Owens-Benniefield v. Nationstar Mortgage LLC
Filing
39
ORDER: Defendant Nationstar Mortgage, LLC's Motion to Dismiss Counts 2, 6, 7, 8, 10, 11, and 12 of the Second Amended Complaint (Doc. # 31 ) is GRANTED IN PART AND DENIED IN PART. The Motion is DENIED as to Count 2. Counts 6, 7, 8, 10, 11, and 12 are DISMISSED WITH PREJUDICE. Signed by Judge Virginia M. Hernandez Covington on 7/25/2017. (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 Motion to Dismiss Counts 2, 6, 7,
8, 10, 11, and 12 of the Second Amended Complaint (Doc. #
31), filed on July 7, 2017. Pro se Plaintiff Vickie OwensBenniefield filed a response on July 17, 2017. (Doc. # 33).
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. # 29
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). Owens-
1
Benniefield received a letter, which was addressed to the
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 as they had to
execute an Assignment of Mortgage in order for the transaction
to be completed on February 24, 2015.” (Id. at ¶ 18). OwensBenniefield’s “obligation at that point as of February 2015,
was forgiven.” (Id. at ¶ 19).
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. (Id. 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 ¶ 90). Between March and April of 2016, Nationstar
“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,
2
even though its “rights were assigned to Federal Home Loan
Mortgage Corporation.” (Id. at ¶ 26).
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). According to Owens-Benniefield, this
was
an
“[i]nvasion
of
[her]
personal
information
as
[Nationstar] had no right to give personal information to [a]
third party.”
(Id.). 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).
Nationstar also “placed debt on [Owens-Benniefield’s]
credit report which caused [her] to be denied credit and has
cause[d] [her] great emotional stress to try and clear this
matter.” (Id. at ¶ 28). But, Nationstar denied it was trying
to collect a debt in its communications with the Consumer
Financial Protection Bureau. (Id. at ¶ 31). Nationstar “sent
the Internal Revenue Service a mortgage interest statement
which
shows
[Owens-Benniefield
$132,009.33.” (Id. at ¶ 32).
3
as]
owing
a
balance
of
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, 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. # 29 at ¶¶ 52, 241).
Owens-Benniefield filed her Amended Complaint, alleging
violations of the Fair Debt Collection Practices Act (FDCPA),
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 asserted 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), which the Court granted in part and denied in part on
4
June 15, 2017, (Doc. # 28). In that Order, the Court dismissed
Owens-Benniefield’s
GLBA
and
intentional
infliction
of
emotional distress claims with prejudice, and dismissed her
FCRA, RESPA, FDUPTA, and fraud claims with leave to amend.
(Id. at 48-49).
Owens-Benniefield
then
filed
her
Second
Amended
Complaint on June 23, 2017. (Doc. # 29). Nationstar now moves
to dismiss Counts 2, 6, 7, 8, 10, 11, and 12 of the Second
Amended
Complaint.
(Doc.
#
31).
Owens-Benniefield
has
responded in opposition. (Doc. # 33). The Motion is now 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]
complaint and all reasonable inferences therefrom are taken
as true.”). However,
5
[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). Still, a “court may consider a document
attached to a motion to dismiss without converting the motion
into one for summary judgment if the attached document is (1)
central to the plaintiff’s claim and (2) undisputed. In this
context, ‘undisputed’ means that the authenticity of the
document is not challenged.” Day v. Taylor, 400 F.3d 1272,
1276 (11th Cir. 2005)(internal citation omitted).
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
6
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 of the seven challenged
counts in turn.
A.
FCRA
Count 2 is an FCRA claim. The Court dismissed this claim
from the Amended Complaint with leave to amend as to 15 U.S.C.
§ 1681s-2(b) because “Owens-Benniefield [did] not specify
whether Nationstar conducted an insufficient investigation or
. . . failed to investigate at all” and did not “elaborate as
to how Nationstar’s investigation, if one was initiated, was
unreasonable.” (Doc. # 28 at 22-23). The Court also advised
that Owens-Benniefield’s claim was dismissed with prejudice
“[t]o the extent [it] relies on communications with the
[Consumer Financial Protection] Bureau,” because the Bureau
is not a credit reporting agency. (Id. at 23-24).
