Sellers et al v. Rushmore Loan Management Services, LLC
Filing
55
ORDER granting 33 Rushmore's Motion for Summary Judgment as to Count III and otherwise denying the motion; denying without prejudice 28 Plaintiffs' Motion to Certify Class. If Plaintiffs choose to file an amended motion for class certification, they must do so by 6/1/17. Rushmore shall file its response by 6/30/17. Signed by Judge Timothy J. Corrigan on 5/3/2017. (SEJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION
RANDOLPH SELLERS, individually
and on behalf of a class of persons
similarly situated and TABETHA
SELLERS, individually and on behalf
of a class of persons similarly situated,
Plaintiffs,
v.
Case No. 3:15-cv-1106-J-32PDB
RUSHMORE LOAN MANAGEMENT
SERVICES, LLC,
Defendant.
ORDER
This consumer credit putative class action is before the Court on: (1) Defendant
Rushmore Loan Management Services, LLC’s Motion for Summary Judgment (Doc.
33), to which Plaintiffs Randolph and Tabetha Sellers responded (Doc. 37); and (2)
Plaintiffs’ Motion for Class Certification (Doc. 28), to which Rushmore responded (Doc.
31). On March 30, 2017, the Court held a hearing on the motion for summary
judgment, the record of which is incorporated herein.1 (Doc. 53).
At the hearing, the parties discussed issues pertaining to summary judgment
and class certification, so the Court finds it appropriate to address both motions at
this time.
1
Because neither party requested the official transcript of the hearing, the Court
has relied on a “rough” transcript.
I.
BACKGROUND
In April 2007, Plaintiffs borrowed $122,459 from Premier Mortgage Funding,
Inc. for a loan on their home in Keystone Heights, Florida. (Doc. 33-2). The loan was
evidenced by a promissory note and secured by a mortgage on the property. (Id.). The
loan went into default, and in September 2008, Taylor, Bean & Whitaker and GMAT
Legal Title Trust 2013-1, the holders of the mortgage and note, filed a foreclosure
action. (Doc. 37-1 ¶ 6). Plaintiffs moved out of the property and into Ms. Sellers’s
mother’s residence. (Id. ¶ 7). On February 16, 2011, Plaintiffs filed a voluntary
Chapter 7 bankruptcy petition, which triggered a stay of the foreclosure action.2 (Id.
¶ 9). Plaintiffs state that they did not reaffirm the debt due to the continuously
increasing balance on the loan. (Id. ¶ 11). On June 2, 2011, Plaintiffs received a
Chapter 7 discharge, which released them from personal liability for the loan on their
home. (Doc. 33-3). Under the discharge order,
a creditor is not permitted to contact a debtor by mail,
phone, or otherwise . . . or to take any other action to collect
a discharged debt. . . . However, a creditor may have the
right to enforce a valid lien, such as a mortgage or security
interest, against the debtors’ property after the bankruptcy,
if that lien was not avoided or eliminated in the bankruptcy
case.
(Id. at 4).
In August 2013, servicing of Plaintiffs’ loan transferred from Bank of America
to Rushmore. (Doc. 33-1 ¶ 5). Beginning in February 2014, Rushmore sent three
Plaintiffs’ bankruptcy case is In re Randolph Lane Sellers and Tabetha Lynne
Sellers, Case No. 3:11-bk-911 (Bankr. M.D. Fla).
2
2
written forms to Plaintiffs: Mortgage Statement I, Mortgage Statement II, and a
Request for Taxpayer Identification Number (“Request for TIN”).
First, from February 2014 through November 2014, on the first of each month,
Rushmore sent Plaintiffs a copy of Mortgage Statement I.3 Page one lists a “Payment
Due Date” and an “Amount Due” in a box in the top right corner. Located directly
beneath that box in a separate box is a disclaimer:
This communication is from a debt collector and any
information received will be used for that purpose. This does
not imply that Rushmore Loan Management Services is
attempting to collect money from anyone whose debt has
been discharged pursuant to (or who is under the protection
of) the bankruptcy laws of the United States; in such
instances, it is intended solely for informational purposes.
Below the disclaimer box is another box entitled “Explanation of Amount Due,” which
itemizes the principal, interest, escrow, regular monthly payment, total fees and
charges, and overdue payment on the loan. At the bottom of page one is a detachable
payment coupon, which lists a “Due Date,” “Amount Due,” a “Late Payment Amount”
and instructions to make checks payable to Rushmore.
Plaintiffs state that they received ten copies of Mortgage Statement I—one
copy per month from February 2014 through November 2014. (Doc. 37 at 18).
3
Several statements are attached to the motion for class certification but not the
response to the motion for summary judgment: March 2014 (Doc. 28-1 at 19-23); April
2014 (Id. at 124-28; May 2014 (Id. at 119-123); June 2014 (Id. at 115-18); July 2014
(Id. at 111-14); and August 2014 (Id. at 107-110).
Plaintiffs attached the statements they received from September 2014 through
November 2014 to their response in opposition to the motion for summary judgment.
(Doc. 37-1 at 8-20).
The Court cannot locate a copy of the February 2014 statement.
3
Next, beginning in December 2014 and through June 2015, on the first of each
month, Rushmore sent Plaintiffs a new form of the mortgage statement.4 Mortgage
Statement II contains the same box at the top right corner listing a “Payment Due
Date,” “Amount Due,” and a sentence informing the recipient that if payment is
received after a certain date, a late fee will be charged. Directly below that box are two
separate boxes, one showing the same disclaimer language as in Mortgage Statement
I, and the “Explanation of Amount Due” information. However, Mortgage Statement
II eliminates the payment coupon and replaces it with the following additional
disclaimer language in a box at the bottom of page one:
This is an Information Statement for borrowers in
bankruptcy or borrowers whose debt has been discharged in
bankruptcy. It is not an attempt to collect a debt. Please
note that even if your debt has been discharged in
bankruptcy and you are no longer personally liable on the
debt, the lender may, in accordance with applicable law,
pursue its rights to foreclose on the property securing the
debt. If you do not wish to receive informational statements
in the future, please call Rushmore toll-free at (888) 5046700.
The bottom of the last page also contains disclaimer language:
Rushmore Loan Management Services LLC is a Debt
Collector, who is attempting to collect a debt. Any
information obtained will be used for that purpose.
However, if you are in Bankruptcy or received a Bankruptcy
Discharge of this debt, this letter is being sent for
informational purposes only, is not an attempt to collect a
debt and does not constitute a notice of personal liability
with respect to the debt.
