Robles et al v. Orlando Federal Credit Union

Filing 17

ORDER denying as moot 10 motion to dismiss; denying 11 Motion to dismiss for lack of jurisdiction. Signed by Judge Roy B. Dalton, Jr. on 11/2/2016. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLAND DIVISION
MARIA SIERRA ROBLES; and MELVIN
RIVERA,
Plaintiffs,
v.

Case No: 6:16-cv-1662-Orl-37KRS

ORLANDO FEDERAL CREDIT UNION,
Defendant.
______________________________________
ORDER
This cause is before the Court on the following matters:
(1)

Motion to Dismiss for Lack of Subject Matter Jurisdiction and Memorandum
of Law (Doc. 10), filed October 19, 2016;

(2)

Amended* Motion to Dismiss for Lack of Subject Matter Jurisdiction and
Memorandum of Law (Doc. 11), filed October 21, 2016; and

(3)

Plaintiff’s Response to Defendant’s Motion to Dismiss Complaint (Doc. 5),
filed November 1, 2016.
BACKGROUND

On September 30, 2016, Plaintiffs Maria Sierra Robles and Melvin Rivera
(“Plaintiffs”) filed a two-count Amended Complaint (“Complaint”), alleging that
Defendant Orlando Federal Credit Union (“Defendant”) is a “debt collector” and violated
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. §§ 1692-1692p, and the
Florida Consumer Collection Practices Act (“FCCPA”) Florida Statutes, § 559.72. (Doc. 5,
¶¶ 2, 3.) As exhibits to the Amended Complaint, Plaintiffs filed: (1) two receipts dated

January 14, 2016, from Orlando Federal Credit Union (“Receipts”), which reflect
payments on account XXXXXX6419 for a 2004 Subaru Impreza (“Account”);
(2) correspondence dated January 25, 2016, from Plaintiff’s counsel to “Creditor: Orlando
Federal Credit Union” (“Correspondence”); and (3) the business card of Tony Volta, a
“Florida Investigating Agent” (“Card”). (Id.) Defendant moved to dismiss the Amended
Complaint in accordance with Federal Rule of Civil Procedure 12(b). (Doc. 11, p. 2.)
Plaintiffs responded (Doc. 15), and the matter is ripe for adjudication.
DISCUSSION
Federal Rules of Civil Procedure 8 and 10 require a complaint to include factual
allegations that “state a claim to relief that is plausible on its face” and establish a basis
for the Court’s exercise of jurisdiction. See 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.” See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To avoid dismissal under Rule 12(b), a
plaintiff must adequately plead three elements: (1) the plaintiff has been “the object of
collection activity arising from consumer debt”; (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-101J-12MCR, 2013 WL 5487022, at *2 (M.D. Fla. Sept. 30, 2013).
A review of the Amended Complaint reflects adequate allegations as to the three
elements of an FDCPA claim. (See Doc. 5.) It also reflects proper allegations concerning
this Court’s exercise of federal question jurisdiction, 28 U.S.C. § 1331. (See id.)
Nonetheless, Defendant seeks dismissal because—as demonstrated on the face of the

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Correspondence—it is not a “debt collector” as defined by the FDCPA. (See Doc. 11,
p. 2.) In the reference line, the Correspondence does refer to Defendant as “Creditor.”
(Doc. 5-2.) Such an obtuse reference does not establish Defendant’s status as a creditor
or as a debt collector. Rather, given the specific and contrary allegations of the Complaint,
the Court finds that the Amended* Motion to Dismiss is due to be denied. If warranted by
the evidence, Defendant’s status under the FDCPA may be raised in a properly supported
motion under Rule 56.
CONCLUSION
Accordingly, it is hereby ORDERED AND ADJUDGED that:
1.

Amended* Motion to Dismiss for Lack of Subject Matter Jurisdiction and
Memorandum of Law (Doc. 11) is DENIED.

2.

Motion to Dismiss for Lack of Subject Matter Jurisdiction and Memorandum
of Law (Doc. 10) is DENIED AS MOOT.

DONE AND ORDERED in Chambers in Orlando, Florida, on November 2, 2016.

Copies:
Counsel of Record

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