Bruce et al v. U.S. Bank National Association et al
ORDER: Defendants U.S. Bank, N.A., as Trustee Successor in Interest to Bank of America, National Association, as Trustee, Successor by Merger to Lasalle Bank, National Association, as Trustee for Structured Asset Securities Corporation Mortgage P ass-through and Albertelli Laws' Motions to Dismiss the Verified Complaint (Doc. ## 8 , 27 ) are GRANTED. Count Two of the Complaint, for violations of the FDCPA is dismissed as time barred. The Court declines to exercise jurisdiction over the remaining state law claims and those claims are dismissed without prejudice. See 28 U.S.C. § 1367(c)(3).The Clerk is directed to close the case. Signed by Judge Virginia M. Hernandez Covington on 12/15/2017. (KAK)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ROY W. BRUCE and ALICE BRUCE,
Case No. 8:17-cv-2023-T-33JSS
U.S. BANK, N.A., AS TRUSTEE
SUCCESSOR IN INTEREST TO BANK OF
AMERICA, NATIONAL ASSOCIATION, AS
TRUSTEE, SUCCESSOR BY MERGER TO
CORPORATION MORTGAGE PASS-THROUGH
and ALBERTELLI LAW,
This cause is before the Court pursuant to Defendants
U.S. Bank, N.A., as Trustee Successor in Interest to Bank of
America, National Association, as Trustee, Successor by Merger
Structured Asset Securities Corporation Mortgage Pass-through
and Albertelli Laws’ Motions to Dismiss the Verified Complaint
(Doc. ## 8, 27).
Pro se Plaintiffs Roy Bruce and Alice Bruce
have responded to the Motions. (Doc. ## 18, 29).
grants the Motions to Dismiss as explained below.
The Bruces are the owners of real property in Ruskin,
Florida. (Doc. # 1 at p.5, ¶ 9). Non-party Chad Hill, a
previous owner of the property, executed a mortgage and note,
which are now the subject of a separate state court mortgage
(Id. at p.7, ¶ 18).
The Bruces explain that Roy Bruce and Hill filed a small
claims complaint against U.S. Bank in 2015. (Id. at p.3, ¶
10). The small claims case was based on Hill’s purported
rescission of the loan under the Truth in Lending Act. (Doc.
# 1-1 at 2).
Hill’s “Notice of Rescission” stated, among
This letter shall serve as my Notice of Rescission
of the alleged transaction described in a Note and
transaction in the Note and Mortgage was not
Pursuant to TILA and Regulation Z,
you have twenty (20) days after receipt of this
Notice of Rescission to return all monies paid and
to take action necessary and appropriate to
terminate the security interest. Please be advised
that the mortgage is automatically voided by
operation of law upon rescission under 15 U.S.C. §
Therefore, any attempt to report this
mortgage to a credit agency is a willful violation
of TILA and the Fair Credit Reporting Act . . . .
Please contact me . . . to arrange the delivery to
me of all monies paid under the mortgage . . .
please mail me conformation that the mortgage has
been voided and that no negative information will
be reported to the credit bureaus.
Roy Bruce and Hill were successful in obtaining a default
judgment against U.S. Bank in the small claims court with
respect to Fair Debt Collection Practices Act and Florida
Consumer Collection Practices Act claims, and the amount of
the Judgment is $5,310.
(Doc. # 1-3 at 1).
U.S. Bank paid
the full amount of the Judgment on June 3, 2016. (Doc. # 1 at
p.3, ¶ 12). The Bruces assert that the small claims default
judgment operates as a complete bar against all efforts by
U.S. Bank to foreclose the note and mortgage given by Hill.
The Bruces likewise assert that U.S. Bank’s separate state
court foreclosure action, in which U.S. Bank is represented by
Albertelli Law, constitutes a violation of the FDCPA and
Accordingly, on August 24, 2017, the Bruces filed a three
count Verified Complaint against U.S. Bank and Albertelli Law
seeking (1) injunctive relief, (2) damages under the FDCPA,
and (3) damages under the FCCPA. (Doc. # 1).
U.S. Bank and
Albertelli Law seek dismissal of the action with prejudice
under Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
Rule 12(b)(1), Fed. R. Civ. P.
“[B]ecause a federal court is powerless to act beyond its
statutory grant of subject matter jurisdiction, a court must
zealously insure that jurisdiction exists over a case, and
jurisdiction at any point in the litigation where a doubt
about jurisdiction arises.” Smith v. GTE Corp., 236 F.3d 1292,
1299 (11th Cir. 2001).