Plaintiffs state that they received seven copies of Mortgage Statement II—one
copy per month from December 2014 through June 2015. (Doc. 37 ¶ 17; Doc. 37-1 at
21-30, Doc. 37-2; Doc. 28-1 at 92-96).
4
4
Finally, on March 5, 2014, Rushmore sent Plaintiffs a packet of information
which, among other information, included a Request for TIN.5 The first page of the
packet notes that “We have enclosed important information regarding your loan.” The
document does not specify the amount of Plaintiffs’ loan, list a due date, request
payment, or provide a method to do so. At the top of the Request for TIN, under the
Privacy Act Statement heading, the document states:
Section 6109 of the Internal Revenue Code requires you to
give your correct [TIN] to persons who must file information
returns with the IRS to report interest, dividends and
certain other income paid to you, mortgage interest you
paid, the acquisition or abandonment of secured property,
cancellation of debt or contributions you made to an IRA.
Upon receiving the monthly mortgage statements, Ms. Sellers called Rushmore
to confirm that it had a copy of Plaintiffs’ bankruptcy discharge order. (Doc. 37-3 at
46:23-47:4). During a call to Rushmore, she states that she “was then talked to about
a deed in lieu [of foreclosure].” (Id. at 48:1-2). Ultimately, in May 2014, Plaintiffs
declined Rushmore’s offer to accept a deed in lieu of foreclosure. (Id. at 63:5-64:4). The
state court entered a final judgment of foreclosure on August 28, 2014, (Doc. 37 at 5),
and the property was sold at a foreclosure sale on October 4, 2014 (Doc. 33-5). Due to
a clerical error, the sale proceeds were initially made payable to an incorrect party
(Doc. 33-6), but were properly distributed in April 2015. (Doc. 33-7). Nevertheless,
Plaintiffs state that they received one copy of the Request for TIN in March
2014. (Doc. 37 at 18). Plaintiffs only attached the one-page Request for TIN to the
complaint. (Doc. 1-2 at 23). Rushmore, however, attached the entire letter and the
Request for TIN to its motion for summary judgment (Doc. 33-10), which provides a
more complete picture of what Plaintiffs received in the mail. Therefore, the Court will
refer to Doc. 33-10 in its analysis of this form.
5
5
Plaintiffs continued receiving a monthly communication containing Mortgage
Statement II through June 2015. (Doc. 37 at 5).
Plaintiffs filed this putative class action, raising four claims. (Doc. 1). Count I
alleges that Rushmore violated the Fair Debt Collection Practices Act, 15 U.S.C. §
1692 et seq. (“FDCPA”), by sending monthly account statements which “attempted to
collect a debt and represented that it had a legal right to collect upon discharged
monetary amounts.” (Id. ¶¶ 32-51). Plaintiffs allege that this conduct violates § 1692e,
which prohibits the use of false, deceptive, or misleading representations in connection
with the collection of a debt, and § 1692e(2)(A), because the collection activities falsely
represented the character, amount or legal status of a debt. (Id. ¶¶ 46-47). Count II
alleges that Rushmore violated the Florida Consumer Collection Practices Act, Fla.
Stat. §§ 559.55-559.785 (“FCCPA”), by sending the monthly account statements
because, in doing so, Rushmore “claim[ed] and attempt[ed] to enforce a debt which was
not legitimate and not due and owing” in violation of § 559.72(9). (Id. ¶¶ 52-69). Count
III alleges that Rushmore violated the FCCPA by sending the Request for TIN. (Id. ¶¶
70-86). Specifically, Plaintiffs allege that Rushmore violated § 559.72(9), because it
had “no legal right to seek collection of these amounts . . . and was in fact enjoined
from doing so pursuant to bankruptcy discharge of the subject amounts.” (Id. ¶ 83). In
addition, Rushmore allegedly violated § 559.72(7) because Rushmore’s “IRS threat is
reasonably expected to abuse or harass the recipient.” (Id. ¶ 84). Finally, in Count IV,
Plaintiffs seek a declaration that Rushmore’s conduct was unlawful, an injunction
prohibiting Rushmore from sending documents requesting payment on discharged
6
debts, and an order requiring Rushmore to “disgorge all ill-gotten gains” under the
Declaratory Judgment Act, 28 U.S.C. § 2201. (Id. ¶¶ 87-106). Plaintiffs have also filed
a motion for class certification (Doc. 28), which Rushmore opposes (Doc. 31).
II.
STANDARD OF REVIEW
Summary judgment is proper where “there is no genuine issue as to any
material fact” and “the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(c). “The burden of demonstrating the satisfaction of this standard lies with the
movant, who must present pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, that establish the absence of
any genuine material, factual dispute.” Branche v. Airtran Airways, Inc., 342 F.3d
1248, 1252-53 (11th Cir. 2003) (internal quotations omitted). An issue is genuine when
the evidence is such that a reasonable jury could return a verdict for the non-movant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986).
In determining whether summary judgment is appropriate, a court must draw
inferences from the evidence in the light most favorable to the non-movant and resolve
all reasonable doubts in that party’s favor. See Centurion Air Cargo, Inc. v. United
Parcel Serv. Co., 420 F.3d 1146, 1149 (11th Cir. 2005). However, “Rule 56 mandates
the entry of summary judgment, upon motion, against a party who fails to make a
showing sufficient to establish an element essential to his case on which he bears the
burden of proof at trial.” Schechter v. Ga. State Univ., 341 F. App’x 560, 562 (11th Cir.
2009) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)).
7
III.
APPLICABLE LAW
A.
FDCPA
The FDCPA provides a civil cause of action against any debt collector who fails
to comply with its requirements. See Bacelli v. MFP, Inc., 729 F. Supp. 2d 1328, 133132 (M.D. Fla. 2010) (citations omitted). The FDCPA prohibits debt collectors from
using any false representation as to the “legal status of any debt.” 15 U.S.C. §
1692e(2)(A). “A demand for immediate payment while a debtor is in bankruptcy (or
after the debt’s discharge) is ‘false’ in the sense that it asserts that money is due,
although, because of . . . the discharge injunction (11 U.S.C. § 524), it is not.” Bacelli,
729 F. Supp. 2d at 1331-32 (quoting Randolph v. IMBS, Inc., 368 F.3d 726, 728 (7th
Cir. 2004) (dicta); see also Ross v. RJM Acquisitions Funding LLC, 480 F.3d 493, 495
(7th Cir. 2007) (“Dunning people for their discharged debts” is prohibited by 15 U.S.C.
