Owens-Benniefield v. Nationstar Mortgage LLC

Filing 28

ORDER: Defendant Nationstar Mortgage, LLC's Amended Motion to Dismiss (Doc. # 23 ) is GRANTED IN PART AND DENIED IN PART. The Motion is DENIED as to Counts 1, 3, 4, 5, and 9 of the Amended Complaint (Doc. # 17 ), to the extent set forth he rein. Counts 7 and 11 are DISMISSED WITH PREJUDICE. Plaintiff Vickie Owens-Benniefield may file a second amended complaint as to Counts 2, 6, 8, and 10 by July 13, 2017, failing which, these claims will be dismissed without further notice. Signed by Judge Virginia M. Hernandez Covington on 6/15/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
VICKIE OWENS-BENNIEFIELD,
Plaintiff,
v.

Case No.: 8:17-cv-540-T-33TGW

NATIONSTAR MORTGAGE LLC,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Nationstar Mortgage LLC’s Amended Motion to Dismiss (Doc. #
23), filed on May 15, 2017. Pro se Plaintiff Vickie OwensBenniefield filed a response on May 23, 2017. (Doc. # 25).
For the reasons that follow, the Motion is granted in part
and denied in part.
I.

Background
In

January

of

2008,

Owens-Benniefield

took

out

a

mortgage to purchase a property in Tampa, Florida. (Doc. # 17
at

¶¶

14-15).

Owens-Benniefield

struggled

to

pay

the

mortgage, so she “completed a deed in lieu of foreclosure in
which the debt was forgiven by Federal Home Loan Mortgage
Corporation on February 24, 2015.” (Id. at ¶ 15). OwensBenniefield received a letter, which was addressed to the

1

Comptroller of the Currency and indicated “the Deed in Lieu
of Foreclosure was approved by the investor Federal Home Loan
Mortgage Corporation.” (Id. at ¶ 17). Defendant Nationstar
Mortgage LLC “was a party to the transaction for the Deed in
Lieu as they had to execute an Assignment of Mortgage in order
for the transaction to be completed on February 24, 2015.”
(Id.

at

¶

18);

see

also

(Doc.

#

17-1

at

9)(assigning

Nationstar’s interest in the mortgage to Federal Home Loan
Mortgage

Corporation).

Owens-Benniefield’s

“obligation

at

that point as of February 2015, was forgiven.” (Doc. # 17 at
¶ 19); see also (Doc. # 17-1 at 11)(recording the release of
mortgage).
Yet, on March 17, 2016, despite the mortgage debt having
“been recorded and released by Federal Home Loan Mortgage
Corporation,”

Nationstar

began

attempting

to

collect

the

debt. (Doc. # 17 at ¶ 21). Owens-Benniefield “began to receive
numerous

telephone

calls

from

[Nationstar’s]

agents

in

attempts to collect a debt.” (Id. at ¶ 22). Nationstar “placed
multiple automated calls per day to [Owens-Benniefield’s]
cellular telephone for several months prior to the filing of
this

action.”

(Id.

at

¶

23).

Nationstar

also

used

a

“prerecorded or artificial voice” during some phone calls.
(Id. at ¶ 76). Between March and April of 2016, Nationstar

2

“placed at least 9 collection calls to [Owens-Benniefield’s]
cellular telephone.” (Id. at ¶ 24). Owens-Benniefield also
“received letters and mortgage statements” from Nationstar,
even though its “rights were assigned to Federal Home Loan
Mortgage Corporation.” (Id. at ¶ 26; Doc. # 17-1 at 65-66;
79-80).
Nationstar

then

“prepared

and

recorded

another

assignment of mortgage to Community Loan fund of New Jersey,”
which was “recorded on August 22, 2016, and dated June 27,
2016.” (Id. at ¶ 27; Doc. # 17-1 at 31). According to OwensBenniefield,

this

was

an

“[i]nvasion

of

[her]

personal

information as [Nationstar] had no right to give personal
information to [a] third party.” (Doc. # 17 at ¶ 27). Indeed,
Nationstar

“has

transferred

[Owens-Benniefield’s]

confidential information to several third parties,” including
an attorney in Michigan who “has stated he does not know [her]
and is un[a]ware of why [her] personal information was sent
to his office.” (Id. at ¶ 30; Doc. # 17-1 at 33-35).
Nationstar also “placed debt on [Owens-Benniefield’s]
credit report which caused [her] to be denied credit and has
caused [her] great emotional stress to try and clear this
matter.” (Doc. # 17 at ¶ 28). But, Nationstar denied they
were trying to collect a debt in their communications with

3

the Consumer Protection Bureau. (Id. at ¶ 31). Nationstar
“sent

the

Internal

Revenue

Service

a

mortgage

interest

statement which shows [Owens-Benniefield as] owing a balance
of $132,009.33.” (Id. at ¶ 32).
Owens-Benniefield

filed

suit

in

state

court

against

Nationstar and other defendants in April of 2016, alleging
various statutory and common law causes of action. (Doc. # 7
at 11; Doc. # 7-1). Subsequently, all claims except for a
TCPA claim against Nationstar were dismissed in that action.
The case remains pending as to the sole TCPA claim. (Doc. #
7 at 12).
Owens-Benniefield then initiated the present action in
this Court on March 6, 2017. (Doc. # 1). Nationstar filed its
motion for more definite statement or to dismiss on March 30,
2017. (Doc. # 6). The Court granted that motion on April 21,
2017. (Doc. # 14). Since initiation of this action, but before
Owens-Benniefield filed her Amended Complaint, Nationstar
acknowledged in a letter to the Florida Attorney General’s
Office that the debt was waived when Owens-Benniefield’s
deed-in-lieu was executed. (Doc. # 17 at ¶¶ 52, 199, 252;
Doc. # 15-1).
Owens-Benniefield filed her Amended Complaint, alleging
violations of the Fair Debt Collection Practices Act (FDCPA),

4

15 U.S.C. §§ 1692 et seq.; the Telephone Consumer Protection
Act

(TCPA),

47

U.S.C.

§§

227

et

seq.;

the

Fair

Credit

Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq.; the Real
Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601,
et seq.; the Graham–Leach–Bliley Act (GLBA), 15 U.S.C. §§
6801, et seq.; the Florida Consumer Collection Practices Act
(FCCPA), Fla. Stat. §§ 559.55 et seq.; and Chapter 494, Fla.
Stat., governing mortgage brokerage and lending. (Doc. # 17).
The Amended Complaint also asserts various common law claims
including fraud, negligence, and intentional infliction of
emotional

distress.

(Id.).

Nationstar

filed

its

Amended

Motion to Dismiss the Amended Complaint on May 15, 2017. (Doc.
# 23). Owens-Benniefield filed a response on May 23, 2017.
(Doc. # 25). The Motion is ripe for review.
II.

Legal Standard
On a motion to dismiss, this Court accepts as true all

the allegations in the complaint and construes them in the
light most favorable to the plaintiff. Jackson v. Bellsouth
Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further,
this

Court

favors

the

plaintiff

with

all

reasonable

inferences from the allegations in the complaint. Stephens v.
Dep’t of Health & Human Servs., 901 F.2d 1571, 1573 (11th
Cir. 1990)(“On a motion to dismiss, the facts stated in [the]

5

complaint and all reasonable inferences therefrom are taken
as true.”). However,
[w]hile 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.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). 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). “The scope of review
must be limited to the four corners of the complaint.” St.
George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002).
Furthermore,

the

Court

construes

pro

se

pleadings

liberally and holds them to a less stringent standard than
those drafted by attorneys. Hughes v. Lott, 350 F.3d 1157,
1160 (11th Cir. 2003). But, “a pro se litigant is still
required to conform to procedural rules, and a district judge
is not required to rewrite a deficient pleading.” McFarlin v.
Douglas Cty., 587 F. App’x 593, 595 (11th Cir. 2014).
III. Analysis
The

Court

will

analyze

each

eleven counts in turn.

