Gnipp v. Bank of America N.A.
Filing
37
OPINION AND ORDER granting 33 Defendant's Motion to Dismiss Plaintiff's Amended Complaint. Plaintiff's Amended Complaint 31 is dismissed without prejudice to amend Counts I, II, and III; Counts IV and V are dismissed with prejudice. Plaintiff shall have until October 5, 2016 to file a second amended complaint, if he so chooses. See Opinion and Order for details. Signed by Judge John E. Steele on 9/14/2016. (KP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
THOMAS A. GNIPP, as self
trustee
under
agreement
dated January 20, 2005 and
any unknown heirs, devisees,
grantees,
creditors
and
other unknown personas or
unknown spouses claiming by,
through and under any of the
above named Plaintiffs,
Plaintiff,
v.
Case No: 2:15-cv-99-FtM-29CM
BANK OF AMERICA N.A.,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Defendant’s Motion to
Dismiss Plaintiff’s Amended Complaint (Doc. #33) filed on March
14, 2016.
Plaintiff filed a Response in Opposition (Doc. #34) on
April 1, 2016.
For the reasons set forth below, the Court grants
the Motion to Dismiss with leave to amend as to Counts I, II, and
III, and dismisses Counts IV and V with prejudice.
I.
Thomas A. Gnipp (Plaintiff), proceeding pro se, filed a fivecount Amended Complaint (Doc. #31) against Bank of America N.A.
(BOA) on February 29, 2016. 1
The Amended Complaint alleges that
on May 18, 2006, Plaintiff obtained a loan from Countrywide Home
Loans, Inc. (the Countrywide Loan) to purchase a home in North
Port, Florida, which loan BOA acquired from Countrywide “sometime
later.”
(Id. p. 2.)
Plaintiff planned to sell his more expensive
home in Naples, Florida, which he owned “free and clear,” to pay
off the Countrywide Loan and “live out the balance of his years
comfortably.”
(Id.)
Real
estate
values
plummeted
shortly
thereafter, however, and Plaintiff was unable to sell his Naples
home.
(Id.)
At the same time, the Countrywide Loan became “a
negative amortization mortgage” - one for which the balance (and
the loan payments) increases each month, while the property value
simultaneously diminishes.
(Id.)
The situation having become “financially un-sustainable,”
beginning in November 2008, Plaintiff continually sought various
forms of loan relief.
(Id. pp. 2-3.)
Despite representing that
relief was available, BOA repeatedly denied Plaintiff’s requests,
since his account was current and he had sufficient net income to
cover the mortgage payment.
(Id. p. 3.)
Sometime on or around
October 20, 2012, Plaintiff called Jessica Sanchez, “whose name
1
On February 13, 2015, this Court dismissed Plaintiff’s threeparagraph original Complaint (Doc. #1).
The Court granted
Plaintiff leave to file an amended complaint and provided guidance
on the pleading requirements of the Federal Rules of Civil
Procedure. The Court also attached three cases (Docs. ##30-1, 302, 30-3) to its Order to assist Plaintiff in pleading the elements
of the claims he appeared to be attempting to assert.
- 2 -
appeared on [BOA’s] denial letters,” and she told him that the
Countrywide Loan “needed to be in arrears for more than 90 days
before” relief would be made available.
(Id.)
Accordingly, Plaintiff did not make a mortgage payment in
February 2013.
BOA
(Doc.
(Id.)
#31-17)
On March 5, 2013, he received a notice from
indicating
that
his
loan
“was
in
serious
default,” providing him the right to cure the default, and stating
that
BOA
would
accelerate
the
loan
and
initiate
foreclosure
proceedings on the North Port property if Plaintiff did not timely
cure the default.
(Id. p. 4.)
Plaintiff alleges that he sent BOA
a Qualified Written Request (QWR) (Doc. #31-18) on April 15, 2013,
to which BOA did not respond.
(Id.)
