Dayhoff v. Wells Fargo Home Mortgage, Inc.
Filing
30
ORDER granting in part 14 Motion to Dismiss for Failure to State a Claim; granting 29 Motion. Signed by Judge Roy B. Dalton, Jr. on 12/3/2013. (VMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
COLLEEN DAYHOFF,
Plaintiff,
v.
Case No. 6:13-cv-1132-Orl-37KRS
WELLS FARGO HOME MORTGAGE,
INC. a/k/a WELLS FARGO BANK, N.A.,
Defendant.
ORDER
This cause is before the Court on the following:
1. Defendant Wells Fargo’s Motion to Dismiss Plaintiff Colleen Dayhoff’s
Complaint and Supporting Legal Memorandum (Doc. 14), filed August 7,
2013;
2. Plaintiff’s Opposition to Motion to Dismiss and Memorandum of Law in
Support (Doc. 16), filed August 18, 2013; and
3. Joint Motion to Modify Scheduling Order to Extend Deadline to Add Parties or
Amend Pleadings (Doc. 29), filed December 2, 2013.
Upon consideration, the Court finds that Defendant’s motion is due to be granted in part
and that the joint motion is due to be granted.
BACKGROUND
The Plaintiff asserts three claims against Defendant for violating: (1) the
Telephone Consumer Protection Act (“TCPA”) (Doc. 2, ¶¶ 32–38 (“Count One”)); (2) the
Fair Debt Collection Practices Act (“FDCPA”) (id. ¶¶ 39–47 (“Count Two”)); and (3) the
Florida Consumer Collection Practices Act (“FCCPA”) (id. ¶¶ 48–60 (“Count Three”)).1
Plaintiff’s claims arise from the Defendant’s alleged debt collection calls to Plaintiff after
the Plaintiff made written demand through her attorney that Defendant “cease all
contact with Plaintiff.” (Id. ¶¶ 9–12.) According to Plaintiff, she “is not personally
obligated” to pay the Note. (Id. ¶ 31.) Nonetheless, the Defendant “made 95
unauthorized telephone calls to Plaintiff’s cell telephone” between February 26, 2013,
and June 7, 2013, and “150 unauthorized telephone calls to Plaintiff’s home telephone”
between February 25, 2013 and June 7, 2013. (Id. ¶¶ 13–31.) Further, during each call
the Defendant made to the Plaintiff’s home and cell telephones, the Defendant allegedly
used a telephone system having the capacity to: (1) “store telephone numbers and then
call them;” and (2) “perform ‘automatic dealing’, ‘predictive dialing’ and/or ‘preview
dialing’, and caused Plaintiff to be charged for the call.” (Id. ¶¶ 17, 26.)
The Defendant moved to dismiss the Plaintiff’s claims on the grounds that:
(1) debt collection calls are not covered by the TCPA (Doc. 14, pp. 4–5); (2) Defendant
is not a “debt collector” as defined under the FDCPA and FCCPA (id. at 2–3, 5–8); and
(3) Plaintiff has alleged insufficient facts to state plausible claims under the FDCPA and
the FCCPA (id. at 8–11).2 Plaintiff opposed the motion to dismiss. (Doc. 16.) The parties
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With her complaint, the Plaintiff submitted copies of: (1) a promissory note
dated March 26, 2001, which was signed by Plaintiff’s former husband Kenneth Dayhoff
(Doc. 2, at 14–16 (the “Note”)); (2) a mortgage on real property securing the Note,
which was signed by Plaintiff and Kenneth Dayhoff (id. at 17–24 (the “Mortgage”)); (3)
correspondence dated February 20, 2013, from Plaintiff’s counsel to Defendant (id. at
25–32 ); (4) a four-page document titled “Calls Made to Colleen Dayhoff’s Phone 321271-1878” (id. at 33–36); and (5) a five-page document titled “Calls From Wells Fargo
Bank to Colleen Dayhoff’s Home Phone-----321-385-9048” (id. at 37–42).