6

of

Owens-Benniefield’s

A.

FDCPA

Count 1 alleges Nationstar violated numerous provisions
of the FDCPA. The Court notes as a preliminary matter that
the FDCPA contains a one-year statute of limitations. 15
U.S.C. § 1692k(d). This action was initiated on March 6, 2017,
so any communications sent before March 6, 2016, are timebarred under the FDCPA.
Nationstar contends the Amended Complaint does not state
a

claim

under

the

FDCPA

because

Owens-Benniefield

has

insufficiently pled that Nationstar is a debt collector,
engaged in debt collection activity, or otherwise violated
the subsections identified by Owens-Benniefield.
1.
First,

Debt Collector and Debt Collection Activity
Nationstar

argues

Owens-Benniefield

has

not

sufficiently alleged facts to support a reasonable inference
that it is a debt collector. (Doc. # 23 at 2). A “debt
collector” includes, among others, (1) “any 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 (2) any person “who regularly collects or
attempts to collect, directly or indirectly, debts owed or
due or asserted to be owed or due another.” Davidson v.

7

Capital

One

Bank,

N.A.,

797

F.3d

1309,

1314

(11th

Cir.

2015)(quoting 15 U.S.C. § 1692a(6)).
An allegation merely tracking the statutory definition
of

debt

collector

is

insufficient.

See

Farquharson

v.

Citibank, N.A., 664 F. App’x 793, 799–800 (11th Cir. 2016)(“In
their Amended Complaint, Plaintiffs assert that Citigroup and
Wolfe are each ‘debt collectors’; however, such ‘threadbare
recitals of a cause of action's elements’ do not suffice.”).
Nationstar argues that its self-identification as a debt
collector attempting to collect a debt in its letters and
other communications with Owens-Benniefield, (Doc. # 17-1 at
65-66, 79-80), does not support that it is, in fact, a debt
collector. See Fenello v. Bank of Am., NA, 577 F. App’x 899,
902 (11th Cir. 2014)(“An entity cannot transform itself into
a ‘debt collector’ within the meaning of the FDCPA simply by
noting in a letter that it may be considered one under the
Act.”).

Still,

while

it

is

not

determinative,

self-

identification as a debt collector is relevant. See Bohringer
v. Bayview Loan Servicing, LLC, 141 F. Supp. 3d 1229, 1240
(S.D.

Fla.

2015)(“[A]lthough

not

determinative,

it

is

nevertheless relevant Bayview identified itself as a debt
collector
omitted)).

in

the

Here,

May

21

Letter.”

Nationstar

labeled

8

(internal
itself

as

citation
a

debt

collector in a letter stating that Owens-Benniefield’s loan
was in default, a $50,000 payment was due within a month, and
that the letter “[was] an attempt to collect a debt.” (Doc.
# 17-1 at 65).
Nationstar also asserts the other allegations do not
plausibly show it is a debt collector. But, construing the
Amended

Complaint

liberally,

Owens-Benniefield

has

sufficiently alleged Nationstar is a debt collector. She
alleges Nationstar is “engaged in the collection of debts
from

Florida

consumers

using

the

mail,

internet

and

telephone” and “regularly attempts to collect consumer debt
alleged to be due.” (Doc. # 17 at ¶¶ 8, 11-12); see also
Tharpe v. Nationstar Mortg. LLC, 632 F. App’x 586, 588 (11th
Cir. 2016)(“Nationstar contends that Tharpe’s allegations
that it is a ‘debt collector’ are vague and conclusory. They
are

not.

Tharpe

has

alleged

that

Nationstar’s

business

involves the regular collection of thousands of debts from
thousands

of

consumers.

That

allegation,

if

true,

would

support a finding that Nationstar is a ‘debt collector’ within
the scope of the FDCPA.”). And Nationstar does not argue that,
in the event it otherwise qualifies as a debt collector, it
is nevertheless exempt from the FDCPA because the loan was
not

in

default

when

it

became

9

the

servicer.

§

1692(a)(6)(F)(iii); see also Davidson, 797 F.3d at 1314 n.4
(stating that, regarding § 1692(a)(6)(F)(iii), “[e]ntities
falling

within

this

and

others

companies

exclusion
who

include

service

mortgage

outstanding

service

debts

for

others, so long as the debts were not in default when taken
for

servicing”

(citation

and

internal

quotation

marks

omitted)).
Next,

Nationstar

argues

Owens-Benniefield

has

not

sufficiently alleged its activities were connected with the
collection of a debt. (Doc. # 23 at 4). “Although the FDCPA
does not expressly set forth what constitutes collectionrelated activity, the Eleventh Circuit has held that ‘if a
communication conveys information about a debt and its aim is
at least in part to induce the debtor to pay, it falls within
the scope of the Act.’” Roth v. Nationstar Mortg., LLC, No.
2:15-cv-783-FtM-29MRM, 2016 WL 3570991, at *2 (M.D. Fla. July
1, 2016)(quoting Caceres v. McCalla Raymer, LLC, 755 F.3d
1299,

1302

(11th

Cir.

2014)).

In

determining

whether

a

communication is made in connection with the collection of a
debt, some factors to look at are whether the communication
references the amount owed, contains an “implicit or explicit
demand

for

payment,”

or

discusses

10

“the

repercussions

if

payment [is] not tendered.” Pinson v. Albertelli Law Partners
LLC, 618 F. App’x 551, 553-54 (11th Cir. 2015).
The
mortgage

Court
to

agrees

another

that

company,

Nationstar’s
transferring

assigning
its

the

servicing

rights to another servicer, and notifying Owens-Benniefield
of both events is not debt collection activity. Cf. Bohringer,
141 F. Supp. 3d at 1234 (“[T]he letter was not made in
connection with the collection of a debt: it was simply an
initial communication to Plaintiffs that Bayview was the new
servicer of the Loan.”). Indeed, under RESPA, Nationstar had
a duty to inform Owens-Benniefield of any assignment or
transfer of servicing. See 12 U.S.C. § 2605(b)(1). And the
letters sent by BSI Financial Services, the mortgage servicer
to whom Nationstar’s servicing rights were transferred in
June of 2016, do not qualify as debt collection activity by
Nationstar.
But the earlier letters Nationstar sent, which noted the
default balance and specified a due date for payment, are
attributable to Nationstar. A March 15, 2016, letter from
Nationstar asserts Owens-Benniefield’s “loan is currently
past due” and that “[f]ailure to pay $50,410.73 by 4/14/2016
[], may result in acceleration of the sums secured by the
Security Instrument, foreclosure proceedings and sale of the

11

property.” (Doc. # 17-1 at 65-66). The letter explains the
acceptable forms of payment and warns “Nationstar is a debt
collector” and “[t]his is an attempt to collect a debt.” (Id.
at 65). Since the letter contains a demand for payment and
highlights repercussions of nonpayment, this letter qualifies
as debt collection activity.
Thus, the Court concludes that Nationstar is plausibly
a debt collector and at least some of the conduct alleged
qualifies as debt collection activity. Next, the Court will
address each alleged violation of the FDCPA in turn.
2.

