Harrington v. Roundpoint Mortgage Servicing Corporation et al
Filing
63
ORDER granting in part and denying in part 38 Defendants' Partial Motion to Dismiss with Prejudice. The motion is granted to the extent set forth herein and otherwise denied. Signed by Judge Sheri Polster Chappell on 2/18/2016. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
LARRY HARRINGTON,
Plaintiff,
v.
Case No: 2:15-cv-322-FtM-38MRM
ROUNDPOINT MORTGAGE
SERVICING CORPORATION and
MULTIBANK 2010-1 SFR VENTURE,
LLC,
Defendants.
/
ORDER 1
This matter comes before the Court on Defendants RoundPoint Mortgage
Servicing Corporation ("RoundPoint") and MultiBank 2010-1 SFR Venture, LLC's
("MultiBank") Partial Motion to Dismiss with Prejudice (Doc. #38) filed on October 22,
2015. Plaintiff Larry Harrington filed a Response in Opposition to Defendants' Partial
Motion (Doc. #39) on November 3, 2015. Defendants also filed a Notice of Supplemental
Authority (Doc. #55) on December 15, 2015. This matter is ripe for review.
BACKGROUND
Unless stated otherwise, the following facts are drawn from the First Amended
Complaint and construed in a light most favorable to Plaintiff as the non-moving party.
1
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In November 2003, Plaintiff secured a mortgage from Riverside Bank of the Gulf
Coast. (Doc. #37 at ¶ 31). Sometime thereafter, MultiBank acquired the mortgage and
hired RoundPoint to service it. (Doc. #37 at ¶¶ 32, 34; Doc. #39-1 at 6). Plaintiff had no
relationship with MultiBank or RoundPoint other than to send his mortgage payments to
Multibank through RoundPoint. (Doc. #37 at ¶ 35).
When Plaintiff fell behind on his mortgage payments, RoundPoint began debt
collection activities. As part of those activities, it repeatedly called Plaintiff's cellular and
residential telephone numbers using an automatic telephone dialing system or a
prerecorded voice. (Doc. #37 at ¶¶ 36-37, 40, 42-46; Doc. #37-1). RoundPoint called
four cellular numbers (collectively "cell phone numbers") for which Plaintiff was the named
subscriber. (Doc. #37 at ¶¶ 38-39). According to Plaintiff, he gave neither RoundPoint
nor MultiBank his cell phone numbers or permission to call him. (Doc. #37 at ¶ 47).
Instead, RoundPoint allegedly obtained the numbers from a credit report it accessed.
(Doc. #37 at ¶ 50).
While the above calls were taking place, MultiBank began foreclosure proceedings
against Plaintiff on March 1, 2012. (Doc. #37 at ¶ 41). Later that same month, Defendants
learned that Plaintiff hired an attorney to represent him in the foreclosure action. (Doc.
#37 at ¶ 41). That counsel later withdrew from representing Plaintiff on May 7, 2013.
(Doc. #38-1).
On May 28, 2015, Plaintiff initiated this action against RoundPoint and MultiBank.
(Doc. #1). With leave of Court, he filed the First Amended Complaint, which is the
operative pleading. (Doc. #37). The First Amended Complaint asserts two counts. Count
I alleges that RoundPoint and MultiBank violated the Telephone Consumer Protection Act
2
("TCPA"), 47 U.S.C. § 227 et seq, by calling Plaintiff's cell phone numbers using an
automated dialer or a prerecorded voice without his consent. (Doc. #37 at ¶¶ 52-54).
Count II alleges that RoundPoint violated two subsections of the Florida Consumer
Collection Practices Act ("FCCPA"), Fla. Stat. § 559.55 et seq. RoundPoint allegedly
violated § 559.72(7) by calling Plaintiff and his family with such frequency as could
reasonably be expected to harass them. (Doc. #37 at ¶ 60). RoundPoint also allegedly
violated § 559.72(18) by calling Plaintiff when it knew an attorney represented him on the
debt for which RoundPoint was attempting to collect. (Doc. #37 at ¶ 66). Plaintiff asserts
that each of RoundPoint's communications constitutes a separate and distinct action for
which he is entitled to damages. (Doc. #37 at ¶¶ 61, 67). Defendants, in response, move
to dismiss Count I as to MultiBank only and Count II in its entirety.