§ 1692e(2)(A)); cf. Turner v. J.V.D.B. & Assocs., Inc., 330 F.3d 991, 995 (7th Cir. 2003)
(reversing summary judgment in favor of debt collector on claim under § 1692e(2)(A)
in part because a reasonable jury could conclude debt collector’s collection letter
implied that the discharged debt was still payable)).
In determining whether a debt collector’s communication violates § 1692e,
courts in the Eleventh Circuit employ the “least-sophisticated consumer” standard.
See LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193, 1201 (11th Cir. 2010).
The “least sophisticated consumer” is “presumed to possess a rudimentary amount of
information about the world and a willingness to read a collection notice with some
care.” Id. However, the test is an “objective” one, designed both to protect naïve
consumers and prevent “liability for bizarre or idiosyncratic interpretations of
8
collection notices.” See id. However, “it is not necessary for a plaintiff to show that she
herself was confused by the communication she received; it is sufficient for a plaintiff
to demonstrate that the least sophisticated consumer would be confused.” Beeders v.
Gulf Coast Collection Bureau, Inc., No. 809-CV-00458-EAK-AEP, 2010 WL 2696404,
at *3 (M.D. Fla. July 6, 2010), aff’d, 432 F. App’x 918 (11th Cir. 2011) (quoting
Jacobson v. Healthcare Fin. Servs., Inc., 516 F.3d 85, 91 (2d Cir. 2008)). “Additionally,
the Court need not determine whether the named plaintiff or other putative plaintiffs
read or were confused by the notice, as the standard is whether the least sophisticated
consumer would have been misled.” Battle v. Gladstone Law Grp., P.A., 951 F. Supp.
2d 1310, 1315 (S.D. Fla. 2013) (citation omitted).
B.
FCCPA
The FCCPA provides that a debtor may bring a civil action against any person
who violates its provisions. Fla. Stat. § 559.77. The FCCPA prohibits any person, in
collecting consumer debts, from “claim[ing], attempt[ing], or threaten[ing] to enforce
a debt when such person knows that the debt is not legitimate or assert[ing] the
existence of some other legal right when such person knows that the right does not
exist.” Id. § 559.72(9) (alteration added). “In contrast to the FDCPA, § 559.72(9) of the
FCCPA requires a plaintiff to demonstrate that the debt collector defendant possessed
actual knowledge that the threatened means of enforcing the debt was unavailable.”
LeBlanc, 601 F.3d at 1192 (citing McCorriston v. L.W.T., Inc., 536 F. Supp. 2d 1268,
1279 (M.D. Fla. 2008) (internal citations omitted)). The FCCPA also prohibits
“willfully engag[ing] in . . . conduct which can reasonably be expected to abuse or
harass the debtor. . . .” Fla. Stat. § 559.72(7). Finally, the FCCPA provides that in
9
construing its provisions, “due consideration and great weight shall be given to the
interpretations of the Federal Trade Commission and the federal courts relating to the
[FDCPA].” Fla. Stat. § 559.77(5); Herrera v. Bank of Am., N.A., No. 15-CV-62156, 2016
WL 4542105, at *9 (S.D. Fla. Aug. 31, 2016).
IV.
ANALYSIS
A.
Motion for Summary Judgment
1.
Whether the Communications Violate the FDCPA and/or
FCCPA
a.
Mortgage Statement I6
i.
FDCPA
Plaintiffs argue that Mortgage Statement I violates § 1692e(2)(A) in that it
“misrepresent[s] the character, amount, or legal status of the demands for the TOTAL
AMOUNT DUE on its statements,” and that the least sophisticated consumer could
conclude that Rushmore was asserting that she was personally liable for the total
amount due. (Doc. 37 at 16-17). Specifically, Plaintiffs identify demands for payment
on the first page of the statement, including “Current Payment Due,” “Other Amounts
Due,” and in bold letters and all capitals, “TOTAL AMOUNT DUE.”7 (Id. at 16). They
The FDCPA’s statute of limitations is one year. 15 U.S.C. § 1692k(d) (“An
action to enforce any liability created by this subchapter may be brought in any
appropriate United States district court without regard to the amount in controversy,
or in any other court of competent jurisdiction, within one year from the date on which
the violation occurs.”). Plaintiffs filed suit on September 11, 2015. For purposes of the
FDCPA, only those communications sent after September 11, 2014 may be considered
a violation of the FDCPA. Therefore, only the October and November 2014 Mortgage
Statement Is are actionable under the FDCPA. Plaintiffs conceded this point at oral
argument.
6
Plaintiffs slightly misrepresent the exact language that appears on the front
page of Mortgage Statement I. The words on the document include, among others: in
7
10
also quote the language in the “Important Information” box, which says, “IF YOU ARE
[IN] FORECLOSURE OR BANKRUPTCY, the amount listed here may not be the full
amount necessary to bring your account current. To obtain the most up-to-date
amount due information, please contact us at the number listed on this statement.”
(Id.; Doc. 33-8 at 2). According to Plaintiffs, this language undercuts the disclaimers
upon which Rushmore relies. Plaintiffs also note the existence of the payment coupon
“prominently featured” in Mortgage Statement I. (Doc. 37 at 18). Because they believe
that a genuine issue of material fact exists as to whether Mortgage Statement I was
“deceptive, confusing, and abusive” to the least sophisticated consumer, Plaintiffs
request that the Court deny summary judgment.
Rushmore argues that Mortgage Statement I is for informational purposes and
does not seek to induce payment from Plaintiffs, noting the disclaimer at the top right
corner of the first page; thus, Rushmore argues, it is not subject to the FDCPA. (Doc.
33 at 15). Moreover, given that creditors are permitted to communicate with debtors
regarding security liens on property even after a discharge in bankruptcy, Rushmore
argues that it was clear that the statement was not sent to induce payment of a debt.
(Id. at 18).
The FDCPA does not apply to every communication between a debt collector
and a debtor. “[F]or a communication to be in connection with the collection of a debt,
an animating purpose of the communication must be to induce payment by the debtor.”
bold letters, “Amount Due,” “Total Amount Due,” and in bold, capital letters “DUE
DATE,” “AMOUNT DUE,” and “LATE PYMT AMOUNT.”
