Brown et al v. Flagstar Bancorp, Inc.
Filing
20
ORDER denying 12 Defendant Flagstar Bancorp, Inc.'s Motion to Dismiss Counts One through Thirty-One of Plaintiffs' Complaint. Signed by Judge Virginia M. Hernandez Covington on 2/3/2014. (CH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
HEATHER BROWN and DELTA
BROWN,
Plaintiffs,
v.
Case No. 8:13-cv-2596-T-33TBM
FLAGSTAR BANCORP, INC.,
Defendant.
_____________________________/
ORDER
This matter comes before the Court in consideration of
Defendant Flagstar Bancorp, Inc.’s Motion to Dismiss Counts
One through Thirty-One of Plaintiffs’ Complaint (Doc. # 12),
filed on December 20, 2013.
Plaintiffs Heather and Delta
Brown filed a response in opposition to the Motion (Doc. #
17) on January 23, 2014.
For the reasons that follow, the
Motion is denied.
I.
Background
On October 8, 2013, Plaintiffs commenced this action
seeking
Consumer
damages
for
Collection
alleged
Practices
violations
Act
of
(FCCPA),
the
Florida
Chapter
559,
Florida Statutes, and the Telephone Consumer Protection Act
(TCPA), 47 U.S.C. § 227.
(Doc. # 1).
Plaintiffs allege that
Flagstar filed a mortgage foreclosure suit against them in
state court in December of 2012, and that Plaintiffs retained
counsel in relation to those proceedings.
The
Complaint
further
alleges
(Id. at ¶¶ 17-18).
that,
despite
having
actual knowledge of Plaintiffs’ representation with regard to
the
foreclosure
proceedings,
Flagstar
called
Plaintiffs’
mobile phone repeatedly, without Plaintiffs’ prior consent,
in an attempt to collect the debt using an automatic telephone
dialing system or pre-recorded voice.
(Id. at ¶ 21).
The
Complaint additionally asserts that “each of the collection
calls were knowingly and willfully made for the following
purposes: (a) Asserting and alleging that Plaintiffs owed the
debt; (b) Attempting to collect the debt from the Plaintiffs;
(c) Harassing or abusing the Plaintiffs.”
(Id. at ¶ 30).
Furthermore, Plaintiffs allege that the calls caused them
“severe
stress,
anxiety,
inconvenience,
frustration,
annoyance, fear, confusion and loss of sleep . . . .”
(Id.
at ¶ 38).
Plaintiffs present their claims as follows: (1) “Count
One, Unfair Debt Collection Practice, Violation of Florida
Statutes Section 559.72(7)”; (2) “Counts Two through ThirtyOne, Unfair Debt Collection Practice, Violation of Florida
Statute [Section] 559.72(18)”; and (3) “Count Thirty-Two,
2
Telephone
Communications
Act,
Violation
of
47
(Id. at 7-9). 1
U.S.C. 227(b)(1)(A).”
II.
Protection
Legal Standard
In reviewing a motion to dismiss for failure to state a
claim, a trial court accepts as true all factual allegations
in the complaint and construes the facts in the light most
favorable to the plaintiff. Jackson v. Bellsouth Telecomms.,
372 F.3d 1250, 1262 (11th Cir. 2004).
However, courts are
not “bound to accept as true a legal conclusion couched as a
factual allegation.”
Papasan v. Allain, 478 U.S. 265, 286
(1986).
In Bell Atlantic Corp. v. Twombly, the Supreme Court
articulated the standard by which claims should be evaluated
on a motion to dismiss:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
1
The Court is unclear as to why Plaintiffs have separated
the estimated thirty phone calls into thirty separate counts
for the purpose alleging violations of section 559.72(18).
However, as Flagstar has not challenged the Complaint on this
basis, the Court declines to address the organization of the
Complaint herein.
3
550 U.S. 544, 555 (2007) (internal citations omitted).
In
accordance
with
Twombly,
Federal
Rule
of
Civil
Procedure 8(a) calls “for sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting
Twombly, 550 U.S. at 570).
A plausible claim for relief must
include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
Id.
III. Discussion
Flagstar argues that “[c]ounts one through thirty-one of
Plaintiffs’ Complaint should be dismissed . . . for failing
to state a cause of action.”
(Doc. # 12 at 2).
Although the
Motion does not specify, the Court construes the Motion as a
Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure.
A.
Count I: Fla. Stat. 559.72(7)
Section 559.72(7), Florida Statutes, provides that, in
collecting consumer debts,
no person shall . . . [w]illfully communicate with
the debtor or any member of her or his family with
such frequency as can reasonably be expected to
abuse or harass the debtor or any member of her or
his family.
4
Flagstar argues that, although Plaintiffs allege that
Flagstar called more than “three to five times a day during
a six day period,” the Plaintiffs “[c]ritically . . . do not
allege how many, if any, of the phone calls actually resulted
in communication with the Plaintiffs.”
Plaintiffs
contend,
however,
that
communications under the FCCPA.”
(Doc. # 12 at 3).
“unanswered
calls
are
(Doc. # 17 at 5).
“The FCCPA defines ‘communication’ as ‘the conveying of
information regarding a debt directly or indirectly to any
person through any medium.’”
Bresko v. M&T Bank Corp., No.