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The Defendant submitted with its motion copies of: (1) a loan modification
agreement dated November 29, 2008, signed by Plaintiff and Kenneth Dayhoff (id. at
14–17); and (2) a loan modification agreement dated April 30, 2012, signed by Plaintiff
(id. at 18–23 (the “Loan Modification”)).
2
also filed a joint motion to modify the Court’s case management and scheduling Order
to extend the deadline to add parties and amend pleadings. (Doc. 29.)
STANDARDS
To avoid dismissal under Rule 12(b)(6), the factual allegations in the complaint
must “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). In making this plausibility determination, the Court must accept
the factual allegations as true; however, this “tenet . . . is inapplicable to legal
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court must dismiss a
cause of action when, “on the basis of a dispositive issue of law, no construction of the
factual allegations will support the cause of action.” Marshall Cnty. Bd. of Educ. v.
Marshall Cnty. Gas. Dist., 992 F. 2d 1171, 1174 (11th Cir. 1993).
DISCUSSION
A. Documents Submitted with the Motion to Dismiss
“When evaluating a motion to dismiss pursuant to Rule 12(b)(6), the Court's
analysis is ‘limited primarily to the face of the complaint and the attachments thereto.’”
Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1368–69 (11th Cir.
1997) (providing that Rule 12(b)(6) is “not designed to strike inartistic pleadings or to
provide a more definite statement to answer an ambiguity”). An exception to this rule
permits courts to consider documents that a defendant attaches to its motion to dismiss
if the attached documents are “(1) central to the plaintiff’s claim and (2) undisputed.”
Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005) (citing Horsley v. Feldt, 304 F.3d
1125, 1134 (11th Cir. 2002)).
To refute Plaintiff’s conclusory allegation that she is “not personally obligated” to
pay the Note (Doc. 2 ¶ 31), the Defendant submitted two loan modification agreements
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with its motion to dismiss. (Doc. 14, pp. 3–4.) The two documents bear Plaintiff’s
signatures and appear to modify the Note referenced in the Complaint to: (1) increase
the amount owed; (2) alter the applicable interest rate and term of the Note; and (3)
impose repayment obligations on Plaintiff. (Id. at 14–23.) Plaintiff does not dispute that
the loan modifications are central to her claims or authentic (Doc. 16, p. 3); accordingly,
the Court will consider both documents in resolving the motion to dismiss. Correa v.
BAC Home Loans Servicing LP, No. 6:11-CV-1197-ORL-22, 2012 WL 1176701, at *4
(M.D. Fla. Apr. 9, 2012).
B. The TCPA (Count One)
The Defendant contends that the Plaintiff’s TCPA claim fails as a matter of law
because debt-collection activities are “excluded” from the TCPA’s coverage. (Doc. 14,
pp. 4–5.) Defendant’s argument is too broad. The FCC only excludes debt-collection
calls from the TCPA if they are made to a residential telephone line. Meadows v.
Franklin Collection Serv., Inc., 414 F. App’x 230, 235 (11th Cir. 2011); Ashley v. Gen.
Elec. Capital Corp., No. 2:13-CV-353-FTM-29, 2013 WL 6133562, at *3 (M.D. Fla. Nov.
21, 2013) (holding that the debt-collection exemptions only “apply to calls made to
residential telephone lines”); Levy v. Receivables Performance Mgmt., LLC, No. 11-CV3155 JFB ARL, 2013 WL 5310166, at *6 (E.D.N.Y. Sept. 23, 2013) (denying motion to
dismiss TCPA claims based on debt collection calls to cellular phone); Breslow v. Wells
Fargo Bank, N.A., 857 F. Supp. 2d 1316, 1320–22 (S.D. Fla. 2012) (same); e.g., Kahn
v. Portfolio Recovery Assocs., LLC, No. 8:10-cv-2399-T-26TGW, 2001 WL 223870, at
*1 (M.D. Fla. Jan. 24, 2011) (same). Plaintiff has stated a plausible TCPA claim based
upon the “95 unauthorized telephone calls to Plaintiff’s cell telephone.” (Doc. 2, ¶¶ 13–
31.) Accordingly, the motion to dismiss Plaintiff’s TCPA claim is due to be denied.