Section 1692c

Owens-Benniefield alleges Nationstar violated § 1692c by
communicating

“in

connection

with

debt

collection

as

it

relates with third parties, as [Owens-Benniefield] did not
give prior consent to the ‘debt collector’ [Nationstar] to
communicate this debt to an attorney in Michigan and also to
[its] affiliates and also by way of another Mortgage Company
via a recorded assignment of mortgage.” (Doc. # 17 at 4).
Although she does not specify the subsection, it appears
Owens-Benniefield is alleging a violation of § 1692c(b),
which states, in relevant part,
without the prior consent of the consumer given
directly to the debt collector, or the express
permission of a court of competent jurisdiction, or

12

as
reasonably
necessary
to
effectuate
a
postjudgment judicial remedy, a debt collector may
not communicate, in connection with the collection
of any debt, with any person other than the
consumer, his attorney, a consumer reporting agency
if otherwise permitted by law, the creditor, the
attorney of the creditor, or the attorney of the
debt collector.
15 U.S.C. § 1692c(b).
Owens-Benniefield

has

not

plausibly

alleged

that

Nationstar communicated, in connection with the collection of
the debt, with the attorney in Michigan, its affiliates, or
the mortgage company to whom the mortgage was assigned. As
already discussed, Nationstar’s assigning the mortgage to
another

company,

and

notifying

Owens-Benniefield

of

the

assignment, was not debt collection activity. Nor does OwensBenniefield’s vague allegation that Nationstar communicated
with its affiliates create the plausible inference that the
communications were made in connection with collection of the
debt from Owens-Benniefield.
Nationstar did send a letter — a notice of servicing
transfer — to an attorney in Michigan, apparently under the
incorrect

belief

that

this

attorney

represented

Owens-

Benniefield. (Doc. # 17-1 at 33). But, the notice was not
sent in connection with the collection of a debt — it merely
stated Nationstar was no longer the mortgage servicer. Owens-

13

Benniefield does not allege whether Nationstar sent other
communications

to

the

Michigan

attorney.

And

the

other

letters Owens-Benniefield attaches were sent to the attorney
by the subsequent servicer. Thus, the FDCPA claim is dismissed
to the extent it is brought under § 1692c.
3.

Section 1692d

Section 1692d states that “[a] debt collector may not
engage in any conduct the natural consequence of which is to
harass, oppress, or abuse any person in connection with the
collection of a debt.” 15 U.S.C. § 1692d. “Banned conduct
includes the ‘use of violence,’ the ‘use of obscene or profane
language,’ and repeated phone calls intended to annoy or
harass ‘any person at the called number.’” Miljkovic v.
Shafritz & Dinkin, P.A., 791 F.3d 1291, 1305 (11th Cir. 2015).
Claims under this section are viewed “from the perspective of
a consumer whose circumstances make[] him relatively more
susceptible to harassment, oppression, or abuse.” Jeter v.
Credit Bureau, Inc., 760 F.2d 1168, 1179 (11th Cir. 1985).
Owens-Benniefield alleges Nationstar violated § 1692d
because Nationstar’s conduct “cause[d] harassment and abuse
by ruining [Owens-Benniefield’s] reputation” and “caus[ed]
various calls to annoy [Owens-Benniefield] and harass for the
collection of debt at various times of the day.” (Doc. # 17

14

at 4). But Owens-Benniefield has not plausibly pled that the
phone calls she received from Nationstar were harassing or
abusive.

“Although

there

is

no

definitive

threshold

for

determining what frequency and volume of calls are necessary
to violate the FCCPA, courts generally have held that one or
two phone calls per day are not sufficient to violate the
FDCPA

or

its

state

analogues,

absent

evidence

of

other

egregious conduct associated with the calls.” Wolhuter v.
Carrington Mortg. Servs., LLC, No. 8:15-cv-552-MSS-TBM, 2015
WL 12819153, at *3 (M.D. Fla. Oct. 28, 2015), reconsideration
denied, No. 8:15-cv-552-MSS-TBM, 2016 WL 7177620 (M.D. Fla.
July 22, 2016). While Owens-Benniefield alleges Nationstar
“placed

multiple

automated

calls

per

day

to

[her]”

for

“several months,” she does not allege these calls during the
early morning or late evening hours. (Doc. # 17 at ¶ 23). Nor
does she assert abusive or threatening language was used.
Owens-Benniefield
violated

this

section

also
by

vaguely

ruining

her

alleges

Nationstar

reputation.

Owens-

Benniefield does not elaborate as to how her reputation has
been ruined, besides alleging that her credit score suffered
as a result of Nationstar’s reporting the debt. Without more,
Owens-Benniefield

has

not

plausibly

alleged

Nationstar

engaged in conduct the natural consequence of which was to

15

harass or abuse her by incorrectly reporting that OwensBenniefield owed the debt. To the extent it is brought under
§ 1692d, the FDCPA claim is dismissed.
4.

Section 1692e

Owens-Benniefield alleges Nationstar violated § 1692e
generally by
using
[]
false,
deceptive,
and
misleading
representations and means in connection with debt
collection when [Nationstar] failed to acknowledge
[Owens-Benniefield’s] Deed in lieu of foreclosure
in which they were a party []. [Nationstar] charged
fees, late fees, and insurance fees; by improperly
threatening foreclosure; by threatening to file a
foreclosure when [Nationstar] does not have a right
to debt.
(Doc. # 17 at 4). Section 1692e states “[a] debt collector
may

not

use

any

false,

deceptive,

or

misleading

representation or means in connection with the collection of
any debt” and includes a nonexhaustive list of conduct that
violates the statute. 15 U.S.C. § 1692e.
Section 1692e(2) makes “[t]he false representation of
(A) the character, amount, or legal status of any debt; or
(B)

any

services

rendered

or

compensation

which

may

be

lawfully received by any debt collector for the collection of
a debt” a violation of the FDCPA. 15 U.S.C. § 1692e(2).
According

to

Owens-Benniefield,

Nationstar

violated

§

1692e(2) both “by misrepresenting the character, amount, and

16

legal status of the subject loan after the deed of lieu was
completed to [Owens-Benniefield]” and “by misrepresenting the
character, amount, and legal status of the subject loan when
they

sent

mortgage

statements

and

payoff

statements

to

[Owens-Benniefield] indicating a total amount due, [and] a
detachable coupon giving [Owens-Benniefield] the impression
she must pay [the] debt.” (Doc. # 17 at 4-5). Section 1692e(8)
prohibits “[c]ommunicating or threatening to communicate to
any person credit information which is known or which should
be known to be false, including the failure to communicate
that a disputed debt is disputed.” 15 U.S.C. § 1692e(8).
Owens-Benniefield alleges Nationstar violated § 1692e(8) by
“threatening to communicate and communicat[ing] false credit
information, including that [Owens-Benniefield] has defaulted
on the subject loan to various parties.” (Doc. # 17 at 5).
The Court employs the “least sophisticated consumer”
standard in determining whether a collection effort violates
the FDCPA. LeBlanc v. Unifund CCR Partners, 601 F.3d 1185,
1193 (11th Cir. 2010). This standard maintains an “objective
component”

and

presumes

that

the

“least

sophisticated

consumer” does “possess a rudimentary amount of information
about the world and a willingness to read a collection notice
with

some

care.”

Id.

at

1194.

17

“[W]hether

a

letter

is

misleading raises a question of fact. Generally speaking, ‘a
jury should determine whether the letter is deceptive and
misleading.’” Buchanan v. Northland Grp., Inc., 776 F.3d 393,
397

(6th

Cir.

2015)(citation

omitted).

“Dismissal

is

appropriate only when it is ‘apparent from a reading of the
letter that not even a significant fraction of the population
would be misled by it.’” McMahon v. LVNV Funding, LLC, 744
F.3d 1010, 1020 (7th Cir. 2014)(citation omitted); see also
Buchanan, 776 F.3d at 397 (“A claim may be implausible on its
face because even an unsophisticated consumer would not be
confused.”).
Here, the letter sent in March of 2016 was an attempt to
collect a debt. It stated that Nationstar was a debt collector
and that the letter was an attempt to collect a debt. (Doc.
# 17-1 at 65). The letter states Owens-Benniefield is in
default on the loan, without mentioning that her obligation
to pay ended when a deed-in-lieu was executed, and that
failure to pay by a certain date “may result in acceleration
. . . , foreclosure proceedings and sale of the property.”
(Id. at 65-66). Sending a letter stating that payment is
necessary to prevent foreclosure on a mortgage from which a
consumer had been released is misleading because that letter
misrepresents the legal status and amount of the debt. Cf.

