Harrington v. Roundpoint Mortgage Servicing Corporation et al

Filing 77

ORDER granting in part and denying in part 64 Defendants Roundpoint Mortgage Servicing Corporation and MultiBank 2010-1 SFR Venture, LLC's Motion to Dismiss, or, in the alternaitve, Motion to Stay Litigation. This action is STAYED pending the Supreme Court's decision in Spokeo, Inc. v. Robins, 135 S. Ct. 1892 (2015) (No. 13-1339). On or before June 15, 2016, and every thirty days thereafter, Plaintiff Larry Harrington shall file a report as to the status of Spokeo. Additionally , within seven (7) days of the Supreme Court's decision in Spokeo, Plaintiff Larry Harrington shall notify the Court.This Clerk is directed to place a stay flag on this action and terminate any pending deadlines or motions. Signed by Judge Sheri Polster Chappell on 4/8/2016. (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.
/
ORDER1
This matter comes before the Court on Defendants RoundPoint Mortgage
Servicing Corporation and MultiBank 2010-1 SFR Venture, LLC's Motion to Dismiss, or,
in the alternaitve, Motion to Stay Litigation (Doc. #64) filed on March 3, 2016. Plaintiff
Larry Harrington filed a Response in Opposition (Doc. #70) on March 17, 2016. The
matter is ripe for review.
Background2
This is an action alleging violations of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227, and the Florida Consumer Collection Practices Act

1

Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or websites. These
hyperlinks are provided only for users’ convenience. Users are cautioned that hyperlinked documents in
CM/ECF are subject to PACER fees. By allowing hyperlinks to other websites, this Court does not endorse,
recommend, approve, or guarantee any third parties or the services or products they provide on their
websites. Likewise, the Court has no agreements with any of these third parties or their websites. The
Court accepts no responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion of the Court.
2

The Court recently recited the facts of this action at length in its February 18, 2016 Order (Doc. #63) and
need not do so again here. Unless otherwise stated, all facts recited in this Order are derived from Plaintiff’s
Amended Complaint (Doc. #37) and construed in a light most favorable to Plaintiff, the non-moving party.

(“FCCPA”), Fla. Stat. § 559.55 et seq. In November 2003, Plaintiff secured a mortgage
from Riverside Bank of the Gulf Coast. (Doc. #37 at ¶ 31). Sometime later, 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). This included calls to
four cellular numbers for which Plaintiff was the named subscriber. (Doc. #37 at ¶¶ 3839). 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).
Believing these acts violated both federal and state laws, Plaintiff initiated this
action on May 28, 2015. (Doc. #1). With leave of Court, he filed an Amended Complaint,
which is the operative pleading. (Doc. #37).

The Amended Complaint asserts two

counts. Count I alleges that RoundPoint and MultiBank violated the TCPA 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 FCCPA. RoundPoint allegedly violated § 559.72(7) by calling Plaintiff
and his family with such frequency as could be expected to harass them. (Doc. #37 at ¶
60). RoundPoint also allegedly violated § 559.72(18) by calling Plaintiff when it knew an

2

attorney represented him on the debt for which RoundPoint was attempting to collect.
(Doc. #37 at ¶ 66).
Defendants responded to these allegations by filing a motion to dismiss, seeking
to dismiss Count I as to MultiBank and Count II in its entirety. (Doc. #38). The Court
denied Defendants argument as to Count I. (Doc. #63). But after Plaintiff conceded the
§ 559.72(18) violation should be dismissed, the Court granted Defendants’ motion as to
Count II, in part. (Doc. #63). The Court dismissed the § 559.72(18) violation and limited
Plaintiff’s recovery to statutory damages not to exceed $1,000 for the remaining FCCPA
claim.

(Doc. #63). Now, Defendants once again seek to dismiss Count I.

In the

alternative, they seek to stay this action.
Discussion
In 2015, the Supreme Court granted certiorari in Robins v. Spokeo, Inc., 135 S. Ct.
1892 (2015), to answer the question “[w]hether Congress may confer Article III standing
upon a plaintiff who suffers no concrete harm, and who therefore could not otherwise
invoke the jurisdiction of a federal court, by authorizing a private right of action based on
a bare violation of a federal statute.” Pet. Writ of Cert. at i, Spokeo v. Robins, No. 131339 (U.S. May 1, 2014); Br. of Pet’r at i, Spokeo v. Robins, No. 13-1339 (U.S. July 2,
2015). This decision could have broad implications for actions asserting statutory claims,
including the TCPA claim asserted here. If the Supreme Court determines that Congress
cannot confer standing by authorizing a private right of action based on a bare violation
of a federal statute, then the Court lacks subject matter jurisdiction over this action and
will likely decline jurisdiction over the remaining state-law claim.

3

Recognizing this

possibility, Defendants believe a stay of this action pending the Supreme Court’s decision
in Spokeo is warranted. The Court agrees.
The Supreme Court’s decision in Spokeo is due no later than June 2016 - less
than three months away. There has been very limited discovery conducted in this action
thus far, and Defendant has yet to file an answer. Moreover, as other courts have found,
“the potential savings to the parties from unnecessary discovery expenses, as well as
potential savings in judicial economy, outweigh any hardship on [Plaintiff] that might be
caused by the delay.” Figueroa v. Carrington Mortgage Servs. LLC, No. 8:15-cv-2414-T24TGW, 2016 WL 718289, at *3 (M.D. Fla. Feb. 22, 2016). Therefore, the Court will stay
this action pending the Supreme Court’s decision in Spokeo. See Clinton v. Jones, 520
U.S. 681, 706 (1997) (explaining a district court maintains “broad discretion to stay
proceedings as an incident to its power to control its own docket”). The remainder of
Defendants’ Motion is denied, but may be renewed after Spokeo is decided.
Accordingly, it is now
ORDERED:
1. Defendants Roundpoint Mortgage Servicing Corporation and MultiBank 20101 SFR Venture, LLC's Motion to Dismiss, or, in the alternaitve, Motion to Stay
Litigation (Doc. #64) is GRANTED in part.
2. This action is STAYED pending the Supreme Court’s decision in Spokeo, Inc.
v. Robins, 135 S. Ct. 1892 (2015) (No. 13-1339).
3. On or before June 15, 2016, and every thirty days thereafter, Plaintiff Larry
Harrington shall file a report as to the status of Spokeo. Additionally, within

4

seven (7) days of the Supreme Court’s decision in Spokeo, Plaintiff Larry
Harrington shall notify the Court.
4. This Clerk is directed to place a stay flag on this action and terminate any
pending deadlines or motions.

Copies: All Parties of Record

5