In the Second Amended Complaint, Owens-Benniefield now
pleads that Nationstar “did an incomplete investigation,”
even
though
Owens-Benniefield
had
provided
the
credit
reporting agencies with proof the debt was forgiven, which
was passed along to Nationstar. (Doc. # 29 at 6-7). Despite
the evidence of the deed-in-lieu and release of the debt,
7
Nationstar
refused
reporting
of
on
multiple
occasions
Owens-Benniefield’s
to
payment
change
history
the
and
outstanding balance on her credit reports. (Id. at 7-8).
Nationstar argues that the re-pled Count 2 still suffers
from
the
previous
pleading
deficiencies
and
should
be
dismissed with prejudice. (Doc. # 31 at 2). It asserts OwensBenniefield
“fails
to
plausibly
allege
how
[its]
investigation was unreasonable” and that the “FCRA does not
grant any right to removal of debt,” as Owens-Benniefield
alleges Nationstar should have done. (Id. at 3).
The Court disagrees with Nationstar. Reading the Second
Amended Complaint liberally in light of Owens-Benniefield’s
pro se status, the Court finds she has sufficiently pled a
claim
for
violation
of
§
1681s-2(b).
Owens-Benniefield
identifies numerous disputes she made to credit reporting
agencies; alleges Nationstar failed to complete a reasonable
investigation; and that the investigation was unreasonable
because Nationstar ignored the documents provided by OwensBenniefield
that
proved
the
debt
was
forgiven.
While
Nationstar takes issue with the phrasing “remove incorrect
reporting”
used
in
this
count,
it
is
apparent
Owens-
Benniefield requested Nationstar modify its reporting to the
credit reporting agencies to indicate that she no longer owed
8
a debt or otherwise delete that item of information, as
required by the FCRA.
Therefore, Owens-Benniefield’s claim under § 1681s-2(b)
survives to the extent it is based on Nationstar’s failure to
reasonably investigate the disputes Owens-Benniefield made to
the credit reporting agencies Experian and Equifax. The Court
also
finds
willfulness
Owens-Benniefield
by
Nationstar
to
has
sufficiently
support
the
alleged
request
for
statutory and punitive damages. See 15 U.S.C. § 1681n(a)
(allowing for recovery of actual or statutory damages, as
well as punitive damages, for willful noncompliance with the
FCRA). She alleges Nationstar was sent multiple disputes by
both Experian and Equifax with documentation showing the debt
was forgiven, yet Nationstar persisted in reporting the debt
as
valid.
At
this
juncture,
this
allegation
plausibly
supports a finding of willful noncompliance.
But, Nationstar is correct that Owens-Benniefield may
not seek damages for “loss of consortium” because a claim for
loss of consortium must be pled by the spouse of the injured
party. See Bratt v. Genovese, No. 8:13-cv-3210-T-36AEP, 2014
WL 6832644, at *4 (M.D. Fla. Dec. 3, 2014)(“A claim for loss
of consortium is derivative - that is, it is actionable only
if the plaintiff can demonstrate that the defendant is liable
9
to his or her spouse in tort.”); Reed v. Long, 111 So. 3d
237, 240 (Fla. 4th DCA 2013)(explaining that a claim for loss
of consortium “is the claim of the spouse who does not suffer
physical
injury”).
But
Owens-Benniefield,
as
the
sole
plaintiff, pleads she is the injured party. Therefore, while
her
FCRA
claim
survives,
Owens-Benniefield
may
not
seek
damages for “loss of consortium” for this or any other cause
of action in the Second Amended Complaint.
B.
RESPA
In its previous Order, the Court dismissed the RESPA
claim with leave to amend as to 12 U.S.C. § 2605. (Doc. # 28
at 35-37). Count 6 of the Second Amended Complaint again
asserts a claim under various subsections of § 2605. (Doc. #
29 at 16-19).
Owens-Benniefield fails to state a claim for violation
of § 2605(a). 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). But OwensBenniefield never alleges that Nationstar failed to notify
her the loan could be transferred or assigned when she
obtained the mortgage. Rather, Owens-Benniefield focuses on
10
Nationstar’s behavior years after the mortgage was obtained.