11
Parker v. Midland Credit Mgmt., Inc., 874 F. Supp. 2d 1353, 1357 (M.D. Fla. 2012)
(quoting Grden v. Leikin Ingber & Winters PC, 643 F.3d 169, 173 (6th Cir. 2011)).
“Obviously, communications that expressly demand payment will almost certainly
have this purpose.” Id. (quoting Grden, 643 F.3d at 173). However, “an implicit
demand for payment may exist where the letter states the amount of the debt,
describes how the debt may be paid, provides the phone number and address to send
payment, and expressly states that the letter is for the purpose of collecting debt.”
Leahy-Fernandez v. Bayview Loan Servicing, LLC, 159 F. Supp. 3d 1294, 1303 (M.D.
Fla. 2016) (quoting Pinson v. Albertelli Law Partners LLC, 618 F. App’x. 551, 553
(11th Cir. 2015)). “On the opposite end of the spectrum, where a communication is
‘merely information’ and explicitly informs the debtor that the communication or
notice is not an attempt to collect a debt or a demand for payment, courts have held
that these communications are not subject to the FDCPA.” Prindle v. Carrington Mort.
Servs., LLC, Case No. 3:13-cv-1349-MMH-PDB, 2016 WL 4369424, at *6 (M.D. Fla.
Aug. 16, 2016) (citing Hasbun v. Recontrust Co., 508 F. App’x. 941, 942 (11th Cir.
2013); Hernandez v. Dyck–O’Neal, Inc., No. 3:14–cv–1124–J–32JBT, 2015 WL
2094263, at *3 (M.D. Fla. May 5, 2015); Parker, 874 F. Supp. 2d at 1358).
As the Eleventh Circuit has not identified a specific test for determining
whether a particular communication is made in connection with the collection of a debt
such that it falls within the ambit of the FDCPA, many courts in this Circuit look to
out-of-circuit decisions for guidance. See Prindle, 2016 WL 4369424, at *6 (citing
Parker, 874 F. Supp. 2d at 1356). For instance, the Sixth and Seventh Circuits have
12
identified “the relationship of the parties, the intent of the communication, as well as
whether there was a demand for payment as factors to consider when determining
whether a communication falls within the scope of the FDCPA.” Parker, 874 F. Supp.
2d at 1356-57. “Other factors courts have considered include whether the
communication was sent in response to an inquiry or request by the debtor; whether
it was from a debt collector; whether it stated that it was an attempt to collect a debt;
and whether the communication threatened consequences if the debtor failed to pay.”
Prindle, 2016 WL 4369424, at *6 (citing Bohringer v. Bayview Loan Servicing, 141 F.
Supp. 3d 1229, 1240-41 (S.D. Fla. 2015)).
Rushmore is not entitled to summary judgment because a genuine dispute
exists as to whether Mortgage Statement I was an attempt to collect a debt. In terms
of the relationship between the parties, Rushmore was the servicer of Plaintiffs’
discharged loan and is undisputedly a debt collector. (See Doc. 33-10) (“This
communication is from a debt collector. . . .”). Similar to certain elements of a mortgage
statement in Prindle, Mortgage Statement I lists amounts due, the dates they are due,
provides a means of payment via the detachable payment coupon, and a late payment
amount, which could be read to imply a financial penalty for failure to timely pay the
amount due. Further, Plaintiffs did not request that Rushmore send them this
information. To the contrary, the evidence shows that Plaintiffs did not expect to
receive any further communications about the loan—much less what arguably
resembles a request for payment—following the discharge. See, e.g., Doc. 33-4 97:4-11
(“I [Ms. Sellers] felt like once we were discharged from the bankruptcy that legally we
13
should not be contacted by another collector . . . .”). While the disclaimer is located on
the front of the mortgage statement (as opposed to the second page, as in Prindle),
when considered in conjunction with the other aspects of the statement described here,
“a reasonable jury could find it to be a communication made in connection with the
collection of a debt.”8 Prindle, 2016 WL 4369424, at *15 (citing Goodin v. Bank of Am.,
N.A., 114 F. Supp. 3d 1197, 1206 & n.10 (M.D. Fla. 2015) (finding “statements that
contained payment instructions, a payment due date, and an amount due” were
attempts to collect a debt, even though they also were labeled “FOR INFORMATION
PURPOSES” and stated that if debtors were currently in bankruptcy, statement
should not be construed as an attempt to collect from them personally)); see also
Rushmore relies heavily on Helman v. Udren Law Offices, P.C., 85 F. Supp.
3d 1319 (S.D. Fla. 2014), a decision in which the court found that a mortgage
statement containing a payment coupon and a disclaimer on the second page did not
constitute an attempt to collect a debt. Though this Court respects the teaching of
Helman, it is not bound to follow it. Moreover, while the statements in Helman had
similar characteristics to Mortgage Statement I, the Court disagrees with Rushmore’s
argument that “Mortgage Statement I contains disclaimer language that is clearer
and more definitive than the language in the mortgage statements at issue in
Helman.” (Doc. 33 at 19).
8
The Helman disclaimer language read: “This statement is sent for
informational purposes only and is not intended as an attempt to collect, assess,
or recover a discharged debt from you. . . . If this account is active or has been
discharged in a bankruptcy proceeding, be advised this communication is for
informational purposes only and is not an attempt to collect upon a debt.” Helman,
85 F. Supp. 3d at 1327 (emphasis in original).
The Helman disclaimer notes that the statement is not attempting to collect a
debt from accounts discharged in bankruptcy and is for informational purposes only,
whereas Mortgage Statement I uses more ambiguous language that could confuse the
least sophisticated consumer such as, “this does not imply that Rushmore . . . is
attempting to collect money from anyone whose debt has been discharged pursuant to
. . . the bankruptcy laws . . . .”
14
Leahy-Fernandez, 159 F. Supp. 3d at 1303 (mortgage statement which “(1) lists a total
amount due, (2) provides a payment coupon that includes the address to which
payment should be sent and the amount due, (3) discusses additional payment options,
and (4) provides that a fee will be charged if payment is not received by a certain date”
were attempts to collect a debt).
For similar reasons, a genuine issue of material fact exists as to whether
Mortgage Statement I was false, deceptive, or misleading to the least sophisticated
consumer. Rushmore contends that Plaintiffs’ deposition testimony, in which they
state that they understood that the statements were not attempts to collect a debt,
undercuts their argument that the mortgage statement was misleading. See, e.g., Doc.