Plaintiff also alleges that
he sent a request for debt validation (Doc. #31-20) to Butler &
Hosch, a law firm hired by BOA to act as a debt collector, to which
Plaintiff never received a response.
(Id. p. 5.)
On September
15, 2014, BOA filed a foreclosure action against Plaintiff in
Florida state court. 2
This lawsuit followed.
Based on these allegations, Plaintiff asserts five causes of
action against BOA.
Count I alleges a violation of Section
2605(e)(1) of the Real Estate Settlement Procedures Act (RESPA),
12 U.S.C. § 2600 et seq., based on BOA’s failure to respond to
Plaintiff’s QWR.
Count II contends that the failure to respond
2
The Court takes judicial notice of Bank of America, N.A. v. Gnipp
(No. 2014 CA 005349), proceeding in the Twelfth Judicial Circuit
in and for Sarasota County, Florida. (Docs. ##18, 31-23.)
- 3 -
to Plaintiff’s request for debt validation violated Section 1692g
of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §
1692 et seq.
Count III is based on the claim that BOA prematurely
informed credit reporting agencies that Plaintiff had missed a
mortgage
payment,
in
violation
of
causing damage to Plaintiff’s credit.
RESPA
Section
2605(e)(3),
Count IV argues that BOA’s
state-court foreclosure proceeding against BOA is “unwarranted.”
Count V contends that BOA has “unclean hands.”
BOA asserts that the Amended Complaint, “as pled, is one in
which
it
is
practically
impossible
for
Defendant
to
frame
a
responsive pleading” and seeks dismissal of the Amended Complaint
in its entirety for failure to comply with Rule 10(b)’s requirement
that claims be stated “in numbered paragraphs, each limited as far
as practicable to a single set of circumstances.”
12 (quoting Fed. R. Civ. P. 10(b).)
(Doc. #33, p.
Specifically as to Plaintiff’s
RESPA claims (Counts I and III), BOA contends that the Complaint
does not allege that Plaintiff sent his alleged QWR to BOA’s
“designated address”; that the letter Plaintiff allegedly sent is
not a valid QWR, since it raises no “account error”; that it is
unclear what RESPA requirement BOA is alleged to have violated;
and that Plaintiff has not adequately pled damages, as is required
to state a claim under RESPA.
BOA argues that Count II is barred
under the FDCPA’s one-year statute of limitations and should be
dismissed for the additional reason that BOA is not a “debt
collector” and thus cannot be held independently or vicariously
- 4 -
liable
for
Plaintiff’s
commencement
Butler
&
Hosch’s
debt-validation
of
an
alleged
request.
“unwarranted”
failure
to
respond
to
Count
IV,
proceeding,
BOA
Regarding
foreclosure
contends that this is not a recognized cause of action and that,
regardless, this Court should abstain from ruling on the propriety
of BOA’s state-court foreclosure action against Plaintiff.
As to
Plaintiff’s claim of “unclean hands” (Count V), BOA argues that
dismissal is warranted, since unclean hands is a defense, not a
stand-alone cause of action.
The Court will address each of these
arguments in turn.
II.
Federal Rule of Civil Procedure 8(a) requires a complaint to
contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
In
evaluating a Rule 12(b)(6) motion seeking to dismiss a complaint
for failing to comply with Rule 8(a), the Court must accept as
true all factual allegations in the complaint and “construe them
in the light most favorable to the plaintiff.”
Baloco ex rel.
Tapia v. Drummond Co., 640 F.3d 1338, 1345 (11th Cir. 2011).
However,
mere
“[l]egal
conclusions
without
adequate
support are entitled to no assumption of truth.”
factual
Mamani v.
Berzain, 654 F.3d 1148, 1153 (11th Cir. 2011) (citations omitted).
To avoid dismissal under Rule 12(b)(6), the complaint must
contain sufficient factual allegations to “raise a right to relief
above the speculative level.”
Bell Atl. Corp. v. Twombly, 550
- 5 -
U.S. 544, 555 (2007).
