Arencibia et al v. Mortgage Guaranty Insurance Corporation

Filing 36

ORDER denying as moot 27 Plaintiffs Ariel Arencibia and Jose Ayala's Motion to Strike Paragraph in Declaration; denying 33 Plaintiffs Ariel Arencibia and Jose Ayala's Amended Motion to Strike Paragraphs in Declarations. Signed by Judge Sheri Polster Chappell on 11/13/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ARIEL ARENCIBIA and JOSE AYALA,
on behalf of themselves and all others
similarly situated
Plaintiffs,
v.

Case No: 2:15-cv-248-FtM-38CM

MORTGAGE GUARANTY
INSURANCE CORPORATION,
Defendant.
/
ORDER1
This matter comes before the Court on Plaintiffs Ariel Arencibia and Jose Ayala's
Amended Motion to Strike Paragraphs in Declarations (Doc. #33) filed October 16, 2015.
Defendant Mortgage Guaranty Insurance Company ("MGIC") filed a Response in
Opposition to Plaintiffs' Amended Motion (Doc. #34) on October 30, 2015. Thus, this
matter is ripe for review.
Plaintiffs commenced this putative class action against MGIC for alleged violations
of the Fair Credit Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (Doc. #1). In
response, MGIC filed a Motion for Summary Judgment (Doc. #13) and attached thereto
the Declaration of Brian Remington (Doc. #13-1). In paragraph 12 of the declaration,
Remington states, "MGIC does not collect debts owed or due or asserted to be owed or

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due another, i.e, MGIC does not undertake third-party debt collection for creditors." (Doc.
#13-1 at ¶ 12).
Plaintiffs take issue with Remington's statement because "[t]he phrasing used is
part of the phrasing of the definition of a 'debt collector' under the FDCPA, 15 U.S.C.
§ 1692a(6), and the precise phrasing for this Court to interpret the meaning of on
summary judgment." (Doc. #33 at 1). Plaintiff thus moves to strike that paragraph as an
improper legal conclusion that would not be admissible in evidence. (Doc. #33 at 1-2).
Plaintiff brings its motion under Rule 56(c)(4) of the Federal Rules of Civil Procedure,
which provides a "declaration used to support or oppose a motion must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that
the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P.
56(c)(4).
Although paragraph 12 can be construed as making a legal conclusion, it is based
on Remington's personal knowledge as MGIC's Vice President – Loss Mitigation Counsel
& Assistant Secretary and is otherwise sufficient to survive the instant motion to strike.
"This Court is fully cable of separating the wheat from the chaff in documents submitted
into evidence. In ruling on pending motions for summary judgment, this Court will not
substitute the legal conclusions drawn by [Remington], or any affiant for that matter, for
its own judicial analysis." Stalley v. ADS Alliance Data Sys., Inc., No. 8:11-cv-1652, 2014
WL 129069, at *3 (M.D. Fla. Jan. 14, 2014). The Court, therefore, denies Plaintiff's
motion.
Accordingly, it is now
ORDERED:

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(1) Plaintiffs Ariel Arencibia and Jose Ayala's Amended Motion to Strike
Paragraphs in Declarations (Doc. #33) is DENIED.
(2) Plaintiffs Ariel Arencibia and Jose Ayala's Motion to Strike Paragraph in
Declaration (Doc. #27) is DENIED as moot.
DONE and ORDERED in Fort Myers, Florida this 13th day of November, 2015.

Copies: All Parties of Record

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