Cummings v. Rushmore Loan Management Service et al

Filing 23

ORDER: Defendants Rushmore Loan Management Service and U.S. Bank, N.A.'s Motion to Dismiss Count III for Failure to State a Claim or, Alternatively, Motion for More Definite Statement as to Count III (Doc. # 19 ) is GRANTED. Count III is DISMISSED with leave to amend. If Cummings wishes to amend Count III, she must file an amended complaint by September 26, 2017. Signed by Judge Virginia M. Hernandez Covington on 9/12/2017. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
SALLIE A. CUMMINGS,
Plaintiff,
v.

Case No.: 8:17-cv-1652-T-33MAP

RUSHMORE LOAN MANAGEMENT
SERVICE and U.S. BANK, N.A.,
as Trustee for the RMAC Trust,
Series 2016-CTT,
Defendants.
______________________________/
ORDER
This

matter

comes

before

the

Court

pursuant

to

Defendants Rushmore Loan Management Service and U.S. Bank,
N.A.’s Motion to Dismiss Count III for Failure to State a
Claim or, Alternatively, Motion for More Definite Statement
as to Count III, filed on August 11, 2017. (Doc. # 19).
Cummings responded on August 31, 2017. (Doc. # 22). For the
reasons that follow, the Motion is granted.
I.

Background
In 2008, Cummings obtained a mortgage for her property.

(Doc. # 2 at ¶ 21). Later, in March of 2012, the bank that
then held the debt called Cummings in an attempt to collect
the debt and initiated foreclosure proceedings. (Id. at ¶¶
24, 25). Cummings informed the bank she was represented by

1

counsel. (Id.). Her counsel notified the bank of his contact
information

and

directed

the

bank

to

cease

all

direct

communication with Cummings. (Id.).
The bank eventually transferred the mortgage debt and
its servicing. (Id. at ¶ 28). Cummings’s counsel informed the
new servicer that Cummings was represented with respect to
the debt and to cease communication with Cummings. (Id. at ¶
29). “[U]pon every servicing transfer thereafter, Cummings,
or her legal counsel verbally and explicitly withdrew any
consent for Cummings to be contacted directly by mail or
telephone with respect to the [d]ebt.” (Id. at ¶ 30).
On January 1, 2017,

the servicing of the debt

was

“transferred to Rushmore to collect on behalf of U.S. Bank.”
(Id. at ¶ 31). “At the time of the transfer, Rushmore and
U.S. Bank, and its representatives, agents, or employees were
advised of the Debt Collection Action, that Cummings is
represented by legal counsel, the contact information for
such legal counsel, and were provided business records and
servicing files which included all of the aforementioned
communications from [Cummings] and her legal counsel.” (Id.
at ¶ 32).
Nevertheless, in February of 2017, “Cummings received a
call from a representative named Rubin who indicated that he
2

was an employee of Rushmore.” (Id. at ¶ 34). “Cummings again
informed Rubin from Rushmore that she was represented by legal
counsel with respect to the Debt, provided legal counsel’s
contact information, that all future communications with
regard

to

the

Debt

be

directed

to

legal

counsel,

and

requesting that Rushmore cease communicating with Cummings
directly.” (Id. at ¶ 35).
“In addition to contacts by mail, Rushmore made calls to
Cummings’[s] cellular and home telephone numbers . . . using
an automatic telephone dialing system (“ATDS”), a predictive
telephone

dialing

system

(“PTDS”),

or

an

artificial

or

prerecorded voice (“APV”),” for the purpose of collecting the
debt. (Id. at ¶¶ 46, 51). “At no time herein did Rushmore
have Cummings’[s] prior express consent to call her telephone
numbers using an ATDS, PTDS, or APV.” (Id. at ¶ 48). Even if
Rushmore had consent, “such consent was revoked to make autodialed debt collection calls the moment Rushmore was advised
of Cummings’[s] representation by legal counsel with respect
to the Debt and to cease and desist.” (Id. at ¶ 49). According
to Cummings,
All calls and messages which occurred after
Rushmore took over servicing this consumer Debt and
attempting to collect on the consumer Debt were
made in willful violation of the TCPA because
Rushmore knew it was making a call to Cummings’[s]
3

cell phone, knew that the system used to make the
call qualifies as an autodialer, and knew that it
did not have consent to make the autodialed call.
(Id. at ¶ 53).
Cummings initiated this action in state court on June 1,
2017,

asserting

Practices

Act

claims

(FDCPA),

under
15

the

U.S.C.

