (stating that a party can be a “debt collector” in these two ways).

First, we consider Chase. The plaintiffs’ complaint states that Chase meets

the first definition of “debt collector” because “the principal purpose of its business

is to collect on defaulted debts and because it regularly collects or attempts to

collect, directly or indirectly, debts owed or due or asserted to be owed or due

another.” When compared with the FDCPA’s definition of “debt collector,” it

appears that the plaintiffs simply restated the definition in their complaint, without

alleging any factual support. While their complaint “does not need detailed factual

allegations,” the plaintiffs must come forward with “more than labels and

conclusions.” Twombly, 550 U.S. at 555. They have not.

Plaintiffs’ next assertion—that Chase collects debts “owed or due another”

and is therefore a “debt collector” under the second definition in the FDCPA—is

contradicted by the facts alleged in the complaint. The use of the word “another”

in the statute indicates “that a person must regularly collect or attempt to collect

debts for others in order to qualify as a ‘debt collector’ under the second definition

of the term.” Id. at 1315–16. But the complaint and attached documents confirm

that Chase was seeking to foreclose on a mortgage that it, itself, originated. The

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plaintiffs’ complaint states that “Mr. Arbuckle executed a promissory note and a

mortgage securing payment of the note,” and the promissory note attached to the

complaint—which we may consider here, see Reese, 678 F.3d at 1215–16—shows

Chase as the “Lender” and Clinton Arbuckle as the “Borrower.” In attempting to

foreclose on Clinton Arbuckle’s mortgage, Chase was acting on its own behalf and

cannot be considered as attempting to collect debts “owed or due another.” Chase

is the originating lender and is therefore exempt from the FDCPA’s definition of

“debt collector.” See § 1692a(6)(F)(ii) (“The term [“debt collector”] does not

include . . . any person collecting or attempting to collect any debt owed or due or

asserted to be owed or due another to the extent such activity . . . concerns a debt

which was originated by such person.”).

As to defendant Phelan, the complaint recites verbatim the same conclusory

allegations that it does against Chase in arguing that Phelan is a “debt collector”

and subject to the FDCPA. Although the district court did not specifically decide

whether Phelan could be considered a “debt collector,” we conclude that the

plaintiffs’ complaint fails to allege that Phelan is a “debt collector.” The plaintiffs

were required, but failed, to properly plead sufficient factual content showing that

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either Phelan’s “principal purpose” is debt collection or that Phelan “regularly

collects” debt that is “owed or due another.” See 15 U.S.C. § 1692a(6).3

B

But even if Chase and Phelan could be considered “debt collector[s]” under

the FDCPA, the plaintiffs have not sufficiently pleaded that the state-court

foreclosure complaint and summons “are an attempt to collect a ‘debt’ within the

meaning of the FDCPA.”4 Reese, 678 F.3d at 1216. We have acknowledged that

residential mortgage obligations qualify as “debt” for FDCPA purposes, id. at

1216–17 (stating that a “promissory note is a ‘debt’ within the plain language of

§ 1692a(5)”), and that the FDCPA applies to documents filed in litigation,

Miljkovic v. Shafritz & Dinkin, P.A., 791 F.3d 1291, 1295 (11th Cir. 2015)

(“Absent a statutory exception . . . documents filed in court in the course of judicial

3 The plaintiffs also assert that Chase and Phelan are debt collectors because “an entity attempting to collect on a consumer debt must be either a creditor or a debt collector,” and because Chase and Phelan aren’t creditors as to the plaintiffs they “necessarily must be . . . debt collector[s].” Although it is true that “creditors typically are not subject to the FDCPA,” Davidson, 797 F.3d at 1313, the fact that an entity is not a creditor does not make it a “debt collector” for FDCPA purposes. In Davidson, we held that just because a person is not excluded from the definition of “debt collector,” “the person may be a debt collector, but the person is not undoubtedly a debt collector; one of two statutory standards [under § 1692a(6)] still must be met.” Davidson, 797 F.3d at 1315. As explained above, the plaintiffs have not alleged facts that Chase and Phelan fall within the statutory definition. 4 It is not clear whether all three plaintiffs received both the complaint and the summons. The complaint does not allege that Chase served Platt the summons, although it does allege that all three plaintiffs were served a copy of the complaint. We will assume, without deciding, that all three plaintiffs received both the complaint and summons for the purposes of addressing (and rejecting) the plaintiffs’ argument that the complaint and summons, when taken together, violated the FDCPA.

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proceedings to collect on a debt . . . are subject to the FDCPA.”). To determine

whether a communication is an attempt to collect debt, we examine its language.

Caceres v. McCalla Raymer, L.L.C., 755 F.3d 1299, 1302 (11th Cir. 2014). In

Reese v. Ellis, Painter, Ratterree & Adams, for example, we held that the letter at

issue constituted an attempt to collect a debt because, in the letter, the lender’s law

firm demanded full and immediate payment, threatened attorneys’ fees unless the

borrowers paid, and outright stated that the law firm was “acting as a debt collector

attempting to collect a debt.” 678 F.3d at 1217 (emphasis omitted).

The state-court foreclosure complaint and the summons were not attempts to

collect debt from the plaintiffs. First, the foreclosure complaint did not seek a

“deficiency” against the plaintiffs, as they allege. The plaintiffs point to the clause

(quoted in relevant part above) that requested that the state court retain jurisdiction

over the matter to enter other orders, including, if necessary, a deficiency

judgment. This does not constitute an implicit or explicit demand for any payment

from the plaintiffs. While the foreclosure complaint elsewhere states that the “full

amount payable under the Note and Mortgage [was] due and payable,” the

plaintiffs acknowledge in their FDCPA complaint that it was Clinton Arbuckle—

not them—who signed and executed the promissory note and mortgage. If the

foreclosure complaint demanded payment at all, it was not from the plaintiffs. The

foreclosure complaint identified the plaintiffs as persons who “may have or claim

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an interest in the property that is subject to this foreclosure action,” not as persons

against whom the bank was seeking a deficiency judgment.

The plaintiffs also point to a summons they received (quoted in relevant part

above) that stated that the plaintiffs must respond to Chase’s foreclosure complaint

or risk adverse action. The language that the plaintiffs take issue with is form

language provided by the Florida Rules of Civil Procedure. See Fla. R. Civ. P.

Form 1.902. Like the foreclosure complaint, the summons does not constitute an

implicit or explicit demand for the plaintiffs to pay any debt. It refers generally to

consequences that may result from failing to respond to a complaint; and the

foreclosure complaint at issue here simply joined the plaintiffs in the foreclosure

action because they may have an interest in Clinton Arbuckle’s property—not

because they owed any payment.

* * *

In conclusion, the plaintiffs have failed to properly plead that Chase and

Phelan are debt collectors under the FDCPA and that the conduct alleged was

related to debt collection. See Reese, 678 F.3d at 1216. The district court therefore

did not err in dismissing their complaint.

AFFIRMED.