Vickie Owens-Benniefield v. BSI Financial Services

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 31, 2020
• Docket: 19-13962
• Status: Unpublished

Opinion

Case: 19-13962 Date Filed: 03/31/2020 Page: 1 of 13

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-13962 Non-Argument Calendar ________________________

D.C. Docket No. 8:18-cv-00477-MSS-CPT

VICKIE OWENS-BENNIEFIELD,

Plaintiff-Appellant,

versus

BSI FINANCIAL SERVICES,

Defendant-Appellee.

________________________

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

(March 31, 2020)

Before MARTIN, ROSENBAUM and DUBINA, Circuit Judges.

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Appellant Vickie Owens-Benniefield (“Owens”) appeals pro se the district

court’s order dismissing her initial and amended complaints alleging claims under

the Fair Debt Collection Practices Act (“FDCPA”), the Florida Consumer

Collection Practices Act (“FCCPA”), the Florida Mortgage Brokerage and Lending

Laws (“MBBL”), the Florida Deceptive and Unfair Trade Practices Act

(“FDUTPA”), and negligence. Initially, Owens argues that the district court erred

by concluding that the mailing of an Internal Revenue Service (“IRS”) form 1099-

A was not an attempt to collect a debt within the meaning of the FDCPA. Next,

Owens argues that the district court erred in dismissing her FDCPA claim as

time-barred when it found that she filed her complaint at least one day after the

statute of limitations expired. She also argues that the district court erred in

finding that BSI Financial Services, Inc. (“BSI”) could not be liable for damages

under the Florida MBLL because BSI was not involved in the original loan

transaction. Finally, Owens argues that the district court abused its discretion in

declining to exercise supplemental jurisdiction over her remaining state claims

after dismissing her federal claims with prejudice.

I.

We review de novo the grant of a motion to dismiss under Rule 12(b)(6),

accepting the allegations in the complaint as true while construing them in the light

most favorable to the non-movant. Bourff v. Rubin Lublin, LLC, 674 F.3d 1238,

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1240 (11th Cir. 2012). We also review de novo the interpretation of a statute.

Belanger v. Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009). “While we read

briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se

litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.

2008) (internal citations omitted).

To survive dismissal, a plaintiff’s complaint “must contain sufficient factual

matter, accepted as true, to state a claim for relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (quotation marks

omitted). To be considered plausible, the allegations in the complaint must raise the

right to relief beyond a speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555, 127 S. Ct. 1955, 1965 (2007). Stating a claim upon which relief may be granted

“requires more than labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not” be enough to survive a Rule 12(b)(6) motion

to dismiss. Id.

A plaintiff states a plausible claim under the FDCPA when she alleges that:

(1) the defendant is a debt collector; (2) the defendant engaged in an act or omission

prohibited by the FDCPA; and (3) the challenged conduct is related to debt

collection. Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1216–

17 (11th Cir. 2012). We apply the least sophisticated consumer standard to

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determine if a communication violates the FDCPA. LeBlanc v. Unifund CCR

Partners, 601 F.3d 1185, 1193 (11th Cir. 2010).

When determining whether a communication is “in connection with the

collection of any debt,” we look at the language of the communication in question,

specifically to statements that demand payment or note that additional fees will be

assessed if payment is not received. Caceres v. McCalla Raymer, LLC, 755 F.3d

1299, 1302–03 (11th Cir. 2014). In Reese, in determining that a communication was

an attempt to collect a debt, we pointed specifically to the statements in the letter

demanding full and immediate payment; threatening that unless the debtors paid,

attorneys’ fees would be added; and stating that the law firm was attempting to

collect a debt and was acting as a debt collector. 678 F.3d at 1217. In Caceres, we

held that a communication was made in connection with the collection of a debt

when it stated that it was “for the purpose of collecting a debt;” it referred in two

additional paragraphs to “collection efforts;” it stated that collection efforts would

continue and that additional attorneys’ fees and costs would accrue; it stated the

amount of the debt and indicated that it must be paid in certified funds; and it gave

the name of the creditor. 755 F.3d at 1303. In Bourff, we held that a notice sent by

a law firm was a debt collection activity when it stated that the sender had been hired

to “collect the loan” and advised the recipient to contact the sender to “find out the

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total current amount needed to either bring your loan current or to pay off your loan

in full.” 674 F.3d at 1241.