Fair
§§

Debt

1692

et

Collection
seq.;

the

Telephone Consumer Protection Act (TCPA), 47 U.S.C. §§ 227 et
seq.;

and

the

Florida

Consumer

Collection

Practices

Act

(FCCPA), Fla. Stat. §§ 559.55 et seq. (Doc. # 2). Defendants
removed the case to federal court on July 10, 2017, and filed
the instant Motion regarding the TCPA claim on August 11,
2017. (Doc. ## 1, 19). Cummings responded to the Motion on
August 31, 2017. (Doc. # 22). 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]

4

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).
III. Analysis
To state a claim under the TCPA, a plaintiff must allege
that “(1) a call was made to a cell or wireless phone, (2) by
the use of any automatic dialing system or an artificial or
prerecorded voice, and (3) without prior express consent of
the called party.” Augustin v. Santander Consumer USA, Inc.,
43 F. Supp. 3d 1251, 1253 (M.D. Fla. 2012).
First, Defendants argue that Cummings has not stated a
claim under the TCPA because her allegations regarding the
elements

of

the

claim

are

unclear.
5

(Doc.

#

19

at

2).

Defendants

stress

one

sentence

of

the

Complaint

in

particular: “At no time herein did Rushmore have Cummings’[s]
prior express consent to call her telephone numbers using an
ATDS, PTDS, or APV.” (Doc. # 2 at ¶ 48). Defendants argue
that they were not required to have express consent to call
Cummings using an ATDS — rather, they simply “need[ed] consent
to contact [Cummings] on her cellular telephone number.”
(Doc. # 19 at 2). And Defendants also note that only calls to
a cell phone may form the basis of a TCPA claim, and therefore
Cummings’s listing her home telephone number and noting that
both of her telephone numbers were called without express
consent is unavailing. (Doc. # 19 at 2).
But other sentences within the Complaint clarify the
meaning of the ambiguous sentence regarding consent. Under
the TCPA count, Cummings states: “At no time herein did
Defendants have Plaintiff’s prior express consent to call
Plaintiff on her cellular telephone.” (Doc. # 2 at ¶ 96). It
is clear that the TCPA claim is based only on calls to
Cummings’s cell phone. Furthermore, Cummings alleges that
Defendants did not have prior express consent to call her at
all — she does not merely allege that Defendants lacked
consent to call her using an ATDS or prerecorded or artificial
voice, as Defendants argue.
6

Defendants next argue the Complaint “fails to provide
any factual detail to support a claim under the TCPA.” (Doc.
# 19 at 4). Defendants rely on Augustin, as well as other
district

court

cases,

for

the

proposition

that

“merely

stating that a defendant used [an] ATDS and/or reciting
statutory language are insufficient to state a claim under
the TCPA.” (Doc. # 19 at 5). There, the court dismissed the
claim because the plaintiff “recited the elements of a TCPA
claim” but did not “provide the dates of the calls, his phone
number, his girlfriend’s name or phone number, or the number
from

which

he

received

the

allegedly

unlawful

calls.”

Augustin, 43 F. Supp. 3d at 1254. But, unlike the plaintiff
in Augustin, Cummings lists her cell phone number, alleges
the month and year of one call from Rushmore, and the name of
the Rushmore employee who called. Such factual information
raises

Cummings’s

claim

above the

conclusory allegations

found insufficient in Augustin and puts Defendants on notice
of the basis of Cummings’s TCPA claim.
Nevertheless, Defendants are correct that more factual
allegations are needed to support that an ATDS or artificial
or prerecorded voice was used. While technical allegations
about the ATDS used are not required, a plaintiff must provide
allegations about the circumstances of the calls received in
7

order to raise the inference that an ATDS was used. See
Johansen v. Vivant, Inc., No. 12 C 7159, 2012 WL 6590551, at
*3 (N.D. Ill. Dec. 18, 2012)(“It is not unreasonable . . . to
require a plaintiff to describe the phone messages he received
in laymen’s terms or provide the circumstances surrounding
them to establish his belief that the messages were prerecorded

or

delivered

via

the

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 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).
The
support

Complaint
the

is

inference

devoid
that

of
an

factual
ATDS

or

allegations

to

artificial

or

prerecorded voice was used for the calls to Cummings’s cell
phone. Although she states she received multiple calls over
four years, Cummings does not specify how many calls were
made or their frequency. 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
8

with “generic content,” which circumstantially supports that
an ATDS was used). She does not allege that she heard an
artificial or prerecorded voice during a call, nor does she
allege that her phone conversation with Defendants’ employee
began with a pause. Cf. Padilla v. Whetstone Partners, LLC,
No. 14-21079-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, at this juncture, Cummings has not plausibly
stated a claim under the TCPA because she has failed to
plausibly plead that an ATDS or artificial or prerecorded
voice was used. Therefore, Count III is dismissed with leave
to amend by September 26, 2017. Because Count III has been
dismissed,

Defendants’

alternative

request

for

a

more

definite statement of the claim is denied.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

Defendants Rushmore Loan Management Service and U.S.
Bank, N.A.’s Motion to Dismiss Count III for Failure to
State

a

Claim

or,

Alternatively,

Definite Statement as to Count III
GRANTED.
9

Motion

for

More

(Doc. # 19) is

(2)

Count III is DISMISSED with leave to amend.

(3)

If Cummings wishes to amend Count III, she must file an
amended complaint by September 26, 2017.
DONE and ORDERED in Chambers in Tampa, Florida, this

12th day of September, 2017.

10