18

Eide v. Colltech, Inc., 987 F. Supp. 2d 951, 961 n.5 (D. Minn.
2013)(“ [A] single letter from a debt collector that attempts
to collect a debt that is not owing will raise multiple
problems under the FDCPA. For example, if the debtor does not
actually

owe

a

debt,

a

debt

collector’s

letter

will

necessarily misrepresent the identity of the creditor, as
there will be no creditor.”). Thus, this claim survives.
5.

Section 1692f

Section 1692f states “[a] debt collector may not use
unfair or unconscionable means to collect or attempt to
collect

any

debt.”

15

U.S.C.

§

1692f.

Owens-Benniefield

alleges Nationstar violated § 1692f by trying to collect
payment even though it “had no present right to possession of
the property claimed as collateral through an enforceable
security interest.” (Doc. # 17 at 4). She has plausibly pled
that Nationstar’s asserting her debt was still outstanding
and that failure to pay may result in legal action against
her was an unfair means of collecting or attempting to collect
a debt.
6.

Section 1692g

Finally, Owens-Benniefield alleges Nationstar violated
§ 1692g, which specifies the required contents for notices of
debt to be sent to consumers and requires debt collectors,

19

upon receiving a written dispute within 30 days of the notice,
to “cease collection of the debt . . . until the debt
collector obtains verification of the debt” and sends a copy
of the verification to the consumer. 15 U.S.C. § 1692g(a)(b).

Owens-Benniefield

states

Nationstar

violated

this

section because she “provided [Nationstar] in writing a 30
day letter[] indicating that [she] disputed [the] debt and a
copy of such verification of debt.” (Doc. # 17 at 5).
This

claim

is

insufficiently

pled.

While

Owens-

Benniefield states she sent a written dispute within 30 days,
she does not explicitly allege that Nationstar never obtained
and sent a copy of the debt verification to her or that
Nationstar continued its collection efforts before verifying
the debt. Owens-Benniefield does not state when she sent the
dispute letter to Nationstar, so the date at which Nationstar
was

required

to

cease

collection

activities

cannot

be

determined. Accordingly, Owens-Benniefield has not plausibly
alleged Nationstar violated this section of the FDCPA. The §
1692g claim within this count is dismissed.
Count 1 survives to the extent it states claims under §§
1692(e) and (f).

20

B.

FCRA

Count 2 alleges Nationstar violated the FCRA by (1)
reporting the unlawful debt to credit reporting agencies, who
in turn placed the debt on Owens-Benniefield’s credit report,
and (2) reporting that the debt was valid after receiving
Owens-Benniefield’s

dispute

through

the

credit

reporting

agencies. (Doc. # 17 at 6-7). Throughout this count, OwensBenniefield cites § 1681s-2(b) and § 1681i(a)(2), though it
is

unclear

whether

she

asserts

Nationstar

violated

both

sections. Section 1681i “requires a consumer reporting agency
to reinvestigate disputed information in a consumer’s file if
the consumer notifies the agency that the information is
disputed.” Allmond v. Bank of Am., No. 3–07–cv–186–J–33JRK,
2008 WL 205320, at *3 (M.D. Fla. Jan. 23, 2008)(citing 15
U.S.C. § 1681i). But Owens-Benniefield cannot state a cause
of action under § 1681i because Nationstar is not a consumer
reporting agency.
Section

1681s-2

responsibilities

of

of

the

FCRA

furnishers

generally

of

outlines

information

to

the

credit

reporting agencies. Section 1681s-2(a) of the FCRA prohibits
furnishers
information

of
to

credit

information

credit

reporting

from

providing

agencies.

false

“However,

the

statute explicitly bars private suits for violations of this

21

provision.” Peart v. Shippie, 345 F. App’x 384, 386 (11th
Cir. 2009). Still, the FCRA does create a private right of
action for the enforcement of § 1681s-2(b), which “requires
furnishers of credit information to investigate the accuracy
of said information upon receiving notice of a dispute.”
Peart, 345 F. App’x at 386 (citing § 1681s-2(b)).
Here, Owens-Benniefield alleges that Nationstar both
provided incorrect information to credit reporting agencies
and other parties, and failed to remove the debt from her
credit report, even after Owens-Benniefield disputed it to
two

credit

reporting

agencies.

As

explained

above,

Nationstar’s reporting of incorrect information to credit
reporting agencies cannot create a cause of action under §
1681s-2(b) because that conduct is only regulated by § 1681s2(a). While Owens-Benniefield can pursue a claim under §
1681s-2(b) for Nationstar’s conduct after it was notified of
Owens-Benniefield’s

dispute,

Owens-Benniefield

has

not

provided sufficient facts to state a claim. Highly detailed
facts and dates are not required, but more information about
the content of Owens-Benniefield’s dispute to the credit
reporting agencies and about Nationstar’s investigation, or
lack thereof, are needed.

22

Owens-Benniefield does not specify whether Nationstar
conducted an insufficient investigation or whether Nationstar
failed to investigate at all. Nor does Owens-Benniefield
elaborate as to how Nationstar’s investigation, if one was
initiated, was unreasonable. See Smith v. Bank of Am. Home
Loans, 968 F. Supp. 2d 1159, 1167 (M.D. Fla. 2013)(“It is
unclear whether plaintiffs allege that Bank of America failed
to conduct any investigation. To the extent an investigation
was conducted, it is unclear how the investigation failed to
meet the requirements of the statute. Therefore, plaintiffs
have failed to put Bank of America on notice as to the nature
of

their

(emphasis

alleged

violation

original)).

of

Although

15

U.S.C.

§

Nationstar’s

1681s-2(b).”
failure

to

realize earlier that the deed-in-lieu had been executed is
relevant (Doc. # 17 at ¶ 69), Owens-Benniefield should clearly
allege whether Nationstar failed to investigate or merely
investigated unreasonably. Also, because Owens-Benniefield
has not pled whether Nationstar failed to investigate or how
it failed to reasonably investigate, she has not sufficiently
pled that Nationstar’s failure was willful.
Finally,

Owens-Benniefield

complains

Nationstar

“responded to the Consumer Financial Protection Bureau that
after [its] investigation that the reporting of the debt on

23

[Owens-Benniefield’s] report was accurate and will remain on
[her] report.” (Doc. # 17 at ¶ 63). The Consumer Financial
Protection Bureau is not a consumer reporting agency. See 15
U.S.C. § 1681a(f) (“The term ‘consumer reporting agency’
means any person which, for monetary fees, dues, or on a
cooperative nonprofit basis, regularly engages in whole or in
part in the practice of assembling or evaluating consumer
credit information or other information on consumers for the
purpose of furnishing consumer reports to third parties . .
.”). Therefore, Nationstar’s duty to perform a reasonable
investigation of a consumer’s dispute to a credit reporting
agency

cannot

have

been

triggered

by

Nationstar’s

communications with the Bureau. To the extent her FCRA claim
relies

on

communications

with

the

Bureau,

the

claim

is

dismissed with prejudice.
Owens-Benniefield

may

replead

her

FCRA

claim

as

to

Nationstar’s investigation of the consumer reporting agency
disputes in her second amended complaint.
C.