To do so requires “enough facts to state a
claim to relief that is plausible on its face.”
Id. at 570.
This
plausibility pleading obligation demands “more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action will not do.”
Id. at 555 (citation omitted); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals
of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.”); Chaparro v. Carnival Corp., 693
F.3d 1333, 1337 (11th Cir. 2012) (“Factual allegations that are
merely consistent with a defendant’s liability fall short of being
facially plausible.” (citation omitted)).
Instead, the complaint
must contain enough factual allegations as to the material elements
of each claim to raise the plausible inference that those elements
are satisfied, or, in layman’s terms, that the plaintiff has
suffered a redressable harm for which the defendant may be liable.
A pleading drafted by a party proceeding pro se, like the
Amended Complaint at issue here, is held to a less stringent
standard than one drafted by an attorney, and the Court will
construe the allegations contained therein liberally.
Fla.
Parole
Comm’n,
787
F.3d
1105,
1107
(11th
Jones v.
Cir.
2015).
Nevertheless, “a pro se pleading must suggest (even if inartfully)
that there is at least some factual support for a claim; it is not
enough just to invoke a legal theory devoid of any factual basis.”
Id.
In other words, pro se status will not salvage a complaint
devoid of facts supporting the plaintiff’s claims.
- 6 -
III.
A.
BOA Failed to Respond to Plaintiff’s QWR (Count I)
“RESPA prescribes certain actions to be followed by entities
or persons responsible for servicing federally related mortgage
loans, including responding to borrower inquires.”
McLean v. GMAC
Mortg. Corp., 398 F. App’x 467, 471 (11th Cir. 2010) (per curiam)
(citing 12 U.S.C. § 2605).
As relevant here, RESPA requires that
“a loan servicer, upon receipt of a qualified written request, .
. . provide ‘a written response acknowledging receipt of the
correspondence’ within 20 business days.” 3
§ 2605(e)(1)(A)).
Id. (quoting 12 U.S.C.
RESPA defines a “qualified written request” as:
a written correspondence, other than notice on
a payment coupon or other payment medium
supplied by the servicer, that—
(i) includes,
or
otherwise
enables
the
servicer to identify, the name and account of
the borrower; and
(ii) includes a statement of the reasons for
the belief of the borrower, to the extent
applicable, that the account is in error or
provides sufficient detail to the servicer
regarding other information sought by the
borrower.
12 U.S.C. § 2605(e)(1)(B).
Accordingly, a plaintiff asserting a
claim for violation of RESPA Section 2605(e) “must allege facts to
support that: (1) defendant is a loan servicer, (2) plaintiff[]
3
Twenty days was the statutory acknowledgment period at the time
Plaintiff mailed his QWR. That period was subsequently reduced
to five days, pursuant to the Dodd-Frank amendments to RESPA. See
Farson v. Carrington Mortg. Servs., LLC, No. 8:13-CV-2289-T-33TGW,
2013 WL 5705565, at *3 (M.D. Fla. Oct. 18, 2013).
- 7 -
sent defendant a valid QWR, (3) defendant failed to adequately
respond within the 20[] day statutory period, and (4) plaintiff[]
[is] entitled to actual or statutory damages.”
Williams v. Am.’s
Servicing Co., No. 2:09-CV-775-FTM-29DNF, 2011 WL 1060652, at *2
(M.D. Fla. Mar. 22, 2011).
Count I of the Amended Complaint alleges that BOA is the loan
servicer; that Plaintiff sent BOA a valid QWR on April 15, 2013;
that Defendant “failed to adequately respond within the 20-day
statutory period”; and that Plaintiff is entitled to $500,000.00
in
statutory
damages.
BOA
contends
that,
despite
these
allegations, dismissal of Count I is warranted for four reasons:
1)
Plaintiff
did
not
allege
that
he
sent
the
QWR
to
BOA’s
“designated address”; 2) the letter Plaintiff sent BOA is not a
valid QWR; 3) Plaintiff has not adequately pled that Defendant
violated RESPA; and 4) the Complaint does not sufficiently plead
damages.
