Schmidt v. Synergentic Communications, Inc. et al
Filing
28
OPINION AND ORDER granting in part and denying in part 18 Defendants, Mike Orlando and Tim Caraveo's Joint Motion to Dismiss. Counts XIV, XV, XIX, and XX are dismissed without prejudice. The motion is otherwise denied. See Opinion and Order for details. Signed by Judge John E. Steele on 1/20/2015. (MAW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ASHLEY SCHMIDT,
Plaintiff,
v.
Case No: 2:14-cv-539-FtM-29CM
SYNERGENTIC COMMUNICATIONS,
INC., a Texas corporation,
MIKE ORLANDO, TIM CARAVEO,
and KEN WALSH,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of Defendants,
Mike Orlando and Tim Caraveo's Joint Motion to Dismiss (Doc. #18)
filed on October 14, 2014.
on October 28, 2014.
Plaintiff filed a Response (Doc. #22)
For the reasons set forth below, the motion
is granted in part and denied in part.
I.
Plaintiff Ashley Schmidt (Schmidt) has filed a twenty-count
Complaint (Doc. #1) against Defendants Synergetic Communications,
Inc. (Synergetic), Mike Orlando (Orlando), Tim Caraveo (Caraveo),
and Ken Walsh (Walsh) alleging violations of the Florida Consumer
Collection Practices Act (FCCPA) and the Fair Debt Collection
Practices Act (FDCPA).
The underlying facts, as set forth in the
Complaint, are as follows:
Synergetic is a Texas debt collection corporation.
¶ 5.)
(Id. at
Orlando is Synergetic’s President and CEO, Caraveo is its
Vice President, and Walsh is its Director of Operations.
¶¶ 6-8.)
(Id. at
At some point prior to September 2013, Schmidt incurred
a debt owed to Honda Finance.
(Id. at ¶ 9; Docs. ##1-1, 1-2.)
Sometime thereafter, the debt was consigned, placed, or otherwise
transferred to Synergetic for collection.
(Doc. #1, ¶¶ 10-11.)
Synergetic never provided Schmidt with a notice of assignment.
(Id.)
On September 16, 2013, Synergetic sent a letter to Schmidt
seeking to collect the debt.
(Id. at ¶¶ 12-15.)
At that time,
Synergetic was not licensed to collect consumer debts in Florida,
where Schmidt resides.
(Id.)
Additionally, Synergetic did not
provide Schmidt with a debt validation notice until February 26,
2014.
(Id.)
According to Schmidt, these actions and inactions
violate various provisions of the FDCPA and FCCPA.
Orlando and Caraveo now move to dismiss the counts brought
against them individually (Counts XI-XX), arguing (1) that the
FDCPA
and
FDCPA
do
not
permit
claims
against
them
in
their
individual capacities; and (2) that certain counts fail to state
a claim upon which relief can be granted.
Schmidt responds that
each challenged count is adequately pled.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”
2
Fed. R. Civ. P. 8(a)(2).
This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citation omitted).
To survive dismissal, the factual allegations
must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”
Id. at 555.
See also Edwards v.
Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more
than
accusation.”
an
unadorned,
Ashcroft
v.
This requires
the-defendant-unlawfully-harmed-me
Iqbal,
556
U.S.
662,
678
(2009)
(citations omitted).
In deciding a Rule 12(b)(6) motion to dismiss, the Court must
accept all factual allegations in a complaint as true and take
them in the light most favorable to plaintiff, Erickson v. Pardus,
551 U.S. 89, 94 (2007), but “[l]egal conclusions without adequate
factual support are entitled to no assumption of truth,” Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
“Threadbare
recitals
of
the
elements
of
a
cause
of
action,
supported by mere conclusory statements, do not suffice.” Iqbal,
556 U.S. at 678.
with
a
“Factual allegations that are merely consistent
defendant’s
plausible.”
liability
fall
short
of
being
facially
Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th
Cir. 2012) (internal quotation marks and citations omitted). Thus,
the Court engages in a two-step approach: “When there are wellpleaded factual allegations, a court should assume their veracity
3
and
then
determine
whether
entitlement to relief.”
they
plausibly
give
rise
to
an
Iqbal, 556 U.S. at 679.
III.
A.
Individual Liability
Orlando and Caraveo argue that all causes of action against
them must be dismissed because the FCCPA and FDCPA do not permit
causes of action against individuals collecting debts on behalf of
a corporate entity.
The FDCPA “prohibits ‘debt collectors’ from making false or
misleading representations and from engaging in various abusive
and unfair practices.”
(1995).
Heintz v. Jenkins, 514 U.S. 291, 292
The FCCPA, the “Florida state analogue to the federal
FDCPA,” Oppenheim v. I.C. Sys., Inc., 627 F.3d 833, 836 (11th Cir.