TCPA

“Section 227 of the TCPA makes it unlawful to make
collection calls using an ATDS or an artificial or prerecorded
voice.” Gosneigh v. Nationstar Mortg., LLC, No. 8:16-cv-3040T-33AEP, 2017 WL 435818, at *2 (M.D. Fla. Feb. 1, 2017). Count

24

3 alleges Nationstar violated the TCPA by calling OwensBenniefield’s cell phone multiple times a day over several
months using an “automatic telephone dialing system or a
prerecorded or artificial voice.” (Doc. # 17 at ¶¶ 23, 76).
In support, Owens-Benniefield attaches a log of seven calls,
with notes beside each. (Doc. # 17-1 at 46-47).
Nationstar complains Owens-Benniefield does not provide
factual

allegations

about

the

use

of

an

artificial

or

prerecorded voice during some calls. It notes the call log
shows that, for each call, she either spoke with an actual
employee or the call went to voicemail without a message being
left. (Doc. # 23 at 9). While it seems implausible OwensBenniefield could know an artificial or prerecorded voice was
used for these calls, Owens-Benniefield alleges she received
numerous calls for months — not just the calls shown on the
log. Therefore, the call log does not contradict the assertion
that an artificial or prerecorded voice was used in some
calls.
And Owens-Benniefield alleges facts sufficient to create
the inference that Nationstar called her using an ATDS.
“[W]ell-pled

allegations

of

an

ATDS

rely

on

indirect

allegations, such as the content of the message, the context
in

which

it

was

received,

and

25

the

existence

of

similar

messages to raise an inference that an ATDS was used.” Gragg
v. Orange Cab Co., 942 F. Supp. 2d 1111, 1114 (W.D. Wash.
2013)(internal quotation marks omitted). Owens-Benniefield
alleges she received multiple calls a day for months, which
supports that an ATDS was used. Cf. Neptune v. Whetstone
Partners, LLC, 34 F. Supp. 3d 1247, 1250 (S.D. Fla. 2014)
(denying motion to dismiss and noting allegations that the
defendant called forty-five times, called “several times” in
one

day,

called

“on

back

to

back

days,”

and

employed

prerecorded messages with “generic content”). Although she
logged only seven calls made in March of 2016, two calls were
made on the same day and Owens-Benniefield noted that every
conversation with an employee began with a pause. (Doc. # 171 at 46-47); see Padilla v. Whetstone Partners, LLC, No. 1421079-CIV,

2014

WL

3418490,

at

*2

(S.D.

Fla.

July

14,

2014)(noting a plaintiff could support that an ATDS was used
by, among other things, “detail[ing] whether there was a pause
upon his answering the call”). Therefore, Owens-Benniefield
has plausibly alleged that an ATDS was used and the TCPA claim
survives.
Regarding remedies, Owens-Benniefield seeks a “permanent
injunction prohibiting [Nationstar] from placing nonemergency
calls” to her phone using an ATDS or artificial or prerecorded

26

voice. (Doc. # 17 at ¶ 85). Nationstar complains that “[t]his
remedy is not available under the TCPA.” (Doc. # 23 at 9).
But, while the TCPA does not specifically allow for “permanent
injunctions,” it does allow a plaintiff to bring an action
“to enjoin [further] violation” of § 227(b). 47 U.S.C. §
227(b)(3)(A). Construing the Amended Complaint liberally,
Owens-Benniefield

has

sufficiently

prayed

for

injunctive

relief for her TCPA claim. Owens-Benniefield also seeks an
award of “actual damages in an amount to be determined at
trial and $500.00 in statutory damages per violation and
$1,500.00 for each willful or knowing violation.” (Doc. # 17
at ¶ 86). But the TCPA allows for the recovery of either $500
in statutory damages or “actual monetary loss” caused by each
violation,

“whichever

is

greater.”

§

227(b)(3)(B).

Thus,

Owens-Benniefield cannot recover both actual monetary loss
and statutory damages.
D.
In

FCCPA
Count

4,

Owens-Benniefield

alleges

Nationstar

violated the FCCPA. It “violated sections 559.72(5), (6) when
[Nationstar]

represented

that

[Owens-Benniefield]

had

defaulted on the debt, while knowing that this information
was false” and “violated section 559.72(9) by attempting to
enforce a debt . . . which [it] knew was not [] legitimate.”

27

(Doc. # 17 at 8). Owens-Benniefield includes numerous other
allegations regarding Nationstar’s communications with her
and various third parties, (Id. at 8-10), but she fails to
identify which sections or subsections of the FCCPA these
acts violated.
“The elements necessary to plead a claim under the FCCPA
are

similar

but

distinguishable

from

the

elements

of

establishing a claim under the FDCPA.” Deutsche Bank Nat. Tr.
Co. v. Foxx, 971 F. Supp. 2d 1106, 1114 (M.D. Fla. 2013).
“The first prong is substantially identical to the FDCPA, as
the FCCPA only applies to consumer debt.” Id. “The second
prong differs from the FDCPA in that the FCCPA prohibits acts
of

‘persons’

and,

accordingly,

is

not

limited

to

‘debt

collectors.’” Id. “The third prong requires an act or omission
prohibited by the FCCPA.” Id.
Sections 559.72(5) and (6) provide that a person, in
collecting a debt, shall not:
(5) Disclose to a person other than the debtor or
her or his family information affecting the
debtor’s reputation, whether or not for credit
worthiness, with knowledge or reason to know that
the other person does not have a legitimate
business need for the information or that the
information is false.
(6) Disclose information concerning the existence
of a debt known to be reasonably disputed by the
debtor
without
disclosing
that
fact.
If
a

28

disclosure is made before such dispute has been
asserted and written notice is received from the
debtor that any part of the debt is disputed, and
if such dispute is reasonable, the person who made
the original disclosure must reveal upon the
request of the debtor within 30 days the details of
the dispute to each person to whom disclosure of
the debt without notice of the dispute was made
within the preceding 90 days.
Fla.

Stat.

§

559.72(5)-(6).

Owens-Benniefield

alleges

Nationstar violated these subsections because it maintained
Owens-Benniefield had defaulted on her mortgage even though
it was “a party to the Deed-in-Lieu of foreclosure that was
completed with no deficiency and when [Owens-Benniefield]
notified [it] numerous times information was inaccurate.”
(Doc. # 17 at ¶ 91). To the extent Owens-Benniefield alleges
Nationstar

asserted

the

debt

was

valid

in

response

to

inquiries by the Consumer Financial Protection Bureau and
Attorney General, she has not plausibly stated a claim. Those
entities

communicated

Owens-Benniefield’s

dispute

to

Nationstar, who in turn stated the dispute was without merit.
While Nationstar’s answer to those entities was incorrect, it
was not a disclosure of information concerning the existence
of a debt made without acknowledging the disputed nature of
the debt.
But, at least to the extent Owens-Benniefield is basing
this claim on Nationstar’s furnishing information about the

29

debt to credit reporting agencies, that activity plausibly
falls within the language of subsections (5) and (6). And
Nationstar has not argued such claims are preempted. See
Osborne v. Vericrest Fin., Inc., No. 8:11–cv–716–T–30TBM,
2011 WL 1878227, at *2–3 (M.D. Fla. May 17, 2011)(“Defendant’s
motion to dismiss based on preemption is granted to the extent
that

the

FCCPA

claim

is

premised

on

credit

reporting

activity.”). Therefore, at this juncture, the § 559.72(5) and
(6) claim survives.
Section 559.72(9) prohibits a person collecting a debt
from “[c]laim[ing], attempt[ing], or threaten[ing] to enforce
a debt when such person knows that the debt is not legitimate,
or assert the existence of some other legal right when such
person knows that the right does not exist.” § 559.72(9).
Owens-Benniefield has plausibly alleged Nationstar violated
this provision by continuing its attempts to collect the
mortgage debt even though that debt had been waived through
a deed-in-lieu — a fact of which Owens-Benniefield frequently
reminded

Nationstar.

Servicing,

LLC,

2016)(holding

159

Cf.
F.

plaintiff

Leahy-Fernandez
Supp.

3d

debtor

1294,
had

v.

Bayview

1305

(M.D.

plausibly

Loan
Fla.

alleged

violation of section 559.72(9) where she alleged her mortgage
debt was discharged in bankruptcy but the defendant mortgage

30

servicer still “attempt[ed] to collect from her personally”).
Thus, this count survives.
E.

