Winsey v. Nationstar Mortgage LLC

Filing 35

ORDER: Defendant Nationstar Mortgage LCC's Motion to Dismiss Plaintiff's Complaint and Motion to Strike Demand for Jury Trial (Doc. # 17 ) is GRANTED. Winsey's claim under § 1692g of the FDCPA is DISMISSED WITHOUT PREJUDICE. If Winsey decides to attempt to state a claim under § 1692g, she must include enough factual allegations to give rise to a plausible claim to relief. The amended complaint is due by July 14, 2017. Winsey's state-law claims for breach of con tract and violations of Florida's Uniform Commercial Code are DISMISSED WITH PREJUDICE. If Winsey elects to file an amended complaint, she shall not include any allegations or causes of action that rest upon the widely rejected vapor money theory or any derivative thereof. Winsey's demand for a jury trial is STRICKEN. If Winsey elects to file an amended complaint, she shall not include a jury demand. Signed by Judge Virginia M. Hernandez Covington on 6/29/2017. (DRW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHRISTINE WINSEY,
Plaintiff,
v.

Case No. 8:17-cv-979-T-33AEP

NATIONSTAR MORTGAGE LLC,
Defendant.
_____________________________/
ORDER
This matter comes before the Court upon consideration of
Defendant

Nationstar

Mortgage

LCC’s

Motion

to

Dismiss

Plaintiff’s Complaint and Motion to Strike Demand for Jury
Trial (Doc. # 17), filed on May 16, 2017. After being granted
an extension of time (Doc. # 29), Plaintiff Christine Winsey,
who is proceeding pro se, filed her response in opposition on
June 25, 2017. (Doc. # 33). For the reasons below, the Court
grants the Motion, dismisses the Complaint, and grants Winsey
leave to amend.
I.

Background
The Complaint contains very few facts. But, from what

the Court gathers, in January of 2005, Winsey executed a
mortgage to secure a loan used to purchase a house. (Doc. #
17-1 at 2-18). At some unspecified point, Nationstar was

assigned the servicing rights to the mortgage. (Doc. # 1 at
¶ 10(a)). Thereafter, although the date of the communication
is not alleged, Nationstar “communicated with plaintiff . .
. to demand payment of debt.” (Id.). The substance of that
communication is not alleged. Presumably after the aforesaid
communication (though, again, the date is not provided),
Winsey “served upon [Nationstar a] Notice of Dispute and
Validation of Debt.” (Id. at ¶ 10(b)). Nationstar allegedly
failed to provide the required disclosures under 15 U.S.C. §
1692g

within

five

days

of

the

previously-mentioned

communication. (Id. at ¶ 10(c)).
In response to Nationstar’s demand for payment, Winsey
drafted a document purporting to be a promissory note in the
amount of $365,000 and sent that document to Nationstar on
March 13, 2017. (Id. at ¶¶ 4, 5; Doc. # 17-1 at 1). Nationstar
received the document on March 20, 2017. (Doc. # 1 at ¶ 5).
This “promissory note” stated as one of its terms that, if
Nationstar did not return the note within three days, then
Nationstar

accepted

the

note

as

a

full

settlement

and

discharge of Winsey’s obligations under the mortgage. (Doc.
# 17-1 at 1). Nationstar did not return the note and listed
Winsey’s property for sale in a local publication. (Doc. # 1
at ¶¶ 8, 13). The Complaint does not allege whether a judgment

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of foreclosure was entered by a state court, when such a
judgment was entered, if at all, or if the property was sold
at auction.
Winsey filed her Complaint on April 26, 2017. (Doc. #
1). The Complaint brings claims for a violation of the Fair
Debt

Collection

Practices

Act,

breach

of

contract,

a

violation of section 673.5011, Fla. Stat., and a violation of
section

673.6031,

Fla.

Stat.

(Id.).

The

Complaint

also

contains a jury demand. (Id. at 7). Nationstar now moves to
dismiss the Complaint and strike the jury demand. (Doc. #
17).
II.