2010), was enacted with a similar purpose, LeBlanc v. Unifund CCR
Partners, 601 F.3d 1185, 1190 (11th Cir. 2010) (The FCCPA “was
enacted as a means of regulating the activities of consumer
collection agencies within the state . . . [in an] attempt to curb
what the legislature evidently found to be a series of abuses in
the area of debtor-creditor relations.”) (quotation omitted).
FCCPA is construed in accordance with the FDCPA.
The
Oppenheim, 627
F.3d at 839.
Under the FDCPA, a “debt collector” is “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 who regularly collects or attempts to collect, directly
4
or indirectly, debts owed or due or asserted to be owed or due
another.”
15
U.S.C.
functionally identical.
Neither
the
§
1692a.
The
FCCPA’s
definition
is
Fla. Stat. § 559.55(7).
Supreme
Court
nor
the
Eleventh
Circuit
has
addressed whether the definition of “debt collector” encompasses
individuals collecting debts on behalf of a corporate entity.
is
there
agreement
among
the
other
Circuit
Courts
who
Nor
have
addressed the issue. Compare Pettit v. Retrieval Masters Creditors
Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir. 2000) (“[T]he Act does
not contemplate personal liability for shareholders or employees
of debt collection companies who act on behalf of those companies,
except perhaps in limited instances where the corporate veil is
pierced.”) with Kistner v. Law Offices of Michael P. Margelefsky,
LLC, 518 F.3d 433, 438 (6th Cir. 2008) (“[I]ndividual liability
for violations of the FDCPA will require proof that the individual
is a ‘debt collector,’ but does not require piercing of the
corporate veil.”).
divided.
Courts within this District are similarly
Compare Garcia v. Jefferson Capital Sys., LLC, No. 05-
CV-1967, 2007 WL 1364382, at *1 n.2 (M.D. Fla. May 9, 2007) (“To
the extent that the plaintiffs sue [defendant] by virtue of his
position as sole shareholder of [company], [defendant] avoids
personal
liability
for
[company’s]
alleged
FDCPA
and
FCCPA
violations.”) with Arlozynski v. Rubin & Debski, P.A., 710 F. Supp.
2d 1308, 1311 (M.D. Fla. 2010) (“Defendants' actions . . . may
subject them to personal liability under the [FDCPA], regardless
5
of the fact that they acted under the auspices of a corporate
entity.”).
The statutory definition of “debtor collector” refers to “any
person” who meets certain qualifications.
15 U.S.C. § 1692a.
phrase “any person” is not further defined in the statute.
The
The
Dictionary Act, 1 U.S.C. §1, however, defines “person” to include
individuals (“[i]n determining the meaning of any Act of Congress,
unless the context indicates otherwise[,] the words ‘person’ and
‘whoever’ include corporations, companies, associations, firms,
partnerships, societies, and joint stock companies, as well as
individuals; . . . .”).
Context “means the text of the Act of
Congress surrounding the word at issue, or the texts of other
related congressional Acts.”
U.S. 194, 199 (1993).
Rowland v. Cal. Men's Colony, 506
The Court finds that the context of the
statutes, which broadly refer to “any” person, does not indicate
that a debt collector may not include an individual officer or
employee of a corporate debt collector.
The Complaint states that Orlando and Caraveo were acting as
corporate
officers
of
Synergetic
collection efforts took place.
when
the
allegedly
(Doc. #1, ¶¶ 6-7.)
improper
It is further
alleged that Orlando and Caraveo, by virtue of their positions
within Synergetic, controlled and directed Synergetic’s collection
practices, including the practices alleged to have violated the
FCCPA and FDCPA in this case. (Id. at ¶¶ 17-18.) These allegations
are sufficient to allege FCCPA and FDCPA causes of action against
6
Orlando
and
Caraveo
in
their
individual
capacities.
See
Arlozynski, 710 F. Supp. 2d at 1310 (M.D. Fla. 2010) (permitting
causes of action against individual defendants alleged to “control
and
direct
defendant).
the
debt
collection
practices”
of
the
corporate
Accordingly, Orlando and Caraveo’s motion to dismiss
on this basis is denied.
B.
Notice of Assignment Claims
In Counts XV and XX, Schmidt alleges that Orlando and Caraveo
violated the FCCPA because they sought to collect Schmidt’s debt
before providing her with a notice that the debt had been assigned
to Synergetic as required by Fla. Stat. § 559.715.
In Counts XIII
and XVIII, Schmidt alleges that the same conduct also violates the
FDCPA.
Orlando and Caraveo present two arguments for dismissal.
