Cummings v. Rushmore Loan Management Service et al

Filing 47

ORDER: The Motion to Dismiss Count III of Amended Complaint for Failure to State a Claim or, Alternatively, Motion for More Definite Statement as to Count III (Doc. # 32 ) is DENIED. Defendants' Answer to the Amended Complaint is due November 9, 2017. Signed by Judge Virginia M. Hernandez Covington on 10/26/2017. (AWM)

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 of Amended Complaint for
Failure to State a Claim or, Alternatively, Motion for More
Definite Statement as to Count III, filed on October 9, 2017.
(Doc. # 32). Plaintiff Sallie A. Cummings responded on October
20, 2017. (Doc. # 46). For the reasons that follow, the Motion
is denied.
I.

Background
Cummings initiated this action in state court on June 1,

2017, asserting claims under the Florida Consumer Collection
Practices Act (FCCPA), Fla. Stat. §§ 559.55 et seq.; the Fair
Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et

1

seq.; and the Telephone Consumer Protection Act (TCPA), 47
U.S.C. §§ 227 et seq. (Doc. # 2). Defendants removed the case
to federal court on July 10, 2017, and filed a motion to
dismiss the TCPA claim, Count III of the Complaint, on August
11, 2017. (Doc. ## 1, 19). Cummings responded to that motion
on August 31, 2017. (Doc. # 22).
The

Court

granted

the

first

motion

to

dismiss

on

September 12, 2017, because “[t]he Complaint [was] devoid of
factual

allegations

to

support

the

inference

that

an”

automatic telephone dialing system (ATDS) “or artificial or
prerecorded voice was used for the calls to Cummings’s cell
phone.” (Doc. # 23 at 8). The Court identified examples of
allegations that support that an ATDS was used: the number of
calls and their frequency; that the plaintiff “heard an
artificial or prerecorded voice during a call”; or that the
“conversation

with

[d]efendants’

employee

began

with

a

pause.” (Id.) (citing Neptune v. Whetstone Partners, LLC, 34
F. Supp. 3d 1247, 1250 (S.D. Fla. 2014); Padilla v. Whetstone
Partners, LLC, No. 14-21079-CIV, 2014 WL 3418490, at *2 (S.D.
Fla. July 14, 2014)).
Cummings filed the Amended Complaint on September 28,
2017. (Doc. # 30). The facts alleged by the Amended Complaint
are summarized below.
2

In 2008, Cummings obtained a mortgage for her property.
(Id. at ¶ 21). The bank that then held the debt called
Cummings in March of 2012 in an attempt to collect it, and
Cummings

provided

the

bank

with

her

counsel’s

contact

information. (Id. at ¶ 24). Once foreclosure proceedings were
initiated, attorneys representing Cummings directed the bank
to

cease

all

direct

communication

with

Cummings

on

two

occasions. (Id. at ¶¶ 25, 27). The mortgage debt and its
servicing were transferred multiple times and Cummings or her
counsel “explicitly withdrew any consent for Cummings to be
contacted directly by mail or telephone with respect to the
[d]ebt” from each transferee. (Id. at ¶ 28-30).
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).

3

Nevertheless, in February of 2017, “Cummings received a
call from a representative named Rubin who indicated that he
was an employee of Rushmore.” (Id. at ¶ 34). Importantly, the
Amended Complaint alleges that, upon answering this call but
before Rubin began to speak, “Cummings was greeted by a
noticeable period of ‘dead air’ and audible clicks while the
caller’s phone system attempted to connect Cummings to a live
telephone employee.” (Id. at ¶35). Cummings directed all
future communications to her attorney, provided his contact
information,

and

“request[ed]

that

Rushmore

cease

communicating with Cummings directly.” (Id. at ¶ 36).
Cummings alleges that “[w]ithin the four year period
immediately preceding this action” Defendants or their agents
called Cummings’s cellular and home telephones, “for the
purpose of collecting on the alleged debt.” (Id. at ¶¶ 47,
52). Cummings states these calls were made “without prior
express consent and without an emergency purpose.” (Id. at ¶
99). Furthermore,
the [] calls to Plaintiff’s cellular telephone were
placed using an automated telephone dialing system
or employed a prerecorded voice message. These
calls which utilize a prerecorded message or have
a noticeable pause or gap and audible clicks
between the time the call is answered until a live
human comes onto the line are telltale signs of an
automated telephone dialing system.

4

(Id. at ¶100). According to Cummings,
[a]ll 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]
cellular telephone, 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 ¶ 55).
The current motion to dismiss makes the same arguments
as Defendants’ previous motion to dismiss. (Doc. ## 19, 32).
Cummings has responded (Doc. # 46) and 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]
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).
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. (Doc. # 32 at 1-2). They
argue that Cummings failed to plead that she received calls
to a cellular telephone, rather than to her residential phone.
6

(Id.).