STANDARD OF REVIEW
When considering a motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the reviewing court must accept all factual allegations in the complaint
as true and view them in a light most favorable to the plaintiff. See Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). This preferential standard of review, however, does not permit all
pleadings adorned with facts to survive to the next stage of litigation. The Supreme Court
has been clear on this point – a district court should dismiss a claim where a party fails to
plead facts that make the claim facially plausible. See Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is facially plausible when the court can draw a reasonable
inference, based on the facts pled, that the opposing party is liable for the alleged
misconduct. See Iqbal, 556 U.S. at 678. This plausibility standard requires "more than a
3
sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at
557 (internal quotation marks omitted)).
DISCUSSION
A. Count I: Telephone Consumer Protection Act
The TCPA is a consumer protection statute that imposes restrictions on the use of
automatic telephone dialing systems and artificial or prerecorded voice messages when
contacting telephone subscribers with commercial messages. See 47 U.S.C. § 227.
Here, Plaintiff raises a claim under § 227(b)(1)(A)(iii) of the statute, which makes it
unlawful for any person:
to make any call (other than a call made for emergency purposes or made
with the prior express consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded voice . . . to any
telephone number assigned to a paging service, cellular telephone service
. . . or any service for which the called party is charged for the call. . . .
The TCPA is essentially a strict liability statute that does not require any intent except
when awarding treble damages. See Alea London Ltd. v. Am. Home Servs., Inc., 638
F.3d 768, 776 (11th Cir. 2011).
According to Plaintiff, RoundPoint placed nonemergency calls to his cell phone
numbers using an automated dialer or a prerecorded voice without his prior express
consent.
(Doc. #37 at ¶ 52).
Because RoundPoint made such calls on behalf of
MultiBank, Plaintiff alleges that MultiBank violated the TCPA in the same manner. (Doc.
#37 at ¶¶ 53-54). Defendants move to dismiss this claim against MultiBank, arguing
MultiBank did not actually make the calls at issue, and it cannot be vicariously liable for
RoundPoint's conduct under the TCPA. (Doc. #38 at 10-12). Plaintiff counters that
MultiBank is subject to both direct and vicarious liability. (Doc. #39 at 2-9).
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According to Defendants, § 227(b)(1)(A)(iii), by its terms, assigns liability only on
the persons who actually "make" the offending calls. (Doc. #38 at 10-11). Defendants
arrive at this statutory interpretation by comparing § 227(b)(1)(A) with § 227(c)(5), a sister
subsection of the TCPA. (Doc. #38 at 11). As noted above, § 227(b)(1)(A) renders it
unlawful to "make" a nonemergency call using an automatic telephone dialing system or
a prerecorded voice to a cellular telephone service without the called party's consent. 47
U.S.C. § 227(b)(1)(A). In contrast, § 227(c)(5), which concerns calls to persons on the
National Do-Not-Call Registry, imposes liability for multiple calls made "by or on behalf
of" a person. Id. § 227(c)(5) (emphasis added). 2 Defendants aver the differing language
in each provision indicates that Congress intended to allow "on behalf of" liability for
violations of § 227(c)(5), but not the subsection at issue here. (Doc. #38 at 11).
In emphasizing the contrasting language between § 227(b)(1)(A) and § 227(c)(5),
Defendants cite to Mais v. Gulf Coast Collection Bureau, Inc., 944 F. Supp. 2d 1226 (S.D.