33-11 57:22-58:7 (“I [Mr. Sellers] understood that they weren’t trying to collect a
debt.”). Although Plaintiffs admitted in their depositions that they understood that
Rushmore was not trying to collect a debt,9 the least sophisticated consumer standard
Ms. Sellers did express confusion as to why they were continuing to receive
the mortgage statements when she understood the debt to have been discharged:
9
Deciding to do a bankruptcy was not an easy decision for us.
It wasn’t easy to know that we were going to have to do this.
So once we decided to do that and we got discharged, we
honestly thought it’s going to take, we’re going to have to
start over, but we can do it.
We can rebuild our credit. And that’s what we have been
doing since we were discharged, was trying to rebuild our
credit and trying to have a fresh start from all of this. And
it's been a lot of years between each mortgage company and
then the bankruptcy, and then thinking that we’ve taken
care of everything legally that we were supposed to take
care of.
15
is objective and does not take into account the individual circumstances of a plaintiff.
As such, given the contrasting conclusions a consumer might draw from the language
requesting payment, the payment coupon, and the disclaimer, the Court cannot
conclude as a matter of law that these statements were not misleading. See Prindle,
2016 WL 4369424, at *16 (quoting LeBlanc, 601 F.3d at 1197 (“[W]here the parties
reasonably disagree on the proper inferences that can be drawn from the debt
collector’s [communication], resolution is for the trier of fact—not for the court on
summary judgment.”)).
ii.
FCCPA
To avoid summary judgment on their claim that Mortgage Statement I violates
§ 559.72(9), Plaintiffs must prove that Rushmore “had actual knowledge that their
claim of a right to enforce the debt was [invalid.]” Arianas v. LVNV Funding LLC, 132
F. Supp. 3d 1322, 1330 (M.D. Fla. 2015) (quoting McCorriston, 536 F. Supp. 2d at
1279). “To meet the requirements of § 559.72(9), a plaintiff must do more than merely
show the defendant’s claim is not legitimate; she must also show that the defendant
knows the claim is not legitimate, a separate issue.” Kelly v. Davis, No. 3:10CV392MW/EMT, 2014 WL 12515345, at *10 (N.D. Fla. July 17, 2014) (emphasis in original).
And then to start getting this, these statements every
month, and seeing it just go up and up and up. And then
with what I was being told on the phone by the Rushmore
representative, I honestly thought, oh, my gosh, are we
going to be even in a worse hole than we were before we filed
the bankruptcy? That was my thought process.
(Doc. 33-4 59:2-24).
16
Neither party does an exceptional job supporting its assertions concerning the
viability of the FCCPA claim. Instead, both parties conflate their arguments regarding
the FDCPA claims with the FCCPA claims, primarily arguing in FDCPA terms
whether the statements were false and misleading. Indeed, courts in this Circuit have
dismissed similar claims on such grounds. See Pollock v. Bay Area Credit Serv., LLC,
No. 08-61101-CIV, 2009 WL 2475167, at *9 (S.D. Fla. Aug. 13, 2009) (“The Court
agrees that Plaintiff has conflated the FDCPA’s requirements with the FCCPA’s
provisions, without demonstrating the basis for its legal theory. Therefore, this claim
shall be dismissed.”).
Despite these shortcomings, there is sufficient evidence in the record to deny
summary judgment on the FCCPA claim. Courts have found that a defendant’s
knowledge of a plaintiff’s bankruptcy proceeding is sufficient to allow an FCCPA claim
to survive summary judgment in these circumstances. For instance, in Bacelli, the
defendant argued that it could not be held liable under § 559.72(9) because “it lacked
actual knowledge of the bankruptcy action.” 729 F. Supp. 2d at 1338. However, the
court ruled that the defendant’s knowledge that the plaintiff had filed for bankruptcy
constituted “substantial evidence that [the defendant] possessed the requisite
knowledge” and denied summary judgment. Id. Here, Ms. Sellers testified that when
she called Rushmore to confirm that it had the Sellers’ bankruptcy on file, Rushmore
“told [Ms. Sellers], [Rushmore] did, that . . . the bankruptcy was on file.” (Doc. 33-4
73:2-25). Importantly, Rushmore does not dispute that it knew Plaintiffs’ loan was
discharged in bankruptcy. Given the compelling similarities between this case and
17
Bacelli, summary judgment on Plaintiffs’ claim that Mortgage Statement I violated §
559.72(9) is due to be denied.
b.
Mortgage Statement II
Relying on many of the same arguments, Rushmore also requests summary
judgment based on Plaintiffs’ claims related to Mortgage Statement II. (Doc. 33 at 19).
Rushmore emphasizes some differences between Mortgage Statements I and II which
arguably strengthen its claim that the latter is not an attempt to collect a debt. For
instance, while Mortgage Statement II contains the same disclaimer language on the
top, right-hand corner of the first page, it eliminates the payment coupon and replaces
it with additional, stronger disclaimer language. (See supra, p. 4). Of particular
consequence are the statements in the additional disclaimer box, which state: “This is
an Informational Statement for borrowers in bankruptcy or borrowers whose debt has
been discharged in bankruptcy. It is not an attempt to collect a debt.” (Doc. 33-9).
Plaintiffs’ response does not meaningfully distinguish between the two forms of
the mortgage statements, instead relying on the language that appears in both
statements, which they argue is confusing to the least sophisticated consumer, who
could conclude that Rushmore was asserting that she was personally liable for the
amounts listed. (Doc. 37 at 17). Plaintiffs also note that neither Mortgage Statement
I nor II includes language that “the amounts described as due are ‘in lieu of enforcing
a lien.’” (Doc. 37 at 17).
The disclaimer language in Mortgage Statement II is somewhat stronger, and
the Court is mindful that the presence of the language “this is not an attempt to collect
a debt” helped persuade this Court and others in debt collection disputes that the
18
contested documents are “clearly informational.” See Hernandez, 2015 WL 2094263,
at *3 (“The May 2 letter . . . expressly stated that it was not an attempt to collect a
debt, whereas the letter in LeBlanc expressly stated that it was an attempt to collect
a debt. . . . Accordingly, agreeing with the rationale of Parker, the Court determines
as a matter of law that the May 2 letter was not an attempt to collect a debt.”