Despite

Defendants’

statement

to

the

contrary,

Cummings does list the telephone number associated with her
cell phone. (Doc. # 30 at ¶ 47). And, Cummings states in Count
III

that

Defendants

“made

numerous

calls

to

Plaintiff’s

telephone number, assigned to a cellular telephone service.”
(Id. at ¶ 99). As the Court stated previously, “[i]t is clear
that the TCPA claim is based only on calls to Cummings’s cell
phone.” (Doc. # 23 at 6).
Defendants also argue that Cummings failed to properly
plead lack of consent. (Doc. # 32 at 2). They stress one
sentence from the Amended Complaint: “Defendants did not have
Plaintiff’s ‘prior express consent to call her telephone
numbers using an ATDS, PTDS or APV.’” (Id.). They state that
“Defendants only need consent to contact Plaintiff on her
cellular

telephone

number,”

and

conclude

that

the

above

sentence is too broad. (Id.). In doing so, Defendants ignore
the Amended Complaint’s other allegations regarding consent.
Cummings alleges that “[a]t no time herein did Defendants
have Plaintiff’s prior express consent to call Plaintiff on
her cellular telephone.” (Doc. # 30 at ¶ 101). Furthermore,
“[o]n at least five separate occasions from 2012 to present,
Defendants, and its predecessors in interest, were informed
directly by Cummings or her legal counsel . . . to cease and
7

desist all communications directly with Cummings.” (Doc. # 30
at ¶ 38).
Defendants made these arguments in their previous motion
to dismiss and the Court rejected them in its previous Order.
(Doc. # 23 at 5-7). The Court again rejects these arguments
because the Amended Complaint has not changed the relevant
facts.
Defendants next argue the Amended Complaint “does not
allege facts sufficient to state a claim against Defendants
under

the

TCPA”

because

it

“only

contains

conclusory

allegations that Defendants utilized an ATDS and does not
plausibly allege any facts that could show this to be the
case.” (Doc. # 32 at 4). Although the original Complaint
suffered from this flaw, the Amended Complaint does not.
“[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.” OwensBenniefield v. Nationstar Mortg. LLC, No. 8:17-cv-540-T33TGW, 2017 WL 2600866 (M.D. Fla. June 15, 2017)(quoting Gragg
v. Orange Cab Co., 942 F. Supp. 2d 1111, 1114 (W.D. Wash.
2013)). Courts have held that a complaint may sufficiently
raise an inference that an ATDS was used by alleging that the
8

relevant calls contained a pause, or period of silence, after
a call is answered and before a person begins speaking. See,
e.g., Owens-Benniefield, 2017 WL 2600866 at *8-9; Padilla v.

Whetstone Partners, LLC, No. 14-21079-CIV, 2014 WL 3418490,
at *2 (S.D. Fla. July 14, 2014); Todd v. Citibank, No. 165204-BRM-DEA, 2017 WL 1502796, at *6 (D.N.J. Apr. 26, 2017).
This Court acknowledged this in its order granting the prior
motion to dismiss. (Doc. # 23 at 9).
The Amended Complaint alleges that the February 2017
phone call from Rubin, on behalf of Rushmore, began with “a
noticeable period of ‘dead air’ and audible clicks while the
caller’s phone system attempted to connect Cummings to a live
telephone employee.” (Doc. # 30 at ¶ 35). Defendants argue
that the Amended Complaint does not explicitly allege that
the February 2017 call was made to Cummings’s cell phone.
(Doc. # 32 at 7). Although it is not explicitly stated, taken
in the light most favorable to Cummings, the Court interprets
the Amended Complaint as alleging the call was made to
Cummings’s cell phone. But, even if the call was not made to
Cummings’s cell phone, the apparent use of an ATDS for the
February 2017 call provides context for the other calls made
to

Cummings’s

“numerous

cell

calls

to

phone.
the

The

Amended

Plaintiff’s
9

Complaint

cellular

alleges

telephone”

“within

the

action”

that

four
were

year

period

“placed

immediately

using

an

preceding

automated

this

telephone

dialing system or employed a prerecorded voice message.”
(Doc. # 30 at ¶¶ 99-100). It indicates that “[t]hese calls
which utilize a prerecorded message or have a noticeable pause
or gap and audible clicks between the time the call is
answered until a live human comes onto the line are telltale
signs of an automated telephone dialing system.” (Id. at ¶
100). Although this may not have been artfully stated, the
Court views these allegations, in context and in the light
most favorable to Cummings, as sufficiently detailed to raise
the inference that Defendants used an ATDS to call Cummings’s
cell phone.
Defendants rely on numerous district court cases, which
the Court finds distinguishable and do not merit lengthy
discussion. The Court will address those case arising from
within the Eleventh Circuit. The Court already distinguished
Augustin v. Santander Consumer USA, Inc., 43 F. Supp. 3d 1251
(M.D. Fla. 2012), in its September 12, 2017, Order, and
further comment is unnecessary. (Doc. # 23 at 7). Both Speidel
v. JP Morgan Chase & Co, No. 2:13-cv-852-FtM-29DNF, 2014 WL
582881 (M.D. Fla. Feb. 13, 2014), and Duran v. Wells Fargo
Bank, N.A., 878 F. Supp. 2d 1312 (S.D. Fla. July 23, 2012),
10

are distinguishable because neither involved any allegations
that

implicated

the

use

of

an

ATDS

besides

conclusory

recitations that an ATDS was used. In contrast, as discussed
above, Cummings has alleged that there was a delay in the
phone call before a person spoke to her, which raises the
inference of the use of an ATDS.
The

Court

finds

the

Amended

Complaint

cured

the

deficiency of the Complaint by alleging sufficient facts to
plausibly state a claim for violation of the TCPA. Therefore,
the

Motion

stated

her

is

denied.

claim,

Because

the

Court

Cummings
also

has

sufficiently

denies

Defendants’

alternative request for a more definite statement.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
(1)

The Motion to Dismiss Count III of Amended Complaint for
Failure to State a Claim or, Alternatively, Motion for
More Definite Statement as to Count III (Doc. # 32) is
DENIED.

(2)

Defendants’

Answer

to

the

November 9, 2017.

11

Amended

Complaint

is

due

DONE and ORDERED in Chambers in Tampa, Florida, this
26th day of October, 2017.

12