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C.
The FDCPA and the FCCPA (Counts Two and Three)
A claim for violation of the FDCPA includes the following elements: (1) Plaintiff
has been “the object of collection activity arising from consumer debt”;3 (2) “the
defendant is a debt collector as defined by the FDCPA”; and (3) “the defendant has
engaged in an act or omission prohibited by the FDCPA.” Kennedy v. Nat’l Asset & Risk
Mgmt., LLC, No. 3:13-CV-101-J-12MCR, 2013 WL 5487022, at *2 (M.D. Fla. Sept. 30,
2013) (noting that the “existence of a debt is a threshold requirement under the
FDCPA”); e.g., Birster v. Am. Home Mortg. Servicing, Inc., 481 F. App’x 579, 581-82
(11th Cir. 2012) (“[W]hether an individual or entity is a ‘debt collector’ is determinative of
liability under the FDCPA.”). The FDCPA defines “debt collector” as:
[A]ny person who uses any instrumentality of interstate commerce or the
mails in any business the principal purpose of which is the collection of
any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another.
Notwithstanding the exclusion provided by clause (F) of the last sentence
of this paragraph, the term [debt collector] includes any creditor who, in
the process of collecting his own debts, uses any name other than his own
which would indicate that a third person is collecting or attempting to
collect such debts. For the purpose of section 1692f(6) of this title, such
term also includes any person who uses any instrumentality of interstate
commerce or the mails in any business the principal purpose of which is
the enforcement of security interests.
15 U.S.C. § 1692a(6) (emphasis added); see also Reese v. Ellis, Painter, Ratterree &
Adams, LLP, 678 F.3d 1211, 1212 (11th Cir. 2012) (holding that “an entity that regularly
attempts to collect debts can be a ‘debt collector’ beyond § 1692f(6) of the FDCPA,
even when that entity is also enforcing a security interest”). “Courts have concluded that
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The FDCPA defines “debt” as “any obligation or alleged obligation of a
consumer to pay money arising out of a transaction in which the money, property,
insurance, or services which are the subject of the transaction are primarily for personal,
family, or household purposes.” 15 U.S.C. § 1692a(5). Plaintiff has not alleged that the
debt at issue was “primarily for personal, family, or household purposes. (Doc. 2.)
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a ‘debt collector’” under the FCCPA “mirrors the language defining a debt collector in
the FDCPA.”4 Bentley v. Bank of Am., N.A., 773 F. Supp. 2d 1367, 1372 (S.D. Fla.
2011); e.g., Reynolds v. Gables Residential Servs., Inc., 428 F. Supp. 2d 1260, 1265
(M.D. Fla. 2006).
Defendant contends that Counts Two and Three fail because Plaintiff has not
sufficiently alleged that Defendant is a “debt collector”, and Defendant is not a “debt
collector” under the FDCPA or the FCCPA because it is attempting to collect its own
debt from Plaintiff (the Loan Modification). (Doc. 14, pp. 5–8.) The Complaint includes
the following allegations concerning Defendant’s status as a “debt collector”:
Defendant is a “debt collector” within the meaning of the FDCPA, and
in particular, 15 U.S.C. § 1692a(4) and 15 U.S.C. § 1692a(6)(F)(iii) in
that it allegedly accepted an assignment of rights to the subject
mortgage loan after default, the purpose of which was for collection of
the debt allegedly owed by Plaintiff, and it used the U.S. telephone
system and the U.S. Mail in a business whose primary purpose of
which is the collection of debts and enforcement of security interests.