Negligence

Count 5 roughly alleges Nationstar was negligent in four
ways: (1) by “failing to keep track of the files that they no
longer service”; (2) by failing to look into her allegation
that the debt was forgiven, even though Owens-Benniefield
communicated this to Nationstar employees and third parties;
(3) by “shar[ing] [her] personal information” with third
parties; and (4) by “misrepresent[ing] the fact that they
were the legal ‘servicers’ of the property.” (Doc. # 17 at
11-13).
Under Florida law,
[t]he basic elements of a negligence action are
well-established: (1) a legal duty on the part of
the defendant towards the plaintiff under the
circumstances; (2) a breach of that duty by the
defendant; (3) the defendant’s breach of duty was
both the actual and proximate cause of the
plaintiff’s injuries; and (4) the defendant
suffered damages as a result of the breach.
Pinchinat v. Graco Children’s Prod., Inc., 390 F. Supp. 2d
1141, 1149 (M.D. Fla. 2005). “Duty is a matter of law that is
to be determined by the Court.” Janis v. Pratt & Whitney
Canada, Inc., 370 F. Supp. 2d 1226, 1229 (M.D. Fla. 2005). “A
legal duty may arise from legislation, case law, or the

31

general facts of the case.” Id. “The plaintiffs must show
that there is a common law or statutory duty of care with
respect to the alleged negligent conduct.” McLean, 2008 WL
1956285, at *22.
Nationstar argues Owens-Benniefield has not plausibly
alleged it owed her any duty. (Doc. # 23 at 11-12). Nationstar
is correct that section 95.11, Fla. Stat., does not establish
that it owed Owens-Benniefield a duty. That statute sets the
statute of limitations for various causes of action. Fla.
Stat. § 95.11. It does not prohibit any conduct or create any
private right of action. Thus, to the extent her claim relies
on section 95.11, the negligence claim is dismissed with
prejudice.
Next,

after

noting

that

Owens-Benniefield

bases

her

negligence claim in part on Nationstar’s alleged violation of
the FDCPA, Nationstar asserts “[i]ndustry standards do not
impose tort duties.” (Doc. # 23 at 12). But, the FDCPA is a
federal statute, compliance with which is not merely standard
industry practice. Nationstar presents no argument as to
whether the FDCPA, as a federal statute, can serve as the
basis for its alleged duty, so the Court need not address
that issue.

32

And
clearest

Owens-Benniefield
manner,

that

alleges,

Nationstar

though

not

shared

in

her

the

personal

information with a number of third parties when it assigned
the already-forgiven debt to another company. One such third
party was an attorney who did not represent her and was not
involved in the assignment of mortgage. In her exhibits,
Owens-Benniefield includes a letter from Nationstar, which
outlines

when

information

Nationstar

and

when

a

will

share

borrower

is

borrowers’
able

to

personal

limit

such

disclosure. (Doc. # 17-1 at 77-78).
Providing personal information to parties unaffiliated
with Nationstar and uninvolved with any transaction related
to a borrower’s mortgage is plausibly excluded from the ways
in which Nationstar is allowed to share personal information
without

consent.

Thus,

Owens-Benniefield

has

plausibly

alleged that Nationstar, as her former loan servicer, had a
duty not to provide her personal information to parties
unconnected

with

any

transaction

related

to

Owens-

Benniefield’s mortgage. And Nationstar has not argued that
mortgage servicers like itself have no duty to prevent the
disclosure of a borrower’s personal information to third
parties totally unconnected to its business. Therefore, her
negligence claim survives.

33

Finally, Nationstar argues Owens-Benniefield has not
sufficiently pled a basis for punitive damages. (Doc. # 23 at
22-23). “[A] plaintiff seeking punitive damages under Florida
Statute

§

conclusory

768.72

cannot

allegations;

state
rather,

a

claim
a

by

merely

plaintiff

making

must

plead

specific acts committed by the defendant showing intentional
misconduct or gross negligence.” Nunez v. J.P. Morgan Chase
Bank, N.A., No. 6:14-cv-1485-Orl-31GJK, 2017 WL 735391, at *2
(M.D. Fla. Feb. 24, 2017). “‘Intentional misconduct’ means
that the defendant had actual knowledge of the wrongfulness
of the conduct and the high probability that injury or damage
to the claimant would result and, despite that knowledge,
intentionally pursued that course of conduct, resulting in
injury

or

negligence’

damage.”
means

Fla.
that

Stat.

the

§

768.72(2)(a).

defendant’s

conduct

“‘Gross
was

so

reckless or wanting in care that it constituted a conscious
disregard or indifference to the life, safety, or rights of
persons exposed to such conduct.” § 768.72(2)(b).
Accepting the Amended Complaint’s allegations as true,
Owens-Benniefield has plausibly pled intentional misconduct
or gross negligence by Nationstar. Cf. Nunez, 2017 WL 735391,
at *3 (denying motion for judgment on the pleadings as to
punitive damages where plaintiff alleged she entered a valid

34

mortgage

modification

agreement

with

defendant

mortgage

servicer but servicer still sought foreclosure and continued
sending letters claiming plaintiff was in default despite
notification of the error); Goodin v. Bank of Am., N.A., 114
F. Supp. 3d 1197, 1215 (M.D. Fla. 2015)(finding that the
defendant bank was liable for punitive damages after it took
no

action

repeated

to

prevent

notifications

errors
from

from

occurring,

the

even

plaintiffs).

after
Owens-

Benniefield’s claim for punitive damages survives.
F.

RESPA

Count 6 alleges Nationstar violated two sections of
RESPA, 12 U.S.C. §§ 2605 and 2609. (Doc. # 17 at 14-15).
Section 2605(a) requires lenders to “disclose to each person
who applies for the loan, at the time of application for the
loan, whether the servicing of the loan may be assigned, sold,
or transferred to any other person at any time while the loan
is outstanding.” § 2605(a). Section 2605(b)(1) dictates that
“[e]ach servicer of any federally related mortgage loan shall
notify the borrower in writing of any assignment, sale, or
transfer of the servicing of the loan to any other person.”
§

2605(b)(1).

Nationstar

allegedly

violated

multiple

subsections of § 2605 when it “prepared an assignment of
mortgage to Community Loan Fund of New Jersey, Inc.” and

35

“transferred this loan to another party” and “responded to
the Bureau that the loan was accurate” and when it “failed to
protect [Owens-Benniefield’s] credit rating.” (Doc. # 17 at
14-15).
But Owens-Benniefield does not allege that Nationstar
failed to notify her the loan could be transferred or assigned
when she obtained the mortgage, or that she was not notified
of

the

assignment

of

her

mortgage

or

transfer

of

loan

servicing in the statutory timeframe. Rather, she complains
that

the

mortgage

never

should

have

been

assigned

or

transferred at all. Such allegations do not state a claim
under § 2605. Similarly, § 2605 does not create causes of
action

for

failure

rating

or

for

to

protect

incorrectly

Owens-Benniefield’s

responding

to

the

credit

Consumer

Financial Protection Bureau. And, because Owens-Benniefield
has failed to state a claim for violation of § 2605, she has
also failed to plead a pattern or practice of noncompliance
so as to justify additional damages up to $2,000 under §
2605(f)(1)(A). This claim is dismissed with leave to amend so
that Owens-Benniefield may attempt to state a claim under
this section, if possible.
Next, Owens-Benniefield alleges Nationstar violated §
2609

“when

[it]

initiated

an

36

advancement

for

property

insurance [that] was paid from the escrow account on the
loan,” “when [Nationstar] sent letters to [her] demanding she
produce insurance for the property,” and “when [Nationstar]
sent notification of shortage in escrow account when there
was none.” (Doc. # 17 at 15). Section 2609 limits the extent
to which mortgage lenders may require borrowers to deposit
money in escrow accounts and requires servicers to provide
borrowers with escrow account statements. 12 U.S.C. § 2609.
There is no private right of action under this section. See
12 U.S.C. § 2609(d)(1) (providing for penalties for violation
of subsection (c) as follows: “[i]n the case of each failure
to submit a statement to a borrower [], the Secretary shall
assess to the lender or escrow servicer failing to submit the
statement a civil penalty of $50 for each such failure”
(emphasis added)); State of Louisiana v. Litton Mortg. Co.,
50 F.3d 1298, 1301–02 (5th Cir. 1995)(concluding there is
also no private right of action under § 2609(a)). OwensBenniefield cannot state a claim under § 2609 and should not
include claims for violation of this section in her second
amended complaint.
Owens-Benniefield may amend her RESPA claim under §
2605.