Legal Standard
The Court construes pro se pleadings liberally and holds

them to a less stringent standard than pleadings drafted by
attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003). This liberal construction “does not give a court
license to serve as de facto counsel for a party, or to
rewrite an otherwise deficient pleading in order to sustain
an action.” GJR Invs., Inc. v. Cty. of Escambia, 132 F.3d
1359, 1369 (11th Cir. 1998) (citation omitted), overruled in
part on other grounds as recognized in Randall v. Scott, 610
F.3d 701, 709 (11th Cir. 2010). Pro se litigants must follow
the procedural rules. Id.

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A.

Motion to Dismiss

On a Rule 12(b)(6) 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, the 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, the Supreme Court explains that:
While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual
allegations, a plaintiff’s obligation to provide
the grounds of his entitlement to relief requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action
will not do. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
citations omitted). In addition, 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).
Furthermore, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

4 

Generally, “[t]he 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). “There is an exception,
however, to this general rule. In ruling upon a motion to
dismiss,

the

district

court

may

consider

an

extrinsic

document if it is (1) central to the plaintiff’s claim, and
(2) its authenticity is not challenged.” SFM Holdings, Ltd.
v. Banc of Am. Sec., LLC, 600 F.3d 1334, 1337 (11th Cir.
2010).
B.

Striking Jury Demands

“The Seventh Amendment provides ‘[i]n Suits at common
law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved.’”
Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494
U.S. 558, 564 (1990) (quoting U.S. Const. amend. VII). A party
may waive its right to a jury trial if the waiver is knowing
and voluntary. Bakrac, Inc. v. Villager Franchise Sys., Inc.,
164 Fed. Appx. 820, 823 (11th Cir. 2006). However, because of
the

historical

importance

of

this

right,

“any

seeming

curtailment . . . should be scrutinized with the utmost care.”
Chauffers, 494 U.S. at 565 (internal citations omitted).
Furthermore,

“because

the

right

to

a

jury

trial

is

fundamental, courts must indulge every reasonable presumption

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against waiver.” Burns v. Lawther, 53 F.3d 1237, 1240 (11th
Cir. 1995) (per curiam) (internal quotations omitted).
III. Analysis
Before delving into the merits, the Court addresses a
procedural matter. In her response, Winsey argues without
citation to authority that “[a] Plaintiff who provides a
verified complaint is deserving of a verified Answer. A
Defendant

is

prohibited

from

attempting

to

avoid

this

pleading requirement.” (Doc. # 33 at 2). Winsey further
opines: “the Court would not be just in entertaining a
procedural general motion by Defendant Nationstar when faced
with a Sworn Verified Complaint.” (Id.).
This preliminary argument finds no support in the plain
language of Rule 12. Prior to serving an answer under Rule
12(a)(1), a defendant may assert the defense of failure to a
state claim upon which relief can be granted via motion under
Rule 12(b)(6). If a defendant files a motion under Rule 12,
the defendant is not required to serve its responsive pleading
until 14 days after the Court denies or postpones ruling on
the motion. Fed. R. Civ. P. 12(a)(4)(A). Thus, contrary to
Winsey’s argument, Nationstar’s Motion is procedurally proper
and no injustice is wrought by the Court’s consideration

6 

thereof as it is entirely within the Court’s authority to
rule on the Motion.
A.

Motion to Dismiss
1.

FDCPA

The elements of an FDCPA claim are “(1) [plaintiff] was
the object of collection activity arising from consumer debt;
(2) [d]efendant[] [is a] debt collector[] as defined by the
FDCPA; and (3) [d]efendant[] ha[s] engaged in an act or
omission prohibited by the FDCPA.” McCorriston v. L.W.T.,
Inc., 536 F. Supp. 2d 1268, 1273 (M.D. Fla. 2008) (citation
omitted). The FDCPA “expressly excludes from the definition
of ‘debt collector’ any third party collecting a debt that is
not in default at the time it was obtained by the third
party.” Church v. Accretive Health, Inc., 654 Fed. Appx. 990,
992 (11th Cir. 2016). While Winsey need not (indeed, should
not merely) provide a formulaic recitation of the elements,
she does need to at least plead allegations that give rise to
a plausible claim to relief. The Complaint, however, is very
scant on facts.
For

instance,

the

Complaint

alleges

Nationstar

was

assigned the rights to service the mortgage. (Doc. # 1 at ¶
10(a)). But, the Complaint does not explicitly allege the
underlying note was in default at the time of assignment. In

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fact,

the

defaulted.