Therefore, Owens-Benniefield has not stated a claim under §
2605(a).
Section 2605(b) 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” at least fifteen days “before
the effective date of transfer of the servicing of the
mortgage
loan.”
§
2605(b)(1)-(2)(A).
Owens-Benniefield
alleges that Nationstar violated this subsection because it
sent a transfer of servicing letter to the wrong address —
the attorney in Michigan — so Owens-Benniefield did not
receive the letter until after the effective date of transfer.
(Doc. # 29 at ¶¶ 174-75).
Nationstar argues this is insufficient to state a claim
because the date of the transfer letter, June 8, 2016, shows
that it was sent fifteen days before the effective transfer
date of June 23, 2016. (Doc. # 31 at 4-5). Although the letter
was sent to the incorrect address, Nationstar asserts —
without citation to authority — that it complied with §
2605(b)
by
sending
the
letter
fifteen
days
before
the
transfer. But the Court need not address this question because
11
Owens-Benniefield
has
failed
to
plausibly
allege
actual
damages.
Section 2605(f) only provides for actual damages caused
by a violation or statutory damages in the case that the
plaintiff demonstrates a pattern or practice of violations by
the defendant. § 2605(f).
Owens-Benniefield alleges over
$3,000 in damages incurred as a result of her initiating and
pursuing this action, as well as medical costs related to
problems
she
developed
because
of
stress
caused
by
Nationstar’s actions. (Doc. # 29 at 19). Nationstar argues,
and the Court agrees, Owens-Benniefield cannot show that
these alleged actual damages were caused by the notice of
servicing transfer letter being sent to a wrong address,
resulting in a few weeks delay for Owens-Benniefield to
receive the letter. (Doc. # 31 at 5). Owens-Benniefield’s
medical bills and the costs related to this action, including
filing fees and process server fees, were not direct damages
Owens-Benniefield suffered because she received the notice of
transfer letter late. She does not allege she made additional
payments to Nationstar because she believed it was still her
loan servicer after the effective date of transfer. Indeed,
Owens-Benniefield had ceased making payments to Nationstar
because of the deed-in-lieu of foreclosure long before the
12
servicing
transfer.
Therefore,
she
had
not
pled
actual
damages to support a claim under § 2605(b).
And, because Owens-Benniefield only noted that some of
her mail was sent erroneously to an address in Michigan, she
has failed to plead a pattern or practice of noncompliance to
justify
additional
damages
up
to
$2,000
under
§
2605(f)(1)(A). See Porciello v. Bank of Am., N.A., No. 8:14cv-1511-T-17AEP, 2015 WL 899942, at *3 (M.D. Fla. Mar. 3,
2015)(“As a matter of law, the failure to respond to two QWR’s
is insufficient to establish a pattern and practice of noncompliance with the requirements of RESPA.”).
Owens-Benniefield also complains that Nationstar failed
to protect her credit rating. But she does not clearly invoke
the subsection entitled “Protection of credit rating,” §
2605(e)(3), which
prohibits a servicer from “provid[ing]
information regarding any overdue payment
. . . to any
consumer reporting agency” during the 60-day period after
receiving a qualified written dispute from the consumer. §
2605(e)(3). Furthermore, Owens-Benniefield fails to allege
she sent a qualified written request to Nationstar that would
begin the 60-day period specified in § 2605(e)(3). Therefore,
Owens-Benniefield has also failed to state a claim under §
2605(e).
13
Owens-Benniefield has not stated a plausible claim under
any subsection of § 2605, so Count 6 for violation of RESPA
is dismissed with prejudice.
C.
Right to Financial Privacy
In the Court’s previous Order, Count 7 for violation of
two sections of the GLBA, 15 U.S.C. §§ 6801 and 6802, was
dismissed with prejudice. (Doc. # 28 at 38). Although OwensBenniefield acknowledges the claim was dismissed as to the
GLBA, she nevertheless included the claim in the Second
Amended Complaint. And the Court notes that the other sections
Count 7 references, §§ 6821 and 6823, are also part of the
GLBA and are enforceable only by administrative agencies. See
15
U.S.C.