37

G.

GLBA

Count 7 alleges Nationstar violated two sections of the
GLBA, 15 U.S.C. §§ 6801 and 6802. (Doc. # 17 at 16-17). But
“courts across the country have held that no private right of
action exists for violations of the GLBA, whose text indicates
that it is to be enforced by ‘Federal functional regulators,
the

State

insurance

Authorities,

and

the

Federal

Trade

Commission.’” Winter Park Condo. Ltd. P’ship v. Wachovia
Bank, Nat’l Ass’n, No. 6:09-cv-218-Orl-31KR, 2009 WL 290992,
at *1 (M.D. Fla. Feb. 6, 2009)(quoting 15 U.S.C. § 6805(a));
see also Dunmire v. Morgan Stanley DW, Inc., 475 F.3d 956,
960 (8th Cir. 2007)(“No private right of action exists for an
alleged

violation

Benniefield’s

claim

of

the

under

GLBA.”).
the

GLBA

Therefore,
is

Owens-

dismissed

with

prejudice.
H.

Fraud

Count 8 alleges Nationstar committed fraud by insisting
the debt was valid to Owens-Benniefield and third parties,
including the Consumer Financial Protection Bureau and credit
reporting agencies, and by assigning the mortgage to another
company after the debt had been forgiven. (Doc. # 17 at 1719).

Under

Florida

law,

“[a]

fraud

claim

lies

for:

(1)

misrepresentation of material fact; (2) by someone who knew

38

or should have known of the statement’s falsity; (3) with
intent that the representation would induce another to rely
and act on it; and (4) injury suffered in justifiable reliance
on the representation.” Zarrella v. Pac. Life Ins. Co., 755
F. Supp. 2d 1218, 1224 (S.D. Fla. 2010). Additionally, Rule
9(b) of the Federal Rules of Civil Procedure places more
stringent

pleading

requirements

on

cases

alleging

fraud.

Clausen v. Lab. Corp. of Am., Inc., 290 F.3d 1301, 1305 (11th
Cir. 2002).
This count fails to state a claim for fraud because
Owens-Benniefield fails to identify how she was misled by or
relied upon Nationstar’s allegedly fraudulent statements. The
Amended

Complaint

alleges

Owens-Benniefield

vigorously

disputed Nationstar’s assertion that she owed a debt — both
to Nationstar and third parties. Thus, the Amended Complaint
does not plausibly plead that Owens-Benniefield relied on
Nationstar’s misrepresentation that she owed a debt. Cf.
Patterson v. Downtown Med. & Diagnostic Ctr., Inc., 866 F.
Supp.

1379,

1383

(M.D.

Fla.

1994)(dismissing

fraudulent

misrepresentation claim because “Plaintiff [did] not plead
any facts to support how she relied to her detriment on
representations by the Defendant or what damages she suffered
as

a

result

of

such

reliance”).

39

In

her

second

amended

complaint, Owens-Benniefield should plead, if she can, how
she relied on Nationstar’s alleged misrepresentations.
I.

Chapter 494, Fla. Stat.

Count 9 alleges Nationstar violated section 494.0025(4)(5), Fla. Stat., by telling Owens-Benniefield and numerous
third parties that Owens-Benniefield owed the debt and by
misrepresenting

that

it

was

the

legal

servicer

of

the

mortgage. (Doc. # 17 at 19-21). Section 494.0025, in relevant
part, makes it unlawful for any person:
(4) In any practice or transaction or course of
business
relating
to
the
sale,
purchase,
negotiation,
promotion,
advertisement,
or
hypothecation
of
mortgage
loan
transactions,
directly or indirectly:
(a) To knowingly or willingly employ any device,
scheme, or artifice to defraud;
(b) To engage in any transaction, practice, or
course of business which operates as a fraud upon
any person in connection with the purchase or sale
of any mortgage loan; or
(c)
To
obtain
misrepresentation
promise.

property
by
of a future

fraud,
willful
act, or false

(5) In any matter within the jurisdiction of the
office, to knowingly and willfully falsify,
conceal, or cover up by a trick, scheme, or device
a material fact, make any false or fraudulent
statement or representation, or make or use any
false writing or document, knowing the same to
contain any false or fraudulent statement or entry.
Fla. Stat. § 494.0025(4)-(5).

40

Nationstar argues there is no private right of action
under this section. (Doc. # 23 at 15-16). Nationstar notes in
a footnote that, in the state court action brought by OwensBenniefield, the state court granted its motion to dismiss
the section 494 claims with prejudice. (Id. at 16 n.6). But,
under Rule 8(c), res judicata is an affirmative defense, Fed.
R. Civ. P. 8(c)(1), and Nationstar does not argue that OwensBenniefield’s section 494 claims are precluded by the state
court’s

dismissal.

Thus,

the

Court

will

not

address

preclusion.
Although section 494.0025 includes no language about its
enforcement, section 494.0019(1) provides:
If a mortgage loan transaction is made in violation
of any provision of this chapter, the person making
the transaction and every licensee, director, or
officer who participated in making the transaction
are jointly and severally liable to every party to
the transaction in an action for damages incurred
by the party or parties.
§

494.0019(1)

(emphasis

added).

By

its

plain

language,

section 494.0019 creates a private right of action for damages
for violations of any provision of chapter 494. And Nationstar
does not argue that Owens-Benniefield’s factual allegations
fail to state a plausible claim for violation of section
494.0025. As the Court determines there is a private right of
action, the Court denies Nationstar’s Motion as to this Count.

41

However, regarding Owens-Benniefield’s request for an
injunction and fines pursuant to section 494.0013, Nationstar
is correct that such relief is unavailable. Section 494.0013
specifies that the state administrative agency may bring an
action for injunctive relief to prevent further violations of
the statute. § 494.0013(1); see also Pounds v. Countrywide
Home Loans, Inc., No. 12-60692-CIV, 2012 WL 4194420, at *2
(S.D.

Fla.

Sept.

19,

2012)(noting

that

section

494.0013

“allow[s] the state to issue injunctions, refund orders, or
criminal penalties to non-complying [mortgage] brokers”). No
mention is made of private individuals seeking injunctive
relief, and the Court will not infer one. Similarly, OwensBenniefield

may

not

recover

administrative

fines

up

to

$25,000 per offense pursuant to section 494.00255, as these
penalties

are

imposed

only

by

the

state

administrative

agency. § 494.00255(2)(e)-(f). Instead, Owens-Benniefield may
seek damages pursuant to section 494.0019(1).
J.

FDUPTA

Count 10 alleges Nationstar violated section 501.204,
Fla. Stat., of FDUPTA and various other sections of Chapter
501. Nationstar argues the FDUPTA claim fails because OwensBenniefield has not sufficiently alleged Nationstar engaged
in trade or commerce. (Doc. # 23 at 16). “To state a claim

42

under FDUTPA, a plaintiff must allege (1) a deceptive or
unfair practice in the course of trade or commerce, (2)
causation, and (3) actual damages.” Benjamin v. CitiMortgage,
Inc., No. 12-62291-CIV, 2013 WL 1891284, at *4 (S.D. Fla. May
6,

2013).