We conclude from the record here that the district court did not err when it

found that the 1099-A form BSI sent to Owens was not a communication in

connection with debt collection. The 1099-A form did not demand payment, state

that it was an attempt to collect a debt, or state to whom or how to make a payment

on the debt. Cf. Caceres, 755 F.3d at 1303; Reese, 678 F.3d at 1217; Bourff, 674

F.3d at 1241. Further, the 1099-A form noted that it was important tax information

and clarified that if Owens was required to file a return and if taxable income resulted

from the transaction, then a penalty may be imposed. For these reasons, we conclude

that the district court properly found that the 1099-A form was not a communication

in connection with debt collection and properly dismissed Owens’s FDCPA claims

to the extent that they relied on the 1099-A form. Accordingly, we affirm as to this

issue.

II.

A Rule 12(b)(6) dismissal on statute of limitations grounds is appropriate if it

is apparent from the face of the complaint that the claim is time-barred. Gonsalvez

v. Celebrity Cruises Inc., 750 F.3d 1195, 1197 (11th Cir. 2013) (internal quotation

marks omitted). Because a statute of limitations bar is an affirmative defense, a

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plaintiff is not required to negate the affirmative defense in her complaint. La Grasta

v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).

There is a one-year statute of limitations from the date of the violation to bring

an FDCPA claim. 15 U.S.C. § 1692k(d). In Maloy v. Phillips, we held that the

statute of limitations on an FDCPA claim based on a written communication begins

to run the date the communication is mailed. 64 F.3d 607, 608 (11th Cir. 1995). We

also held that, based on the method of time calculation provided in Fed. R. Civ. P.

6(a), the date of mailing should be excluded from the calculation of the limitations

period. Id.

We have applied a presumption of three days for receipt by mail when the

date of receipt is in dispute in the context of Title VII cases where a plaintiff must

file a suit within 90 days of receiving an Equal Employment Opportunity

Commission’s right-to-sue letter. See Zillyette v. Capital One Fin. Corp., 179 F.3d

1337, 1342 (11th Cir. 1999) (holding that a three-day period after the date of

issuance of a right-to-sue letter provided a clear rule enabling parties to be aware of

when they must act or forfeit their right to sue). However, we have never held that,

when the date of mailing is in dispute and a plaintiff alleges receipt of a letter on a

certain date, a court could presume a mailing date based on the date of receipt and

the parties’ addresses.

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A debt collector is required to provide a consumer with certain information

“in the initial communication” about a debt or within five days of the initial

communication. 15 U.S.C. § 1692g(a) (emphasis added). The required information

includes the amount of the debt, “the name of the creditor to whom the debt is owed,”

and other information about the debtor’s right to dispute the validity of the debt and

the consequences of not doing so. Id. § 1692g(a)(1)-(5). A consumer may notify

the debt collector in writing that she disputes the debt within 30 days of receiving

the initial communication. Id. § 1692g(b).

Under Florida law, an action to enforce a claim of a deficiency related to a

note secured by a mortgage against a residential property that is a one-family to four-

family dwelling unit has a limitations period of one year. Fla. Stat. § 95.11(5)(h).

The limitations period begins running the day after the certificate is issued by the

clerk of court or the day after the mortgagee accepts a deed in lieu of foreclosure.

Id. Initially, to the extent that Owens relies on Fla. Stat. § 95.11(5)(h) to argue that

her complaint was timely filed based on her reliance on the 1099-A form, that

argument is meritless because the 1099-A form was not a communication in

connection with debt collection. Further, because an FDCPA claim has its own

statute of limitations, any attempt by Owens to assert an affirmative cause of action

under the statute of limitations is futile. Therefore, the district court’s dismissal of

Count Four of Owens’s initial complaint was proper.