§
6822
(stating
that
“compliance
with
this
subchapter shall be enforced” by the Federal Trade Commission
or certain other federal agencies). Therefore, this claim is
still dismissed with prejudice.
D.
Fraud
The Court previously dismissed the Amended Complaint’s
fraud claim with leave to amend because “Owens-Benniefield
fail[ed] to identify how she was misled by or relied upon
Nationstar’s allegedly fraudulent statements.” (Doc. # 28 at
39). Under Florida law, “[a]
fraud claim lies for: (1)
misrepresentation of material fact; (2) by someone who knew
14
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).
Owens-Benniefield has re-pled her fraud claim in Count
8. (Doc. # 29 at 21-26). Her allegations are substantively
the same, although Owens-Benniefield now alleges she relied
on Nationstar’s reporting of the debt to the IRS and the
credit reporting agencies. (Id. at 21-22). Regarding the IRS,
Owens-Benniefield pleads she “relied on . . . IRS form 1098
[sent] to the IRS from [Nationstar] that now [Nationstar was]
trying to enforce payment of $132,009.33. As [she] knows there
is nothing she can do when items are submitted to the IRS.”
(Id. at ¶ 219). Owens-Benniefield also relied on the incorrect
IRS form because “the IRS form was transmitted to the IRS
under penalty of perjury, that it was to be taken as true,
and therefore the outstanding debt that was reported should
not have been reported.” (Id. at ¶ 221).
15
But this new conclusory allegation is insufficient to
state a fraud claim. Owens-Benniefield does not explain how
she altered her behavior in reliance on the incorrect form
provided to the IRS — she does not allege that she believed
the form was correct or that she made further payments to
Nationstar because of the form. Instead, she alleges she
relied on Nationstar’s sending the IRS form to inform her
that
Nationstar
was
“trying
to
enforce
payment
of
$132,009.33.” (Id. at ¶ 219). To the extent the statements
about the IRS form can be read as allegations that OwensBenniefield believed she owed the debt, they conflict with
other assertions in this count that Owens-Benniefield knew
Nationstar’s reporting of the debt was false and fought to
correct it.
Regarding
the
information
provided
to
the
credit
reporting agencies, Owens-Benniefield alleges she “further
relied on this misrepresentation of this amount [owed] . . .
as [Nationstar] failed to correct its misleading collection
account tradelines on [her] credit reports and passed this
incorrect information on the credit reporting agencies along
to
unrelated
third
parties
attorneys
and
other
mortgage
companies.” (Id. at ¶ 224). While the other parties to whom
Nationstar incorrectly reported the debt may have relied on
16
that misrepresentation, Owens-Benniefield has not alleged how
she relied on and was deceived by Nationstar’s conduct.
Indeed, Owens-Benniefield maintains that she knew the debt
was not valid and complained to the credit reporting agencies,
Consumer Financial Protection Bureau, and Florida Attorney
General’s Office to force Nationstar to stop reporting the
debt. (Id. at 21-24).
Again, in federal court, fraud claims must be pled with
a higher degree of particularity than other types of claims.
Thus, Rule 9(b) is satisfied only if the complaint sets forth:
(1) precisely what statements were made in what
documents or oral representations or what omissions
were made, (2) the time and place of each such
statement and the person responsible for making
(or, in the case of omissions, not making) [the]
same, (3) the content of such statements and the
manner in which they misled the plaintiff, and (4)
what the defendants obtained as a consequence of
the fraud.
Ziemba v. Cascade Int’l, Inc., 256 F.3d 1194, 1202 (11th Cir.
2001). Owens-Benniefield has not plausibly pled with any
particularity
how
she
relied
on
and
was
deceived
by
Nationstar’s statements, even though she alleges that others
believed Nationstar’s misrepresentations.
Because Owens-Benniefield has again failed to plead a
plausible
fraud
claim,
this
prejudice.
17
claim
is
dismissed
with
E.