Complaint
Moreover,

allegations

from

never
the

which

once

Complaint
the

Court

mentions
does
can

not

when

Winsey

contain

reasonably

any

infer

Nationstar became the servicer after default had occurred.
While the Complaint does allege Nationstar listed the
property for sale in a local publication (Id. at ¶ 8), such
an allegation is not enough for the Court to infer that
Nationstar obtained the servicing rights after the note was
already in default. Without more factual allegations, the
Court simply cannot determine whether dismissal should be
with or without prejudice. In an abundance of fairness,
especially in light of Winsey’s pro se status, the Court will
afford Winsey another opportunity to attempt to state a claim
under § 1692g of the FDCPA. Winsey is cautioned though: she
must provide sufficient factual allegations that themselves,
or

in

conjunction

with

the

reasonable

inferences

drawn

therefrom, give rise to a plausible claim to relief.
2.

State-Law Claims

Winsey’s state-law claims all stem from her “promissory
note.” As alleged, “Plaintiff tendered a promissory note
(negotiable instrument) for presentment, in the amount of
$365,000.00.” (Id. at ¶ 4). This putative promissory note
stated that Winsey “promise[d] to pay NATIONSTAR MORTGAGE,

8 

the bearer (HOLDER) the full amount specified, on this NOTE
AS GOOD AS AVAL FOR VALUE RECIEVED [sic].” (Doc. # 17-1 at 1)
(bolding in original). The document went on:
The Payment will be made against the obligations
[of] the United States to that part of the public
debt due its Principals and Sureties in monthly
installments of $1,300 . . . per month, on the 7th
. . . day of every consecutive month starting April
7th, 2017, until obligation has been fulfilled.
(Id.) (bolding in original). The document also attempted to
turn non-action into a form of acceptance. (Id.) (“The HOLDER
bearer tacitly consents and agrees upon three (3) days of
receipt shall return this original note . . . if you do not
believe that this note is valid . . . . Absent said timely
response, you agree to accept this private issue negotiable
instrument . . . .”) (bolding in original).
These allegations demonstrate the state-law claims are
based on a strain of the vapor money theory, a conclusion
bolstered by the fact that Winsey argues in her response that
her “promissory note” was “equal to cash . . . just as if
[she] had sent by armored car $365,000.000 [sic] Federal
Reserve Notes.” (Doc. # 33 at 17). As noted by the court in
Demmler v. Bank One NA,
[w]hile a promissory note may be a negotiable
instrument, the note itself is not “money.” It is
nothing more than the acknowledgment of a debt and
a promise to repay the debt at some date in the

9 

future. In short, the Court rejects the theory upon
which all of Plaintiff’s claims, federal and state,
are based.
No. 2:05-cv-322, 2006 WL 640499, at *4 (S.D. Ohio, Mar. 9,
2006). This Court joins the chorus of other federal courts
that have rejected similar arguments. See Id. at *4 (providing
a sampling of courts that have rejected similar arguments).
Because

the

theory

undergirding

the

state-law

claims

is

utterly meritless, the state-law claims are dismissed with
prejudice.
The

state-law

claims

should

also

be

dismissed

with

prejudice for two other reasons. First, with respect to the
breach-of-contract claim, to form an enforceable contract,
there must be an offer, acceptance, and consideration. Beck
v. Lazard Freres & Co., LLC, 175 F.3d 913, 914 (11th Cir.
1999). “Absent specific indications of intent to accept an
offer, an offeree’s silence is not acceptance of an offer.”
In re Worrell, No. 09-15332-EPK, Adv. No. 16-01046-EPK, 2016
WL 2849642, at *4 (S.D. Fla. May 9, 2016). Winsey’s breachof-contract

claim

Nationstar’s

mere

is

based

silence

entirely

equated

to

on

a

theory

acceptance.