8:13-cv-1243-T-30AEP, 2013 WL 5328241, at *2 (M.D. Fla. Sept.
23, 2013) (citing Fla. Stat. § 559.55(5)).
To the extent
Flagstar argues that Plaintiffs cannot state a claim under
section 559.72(7), Florida Statutes, without alleging that
they have answered Flagstar’s phone calls, the Court is
unpersuaded.
As the court in Bresko recently explained,
[t]he Court cannot determine which calls from [the
defendant] “communicated” information about a debt
at this stage in the litigation since it is a fact
issue. See Cerrato v. Solomon & Solomon, 2012 WL
6621339, at *4-6 (D. Conn. Dec. 18, 2012)
(unanswered calls constituted “communications”
under the FDCPA where the debt collector’s name and
telephone number appeared on caller identification
display); Dona v. Midland Credit Mgmt., Inc., No.
10-cv-825, 2011 WL 941204, at *1 (E.D.N.Y. Feb. 10,
2011) (stating that “[c]ommunications under the
[FDCPA] include telephone calls and messages left
on a consumer’s answering machine.”).
5
Bresko, 2013 WL 5328241, at *2.
Unlike the Plaintiffs in the present case, the plaintiff
in Bresko had attached to the complaint a call log reflecting
unanswered missed calls allegedly from the defendant.
*1.
Id. at
Notwithstanding the absence of such a call log in the
present case, the Court finds Bresko’s rationale to apply
equally
here,
allegations
in
as
the
the
Court
accepts
Complaint
–
as
true
including
all
factual
Plaintiffs’
allegations that they received the relevant phone calls from
Flagstar.
Thus,
in
light
of
the
broad
definition
of
“communication” under the relevant statute, the Court finds
that Plaintiffs’ Complaint alleges sufficient factual matter
to survive the present Motion to Dismiss.
The
Court
acknowledges
Flagstar’s
argument
that,
in
order to prevail on their claims, Plaintiffs must “show not
only the frequency of the calls but also the purpose of the
calls.” (Doc. # 12 at 3). However, in support of its argument
that allegations of phone calls occurring “multiple times a
day” is not sufficient to state a claim under the relevant
statute,
Flagstar
cites
only
to
decisions
employing
the
standard applicable at the summary judgment stage. To survive
the present Motion to Dismiss, Plaintiffs need not prove any
6
element of their claims against Flagstar, but instead need
only satisfy the meager pleading standard of Federal Rule of
Civil Procedure 8(a), as described above.
Plaintiffs allege that Flagstar, the same creditor who
filed
a
December
mortgage
of
foreclosure
2012,
repeatedly
suit
made
against
Plaintiffs
telephone
calls
in
to
Plaintiffs’ cellular phone subsequent to the commencement of
those foreclosure proceedings “in an attempt to collect the
Debt” related to the mortgage.
(Doc. # 1 at ¶¶ 17, 21-26).
Plaintiffs additionally claim that these phone calls “can
reasonably be expected to abuse or harass Plaintiffs,” (id.
at ¶ 41), as the calls have allegedly caused Plaintiffs to
suffer severe stress, anxiety, frustration, and inconvenience
(id. at ¶ 38).
The Court finds these allegations sufficient
to state a claim to relief that is plausible on its face and
to raise a right to relief above the speculative level, as is
required at this juncture of the proceedings.
B.
Counts II-XXXI: Fla. Stat. 559.72(18)
Section 559.72(18), Florida Statutes, provides that, in
collecting consumer debts,
no person shall . . . communicate with a debtor if
the person knows that the debtor is represented by
an attorney with respect to such debt and has
knowledge of, or can readily ascertain, such
attorney’s name and address, unless the debtor’s
7
attorney fails to respond within 30 days to a
communication from the person, unless the debtor’s
attorney consents to a direct communication with
the debtor, or unless the debtor initiates the
communication.
Flagstar’s only basis for dismissing Counts II-XXXI is
that
Plaintiffs
‘communicated’
attorney.”
have
failed
with
[them]
“to
allege
after
(Doc. # 12 at 4).
that
[they]
Defendant
retained
an
Thus, Flagstar’s entire
argument for dismissal rests on the proposition that “[a]
‘communication’ for the purposes of the FCCPA must involve
the conveyance of information regarding the debt,” and that,
based
on
the
facts
alleged
by
“communication” in this case.
Plaintiffs,
(Id.).
there
is
no
However, as explained
above, the Court determines that the extent of the information
conveyed by Flagstar’s unanswered phone calls is an issue of
fact
not
stage.
appropriately
resolved
at
the
motion-to-dismiss
Accordingly, as the Court finds Plaintiffs’ Complaint
contains sufficient factual matter to state a claim to relief,
the Court denies Flagstar’s Motion to Dismiss.
questions
as
to
which
calls
from
Any factual
Flagstar,
if
any,
“communicated” information about Plaintiffs’ debt, as well as
questions regarding the frequency and purpose of the calls,
are proper for resolution at the summary judgment stage.
Accordingly, it is
8
ORDERED, ADJUDGED, and DECREED:
Defendant Flagstar Bancorp, Inc.’s Motion to Dismiss
Counts One through Thirty-One of Plaintiffs’ Complaint (Doc.
# 12) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 3rd
day of February, 2014.
Copies: All Counsel of Record
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