First, they argue that Schmidt’s debt was never assigned to
Synergetic and, therefore, they were under to no obligation to
provide Schmidt with any notice.
However, for the purposes of a
motion to dismiss, the Court must take as true Schmidt’s allegation
that her debt was assigned.
Erickson, 551 U.S. at 94.
Thus,
Counts XIII, XV, XVIII and XX are not subject to dismissal on this
basis.
Second, Orlando and Caraveo argue that Counts XIII, XV, XVIII
and XX must be dismissed because there is no private right of
action against a debt collector who fails to provide a notice of
assignment.
The FCCPA provides a private right of action only for
7
violations of Fla. Stat. § 559.72.
See Fla Stat. § 559.77 (“A
debtor may bring a civil action against a person violating the
provisions of s. 559.72 in the county in which the alleged violator
resides or has his or her principal place of business or in the
county where the alleged violation occurred.”); Trent v. Mortgage
Elec. Registration Sys., Inc., 618 F. Supp. 2d 1356, 1364 (M.D.
Fla. 2007), aff'd, 288 F. App'x 571 (11th Cir. 2008).
A debt
collector’s obligation to provide a notice of assignment is set
forth
in
a
separate
section,
§
559.715,
requirement is contained in § 559.72.
and
no
analogous
Thus, there is no private
cause of action under the FCCPA for failure to serve a notice of
assignment.
Trent, 618 F. Supp. 2d at 1364.
Accordingly, Counts
XV and XX are dismissed.
However, that does not preclude Schmidt from maintaining her
FDCPA causes of action, because a “violation of the FCCPA may
support a federal cause of action under the FDCPA” even if the
underlying FCCPA violation does not provide for a private right of
action. LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1190 (11th
Cir. 2010).
false,
The FDCPA prohibits a debt collector from using “any
deceptive,
or
misleading
representation
connection with the collection of any debt.”
or
means
in
15 U.S.C.A. § 1692e.
Under the FCCPA, a debt collection must provide a debtor with a
notice of assignment “as soon as practical after the assignment is
made, but at least 30 days before any action to collect the debt.”
Fla. Stat. § 559.715.
8
Schmidt alleges that Honda Finance assigned her debt to
Synergetic
and,
therefore,
Synergetic
was
prohibited
from
attempting to collect the debt until 30 days after it provided her
with a notice of assignment.
According to Schmidt, she was never
provided with such notice and, therefore, Synergetic’s letters
stating that it was owed in excess of $10,000 were false and
misleading because Synergetic was not permitted to collect the
debt at all.
If proven, these allegations would permit Schmidt to
recover under the FDCPA.
See LeBlanc, 601 F.3d at 1202 (debt
collector potentially violated FDCPA by attempting to collect debt
without first satisfying the FCCPA’s registration requirement even
though no private right of action existed for the underlying
failure to register).
Accordingly, Orlando and Caraveo’s motion
to dismiss Counts XIII and XVIII is denied.
C.
Registration Claims
In Counts XII, XIV, XVII, and XIX1, Schmidt alleges that
Orlando and Caraveo violated the FCCPA and FDCPA because Synergetic
was not licensed to collect consumer debts in Florida at the time
it attempted to collect her debt.
Orlando and Caraveo argue that
those counts must be dismissed because Synergetic was indeed
registered as a Florida Consumer Collection Agency at all relevant
1
The Complaint identifies both the FCCPA cause of action against
Orlando and the identical cause of action against Caraveo as “Count
XIV.” To avoid confusion, the Court will refer to the cause of
action against Caraveo as “Count XIX” because it is pled between
Count XVIII and Count XX.
9
times.
As explained above, a challenge to the accuracy of the
Complaint’s
factual
allegations
dismissal at this juncture.
cannot
serve
as
grounds
Erickson, 551 U.S. at 94.
for
However,
also as explained above, the FCCPA only provides private rights of
action for certain violations, and a debt collector’s failure to
register is not among them.
LeBlanc, 601 F.3d at 1191.
Therefore,
for the reasons detailed above, the FCCPA causes of action against
Orlando
and
Caraveo
for
failure
to
register
as
a
consumer
collection agency (Counts XIV and XIX) are dismissed, but Schmidt
may maintain her FDCPA causes of action (Counts XII and XVII)
premised upon the same allegations.
LeBlanc, 601 F.3d at 1202.
Accordingly, it is now
ORDERED:
Defendants, Mike Orlando and Tim Caraveo's Joint Motion to
Dismiss (Doc. #18) is GRANTED IN PART and DENIED IN PART.
XIV, XV, XIX, and XX are dismissed without prejudice.
Counts
The motion
is otherwise DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
January, 2015.
Copies: Counsel of record
10
20th
day of
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