FDUPTA
The Court dismissed the FDUPTA claim from the Amended
Complaint with leave to amend because Owens-Benniefield did
not “sufficiently allege[] Nationstar’s calls and letter
requesting
payment
were
‘trade
or
commerce’”
and
she
“fail[ed] to allege she incurred actual damages as a result
of Nationstar’s unfair acts.” (Doc. # 28 at 44-45). Count 10
now alleges that Nationstar was not the mortgage servicer of
Owens-Benniefield’s former property, and that, as a result,
Nationstar’s actions after the deed-in-lieu was completed
“constitute[] a [t]rade or [c]ommerce as it relates to the
property and [Owens-Benniefield].” (Doc. # 28 at 29).
“To state a claim 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).
18
“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
(S.D. Fla. May 18, 2016)(quoting Benjamin, 2013 WL 1891284,
at *4 (internal quotation marks omitted)).
Although Owens-Benniefield alleges Nationstar was not
the current loan servicer for the property, she still alleges
that Nationstar’s conduct was committed in an attempt to
collect a debt. She alleges Nationstar’s conduct was “trade
or commerce” because Nationstar “attempt[ed] . . . to collect
an alleged obligation from [her]” and “attempt[ed] to collect
an amount greater than what was owed.” (Doc. # 29 at ¶ 306).
But such attempts to collect a debt do not constitute “trade
or commerce.” See Acosta v. James A. Gustino, P.A., No. 6:1119
cv-1266-Orl-31, 2012 WL 4052245, at *1 (M.D. Fla. Sept. 13,
2012)(“An attempt to collect a debt by exercising one’s legal
remedies
does
not
constitute
‘advertising,
soliciting,
providing, offering, or distributing’ as those terms are used
in Fla. Stat. § 501.203(8). Therefore, the Defendants were
not engaged in ‘trade or commerce’ when they sent demand
letters
and
otherwise
engaged
in
their
debt
collection
efforts, and the Plaintiff has failed to state a claim for
violation of FDUTPA.”). Therefore, Nationstar’s attempts to
collect
payment
from
Owens-Benniefield
cannot
support
a
FDUPTA claim.
Even if Owens-Benniefield’s
other
allegation
—
that
Nationstar solicited her “to complete loan modification, deed
in lieu, deed for lease and pre-foreclosure short sale”
applications (Doc. # 29 at ¶ 284) — qualified as “trade or
commerce,” Owens-Benniefield has not plausibly alleged actual
damages resulting from Nationstar’s supposedly unfair or
deceptive practices. Owens-Benniefield lists her damages as
including “an unspecified actual damage for loss of credit
opportunities,
higher
interest
rate,
health
issues
and
related economic and non-economic injuries,” as well as the
costs she has incurred in pursuing this action. (Id. at 33).
20
But the economic damages alleged are either conclusorily
pled or were not incurred directly as a result of Nationstar’s
misrepresentation
that
payment
was
owed
on
Owens-
Benniefield’s forgiven mortgage, as intended by FDUPTA’s
“actual
damages”
requirement.
See
Urling
v.
Exterminators, Inc., 468 So. 2d 451, 454 (Fla.
Helms
1st DCA
1985)(“The act is intended to protect a consumer from unfair
or deceptive acts or practices which diminish the value or
worth of the goods or services purchased by the consumer.”).
Thus, Owens-Benniefield has only alleged unspecified economic
damages and consequential damages. See Nazario v. Prof'l
Account Servs., Inc., No. 2:16-cv-772-FtM-99MRM, 2017 WL
1179917, at *5 (M.D. Fla. Mar. 30, 2017)(“Proof of actual
damages is necessary to sustain a FDUTPA claim. The statute
does
not
allow
consequential
the
recovery
damages.”
Owens-Benniefield
has
of
other
(citations
failed
to
damages,
omitted)).
plead
actual
such
as
Therefore,
damages
as
required to state a claim under FDUPTA. The FDUPTA claim,
Count 10, is dismissed with prejudice.
F.
Intentional Infliction of Emotional Distress
Count
11
for
intentional
infliction
of
emotional
distress was dismissed with prejudice by the Court’s previous
Order.
(Doc.
#
28
at
47-48).