1) BOA’s “Designated Address” for Receiving QWRs
BOA argues that Count I should be dismissed for Plaintiff’s
failure to “allege or show through attached documents that he sent
the QWR to the proper address.” 4
(Doc. #33, p. 4.)
In support
thereof, BOA cites a handful of cases it claims stand for the
proposition that a loan servicer’s requirement to respond to a QWR
4
BOA also seeks dismissal of Plaintiff’s other RESPA claim (Count
III), which is based on BOA’s “premature” disclosure of Plaintiff’s
loan default to credit reporting agencies, for the same reason.
- 8 -
is triggered only when a plaintiff sends it to the loan servicer’s
“designated address” for receiving QWRs.
At the time the alleged actions in this case occurred, the
law
permitted
a
loan
servicer
to
“establish
a
separate
and
exclusive office and address for the receipt and handling of
qualified
written
(“Regulation X”). 5
receipts.”
24
C.F.R.
§
3500.21(e)(1)
It may be the case that a servicer who followed
the notice requirements for establishing a QWR address was not
required to respond to a communication sent to a different address.
See Roth v. CitiMortgage Inc., 756 F.3d 178, 182 (2d Cir. 2014)
(“‘Failure to send the request to the designated address does not
trigger the servicer’s duties under RESPA.’ As long as a servicer
complies with the notice requirements of 24 C.F.R. § 3500.21 for
designating a QWR address, a letter sent to a different address is
not a QWR.” (quoting Berneike v. CitiMortgage, Inc., 708 F.3d 1141,
1149-49 (10th Cir. 2013))). 6
However, in those cases so holding,
the courts could discern from the complaint or attached exhibits
that the lender had indeed designated an address for QWRs and the
borrower had failed to send its communication to that exclusive
address.
E.g., id. at 182; Berneike, 708 F.3d at 1149; Bret Binder
v. Weststar Mortg., Inc., No. CV 14-7073, 2016 WL 3762710, at *67 (E.D. Pa. July 13, 2016).
5
“Regulation X” is now codified at 12 C.F.R. § 1024.35(c).
6
The Eleventh Circuit does not seem to have addressed this issue.
- 9 -
Here, it is not clear that BOA even had a designated address
different from the P.O. Box address to which Plaintiff sent his
April 15, 2013 correspondence, and which was listed as the payment
address on BOA’s Notice of Intent to Accelerate and Foreclose let
alone
that
Plaintiff
was
made
aware
of
such
address. 7
Accordingly, and particularly in light of his pro se status,
Plaintiff’s failure to allege that he sent his letter to BOA’s
“designated address” does not merit dismissal of Counts I or III.
2) Whether Plaintiff’s Letter to BOA Is a Valid QWR
As noted above, to be a proper “qualified written request,”
the “written request” must “enable[] the servicer to identify[]
the name and account of the borrower” and “include[] a statement
of the reasons for the belief of the borrower, to the extent
applicable, that the account is in error or provides sufficient
detail to the servicer regarding other information sought by the
borrower.”
12
U.S.C.
§
2605(e)(1)(B).
BOA
argues
that
Plaintiff’s letter is not a QWR, since it does not provide the
reason(s) Plaintiff believes the account is in error; rather,
Plaintiff “merely request[s] additional information concerning
charges to the account.”
(Doc. #33, p. 5.)
7
Plaintiff’s certified mail receipt indicates that the QWR was
delivered in April 2013.
(Doc. #31-18. p. 3.)
“[A] document
outside the four corners of the complaint may still be considered
[on a motion to dismiss] if it is central to the plaintiff's claims
and is undisputed in terms of authenticity.”
Maxcess, Inc. v.
Lucent Techs., Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005)
(citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)).
- 10 -
But Section 2605(e)(1)(B)(ii) is written in the disjunctive.