(Doc. 2, ¶ 41 (emphasis added); id. ¶ 50 (alleging the Defendant is a “debt collector”
under the FCCPA); see also id. ¶ 9 (alleging that the “debt went into default on October
1, 2009”).)
Plaintiff’s allegations fall short for two reasons. First, the Complaint includes no
allegations that: (1) the “principal purpose” of Defendant’s business is “the collection of
any debts”; (2) Defendant “regularly collects or attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or due another”; or (3) Defendant “uses any
name other than [its] own which would indicate that a third person is collecting or
attempting to collect such debts.” 15 U.S.C. §§ 1692a(4) and (6)(F)(iii). Absent such
4
The parties agree that Counts Two and Three are based on the same facts,
and Plaintiff’s FCCPA claim should, at this stage, be construed consistently with her
FDCPA claims. (Doc. 14, p. 10; Doc. 16, p. 11.)
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allegations, the Court cannot find that the Plaintiff has sufficiently alleged that Defendant
is a debt collector.5 Foxx v. Ocwen Loan Servicing, LLC, No. 8:11-CV-1766-T-17EAK,
2012 WL 2048252, at *4 (M.D. Fla. June 6, 2012) (dismissing claims where plaintiff
“failed to properly allege that any of the defendants are debt collectors within the
meaning of the FDCPA”); Hennington v. Bank of Am., No. 1:10-CV-1350-WSD-JFK,
2010 WL 5860296, at *7 (N.D. Ga. Dec. 21, 2010) (dismissing FDCPA claim absent
sufficient allegations that defendant “was acting as a debt collector”); Monroe v.
CitiMortgage, Inc., No. 8:07-cv-0066, 2007 WL 1560194, at *2 (M.D. Fla. May 29, 2007)
(same).
Second, the Plaintiff’s allegations are at odds with the Loan Modification, which
was executed more than two years after the alleged default date. (Doc. 14, pp. 18–23.)
Defendant argues that because it is a party to the Loan Modification, it should be
considered Plaintiff’s “creditor,”6 and it should fall under the “originator exception,” which
provides that a debt collector is not a person “collecting or attempting to collect any debt
owed or due or asserted to be owed or due another to the extent such activity . . .
concerns a debt which was originated by such person” or “concerns a debt which was
not in default at the time it was obtained by such person.” 15 U.S.C. § 1692a(6)(F); see,
e.g., Buckman v. Am. Bankers Ins. Co. of Fla., 115 F.3d 892 (11th Cir. 1997) (affirming
dismissal of FDCPA claim where defendant originated debt).
5
Plaintiff concedes this pleading deficiency and claims that it can cure this
deficiency. (Doc. 16, p. 10.)
6
Under the FDCPA, a “‘creditor’ means any person who offers or extends credit
creating a debt or to whom a debt is owed,” but the term creditor “does not include any
person to the extent that he receives an assignment or transfer of a debt in default
solely for the purpose of facilitating collection of such debt for another.” 15 U.S.C.
§ 1692a(4).
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Plaintiff counters that the Loan Modification is irrelevant because it did not make
“her personally obligated to pay the debt.” (Doc. 16, pp. 3–4.) Specifically, Plaintiff
contends that she is not liable under the Note or Loan Modification because: (1) the
Loan Modification is inconsistent with HUD regulations and the Real Estate Settlement
and Procedures Act (“RESPA”); and (2) paragraph 9 of the Note obligates only the
signatory to the Note. (Id. at 3–6.) The Court is not persuaded by these arguments.
First, Paragraph 9 of the Note seemingly undermines Plaintiff’s argument, in that it
expressly recognizes that a person other than the signor may “take over [payment]
obligations” under the Note. (Doc. 2, p. 15.) Second, there are no RESPA claims
pending before the Court, nor are there any claims or allegations in the Complaint
challenging the validity of the Loan Modification. Indeed, at this stage, it is not even
clear that the Loan or the Loan Modification is subject to HUD regulations. Accordingly,
at this time, the Court agrees with the Defendant that the Loan Modification fatally
contradicts Plaintiff’s vague and conclusory claims that the Defendant violated the
FDCPA and the FCCPA by attempting to collect a debt not owed by the Plaintiff.7
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Plaintiff’s extensive arguments in her response concerning the alleged invalidity
of the Loan Modification are crucial to her claims that the Defendant was unfairly and
unconscionably attempting to collect a debt from Plaintiff that was not owed by her.