“‘Trade

or

commerce’

means

the

advertising,

soliciting, providing, offering, or distributing, whether by
sale, rental, or otherwise, of any good or service, or any
property,

whether

tangible

or

intangible,

or

any

other

article, commodity, or thing of value, wherever situated.” §
501.203(8).
“Several

courts

have

held

that

debt

collection

activities are not ‘trade or commerce’ for FDUTPA purposes.”
Williams v. Nationwide Credit, Inc., 890 F. Supp. 2d 1319,
1321 (S.D. Fla. 2012). “In the rare instances where a court
finds that a debt collection activity constitutes trade or
commerce, the activity is actionable only to the extent that
it is directed at the plaintiff.” Miceli v. Dyck-O’Neal, Inc.,
No. 6:15-cv-1186-Orl-37KRS, 2016 WL 7666167, at *6 (M.D. Fla.
Aug. 9, 2016). And, “[t]he ‘trade and commerce’ requirement
is often not met in cases dealing with borrowers alleging
FDUTPA violations against mortgage servicers.” Bank of Am.,
N.A. v. Zaskey, No. 9:15-CV-81325, 2016 WL 2897410, at *10

43

(S.D. Fla. May 18, 2016)(quoting Benjamin, 2013 WL 1891284,
at *4 (internal quotation marks omitted)).
Owens-Benniefield asserts Nationstar acted deceptively
when it told the Florida Office of Financial Regulations that
her “account was transferred to [Nationstar] for servicing as
of June 16, 2015.” (Doc. # 17 at ¶ 232). This was deceptive
because “[Nationstar was] fully aware there was no trade or
commerce given to [it] on this day.” (Id.). But Nationstar
was not advertising, soliciting, or offering any good or
service when it responded to a complaint Owens-Benniefield
filed with the Office of Financial Regulations. Cf. Blake v.
Seterus, Inc., No. 16-21225-CIV-JLK, 2017 WL 543223, at *2
(S.D. Fla. Feb. 9, 2017)(“Here, the Defendant loan servicer
was not engaged in any advertisement or solicitation when it
responded

to

Plaintiff’s

request

for

the

reinstatement

amount.”). Nor does Nationstar’s providing information to
credit reporting agencies, or answering inquiries by the
Consumer Financial Protection Bureau and Florida Attorney
General’s Office qualify as trade or commerce.
Owens-Benniefield

has

not

sufficiently

alleged

Nationstar’s calls and letter requesting payment were “trade
or commerce.” See Id. at *2 (“An FDUPTA claim cannot be
asserted against a defendant who is simply collecting a

44

debt.”). Furthermore, Owens-Benniefield fails to allege she
incurred actual damages as a result of Nationstar’s unfair
acts. See § 501.211(2) (allowing consumers to recover only
“actual damages” for a loss incurred as a result of the
violation). Accordingly, Owens-Benniefield’s FDUPTA claim is
dismissed with leave to amend.
Regarding section 501.1377, which is not part of FDUPTA,
Owens-Benniefield alleges Nationstar violated this section by
continuing to seek repayment of the debt even though a deedin-lieu of foreclosure had been executed. (Doc. # 17 at 2223).

Section

501.1377

prohibits

a

foreclosure-rescue

consultant from “[e]ngag[ing] in or initiat[ing] foreclosurerelated rescue services without first executing a written
agreement with the homeowner for foreclosure-related rescue
services” or from “[s]olicit[ing], charg[ing], receiv[ing],
or attempt[ing] to collect or secure payment, directly or
indirectly, for foreclosure-related rescue services before
completing
agreement

or
for

performing

all

services

foreclosure-related

contained

rescue

in

services.”

the
Fla.

Stat. § 501.1377(3).
Nationstar argues Owens-Benniefield has failed to state
a claim for violation of 501.1377 because she “fails to allege
residential

foreclosure

proceedings,

45

or

any

foreclosure

rescue transaction.” (Doc. # 23 at 20). The Court agrees.
While Owens-Benniefield alleges she executed a deed-in-lieu
of

foreclosure

years

beforehand,

she

does

not

allege

Nationstar’s subsequent attempts to collect the debt were
related

to

foreclosure

proceedings

or

foreclosure

rescue

services. Additionally, because this section provides the
same remedies as FDUPTA, Owens-Benniefield may recover only
her actual damages. This claim is dismissed with leave to
amend so Owens-Benniefield may state a claim under this
section,

if

possible.

Because

section

501.1377

is

not

actually part of FDUPTA, Owens-Benniefield should state this
claim in a separate count.
Owens-Benniefield also tries to bring a claim under
section

501.171,

which

requires

entities

covered

by

the

section to “take reasonable measures to protect and secure
data in electronic form containing personal information.”
Fla. Stat. § 501.171(2). This section is not part of FDUPTA
and specifies: “This section does not establish a private
cause

of

action.”

§

501.171(10).

Thus,

Owens-Benniefield

cannot state a claim under this section. Owens-Benniefield’s
claim is dismissed with prejudice to the extent it seeks
relief under section 501.171.

46

K.

Intentional Infliction of Emotional Distress

Count
entirety:

11

for

“Emotional

“Plaintiff

Distress”

re-alleges

states

paragraphs

in

14-33

of

its
this

Complaint as though full stated here.” (Doc. # 17 at 25). “In
order to state a claim for intentional infliction of emotional
distress, a plaintiff must allege facts showing outrageous
conduct by the defendant.” Delfrate v. Liberty Mut. Fire Ins.
Co., 727 F. Supp. 2d 1307, 1309 (M.D. Fla. 2010). “Whether
alleged conduct is outrageous enough to support a claim of
intentional infliction of emotional distress is a matter of
law, not a question of fact.” Gandy v. Trans World Comput.
Tech. Grp., 787 So. 2d 116, 119 (Fla. 2nd DCA 2001). “A
plaintiff

fails

to

plaintiff

alleges

show
that

outrageous
the

conduct

defendant’s

even

conduct

if

the

was

(1)

intentionally tortious or criminal, (2) intended to inflict
emotional distress, (3) malicious, or (4) aggravated enough
to warrant punitive damages.” Delfrate, 727 F. Supp. 2d at
1309.

Instead,

the

defendant’s

conduct

must

be

“‘so

outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as
atrocious,

and

utterly

intolerable

in

a

civilized

community.’” Metro. Life Ins. Co. v. McCarson, 467 So. 2d

47

277, 278–79 (Fla. 1985)(quoting Restatement (Second) of Torts
§ 46 (1965)).
Taking

the

Amended

Complaint’s

allegations

as

true,

Nationstar’s conduct was not outrageous as a matter of law.
Compare McGinity v. Tracfone Wireless, Inc., 5 F. Supp. 3d
1337,

1341–42

(M.D.

Fla.

2014)(dismissing

claim

with

prejudice because the alleged conduct — the defendant prepaid
wireless

provider’s

employee

calling

plaintiff

and

threatening to kill her if she did not pay him — was not
outrageous), with Sherer v. Rubin Mem’l Chapel, Ltd., 452 So.
2d 574, 575 (Fla. 4th DCA 1984)(reversing dismissal where a
funeral home dressed the wrong corpse, tried to convince
plaintiffs that the corpse was their deceased relative, and,
after the truth came to light, still refused to dress the
deceased relative, instead throwing clothes over the body).
Therefore, this claim is dismissed with prejudice.
IV.

Conclusion
Nationstar’s Motion is granted in part and denied in

part. Counts 1, 3, 4, 5, and 9 are not dismissed. Counts 7
and 11 are dismissed with prejudice. Owens-Benniefield may
file a second amended complaint as to Counts 2, 6, 8, and 10
by

July

dismissed

13,

2017,

without

failing
further

which,

these

notice.

If

48

claims

will

be

Owens-Benniefield

chooses

to

file

a

second

amended

complaint,

she

should

remember to include the non-dismissed counts (Counts 1, 3, 4,
5, and 9) as well as the amended counts.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Nationstar Mortgage, LLC’s Amended Motion to
Dismiss (Doc. # 23) is GRANTED IN PART AND DENIED IN
PART.

(2)

The Motion is DENIED as to Counts 1, 3, 4, 5, and 9 of
the Amended Complaint (Doc. # 17), to the extent set
forth herein.

(3)

Counts 7 and 11 are DISMISSED WITH PREJUDICE.

(4)

Plaintiff Vickie Owens-Benniefield may file a second
amended complaint as to Counts 2, 6, 8, and 10 by July
13, 2017, failing which, these claims will be dismissed
without further notice.
DONE and ORDERED in Chambers in Tampa, Florida, this

15th day of June, 2017.

49