Shirley Solis v. CitiMortgage, Inc., et al

Filing

Opinion issued by court as to Appellant Shirley Solis. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-17585

Date Filed: 08/17/2017

Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-17585
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-20610-RNS
SHIRLEY SOLIS,
Plaintiff-Appellant,
versus
CITIMORTGAGE, INC.,
ROBERTSON, ANSCHUTZ & SCHNEID, P.L.,
AMY SUMACEWSKI,
ZACHARY W. SMITH,
BETZY FALGAS, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 17, 2017)

Case: 16-17585

Date Filed: 08/17/2017

Page: 2 of 6

Before TJOFLAT, WILLIAM PRYOR, and MARTIN, Circuit Judges.
PER CURIAM:
Shirley Solis (“Solis”) appeals pro se the district court’s dismissal of her
claims against CitiMortgage, Inc. (“Citi”); the law firm Robertson, Anschutz &
Schneid, P.L. (“RAS”); and the law firm Shapiro, Fishman & Gaché (“SFG”). 1
After careful review, we affirm.
I.
In June 2000, Grace Solis (“Grace”) took out a purchase money mortgage to
buy a piece of real estate in Miami-Dade County. Three years later, Grace
transferred title to the property to herself, Solis, and Sylvia Solis (“Sylvia”). Grace
then refinanced the property with Allstate Mortgage and Investments and executed
a note and mortgage in favor of Allstate. Neither Solis nor Sylvia executed the
note or mortgage. In 2003, Allstate assigned the mortgage to Citi.
In 2011, Grace stopped making payments on the mortgage. After two years
of nonpayment, Citi filed a foreclosure action in Florida state court. Citi’s
complaint named Solis as a defendant in the action because she was an owner of
the mortgaged property, but acknowledged that only Grace signed the note and
thus only she could be held liable for the debt. Citi was represented by SFG from
the time the foreclosure action was filed until October 2014 when RAS began
1

Solis also named individual attorneys at both RAS and SFG as defendants. For
simplicity, we will refer only to the firm names, RAS and SFG.
2

Case: 16-17585

Date Filed: 08/17/2017

Page: 3 of 6

representing Citi. As far as the record indicates, the foreclosure action is still
pending in state court.
In February 2016, Solis filed this suit pro se against Citi, RAS, and SFG.
Solis alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), 15
U.S.C. § 1692, and the Florida Consumer Collections Practices Act (“FCCPA”),
Fla. Stat. § 559.72(5), (9). She claimed the defendants violated these statutes by
filing the state foreclosure action against her when they knew, or should have
known, that she did not sign the note and therefore “did not grant [Citi] a security
interest” in the property.
The defendants moved to dismiss Solis’s complaint for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). The district court granted
the defendants’ motions. The court dismissed Solis’s FDCPA claim because her
complaint failed to allege the defendants were “debt collectors” within the meaning
of the FDCPA. The court dismissed her FCCPA claim because it was barred by
Florida’s litigation privilege. 2 Solis timely appealed.
II.
“We review de novo the district court’s grant of a motion to dismiss under
Rule 12(b)(6) for failure to state a claim, accepting the allegations in the complaint

2

The district court found Solis’s claims were also deficient for other reasons. Because
we affirm the dismissal on the two grounds stated here, we do not discuss the district court’s
alternative grounds for dismissal.
3

Case: 16-17585

Date Filed: 08/17/2017

Page: 4 of 6

as true and construing them in the light most favorable to the plaintiff.” Castro v.
Sec’y of Homeland Sec., 472 F.3d 1334, 1336 (11th Cir. 2006) (per curiam)
(quotation omitted and alteration adopted). We construe pro se pleadings liberally.
See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per
curiam).
A.
The district court found Solis failed to state a claim under the FDCPA
because she did not adequately allege that the defendants were “debt collectors” as
defined under that statute. We agree.
The FDCPA defines “debt collector” as “[1] any person who uses any
instrumentality of interstate commerce or the mails in any business the 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 v. Ellis, Painter, Ratterree
& Adams, LLP, 678 F.3d 1211, 1218 (11th Cir. 2012) (“[A] party can qualify as a
‘debt collector’ either by using an ‘instrumentality of interstate commerce or the
mails’ in operating a business that has the principal purpose of collecting debts or
by ‘regularly’ attempting to collect debts.”). The statute also specifies several
categories that are excluded from this definition, including “any person collecting
or attempting to collect any debt . . . which was not in default at the time it was
4

Case: 16-17585

Date Filed: 08/17/2017

Page: 5 of 6

obtained by such person.” Id. § 1692a(6)(F)(iii). In other words, an entity that
seeks to collect a debt that was not in default when the entity acquired it does not
qualify as a debt collector for purposes of the FDCPA. Id.; Davidson v. Capital
One Bank (USA), N.A., 797 F.3d 1309, 1314 (11th Cir. 2015).
Solis’s complaint fails to establish that the defendants meet the FDCPA’s
definition of “debt collector.” Although she stated that the “[d]efendants are debt
collectors as defined under the . . . FDCPA,” she provided no factual allegations to
support this assertion. Cf. Reese, 678 F.3d at 1218 (“The complaint [must]
contain[] enough factual content to allow a reasonable inference that the
[defendant] is a ‘debt collector’. . . .”). More specifically, she did not plead facts to
allow a reasonable inference that either the “principal purpose” of the defendants’
business is debt collection or that they “regularly” engaged in debt collection. See
15 U.S.C. § 1692a(6). Further, with respect to Citi, Solis alleged that it acquired
the debt in 2003, more than seven years before the debt went into default. Because
the debt was not in default when Citi acquired it, Citi cannot qualify as a debt
collector. See id. § 1692a(6)(F)(iii).
B.
Turning to Solis’s FCCPA claim, the district court found that claim must be
dismissed because it is barred by Florida’s litigation privilege. We affirm that
decision.
5

Case: 16-17585

Date Filed: 08/17/2017

Page: 6 of 6

Under Florida law, absolute immunity attaches to “any act occurring during
the course of a judicial proceeding, . . . so long as the act has some relation to the
proceeding.” See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A.
v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994); see also Jackson v.
BellSouth Telecommunications, 372 F.3d 1250, 1274–75 (11th Cir. 2004)
(“Because we are Erie-bound to apply Florida law in evaluating the plaintiffs’
supplemental state-law claims, Florida’s litigation privilege applies to [] state-law
claims adjudicated in federal court.”). The privilege applies to statutory violations,
including violations of the FCCPA. See Echevarria, McCalla, Raymer, Barrett &
Frappier v. Cole, 950 So. 2d 380, 383–84 (Fla. 2007).
Solis’s FCCPA claim is based entirely on the defendants’ filing of a state
foreclosure action against her. This is clearly an act with “some relation to” a
“judicial proceeding.” Levin, 639 So. 2d at 608. Therefore, as the district court
found, Solis’s claim is barred by Florida’s litigation privilege.
AFFIRMED.

6