Fla. 2013). (Doc. #38 at 10). In Mais, the defendants sought summary judgment on the
ground that they could not be held liable for another defendant's calls under
§ 227(b)(1)(A). 944 F. Supp. 2d at 1241. The defendants argued – much like MultiBank
does here – that "the choice and placement in the different statutory provisions [of
§ 227(b)(1)(A) and § 227(c)(5)] indicates that Congress intended to allow for 'on behalf
of,' or vicariously, liability in section 227(c)(5), but not in section 227(b)(1)(A)." Id. at 124142. The district court was persuaded by this statutory interpretation, but could not give
2
The full text of § 227(c)(5) provides that "[a] person who has received more than one telephone call within
any 12-month period by or on behalf of the same entity in violation of the regulations prescribed under this
subsection may, if otherwise permitted by the laws or rules of court of a State bring in an appropriate court
of that State – (A) an action based on a violation of the regulations prescribed under this subsection to
enjoin such violation, (B) an action to recover for actual monetary loss from such a violation, or to receive
up to $500 in damages for each such violation, whichever is greater, or (C) both such actions." 47 U.S.C.
§ 227(c)(5).
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its stamp of approval because of a Federal Communications Commission ("FCC") ruling
to the contrary. Id. at 1242; see also 47 U.S.C. § 227(b)(2) (charging the FCC with
prescribing regulations to implement the TCPA). Specifically, in In the Matter of Rules &
Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C. Rcd. 559
(2008) ("2008 FCC Ruling"), the agency stated, "a creditor on whose behalf an autodialed
or prerecorded message call is made to a wireless number bears the responsibility for
any violation of the Commission's rules. Calls placed by a third party collector on behalf
of that creditor are treated as if the creditor itself placed the call." Id. at 565. As a result,
the district court was confronted with the question of whether the 2008 FCC Ruling was
entitled to deference on the issue of liability under § 227(b)(1)(A). Mais, 944 F. Supp. 2d
at 1242 (footnote omitted). In answering that question, the court found,
[w]ith respect to section 227(b)(1)(A), the FCC has provided for vicarious
liability where Congress did not. The FCC cites no authority or support for
its determination that creditors are liable for calls placed by third-party debt
collectors and . . . [the 2008 FCC Ruling] appears to be inconsistent with
the statutory scheme. Therefore, the [c]ourt will not defer to the FCC's
determination. Instead, it will employ the statute as written and find that
only those who make calls in violation of § 227(b)(1)(A) may be held liable.
Id. at 1243.
On appeal, the Eleventh Circuit questioned the district court's decision to discard
the 2008 FCC Ruling. Mais v. Gulf Coast Collection Bureau, Inc., 768 F.3d 1110, 119
(11th Cir. 2014). It found that the district court "exceeded its jurisdiction by declaring the
2008 FCC Ruling to be inconsistent with the TCPA." Id. It stated the 2008 FCC Ruling
had "the force of law" and the district court lacked "jurisdiction to consider [its] wisdom
and efficacy." Id. at 1121. Although the Eleventh Circuit focused on a different portion of
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the district court's decision in its ultimate holding, the court was clear in its directions –
this Court lacks the power to disregard the FCC's rulings in considering this issue.
Given the Eleventh Circuit's strong language, this Court will not overlook the weight
that the 2008 FCC Ruling bears on this case. Indeed, numerous courts have held that
§ 227(b)(1)(A) imposes liability upon a showing of vicarious liability. See Martin v. Glob.
Mktg. Research Servs., Inc., No. 6:14-cv-1290-Orl-31KRS, 2015 WL 6083537, at *6 n.6
(M.D. Fla. Oct. 15, 2015) ("A number of courts have indicated that theories of vicarious
liability, at least in certain circumstances, may be viable under the TCPA."); Shamblin v.
Obama for Am., No. 8:13-cv-2428-T-33TBM, 2015 WL 1754628, at *5 (M.D. Fla. Apr. 17,
2015) (denying summary judgment on the issue of vicarious liability for TCPA violations);
see also Maryland v. Universal Elections, Inc., 729 F.3d 370, 378 (4th Cir. 2013) (rejecting
the appellants' argument that they could not be liable under the TCPA because they did
not actually place any of the offending calls, in part, because "[s]uch a narrow reading
would undermine the purpose of the Act and would allow the actual violators to escape
liability."); Jackson v. Caribbean Cruise Line, Inc., 88 F. Supp. 3d 129, 135 (E.D.N.Y.