(emphasis added));10 see also Parker, 874 F. Supp. 2d at 1358 (“And the purpose of the
letter was to inform Plaintiff of the assignment of the account to Defendant. Indeed,
the letter even states that ‘this is not an attempt to collect a debt.’” (emphasis added));
Helman, 85 F. Supp. 3d at 1327. While disclaimer language is pertinent, it is not
necessarily dispositive, and all the facts and circumstances surrounding the disclaimer
must be considered. For example, indicators such as the timing and context of the
document, the content of the document besides the disclaimer, the size of the
disclaimer language type, its location on the document, and whether it is written in
plain language should all be considered. In denying summary judgment here, the
Court is simply stating that the jury, not the Court, should decide the import of the
disclaimer language, along with all the other indicia.
Like Mortgage Statement I, Mortgage Statement II lists an Amount Due, Total
Amount Due, as well as a notation that if payment is received after a certain date, a
In Hernandez, the undersigned ruled that a letter with disclaimer language
did not constitute an attempt to collect a debt. However, the Hernandez letter, which
the defendant was required to send by a Florida statute, informed the plaintiff of the
assignment of the loan and did not contain traditional payment language. Here, the
mortgage statements did not transmit any such pertinent information to Plaintiffs and
arguably looked like a customary payment request.
10
19
late fee would be charged. Such language is contrary to the notion that the statement
was for informational purposes only. In addition, Plaintiffs received all seven copies of
Mortgage Statement II after the final judgment of foreclosure had been entered and
the property had been sold at a foreclosure sale. At that point, Plaintiffs had neither
an in personam nor an in rem interest in the property, yet Rushmore continued
sending monthly mortgage statements to them. At oral argument, Rushmore could not
convincingly argue that it had any good reason to send Plaintiffs monthly statements
following the foreclosure sale. Under these circumstances, the Court cannot find as a
matter of law that Mortgage Statement II does not constitute an attempt to collect a
debt.
Further, the inconsistencies between the disclaimer language and amounts due
on Mortgage Statement II could mislead the least sophisticated consumer, even
despite the lack of a payment coupon. Although the disclaimer states that the
statement is “not an attempt to collect a debt,” the specific amounts due, possible
financial penalties, and instructions to contact Rushmore at the number listed on the
statement to obtain “the most up-to-date amount due information” could confuse the
least sophisticated consumer to the point that she thought she owed Rushmore a
payment. Thus, a genuine issue of material fact exists as to whether Mortgage
Statement II violates the FDCPA.
For the same reasons explained in connection with Mortgage Statement I, see
supra Part IV.A.1.a.ii, Plaintiffs have demonstrated that Rushmore had actual
knowledge that it violated § 559.72(9) as to Mortgage Statement II. Accordingly,
20
Rushmore’s request for summary judgment as to Mortgage Statement II is due to be
denied.
c.
Request for Taxpayer Identification Number
The core of Plaintiffs’ argument regarding the Request for TIN is that the least
sophisticated consumer would fear the threat of action by either Rushmore or the IRS
after receiving the document. (Doc. 1 ¶ 19; Doc. 33-10). As an initial matter, Count III
alleges that the Request for TIN violates the FCCPA, not the FDCPA. While the two
statutes are certainly similar in their design and objectives, “they are not identical.”
See Prescott v. Seterus, Inc., 194 F. Supp. 3d 1290, 1296 (S.D. Fla. 2016) (“Although
the Florida law is modeled after its federal counterpart, ‘the two statutes are not
identical.’” (quoting Mandate of the United States Court of Appeals for the Eleventh
Circuit at 10)); Beeders, 2010 WL 2696404, at *6 (“There are intentional differences
between the FDCPA and FCCPA, and a violation of the federal statute does not
automatically constitute a violation of the state statute in situations where the FCCPA
is distinguishable.”). Notwithstanding Plaintiffs’ failure to plead an FDCPA violation
in connection with the Request for TIN, the FDCPA’s one-year statute of limitations
would bar such a claim in any event. 15 U.S.C. § 1692k(d). As stated above, see supra
n.6, for purposes of the FDCPA, only those communications sent after September 11,
2014 may be considered actionable under the FDCPA. Plaintiffs received the Request
for TIN on March 5, 2014; therefore, the statute of limitations would bar an FDCPA
claim. However, the claim is not time-barred under the FCCPA’s two-year statute of
limitations, so the Court will analyze whether the Request for TIN violated the
FCCPA. See Harrington v. RoundPoint Mortg. Servicing Corp., 163 F. Supp. 3d 1240,
21
1245 (M.D. Fla. 2016) (“Under the FCCPA, a debtor must commence a civil action
within two years after the date the alleged violation.” (citing Fla. Stat. § 559.77(4))).
All of Plaintiffs’ arguments regarding the Request for TIN concern possible
FDCPA violations (Doc. 37 at 19-20), but fail to demonstrate that the document
constitutes an attempt to collect a debt or that Rushmore had the requisite actual
knowledge that it was invalidly trying to collect a debt. The Request for TIN does not
discuss the underlying loan, state an amount due, list any deadlines for payment, or
any other information related to the loan. Instead, the document requests Plaintiffs’
taxpayer identification information so that Rushmore may meet its reporting
obligations to the IRS. Under these circumstances, the Request for TIN does not
constitute an attempt to collect a debt under the FCCPA.
While Plaintiffs correctly point out that in Kuehn v. Cadle Co., Inc., 335 F. App’x
827 (11th Cir. 2009), the court found a request for taxpayer identification number to
violate the FDCPA as a matter of law, Kuehn is distinguishable. First, Kuehn involved
the FDCPA, rather than the FCCPA, and is thus inapposite. Next, the court found
that the request violated the FDCPA’s prohibition against misleading statements used
to collect a debt, particularly that “the threat that Kuehn would be subject to an IRS
penalty for failure to furnish her TIN was a misleading statement that was used in an
attempt to obtain her TIN.” Id. at 831. Here, there was no such threat of an IRS
penalty.
22
There is no genuine issue of material fact as to whether the Request for TIN
constitutes an attempt to collect a debt under the FCCPA. Accordingly, Rushmore is
entitled to summary judgment on Count III.
2.
Whether the Bankruptcy Code Precludes the FDCPA
and/or Preempts the FCCPA
Rushmore argues that Plaintiffs’ FDCPA and FCCPA claims are precluded and
preempted by the Bankruptcy Code because the claims are “based on the mistaken
belief that Rushmore was prohibited from having any post-discharge communications
with Plaintiff[s].” (Doc. 33 at 11). Rushmore relies on two recent rulings in Prindle v.