In other words, a communication can satisfy RESPA by “includ[ing]
a statement of the reasons . . . that the account is in error,” or
by “provid[ing] sufficient detail to the servicer regarding other
information sought by the borrower.”
Plaintiff’s
letter
arguably
does
12 U.S.C. § 2605(e)(1)(B).
both.
By
writing
that
he
“dispute[d] the amount that is owed according to the Monthly
Billing Statement,” Plaintiff identified the basis for his belief
that the account was “in error.”
specific
eight
pieces
of
He also clearly set forth the
information/documents
he
sought.
Plaintiff’s April 15, 2013 written correspondence is thus a valid
QWR.
See Thomason v. OneWest Bank, FSB, 596 F. App’x 736, 740
(11th Cir. 2014) (per curiam) (pro se petitioner’s letters, which
“stated his concern that his account erroneously failed to list
him as a co-borrower on the loan” and requested documents and
information concerning his qualification for certain forms of
relief constituted valid QWRs under RESPA).
3) Whether Plaintiff Adequately Alleged a Violation of Section
2605(e) and Sufficiently Pled Damages
Finally, BOA argues that Count I should be dismissed because
it is unclear from the Complaint how BOA is alleged to have
violated RESPA, and because Plaintiff has failed to adequately
plead
damages.
As
to
the
first
of
these
arguments,
BOA
specifically contends that it is not clear whether Plaintiff is
claiming that BOA failed to respond at all within the twenty-day
- 11 -
window or instead that BOA did not issue an “adequate” response.
This argument lacks merit.
Count I alleges a violation of Section
2605(e)(1), which Section required BOA to “acknowledge[e] receipt
of the correspondence” within twenty days.
It is, therefore, fair
to infer that Plaintiff contends BOA did not acknowledge receipt
of Plaintiff’s QWR within twenty days of receiving it. 8
BOA’s damages argument, however, is well-taken.
“[D]amages
are an essential element in pleading a RESPA claim.”
Renfroe v.
Nationstar Mortg., LLC, 822 F.3d 1241, 1246 (11th Cir. 2016).
Two types of damages are available under RESPA: “(A) any actual
damages to the borrower as a result of the failure; and (B) any
additional damages, as the court may allow, in the case of a
pattern or practice of noncompliance with the requirements of this
section.”
12 U.S.C. § 2605(f)(1).
These “additional damages”
are typically referred to as “statutory damages.”
F.3d at 1247.
Renfroe, 822
According to the Amended Complaint, “Plaintiff
seeks statutory damages of $500,000 . . . or as the Court deems
appropriate.”
(Doc. #31, p. 4.)
As an initial matter, $500,000.00 in statutory damages is not
appropriate, since there is a $2,000.00 limit on the amount of
statutory damages a court may award for violations of Section 2605.
8
The Court also rejects BOA’s follow-up argument that “[i]f
Plaintiff’s contention is that the QWR was not timely responded
to, then the claim must be dismissed as it does not plead when
Defendant responded to the QWR.” Plaintiff’s contention is that
BOA never acknowledged receipt of Plaintiff’s QWR.
- 12 -
12 U.S.C. 2605(f)(1).
More importantly, although the Eleventh
Circuit did not officially “rul[e] on the question,” it recently
observed that a plaintiff probably “cannot recover pattern-orpractice damages in the absence of actual damages.”
F.3d at 1247 n.4.
Renfroe, 822
Because Plaintiff’s Complaint does not allege
“actual damages,” only “statutory damages of $500,000,” the Court
concludes that Plaintiff has not adequately pled the damages
element of his RESPA Section 2605 claim.
Count I is dismissed
without prejudice to amend.
If Plaintiff chooses to file a second amended complaint and
reassert a claim for statutory damages under RESPA, that claim
must be supported by specific allegations that BOA has engaged in
a “pattern or practice” of RESPA violations.
Id. at 1247.