2015) (rejecting the defendant's argument that § 227(b) does not permit vicarious liability
under common-law principles); Melito v. Am. Eagle Outfitters, Inc., No. 14-cv-02440, 2015
WL 7736547, at *5 n.11 (S.D.N.Y. Nov. 30, 2015) (stating the court "would be inclined to
hold that there can be vicarious liability under the TCPA"). Following this overwhelming
precedent, the Court concludes that MultiBank may be held vicariously liable under the
TCPA.
To the extent Plaintiff further argues that MultiBank can be directly liable under the
TCPA, the Court defers to the 2008 FCC Ruling. Again, the FCC 2008 Ruling states,
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"[c]alls placed by a third party collector on behalf of that creditor are treated as if the
creditor itself placed the call." 2008 FCC Ruling at 565. The FCC has ruled, in essence,
that a creditor is placed "in the shoes" of the caller for purposes of liability under the
TCPA. See Hartley-Culp v. Green Tree Servicing, LLC, 52 F. Supp. 3d 700, 703 (M.D.
Pa. 2014). Thus, the TCPA can impose liability directly on any person or entity on whose
behalf a third party places a call in violation of § 227(b)(1)(A). At this early stage of the
case, the Court will not foreclose Plaintiff from pursuing either direct or vicarious liability.
With the foregoing settled, the question becomes whether Plaintiff has pled
sufficient factual allegations in the First Amended Complaint to state a claim under either
theory. The Court need not delve into this matter, however, because Defendants do not
challenge the sufficiency of Plaintiff's allegations. Rather, they argue, as a matter of law,
that MultiBank cannot be liable for RoundPoint's calls. Defendants' sole argument for
dismissal is based on their statutory interpretation of § 227(b)(A)(1), which is misplaced
for the reasons discussed above. Because Defendants do not challenge the pleading
sufficiency of the First Amended Complaint, the Court will not do the work for them.
Accordingly, the Court denies Defendants' Partial Motion to Dismiss Count I as
against MultiBank.
B. Count II – Florida Consumer Collection Practices Act
The Court now turns to Count II, in which Plaintiff claims RoundPoint violated
sections 559.72(7) and (18) of the FCCPA. (Doc. #37 at ¶¶ 60, 66). RoundPoint moves
to dismiss these claims as barred by the applicable statute of limitations. (Doc. #38 at 35). To the extent that any part of Count II survives the applicable limitations period,
RoundPoint further argues that Plaintiff may only recover $1,000 in statutory damages for
8
all claims asserted in Count II. (Doc. #38 at 6-10). The Court will address each argument
in turn.
1. Statute of Limitations
Under the FCCPA, a debtor must commence a civil action within two years after
the date the alleged violation. Fla. Stat. § 559.77(4). Plaintiff commenced this suit on
May 28, 2015, alleging that RoundPoint made harassing calls to him and his family about
a mortgage debt from April 2010 to May 2014. (Doc. #37 at ¶¶ 27-28, 37). Because
those calls straddle the two-year statute of limitations line, RoundPoint argues the
limitations period bars any conduct predating May 28, 2013. Plaintiff concedes this point
and agrees not to seek damages for any violations prior to that date. (Doc. #39 at 16).
Despite Plaintiff's concession, the statute of limitations dispute does not end there.
RoundPoint further argues that any calls Plaintiff received after May 28, 2013, are also
time barred because they were new communications about the same mortgage debt,
which did not restart the limitations period. (Doc. #38 at 4-5). Since the first violation is
untimely, RoundPoint argues that Plaintiff's entire FCCPA claim is barred. (Doc. #38 at
5).
RoundPoint relies on Reese v. JPMorgan Chase & Co., 686 F. Supp. 2d 1291,
1307 (S.D. Fla. 2009) to support the above argument that new communications
concerning an old claim does not restart the limitations period. In Reese, the plaintiff
sued under the Fair Debt Collection Practices Act ("FDCPA"), the federal companion
statute to the FCCPA, 3 claiming defendant incorrectly reported his mortgage balance to
3
In construing the FCCPA, "due consideration and great weight shall be given to the interpretations of the
Federal Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices Act."
Fla. Stat. § 559.77(5); see also Groves v. U.S. Bank, No. 8:10-cv-2665-T-17TGW, 2011 WL 2192821, *3
(M.D. Fla. June 6, 2011).