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However, we conclude that the district court’s statute of limitations analysis

was flawed because it failed to consider whether it was apparent from the face of

Owens’s complaint that her FDCPA claim was time-barred. Owens’s amended

complaint alleged only that the February mortgage statement was dated February 20,

2017, and, in her response to BSI’s second motion to dismiss, she asserted that she

received it on February 28, 2017. The district court did not rely on any legal

authority supporting the application of a three-day mailing rule (or any similar rule)

when it presumed that, based on Owens’s allegation that she received the February

mortgage statement on February 28, 2017, the latest the statement could have been

mailed was February 26, 2017. Further, Owens was not required to negate the

affirmative defense that her FDCPA claim as to the mortgage statement was time-

barred. See La Grasta, 358 F.3d at 845. Therefore, the district court erred in

dismissing Owens’s FDCPA claims as untimely when her complaint did not allege

a date of mailing of the February mortgage statement, and it was not apparent from

the face of her complaint whether her claim was time-barred.

Next, as to Owens’s claim under 15 U.S.C. § 1692g, while the district court

did not explicitly address whether Owens stated a viable claim under this portion of

the statute, Owens alleged that BSI violated the statute when she disputed the debt

within 30 days. Nevertheless, Owens did not state a viable FDCPA claim under

§ 1692g because she failed to allege that her dispute was in response to BSI’s initial

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communication. Owens alleged that she filed her complaint with the Office of the

Attorney General in May 2016 in response to nearly three years of collection

attempts by BSI, and Owens asserted that she emailed BSI’s president to dispute the

alleged debt seven months after that complaint. Therefore, Owens did not plausibly

allege that BSI violated § 1692g of the FDCPA because her complaint alleged

multiple years of debt collection attempts by BSI that occurred before she allegedly

disputed the debt.

For the reasons discussed above, we conclude that the district court erred by

dismissing Owens’s complaint as untimely as to the February mortgage statement.

Accordingly, we vacate and remand as to this issue.

III.

We have recognized that “our authority to interpret statutory language is

constrained by the plain meaning of the statutory language in the context of the entire

statute, as assisted by the canons of statutory construction.” Edison v. Douberly, 604

F.3d 1307, 1310 (11th Cir. 2010). “[W]e do not look at one word or term in isolation

but rather look to the entire statute and its context.” Id.

Chapter 494 of the MBLL is titled “Loan Originators and Mortgage Brokers.”

Fla. Stat. § 494. It states that:

[i]f a mortgage loan transaction is made in violation of any provision of this chapter, the person making the transaction and every licensee, director, or officer who participated in making the transaction are

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jointly and severally liable to every party to the transaction in an action for damages incurred by the party or parties.

Id. § 494.0019(1) (emphasis added). The provision further states that:

[a] person is not liable under this section upon a showing that such person’s licensees, officers, and directors who participated in making the mortgage loan transaction, if any, acted in good faith and without knowledge and, with the exercise of due diligence, could not have known of the act committed in violation of this chapter.

Id. § 494.0019(2). The MBLL defines “[m]aking a mortgage loan” as “closing a

mortgage loan in a person’s name, advancing funds, offering to advance funds, or

making a commitment to advance funds to an applicant for a mortgage loan.” Id. §

494.001(21). The statute also states, in part, that it is unlawful for any person:

[i]n any practice or transaction or course of business relating to the sale, purchase, negotiation, promotion, advertisement, or hypothecation of mortgage loan transactions, directly or indirectly: (a) To knowingly or willingly employ any device, scheme, or artifice to defraud; (b) To engage in any transaction, practice, or course of business which operates as a fraud upon any person in connection with the purchase or sale of any mortgage loan; (c) To obtain property by fraud, willful misrepresentation of a future act, or false promise.