In
other words, Plaintiff “must allege some RESPA violations ‘with
respect to other borrowers.’” 9
Id. (emphasis added) (quoting Toone
v. Wells Fargo Bank, N.A., 716 F.3d 516, 523 (10th Cir. 2013)).
Although the complaint need not disclose the identities of the
other borrowers or the specifics of the violations, it must allege
enough facts from which the Court may plausibly infer that RESPA
violations were BOA’s “standard operating procedure.”
1247-48
(quotation
omitted);
see
also
Mejia
v.
Id. at
Ocwen
Loan
Servicing, LLC, No. 16-CV-81269, 2016 WL 4587129, at *4 (S.D. Fla.
9
One other alleged violation is not sufficient to establish a
“pattern or practice,” but four or more additional violations is
likely enough. Renfroe, 822 F.3d at 1247-48.
- 13 -
Sept. 2, 2016) (generic statement that “[t]hrough its own conduct
and the conduct of its designated counsel Defendant has shown a
pattern of disregard to the requirements imposed upon Defendants”
did not allege sufficient facts to plausibly show a pattern or
practice of RESPA violations).
B.
BOA Failed to Protect Plaintiff’s Credit Rating (Count III)
Plaintiff argues that BOA also violated Section 2605(e)(3) of
RESPA by reporting Plaintiff’s default to credit agencies “just 30
days after [he] missed the mortgage payment in February” – i.e.
sometime in March 2013.
Even if true, that conduct does not
violate
2605(e)(3)
RESPA.
Section
does
not
prevent
a
loan
servicer from ever sending information to a consumer reporting
agency about a mortgagee’s default on a loan payment; it prohibits
a
loan
servicer
who
has
received
a
QWR
from
“provid[ing]
information regarding any overdue payment . . . to any consumer
reporting agency” for a sixty-day period.
12 U.S.C. § 2605(e)(3).
Plaintiff alleges he sent BOA a valid QWR on April 15, 2013 and,
as noted above, there is evidence that BOA received the QWR later
in April 2013.
Because the Complaint alleges only that BOA
provided information prohibited by Section 2605(e)(3) in March
2013, before the “silence” period had commenced, not that BOA
continued to provide such information during the 60-day period
after receiving Plaintiff’s QWR, Count III is dismissed without
prejudice to amend.
- 14 -
C.
Butler & Hosch Failed to Respond
validation Request (Count II)
to
Plaintiff’s
Count II alleges a violation of FDCPA Section 1692g.
Debt-
Section
1692g(a)(5) requires, inter alia, a “debt collector” to inform a
consumer that “upon the consumer’s written request within the
thirty-day period, the debt collector will provide the consumer
with the name and address of the original creditor, if different
from the current creditor.” 10
15 U.S.C. § 1692g(a)(5).
Butler &
Hosch’s May 22, 2013 debt-collection letter told Plaintiff this.
(Doc. #31-19, p. 2.)
Plaintiff alleges, however, that on June 6,
2013, he exercised that right by sending Butler & Hosch a letter
requesting “the name and address of the current owner of the
mortgage note and a copy of all monies paid to your client from
the inception of this debt.” (Doc. #31-20, p. 1.)
response. 11
He received no
Where a debt collector fails to provide the requested
name and address of the original creditor, the debt collector is
required to “cease collection of the debt, or any disputed portion
thereof,” until
that information is provided. 12
15 U.S.C. §
1692g(b); Shimek v. Weissman, Nowack, Curry & Wilco, P.C., 374
10
“The FDCPA's restrictions apply only to ‘debt collectors.’”
Lodge v. Kondaur Capital Corp., 750 F.3d 1263, 1273 (11th Cir.
2014).
11
It appears that Plaintiff’s letter was delivered on June 19,
2013. (Doc. #31-20, p. 2.)
12
Section 1692k permits recovery of actual and statutory damages
against a “debt collector who fails to comply with any provision”
of Section 1692, but the Amended Complaint does not request either
type of damages.