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credit reporting bureaus from January 2008 through December 2008. Id. at 1306-07. The
suit was commenced in April 2009, and the defendant moved to dismiss the FDCPA
claims based on the statute's one-year limitations period. Id. The plaintiff responded that
a new cause of action accrued each time defendant made an incorrect report; thus, the
statute of limitations did not bar her claims. Id. at 1307. The district court noted that the
plaintiff failed to provide specific dates for when she allegedly received notice of the
incorrect reports and stated,
[i]f the notices received after January 2008 were concerning the same debt,
[p]laintiff's claim under the FDCPA appears to be untimely. [The p]laintiff
had notice of the alleged violations since January of 2008, yet did not bring
a claim until almost a year and a half later, well beyond the one-year period
with in which to bring claims under the FDCPA.
Id. In reaching this decision, the district court generically cited to a Minnesota federal
case that noted, "where statements concerning the status of a debt are new
communications concerning an old claim, the statements do not start a fresh statute of
limitations period). Id. (citing Nutter v. Messerli & Kramer, P.A., 500 F. Supp. 2d 1219 (D.
Minn. 2007)).
The Court does not find Reese to be persuasive here. Plaintiff has adequately
pled that, within the two-year limitations period, RoundPoint made over 200 abusive and
harassing calls that violate the FCCPA, and he need not rely on the 375 addition calls
made outside the limitations period to prove liability in this case. (Doc. #39 at 9-10).
Although there is no case law addressing this statute of limitations issue as it
applies to the FCCPA, courts have addressed similar arguments under the FDCPA.
Thus, the Court turns to those cases for guidance. Upon review of this body of law,
several courts have held the one-year statute of limitations does not to bar an FDCPA
10
claim where the plaintiff has alleged a discrete violation that occurred within the limitations
period. See Calhoun v. Certegy Check Servs., Inc., No. 8:14-cv-1020-T-27MAP, 2014
WL 4146886, at *4 (M.D. Fla. 2014) (rejecting defendant's argument that plaintiff's
FDCPA claim was time-barred because "[p]laintiff alleged discrete violations within the
limitations period, notwithstanding that the original debt was incurred more than a year
before filing this suit"); McCorriston v. L.W.T., Inc., 536 F. Supp. 2d 1268, 1272 (M.D. Fla.
2008) (denying defendants' motion to dismiss because their act of sending a dunning
letter outside the limitations period did not render the FDCPA claim time-barred because
plaintiff had alleged a discrete violation within the limitations period (citations omitted));
Kaplan v. Assetcare, Inc., 88 F. Supp.2d 1355, 1360 (S.D. Fla. 2000) (stating the court
may assert jurisdiction and allow the case to go forward based only on the
communications that fall within the statutorily permitted period). The Court agrees with
this far more persuasive body of authority. In this case, therefore, because Plaintiff has
alleged several discrete violations within the limitations period, the Court will not render
the entire FCCPA to be time-barred. 4 In other words, the clock began to run on the date
of each violation, and not from the date of the first violation. To hold otherwise would
essentially allow defendant debt collectors to violate the FCCPA with impunity provided
the first unlawful communication occurred outside the limitations period. This, clearly,
was not Congress's intent.
4
Plaintiff also cites to case law in which courts have discussed the "continuing violation theory" applying in
the context of debt collection cases. (Doc. #39 at 11-13). In doing so, he seems to allude that the entire
period for the harassing calls, i.e., April 2010 to May 2015, is relevant to the determination of whether
RoundPoint violated the FCCPA. This Court, however, need not addressing the "continuing violation
theory" in the context of the FCCPA given that Plaintiff has agreed not to seek damages for any alleged
violations predating May 28, 2013. (Doc. #39 at 16).
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Finally, because the statute of limitations proscribes Plaintiff's claims that predate
May 28, 2013, RoundPoint argues that Plaintiff's allegations under § 559.72(18), which
prohibits any communication with a debtor if the person knows that the debtor is
represented by an attorney with respect to the debt, are likewise barred given counsel
withdrew from representation prior to May 28, 2013. (Doc. #38 at 3-4); see Fla. Stat.