Id. § 494.0025(4).

The statute defines a loan originator as:

an individual who, directly or indirectly, solicits or offers to solicit a mortgage loan, accepts or offers to accept an application for a mortgage loan, negotiates or offers to negotiate the terms or conditions of a new or existing mortgage loan on behalf of a borrower or lender, or negotiates or offers to negotiate the sale of an existing mortgage loan to a noninstitutional investor for compensation or gain.

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Id. § 494.001(18). The statute defines a mortgage broker as “a person conducting

loan originator activities through one or more licensed loan originators employed by

the mortgage broker or as independent contractors to the mortgage broker.” Id.

§ 494.001(23).

We conclude that the district court properly dismissed Owens’s claim under

the MBLL because the plain language of the statute shows that she could not state a

claim upon which relief could be granted. First, the chapter imposes liability on a

person who makes a mortgage loan transaction. Id. § 494.0019(1). Owens’s

complaint alleged that BSI did not begin attempting to collect a debt related to her

mortgage until years after her mortgage was made in January 2008. Not only does

Owens’s complaint not allege a violation in the making of her mortgage, she

expressly stated, in her complaint and in her response to BSI’s first motion to

dismiss, that she did not have any business relationship with BSI and that BSI was

not her lender. Further, when considering the language in the context of the entire

statute, chapter 494 is titled “Loan Originators and Mortgage Brokers,” and the

definition of both of those terms, as provided within the statute, encompasses only

loan origination—the making of mortgage loan transactions. Fla.

Stat. § 494.001(18), (23). Therefore, the district court did not err in finding that

under the chapter a viable action could be alleged against a loan originator only.

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For these reasons, we conclude that the district court did not err when it

dismissed Owens’s claim under the Florida MBLL for failing to state a claim upon

which relief could be granted after finding that she did not, and could not, plead that

BSI made her mortgage loan. Accordingly, we affirm as to this issue.

IV.

The district courts have original jurisdiction of all civil actions arising under

the Constitution or laws of the United States and have supplemental jurisdiction over

“all other claims that are so related to claims in the action within such original

jurisdiction.” 28 U.S.C. §§ 1331, 1367(a). A district court may decline

supplemental jurisdiction over a state-law claim if:

(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1185 (11th Cir. 2003) (quoting 28

U.S.C. § 1367(c)(1)-(4)).

We have encouraged district courts to dismiss any remaining state-law claims

when it has dismissed the federal-law claims prior to trial. Raney v. Allstate Ins.

Co., 370 F.3d 1086, 1089 (11th Cir. 2004). The decision to exercise supplemental

jurisdiction over pendant state claims rests within the discretion of the district court.

Mergens v. Dreyfoos, 166 F.3d 1114, 1119 (11th Cir. 1999). A dismissal without

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prejudice generally does not constitute an abuse of discretion because the affected

party may simply refile. See Dynes v. Army Air Force Exch. Serv., 720 F.2d 1495,

1499 (11th Cir. 1983).

We conclude from the record here that the district court did not abuse its

discretion by declining to exercise supplemental jurisdiction over the remaining

state-law claims when it dismissed Owens’s federal law claims with prejudice. First,

the district court dismissed the remaining state-law claims without prejudice,

allowing Owens to refile in state court—which she did. The refiling is an indication

that the district court did not abuse its discretion. See 28 U.S.C. § 1367; Dynes, 720

F.2d at 1499. Further, the district court’s dismissal was consistent with our

precedent encouraging the dismissal of remaining state-law claims when the federal-

law claims are dismissed before trial. See Raney, 370 F.3d at 1089. Finally, the

district court dismissed the state-law claims in part because the interpretation of

those claims was best resolved by the Florida state courts, and the record supports

that notion. See Shotz, 344 F.3d at 1185. Accordingly, we affirm as to this issue.

AFFIRMED IN PART AND VACATED AND REMANDED IN PART.