- 15 -
F.3d 1011, 1014 (11th Cir. 2004) (per curiam), as revised (Aug. 3,
2004) (“The plain language of Section 1692g(b) mandates that a
debt collector ‘cease collection of the debt’ once verification is
requested.”).
Despite
Plaintiff,
Butler
BOA
&
Hosch’s
subsequently
alleged
initiated
failure
to
foreclosure
respond
to
proceedings
against him in state court and recorded a lis pendens against the
North Port property on September 15, 2014. 13
(Docs. ##18, 31-23.)
Filing a lawsuit and a lis pendens is the opposite of “ceasing
collection of a debt.”
See Acosta v. Campbell, No. 6:04—cv-761-
ORL-28DAB, 2006 WL 146208, at *16 (M.D. Fla. Jan. 18, 2006) (“A
debt collector is free to file suit when collecting on a debt
unless the debtor timely disputes the debt.”); see also Shimek,
374 F.3d at 1014 (“[S]ending a lien to the clerk of the court after
a verification of the debt was requested is clearly contrary to §
1692g(b)’s
requirement
that
a
debt
collector
shall
‘cease
collection of the debt’ once the verification is requested.”
(citation omitted)); Anderson v. Frederick J. Hanna & Assocs., 361
F. Supp. 2d 1379, 1383 (N.D. Ga. 2005) (granting plaintiff’s motion
for summary judgment on Section 1692g(b) claim where law firm debt
collector filed suit after receiving, but before responding to,
plaintiff’s debt-validation request).
13
Plaintiff’s original Complaint was filed on February 13, 2015,
which is five months after the September 15, 2014 filing of the
foreclosure lawsuit – well within the FDCPA’s one-year statute of
limitations. See 15 U.S.C. § 1692k(d).
- 16 -
If Butler & Hosch is the law firm that filed suit on BOA’s
behalf – which the Complaint appears to contend is the case (Doc.
#31, pp. 6-7) - then Plaintiff may have a claim against Butler &
Hosch for violating Section 1692g.
However, Count II is asserted
against BOA, not Butler & Hosch, who is not a defendant in this
case.
Because the Complaint does not allege that BOA is a “debt
collector,” and because it is unclear from the Complaint on what
theory Plaintiff seeks to hold BOA liable for Butler & Hosch’s
potential violation of FDCPA Section 1692g, Count II will be
dismissed without prejudice to amend.
D.
Defendant’s Pursuit of an “Un-warranted” Foreclosure Claim in
State Court (Count IV)
Count IV – titled “Un-warranted Foreclosure” - appears to be
a claim for wrongful institution of foreclosure proceedings.
The
basis for this claim is apparently an adverse ruling that BOA
received in another foreclosure proceeding against a different
party in Seminole County, Florida (Doc. #31-24). 14
The trial court
in that case ruled that the mortgage lender, America’s Wholesale
Lender, was not licensed in Florida, and thus the mortgage loan
for the property at issue was invalid and void.
(Id. p. 3.)
In
turn, BOA lacked standing to pursue a foreclosure action against
the mortgagee.
(Id.)
Because America’s Wholesale Lender is the
same lender for the Countrywide Loan, Plaintiff contends that “the
14
Bank of America, N.A v. Nash, Case No. 59-2011-CA-004389.
- 17 -
start of a foreclosure proceeding [against him in state court] was
un-warranted.”
(Doc. #31, p. 7.)
As an initial matter, the opinion Plaintiff references was
issued on October 16, 2014, one month after BOA instituted its
foreclosure
proceedings
against
Plaintiff.
Furthermore,
that
opinion has since been reversed by the Florida District Court of
Appeals for the Fifth District.
Bank of Am., N.A. v. Nash, No.
5D14-4511, --- So.3d ---, 2016 WL 2596015, at *1 (Fla. 5th D.C.A.
2016) (per curiam) (concluding that BOA “had standing to foreclose”
on defendant’s defaulted mortgage loan).