21
Although
Owens-Benniefield
acknowledges this claim’s dismissal, she nevertheless left it
in her Second Amended Complaint. (Doc. # 29 at 35). For the
sake of clarity, the Court reiterates that this claim is
dismissed with prejudice.
G.
Fla. Stat. § 501.1377
Section 501.1377, Fla. Stat., prohibits a foreclosurerescue
consultant
from
“[e]ngag[ing]
in
or
initiat[ing]
foreclosure-related 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,
services
before
for
completing
foreclosure-related
or
performing
all
rescue
services
contained in the agreement for foreclosure-related rescue
services.” Fla. Stat. § 501.1377(3).
Owens-Benniefield previously included a claim under this
statute in the same count as her FDUPTA claim. The Court
dismissed that claim with leave to amend because it failed to
allege
foreclosure
proceedings,
any
foreclosure
rescue
transaction, and actual damages. (Doc. # 28 at 45-46). The
Court also advised Owens-Benniefield that the claim would
need to be pled as a separate count. (Id.).
22
Now, in Count 12, the Second Amended Complaint alleges
Nationstar “solicited and made representation[s] to [OwensBenniefield] to provide different services . . . for the
valuable
consideration,
and
foreclosure
related
rescue
services.” (Doc. # 29 at ¶ 331). Nationstar “provided [her]
with multiple options based on [her] situation,” including
“loan modification, deed-in-lieu, deed for lease and preforeclosure short sale.” (Id.).
But,
while
she
alleges
Nationstar
offered
her
foreclosure-related rescue services, Owens-Benniefield only
conclusorily alleges that Nationstar never executed a written
agreement with her for such services and that it “solicited
and attempt[ed] to collect a payment directly and indirectly
for foreclosure related rescue services.” (Id. at ¶ 335). The
letter from Nationstar to which the Second Amended Complaint
refers
shows
Benniefield
that
about
Nationstar
with
Owens-
foreclosure-related
potential
communicated
rescue
services, but does not show it requested any payment for those
services. (Id. at ¶¶ 331, 336; Doc. # 17-1 at 68). Such an
invitation to apply for foreclosure-related rescue services
alone is not a violation of the statute.
And
Owens-Benniefield’s
other
allegations,
regarding
Nationstar’s refusing to respect her deed-in-lieu with her
23
prior mortgage holder or servicer and Nationstar’s attempts
to collect payment on the underlying mortgage debt, do not
fall within the scope of section 501.1377. Therefore, OwensBenniefield
has
not
plausibly
alleged
that
Nationstar
impermissibly sought payment for foreclosure-related rescue
services
or
initiated
such
services
before
executing
a
written agreement with her.
Nationstar also argues this claim should be dismissed
because Owens-Benniefield has failed to plausibly plead she
suffered actual damages. (Doc. # 31 at 16-18). Claims under
section 501.1377 are limited to actual damages, just like
FDUPTA claims. See § 501.1377(7) (“Violators are subject to
the penalties and remedies provided in part II of this chapter
. . . .”). Owens-Benniefield alleges the same damages she
alleged for her FDUPTA claim. (Doc. # 29 at 38). Just as those
alleged damages were insufficient to support a FDUPTA claim,
they are insufficient to support a claim for actual damages
under section 501.1377. Count 12 for violation of section
501.1377, Fla. Stat., is dismissed with prejudice.
IV.
Conclusion
Count 2 for violation of the FCRA survives dismissal,
but Counts 6, 7, 8, 10, 11, and 12 are dismissed with
prejudice.
Additionally,
as
24
determined
in
the
Court’s
previous Order, Counts 1, 3, 4, 5, and 9 of the Second Amended
Complaint survive.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)
Defendant Nationstar Mortgage, LLC’s Motion to Dismiss
Counts 2, 6, 7, 8, 10, 11, and 12 of the Second Amended
Complaint (Doc. # 31) is GRANTED IN PART AND DENIED IN
PART.
(2)
The Motion is DENIED as to Count 2.
(3)
Counts 6, 7, 8, 10, 11, and 12 are DISMISSED WITH
PREJUDICE.
DONE and ORDERED in Chambers in Tampa, Florida, this
25th day of July, 2017.
25
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