Carrington Mortgage Services, LLC, Case No. 3:13-cv-1349-MMH-PDB (M.D. Fla.).11
“Section 524 of the Bankruptcy Code operates as a post-discharge injunction
against the collection of debts discharged in bankruptcy and is thus the embodiment
of the Code’s fresh start concept.” In re Nibbelink, 403 B.R. 113, 119 (Bankr. M.D. Fla.
2009) (citing Hardy v. U.S., 97 F.3d 1384, 1388-89 (11th Cir. 1996)). Section 524
provides in relevant part:
(a) A discharge in a case under this title-(1) voids any judgment at any time obtained, to the extent
that such judgment is a determination of the personal
liability of the debtor with respect to any debt discharged
under section 727, 944, 1141, 1228, or 1328 of this title,
whether or not discharge of such debt is waived;
Rushmore cites the Transcript of Ruling on Motion to Dismiss, Sept. 25, 2015,
Doc. 99 (hereinafter cited as “Prindle Transcript”) (dismissing FCCPA claims as
preempted by Bankruptcy Code); and the order on summary judgment, Prindle, 2016
WL 4369424, at *15 (finding FDCPA claims not precluded by Bankruptcy Code
because plaintiff claimed statement itself was false and misleading, not that the mere
fact of sending it violated the FDCPA).
11
23
(2) operates as an injunction against the commencement or
continuation of an action, the employment of process, or an
act, to collect, recover or offset any such debt as a personal
liability of the debtor, whether or not discharge of such debt
is waived.
11 U.S.C. § 524(a). The provision is construed broadly to insulate a debtor from
personal liability and includes informal collection and judicial actions. See Matter of
Stoneking, 222 B.R. 650, 652 (Bankr. M.D. Fla. 1998). Section 524(a) was designed to
“ensure that once a debt is discharged, the debtor will not be pressured in any way to
repay it.” Id. (citing H.R. Rep., No. 595, 95th Cong., 1st Sess. 364 (1977)).
However, the bankruptcy discharge extinguishes only a debtor’s personal
liability. See Johnson v. Home State Bank, 501 U.S. 78, 83 (1991) (holding that while
the bankruptcy discharge extinguishes one “mode of enforcing a claim—namely, an
action against the debtor in personam,” it leaves “intact another—namely, an action
against the debtor in rem”). A secured creditor’s “right to foreclose on the mortgage
survives or passes through the bankruptcy” and remains enforceable under state law.
Id. at 83. “The discharge injunction does not prohibit every communication between a
creditor and debtor—only those designed to collect, recover or offset any such debt as
a personal liability of the debtor.” In re Gill, 529 B.R. 31, 37 (Bankr. W.D.N.Y. 2015)
(internal quotations and citations omitted). As the Prindle court explained, § 524(j)12
12
Section 524(j) provides that:
Subsection (a)(2) does not operate as an injunction against an act by a creditor
that is the holder of a secured claim, if-(1) such creditor retains a security interest in real property that is the principal
residence of the debtor;
(2) such act is in the ordinary course of business between the creditor and the
24
“permits a creditor holding a security interest in real property that is the principal
residence of the debtor to seek and collect periodic payments associated with a valid
security interest in lieu of pursuit of in rem relief to enforce the lien, even though the
debt has been discharged.” Prindle Tr. at 18.
Before the Court addresses whether the Bankruptcy Code precludes and/or
preempts the FDCPA and FCCPA, it must tackle a threshold issue not present in
Prindle: does the § 524(j) exception to the discharge injunction even apply here?13
After Plaintiffs defaulted on the loan and Taylor filed the 2008 foreclosure
action, Plaintiffs moved into Ms. Sellers’s mother’s home rather than be evicted. (Doc.
37-1 at 3 ¶ 7). Thus, when Rushmore sent the mortgage statements beginning in 2014,
the property was not Plaintiffs’ principal residence and had not been for years. Cf.
Prindle Tr. at 19 (“Thus, the communications from a lienholder seeking payment, as
long as the debtor continues to reside in the home, is permissible under the
Bankruptcy Code.” (emphasis added)); In re Lemieux, 520 B.R. 361, 368-69 (Bankr. D.
Mass. 2014) (finding the safe harbor provided by § 524(j) was unavailable to
defendants where “[t]he . . . property had not been the [plaintiffs’] principal residence
for over a year by the time [the defendants] sent the insurance mailing”); In re
debtor; and
(3) such act is limited to seeking or obtaining periodic payments associated with
a valid security interest in lieu of pursuit of in rem relief to enforce the lien.
11 U.S.C. § 524(j).
Although both parties rely on Prindle in their arguments regarding
preemption and preclusion, the parties in Prindle did not argue—and thus, the court
did not address—the threshold question present in this case of whether the
Bankruptcy Code’s injunction exception, found in § 524(j), applies.
13
25
Nordlund, 494 B.R. 507, 521 (Bankr. E.D. Cal. 2011) (“Section 524(j) does not apply
here because the property was not the debtors’ principal residence when [the
defendant] sent the notice, the letter, and the statements. The debtors had vacated
the property on October 20, 2009, nearly one month prior to the November 15, 2009
debt validation notice.”).
Moreover, the only options ever offered to Plaintiffs were either a deed in lieu
of foreclosure or a short sale.14 (See Doc. 37-1 at 3 ¶ 5). Plaintiffs did not pursue those
options because they were unable to pay the deficiency which would result. (Id.).
Neither party identifies any evidence that Taylor or Rushmore ever offered Plaintiffs
options that would allow them to make periodic payments to avoid foreclosure and
remain in the home—the logic behind § 524(j). See Bibolotti v. Am. Home Mortg.
Servicing, Inc., No. 4:11-CV-472, 2013 WL 2147949, at *9 (E.D. Tex. May 15, 2013)
(“Given the purposes of the discharge injunction, the exception provided in 11 U.S.C.
§ 524(j) makes sense only if the real property is the principal residence of the debtor
at the time of the bankruptcy. The exception would allow a secured creditor to remain
in contact with a debtor who was living in the real property as his principal residence,
send communications in the regular course of business, and explore the possibility of
the debtor retaining his principal residence—i.e., collecting payments in lieu of
Bankruptcy courts construe deeds in lieu of foreclosure as a form of in rem
relief. See In re South Florida Sod, LLC, Case No. 6:13-bk-08466 (Bankr. M.D. Fla.
Nov. 19, 2013) (“The automatic stay is modified for the sole purpose of allowing Great
Oak . . . to complete in rem relief . . . to have such other and further in rem relief as is
just, including, but not limited to, accepting a deed in lieu of foreclosure from the
Debtor.”).