Moreover, there is no
cause of action in Florida for wrongful institution of foreclosure
proceedings, only wrongful foreclosure.
Raines v. GMAC Mortg.
Co., No. 309-CV-00477J-25HTS, 2009 WL 4715969, at *2 (M.D. Fla.
Dec. 10, 2009); Bank of New York Mellon v. Reyes, 126 So. 3d 304,
309 n.4 (Fla. 3d DCA 2013).
Because Plaintiff does not allege
that the North Port property has been sold at a foreclosure sale,
he cannot state a valid claim for wrongful foreclosure. 15
In re
Taylor, Bean, & Whitaker Mortg. Corp., No. 3:09-BK-7047-JAF, 2011
WL 5245420, at *5 (Bankr. M.D. Fla. Oct. 24, 2011) (“A claim for
wrongful foreclosure requires that the property in question be
15
Even if Plaintiff could state a redressable claim based on BOA’s
wrongful institution of foreclosure proceedings, the Court would
likely abstain from adjudicating that claim.
See CCB, LLC v.
BankTrust, 438 F. App'x 833, 834 (11th Cir. 2011) (per curiam);
Sergeon v. Home Loan Ctr., Inc., No. 3:09-CV-01113-J-32, 2010 WL
5662930, at *8 (M.D. Fla. Oct. 26, 2010), report and recommendation
adopted, No. 3:09-CV-1113-J-32JBT, 2011 WL 308176 (M.D. Fla. Jan.
27, 2011).
- 18 -
sold at a foreclosure sale.” (citations omitted)); see also Hack
v. Wachovia Bank, N.A., No. 12-21436-CIV, 2012 WL 3043017, at *3
(S.D. Fla. July 25, 2012) (finding claim for wrongful foreclosure
unripe
where
Plaintiffs
“state
[was]
court
still
action
pending”).
for
foreclosure
Accordingly,
Count
against
IV
is
dismissed with prejudice.
E.
BOA’s “Unclean Hands” (Count V)
Plaintiff asserts that BOA acted with “unclean hands” and
lists
eight
specific
allegations
in
support
thereof.
These
allegations either parrot those already raised in the previous
four counts or assert additional ways in which BOA acted unfairly
or deceptively toward Plaintiff.
As the Court stated when it
dismissed Plaintiff’s original Complaint, “unclean hands” is a
defense to an equitable claim, not an independent cause of action.
(Doc. #30, p. 6 n.4); see also Branch Banking & Trust Co. v. S &
S Dev., Inc., 620 F. App’x 698, 701 (11th Cir. 2015) (per curiam);
Cong. Park Office Condos II, LLC v. First-Citizens Bank & Trust
Co., 105 So. 3d 602, 609 (Fla. 4th DCA 2013).
Put another way,
one who is defending against a claim may invoke unclean hands as
a shield against liability, but a plaintiff cannot use the theory
as a liability sword.
Count V is thus dismissed with prejudice. 16
16
To the extent the conduct alleged in Count V may constitute a
violation of a state statute, such as Florida’s Deceptive and
Unfair Trade Practices Act, or be redressable through a common law
cause of action – for example, the breach of an implied covenant
of good faith and fair dealing - Plaintiff may plead such cause(s)
of action in the second amended complaint.
- 19 -
The Court stresses that, should Plaintiff choose to file a
second amended complaint, he must follow the pleading requirements
set forth the Federal Rules of Civil Procedure.
In particular,
the allegations should be stated “in numbered paragraphs, each
limited as far as practicable to a single set of circumstances,”
rather than in long, run-on paragraphs.
Fed. R. Civ. P. 10(b).
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint
(Doc. #33) is GRANTED without prejudice to amend Counts I, II, and
III; Counts IV and V are dismissed with prejudice.
shall
have
until
October
5,
2016
to
file
a
Plaintiff
second
amended
complaint, if he so chooses.
DONE and ORDERED at Fort Myers, Florida, this 14th day of
September, 2016.
Copies:
Parties and Counsel of Record
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