Spasojevic v. Wells Fargo Bank, N.A.
ORDER granting 15 --motion to dismiss; amended complaint due 2/3/2014. Signed by Judge Steven D. Merryday on 1/21/2014. (BK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
CASE NO.: 8:13-cv-2923-T-23TBM
WELLS FARGO BANK, N.A.,
Citing a pre-suit notice requirement in a mortgage and arguing that the
plaintiff ignored the requirement, Wells Fargo moves (Doc. 15) to dismiss the
complaint. Spasojevic argues (1) that the mortgage, which is not attached to the
complaint, is ineligible for consideration in a motion to dismiss, (2) that the
complaint complies with Rule 9(c), Federal Rules of Civil Procedure, and (3) that
Spasojevic complied with the mortgage’s pre-suit notice requirement.
Spasojevic argues that Wells Fargo cannot base the motion to dismiss on the
mortgage because the mortgage is neither attached to the complaint nor “central to
the plaintiff’s claims.” (Doc. 17 at 3) However, Wells Fargo may rely on the
mortgage because the mortgage is an “undisputed fact of public record.” Halmos v.
Bomardier Aerospace Corp., 404 F. App’x 376, 377 (11th Cir. 2010); accord Haddad v.
Dudek, 784 F. Supp. 2d 1308, 1324 (M.D. Fla. 2011) (“[T]he Court may take judicial
notice of and consider documents which are public records, that are attached to the
motion to dismiss, without converting the motion to dismiss into a motion for
summary judgment.”); S.E.C. v. Dunlap, 2002 WL 1007626, at *1 (S.D. Fla. Mar. 27,
2002) (“In determining whether to grant a Rule 12(b)(6) motion, the Court primarily
considers the allegations in the complaint, although matters of public record . . . also
may be taken into account.” (internal quotation marks omitted)); Moore’s Federal
Practice, Vol. 2, § 12.34 (3d ed. 2013) (“In deciding whether to dismiss, . . . [t]he
courts may consider . . . [p]ublic records.”).
Spasojevic correctly argues that Rule 9(c), Federal Rules of Civil Procedure,
states, “In pleading conditions precedent, it suffices to allege generally that all
conditions precedent have occurred or been performed.” Spasojevic also correctly
identifies a general allegation in the complaint in which Spasojevic states, “All
conditions precedent have been performed or have occurred.” (Doc. 11 at 3)
However, Rule 9(c) also states, “But when denying that a condition precedent has
occurred or been performed, a party must do so with particularity.” Ardaman &
Associates, Inc. v. Travelers Casuality and Surety Company of America, 2009 WL 161203,
at *9 (N.D. Fla. Jan. 22, 2009) (Rodgers, J.) (footnote omitted), explains the rule:
As Rule 9(c) makes clear, conditions precedent need only be
alleged generally. Fed. R. Civ. P. 9(c). If the defendant disagrees
with the plaintiff’s general allegations, it may deny “with
particularity” in a responsive pleading that the preconditions
have been fulfilled. See Jackson v. Seaboard Cost Line R.R., 678 F.2d
992, 1010 (11th Cir.1982) The plaintiff then bears the burden of
“proving that the conditions, which the defendant has specifically
joined in issue, have been satisfied.” Id. at 1010.
Wells Fargo disagrees with Spasojevic’s general allegations and, as discussed below,
has identified “with particularity” the deficiency in Spasojevic’s “notice.” Thus,
Rule 9(c) is no impediment to Wells Fargo’s motions.
Wells Fargo correctly argues that the communications sent from Spasojevic to
Wells Fargo fail to notify Wells Fargo of breach. (Doc. 15 at 5) The mortgage states:
Neither [Spasojevic] nor [Wells Fargo] may commence, join, or be
joined to any judicial action . . . that arises from the other party’s
actions pursuant to this Security Instrument or that alleges that the
other party has breached any provision of, or any duty owed by reason
of, this Security Instrument, until [Spasojevic] or [Wells Fargo] has
notified the other party [in writing] of such alleged breach and afforded
the other party hereto a reasonable period after the giving of such
notice to take corrective action.
(Doc. 15-1 at 14) In response, Spasojevic argues that he notified Wells Fargo and
that the notice complied with the mortgage. Spasojevic identifies the opening
sentence of a January 24, 2012, letter to Wells Fargo that states, “This serves as
official notice under the Fair Debt Collection Practices Act FDCPA, the Florida
Consumer Collection Practices Act FCCPA, and all other applicable Federal
consumer protection statutes and regulations.” (Doc. 11-1 at 3) However, the letter
fails to notify Wells Fargo of an “alleged breach,” which the mortgage (not the
FDCPA, the FCCPA, or “other applicable Federal Consumer protection statutes [or]
regulations”) requires. Instead, the letter notifies Wells Fargo that Spasojevic has
acquired an attorney and that Wells Fargo “no longer [has] permission to contact”
Spasojevic. (Doc. 11-1 at 3-4) Spasojevic also identifies a portion of the letter that
states, “Immediately, refrain from contacting our client directly or we will have no
other option but to pursue legal action against you in the form of a suit.” (Doc. 11-1
at 4) As Spasojevic admits, this letter “advised [Wells Fargo] in writing that
[Spasojevic] will seek legal action against [Wells Fargo] if [Wells Fargo] does not
cease all contact.” (Doc. 17 at 5 (emphasis added)) The notice – which merely
warns Wells Fargo that Spasojevic will sue if Wells Fargo breaches a duty owed to
Spaojevic – fails to notify Wells Fargo of an “alleged breach.”*
Wells Fargo’s motion (Doc. 15) is GRANTED. Spasojevic’s amended
complaint (Doc. 11) is DISMISSED. No later than FEBRUARY 3, 2014, the
plaintiff may amend the complaint.
ORDERED in Tampa, Florida, on January 21, 2014.
Citing Spasojevic’s Exhibit C, Spasojevic also states, “Moreover, Spasojevic provided
written notification of violations to Defendant after all of the alleged violations have occurred.”
However, as the Wells Fargo states, Exhibit C consists of a “facsimile . . . regarding a short sale” and
a letter that, other than a new date, is identical to the January 24, 2012, letter. Nothing in Exhibit C
identifies an “alleged breach.”
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