14
26
foreclosure. However, for the debtor who no longer uses the real property as his
principal residence at the time of bankruptcy, even if [it] was his principal residence
at the time he entered the loan agreement, there is no need for the secured creditor to
continue communicating with the debtor regarding retaining the property or
negotiating some type of modification in the ordinary course of business between the
creditor and debtor.” (emphasis added)).
Following the bankruptcy discharge, in 2013, Rushmore began servicing the
loan and, some time in 2014, again asked whether Plaintiffs wished to pursue a deed
in lieu of foreclosure. (Doc. 33-1 ¶¶ 6-7; Doc. 37-1 ¶ 15). In May 2014, Plaintiffs told
Rushmore that they did not wish to do so. (Id. ¶ 7). The foreclosure action on Plaintiffs’
property was automatically stayed pending bankruptcy (Doc. 37 at 3), but in May
2014, a notice was filed informing the court of the termination of the stay. The
foreclosure action proceeded, and on August 28, 2014, the state court entered a final
judgment of foreclosure. Nonetheless, Rushmore sent Plaintiffs post-discharge
mortgage statements during the stay of the foreclosure action (February 2014 through
April 2014), while the foreclosure case was active (May 2014 through August 2014),
and after judgment of foreclosure was entered (September 2014 through June 2015),
none of which offered to forego foreclosure or offered any other workout alternatives.
(Doc. 37 at 12). In these circumstances, § 524(j) does not apply, and the Court need not
reach the issue of whether the Bankruptcy Code precludes or preempts the FDCPA or
the FCCPA.
27
B.
Motion for Class Certification
The Court has reviewed the briefs on Plaintiffs’ motion for class certification
and, although the motion was not the main subject of the March 30, 2017 hearing,
heard limited oral argument from both parties on the scope of the proposed class. The
motion for class certification is a bit of a mess; it contains errors, cites exhibits not in
the record, and certain sections lack citations to Eleventh Circuit authority. (See Doc.
28 at 13). Plaintiffs’ proposed class definition has also “evolved” with the litigation.15
For instance, the Account Statement Class in the Complaint encompasses:
All Florida consumers who were sent an Account Statement
by RUSHMORE in substantially the form of composite
Exhibit B after receiving a Chapter 7 bankruptcy discharge
of the mortgage debt at issue in the Account Statement.
(Doc. 1 at 5). The proposed class in the motion for class certification is defined as:
All Florida consumers who: (a) had or have a residential
mortgage loan that was acquired by RUSHMORE and/or
transferred to RUSHMORE for servicing when in default;
(b) received a Chapter 7 bankruptcy discharge of their
mortgage debt; and (c) were sent an “Account Statement,”
in substantially the same form as those attached as Exhibit
B to the Complaint, from RUSHMORE during the
respective applicable statute of limitations.[16]
Plaintiffs assert in the response in opposition to summary judgment that
they are proceeding on the Request for TIN claim (Count III) solely on an individual,
not class, basis. (Doc. 37 at 19). Consistent with this development, the motion for class
certification does not include the IRS Form Class proposed in the Complaint.
15
This proposed class definition implies that Plaintiffs are only seeking class
certification for those debtors who received Mortgage Statement I, because Exhibit B
contains only forms resembling Mortgage Statement I. (Doc. 1-2 at 4-21). However,
the motion also states that the proposed class received mortgage statements in the
form of Exhibit E to the Complaint. (Doc. 28 at 6). The Court cannot locate an Exhibit
E of the Complaint; the Complaint apparently only contains Exhibits A-C. (Doc. 1-2).
Thus, presuming whatever might be in Exhibit E contains statements in the form of
Mortgage Statement II, it is unclear whether Plaintiffs intend to move for certification
16
28
(Doc. 28 at 6). Finally, at oral argument, Plaintiffs set forth another version of the
class:
People who file Chapter 7 bankruptcy who listed their home
as being . . . didn’t reaffirm their home, and post discharge,
not post filing bankruptcy but post discharge received
monthly billing statements in the form of a . . . mortgage
statement number one and mortgage statement two during
the two years prior to filing the complaint.[17]
(Motion for Summary Judgment Hearing Rough Tr., Doc. 53 at 39-40).
At oral argument, Rushmore argued that Plaintiffs have “narrowed” the
proposed class. While the Court will not hold Plaintiffs to a definition proposed
spontaneously at oral argument, these three iterations reflect that the class definition
has morphed to such a degree that it would not be fruitful for the Court to
substantively address Plaintiffs’ motion at this time. Therefore, the motion for class
certification will be denied without prejudice.
Accordingly, it is hereby
ORDERED:
of a class of Chapter 7 debtors who received Mortgage Statement I only, or both forms
of the statement.
While it is true that Plaintiffs did not reaffirm the mortgage debt in their
bankruptcy filing, the Court questions whether this is the correct framework for a
class in this case. In their Chapter 7 Individual Debtor’s Statement of Intention,
Plaintiffs checked that they would “surrender” their real property. See In re Sellers,
Case No. 3:11-bk-911-PMG, Doc. 1 at 34 (Bankr. M.D. Fla. Feb. 15, 2011). According
to the Statement of Intention, a debtor is not required to state whether she will
reaffirm the debt when she checks the “surrender” option. Instead, only if a debtor
wishes to “retain” the property is she required to state her intentions regarding
redeeming the property, reaffirming the debt, or some other action. Therefore, the
Court questions whether Plaintiffs, who intended to surrender the property, would be
viable representatives of a class that affirmatively decided not to reaffirm the debt in
connection with checking the option of retaining the property.
17
29
1.
Defendant Rushmore Loan Management Services, LLC’s Motion for
Summary Judgment (Doc. 33) is GRANTED as to Count III; the motion is otherwise
DENIED.
2.
Plaintiffs’ Motion for Class Certification (Doc. 28) is DENIED without
prejudice. If Plaintiffs choose to file an amended motion for class certification, they
must do so by June 1, 2017. Rushmore shall file its response by June 30, 2017.18
DONE AND ORDERED in Jacksonville, Florida the 3rd day of May, 2017.
sj
Copies:
Counsel of record
Should Plaintiffs decide to file an amended motion for class certification,
given that the parties have now had a preview of the opposition’s arguments, both
parties are encouraged to consider and address those arguments (to the extent
appropriate) in their renewed motions and responses.
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