that

Such

a

theory fails as a matter of law.
Second, Winsey’s claims under Florida’s version of the
Uniform Commercial Code are based on erroneous understandings

10 

of sections 673.6031 and 673.5011. Taking the statutes in
reverse order, only a person entitled to enforce an instrument
may make a presentment thereof. Fla. Stat. § 673.5011(1). The
face of the “promissory note” shows Nationstar is the party
entitled to enforce the instrument. (Doc. # 17-1 at 1). In
other words, Winsey would have been the party upon whom
presentment was made. Thus, as a matter of law, Winsey cannot
claim she was entitled to enforce the “promissory note.”
And with respect to the section 673.6031 claim, that
claim is merely the vapor money theory disguised with a new
name. To be sure, the claim under section 673.6031 is premised
on the idea that Winsey’s “promissory note” was the equivalent
of actual money and when Winsey sent Nationstar the note, she
tendered payment under section 673.6031. As noted earlier
though, a “note itself is not ‘money.’ It is nothing more
than the acknowledgment of a debt and a promise to repay the
debt at some date in the future.” Demmler, 2006 WL 640499, at
*4. Because the basis for the section 673.6031 claim has been
roundly rejected by other courts, the claim is due to be
dismissed with prejudice.
B.

Motion to Strike Jury Demand

The mortgage Nationstar was servicing contained a clause
stating, “[t]he Borrower hereby waives any right to a trial

11 

by jury in any action, proceeding, claim, or counterclaim,
whether in contract or tor, at law or in equity, arising out
of or in any way related to this Security Instrument or the
Note.” (Doc. # 17-1 at 15). Winsey’s argument is not that the
waiver was made unknowingly or involuntarily; rather, she
argues that the waiver “has absolutely NOTHING to do with
this instant case.” (Doc. # 33 at 12).
“A claim ‘relates to’ a contract when ‘the dispute occurs
as a fairly direct result of the performance of contractual
duties.’” Bahamas Sales Assoc., LLC v. Byers, 701 F.3d 1335,
1340-41 (11th Cir. 2012). The phrase “relates to,” however,
does not cast an infinite penumbra. Id. at 1341. There must
be “a direct relationship between the claim and the contract.”
Id.
In this case, Nationstar’s alleged malfeasance occurred
while it was servicing the mortgage containing the very waiver
provision Winsey argues has no relationship to this action.
The Court, however, disagrees with Winsey as the conduct
complained of — action taken while servicing a mortgage — is
sufficiently related to the mortgage itself such that the
waiver

provision

applies.

See

Levinson

v.

Green

Tree

Servicing, LLC, No. 8:14-cv-2120-T-17TGW, 2015 WL 1912276, at
*2 (M.D. Fla. Apr. 27, 2015).

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Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Nationstar Mortgage LCC’s Motion to Dismiss
Plaintiff’s Complaint and Motion to Strike Demand for
Jury Trial (Doc. # 17) is GRANTED.

(2)

Winsey’s claim under § 1692g of the FDCPA is DISMISSED
WITHOUT PREJUDICE. If Winsey decides to attempt to state
a claim under § 1692g, she must include enough factual
allegations to give rise to a plausible claim to relief.
The amended complaint is due by July 14, 2017.

(3)

Winsey’s state-law claims for breach of contract and
violations of Florida’s Uniform Commercial Code are
DISMISSED WITH PREJUDICE. If Winsey elects to file an
amended complaint, she shall not include any allegations
or causes of action that rest upon the widely rejected
vapor money theory or any derivative thereof.

(4)

Winsey’s demand for a jury trial is STRICKEN. If Winsey
elects to file an amended complaint, she shall not
include a jury demand.
DONE and ORDERED in Chambers in Tampa, Florida, this

29th day of June, 2017.

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