§ 559.72(18). Plaintiff agrees and withdraws that claim. (Doc. #39 at 16).
2. Statutory Damages
Under the FCCPA, "[a]ny person who fails to comply with any provision of
§ 559.72 is liable for actual damages and for additional statutory damages as the court
may allow, but not exceeding $1,000, together with court costs and reasonable attorney's
fees incurred by the plaintiff." Fla. Stat. § 559.77(2). Here, Plaintiff contends each act
prohibited by the FCCPA that RoundPoint committed is a separate action for which he
may recover damages:
60.
. . . Each act or omission prohibited by the FCCPA is a
separate action/count by Plaintiff against RoundPoint under this Complaint
for a violation of the FCCPA for which Plaintiff seeks recovery.
61.
Each of the communications (phone calls) reference in
paragraph 60 above constitutes a separate and distinct action/count in this
Complaint. Plaintiff if entitled to and requests damages under the FCCPA
per each individual action/count and seeks an adjudication for actual and
statutory damages for each action/count.
(Doc. #37 at ¶¶ 60-61). In response, RoundPoint argues that the FCCPA prohibits
Plaintiff from recovering $1,000 per violation, which means Plaintiff may only recover a
total of $1,000. (Doc. #38 at 6-10).
Although the Eleventh Circuit has not expressly addressed the FCCPA's statutory
damages provisions, several Florida courts have interpreted its language to limit a
12
plaintiff's claim for damages to $1,000 per action, not per violation. See Arianas v. LVNV
Funding LLC, 54 F. Supp. 3d 1308, 1310 (M.D. Fla. 2014) (stating courts "have either
expressly stated that the FCCPA limits statutory damages to $1,000 per action or
awarded plaintiffs no more than $1,000 per action, even when a series of FCCPA
violations exist" (citations omitted)); Salvatore v. Nationstar Mortg., LLC, No. 8:15-cv1390-T-24AEP, 2015 WL 5970707, at *4 (M.D. Fla. Oct. 13, 2015) ("In the event [p]laintiff
alleges and proves more than one violation of the FCCPA, [p]laintiff is limited to a total
statutory award of $1,000 in this action for violations of the FCCPA[.]"); Tacoronte v. Tate
& Kirlin Assoc's., No. 6:13-cv-331-Orl-37DAB, 2013 WL 5970720, at *2 (M.D. Fla. Nov.
8, 2013) (stating "courts properly decline to multiply the $1,000 statutory award by each
violation alleged in a single count under the FCCPA").
To counter this authority, Plaintiff directs the Court's attention to Morser v. Hyundai
Capital Am., Inc., No. 2:15-cv-117-FTM-29CM, 2015 WL 4527016 (M.D. Fla. July 27,
2015) in which the court stated, "Florida courts are not in agreement that an FCCPA
plaintiff cannot recover $1,000 in statutory damages per violation." Id. at *2 (citation
omitted). Morser, however, is distinguishable from this case. Unlike Plaintiff here, the
plaintiff in Morser sought actual and statutory damages in a general fashion, despite
pleading multiple FCCPA violations. Id. In other words, the plaintiff did not specifically
seek the maximum $1,000 in statutory damages per violation. The district court also did
not address the issue of statutory damages at the motion to dismiss stage. Rather, it
stated, "[s]hould [the plaintiff] successfully proves multiple FCCPA violations, the proper
measure of his statutory damages will be determined at that time. However, as currently
pled, [the plaintiff's] requested relief is not foreclosed as a matter of law." Id.
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Accordingly, the Court grants RoundPoint's motion to dismiss to the extent that
Plaintiff is limited to statutory damages not to exceed $1,000 in this action for any and all
violations of the FCCPA.
Accordingly, it is now
ORDERED:
Defendants' Partial Motion to Dismiss with Prejudice (Doc. #38) is GRANTED in
part and DENIED in part. The motion is granted to the extent set forth herein and
otherwise denied.
DONE and ORDERED in Fort Myers, Florida this 18th day of February, 2016.
Copies: All Parties of Record
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