(Doc. 16.) Nonetheless, Plaintiff makes no reference to such arguments or even to the
Loan Modification in her Complaint. Rather, the allegations in the Complaint leave the
reader with the impression that the Note and Mortgage are the only loan documents that
exist between the parties, and in 2013, the Bank was attempting to collect from Plaintiff
amounts owed resulting from another obligor’s default in 2009. (Doc. 2.) Given the
timing and content of the Loan Modification, such a scenario is implausible. To state
plausible FDCPA and FCCPA claims, the Plaintiff must allege facts in her Complaint
that are sufficient to establish why it was unfair or unconscionable for the Defendant to
seek repayment from Plaintiff in light of the Loan Modification. Reese v. JPMorgan
Chase & Co., 686 F. Supp. 2d 1291, 1309 (S.D. Fla. 2009) (“A complaint warrants
dismissal if a plaintiff fails to specifically identify how conduct was unfair or
unconscionable.”). Such allegations should not be revealed for the first time in a
response to a motion to dismiss. See id. (noting that the court cannot consider facts that
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Defendant’s final argument is that Counts Two and Three fail because there “are
no allegations as to whether [Defendant] conveyed any information concerning the
mortgage loan in any of the alleged calls,” and the allegations concerning Defendant’s
purported knowledge are too conclusory. (Doc. 14, pp. 8–11.) The Court agrees. The
purpose of Defendant’s alleged calls is unclear from the Complaint. Although the
Plaintiff need not specify the precise content of each of the 245 calls at issue, she
should at least indicate whether the calls were related to Kenneth Dayhoff’s obligations
under the Note or Plaintiff’s alleged obligations under the Loan Modification. Reese v.
JP Morgan Chase & Co., 686 F. Supp. 2d 1291, 1309 (S.D. Fla. 2009) (dismissing
FDCPA claims where wrongfulness of communications was unclear); Owens v. Ronald
R. Wolf & Assocs., P.L., No. 13-61769-CIV, 2013 WL 6085121, at *4 (S.D. Fla. Nov. 19,
2013) (dismissing FCCPA claims based on conclusory allegations concerning
defendant’s knowledge); cf., Beaudin v. Chase Home Fin. LLC, No. 6:12-CV-1084-ORL31, 2012 WL 4903317, at *2 (M.D. Fla. Oct. 16, 2012) (holding that “specific language”
of communication need not be alleged but purpose of communication must be clear).
Absent such allegations, the Plaintiff has failed to state plausible claims for relief under
the FDCPA and the FCCPA.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED:
1.
Defendant Wells Fargo’s Motion to Dismiss Plaintiff Colleen Dayhoff’s
Complaint (Doc. 14) is GRANTED IN PART. Counts Two and Three of the
Complaint (Doc. 2) are DISMISSED WITHOUT PREJUDICE.
2.
On or before December 20, 2013, Plaintiff may file an amended complaint
are not alleged in a complaint).
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restating Counts Two and Three in a manner that is consistent with the
requirements of this Order. If Plaintiff fails to file a timely amended
complaint, then this action will proceed only with respect to Count One.
3.
Joint Motion to Modify Scheduling Order to Extend Deadline to Add
Parties or Amend Pleadings (Doc. 29) is GRANTED. The Court’s Case
Management and Scheduling Order (Doc. 25) is amended to extend the
deadline for adding parties and amending pleadings to fourteen days after
the date that Defendant files its Answer.
DONE AND ORDERED in Chambers in Orlando, Florida, on December 3, 2013.
Copies:
Counsel of Record
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