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may attack
jurisdiction facially or factually.
challenge, the plaintiff enjoys
Morrison v. Amway Corp.,
safeguards similar to those
provided in the context of a Rule 12(b)(6) motion to dismiss.
See Sea Vessel Inc. v. Reyes, 23 F.3d 345, 347 (11th Cir.
1994)(“[T]he non-moving party receives the same protection as
12(b)(6).”(internal citations omitted)).
Thus, the Court
accepts as true all the allegations in the complaint and
construes them in the light most favorable to the plaintiff.
Rule 12(b)(6), Fed. R. Civ. P.
On a motion to dismiss, this Court accepts as true all of
the factual allegations in the complaint and construes them in
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
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
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
Further, 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).
Procedure 8(a) calls “for sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting
Twombly, 550 U.S. at 570).
A plausible claim for relief must
include “factual content [that] allows the court to draw the
reasonable inference that the defendant is liable for the
However, a claim under the FDCPA must be made within one year
of the alleged violation.
15 U.S.C. § 1692k(d).
three letters attached to the Complaint, all bear a date from
However, this case was filed on August 24, 2017.
in response to the Court’s Fast Track Scheduling Order, the
Bruces filed interrogatory answers stating that the questioned
communications began on “7/6/2016.” (Doc. # 31).
review of the Complaint leads to the determination that Count
Two is time barred.
See La Grasta v. First Union Sec., Inc.,
dismissal on statute of limitations grounds is appropriate
only if it is apparent from the face of the complaint that the
claim is time-barred.”).
communication that gives rise to the claims occurred within
the FDCPA one year statute of limitations and within the FCCPA
two years statute of limitations.
timely.” (Doc. # 18 at 8).
The claims are therefore
The Bruces’ conclusory statement
does not supply the Court with any information that could lead
to the conclusion that the FDCPA claim is timely.
thus finds that the FCDCPA claim is subject to dismissal as
However, in an abundance of caution, the Court also
points out other deficiencies, which further support the
dismissal of the FDCPA claim.
First, the Verified Complaint
does not show that the Bruces are “consumers” suffering at the
hands of “debt collectors” as contemplated by the FDCPA.
be sure, the Verified Complaint employs the labels “consumer”
and “debt collector” liberally.
application of these terms.
Yet, the limited factual
In Fuller v. Becker & Poliakoff,
P.A., 192 F. Supp. 2d 1361, 1366-67 (M.D. Fla. 2002), the
Congress passed the FDCPA to protect consumers from
debt collectors’ abusive debt collection practices.
The FDCPA prohibits harassing or deceptive conduct
in the collection of a debt. . . . In order to
prevail on a FDCPA claim, a Plaintiff must prove
that (1) the plaintiff has been the object of
collection activity arising from consumer debt, (2)
the defendant is a debt collector as defined by the
FDCPA, and (3) the defendant has engaged in an act
or omission prohibited by the FDCPA. . . . Section
1692a defines “debt” as an obligation of a consumer
to pay money arising out of a transaction in which
the money, property, insurance, or services which
are the subject of the transaction are primarily
for personal, family, or household purposes.”. . .
Finally, the Eleventh Circuit recognized that a
debt for the purposes of the FDCPA must involve
consumer transactions to be actionable.
Id. (internal quotation marks omitted).
The Bruces contend that the Defendants are trying to
foreclose on their property.
But, the Bruces do not allege
that Defendants are trying to collect a debt from them.
Instead, it appears that Hill (a non-party) is the obligor
under the note.
In addition, U.S. Bank’s action of filing a
foreclosure action against Hill, with Albertelli Law acting as
counsel, does not support a FDCPA claim. The Eleventh Circuit
has held that the filing of a foreclosure complaint does not
See Vega v. McKay, 351 F.3d 1334, 1336 (11th Cir. 2003); see
also McNight v. Benitez, 176 F. Supp. 2d 1301, 1306-08(M.D.
Fla. 2001)(“[T]he purpose of the FDCPA is to curb abusive debt
collection practices, not legal actions.”). The Complaint and
the exhibits attached thereto do not support a FDCPA case
against either named Defendant. The Court dismisses the FDCPA
Even though complaints by pro se plaintiffs are liberally
obligation to allege sufficient facts to support a cognizable
pleading.” Osahar v. United States Postal Serv., 297 F. App’x
863, 864 (11th Cir. 2008); Muhammad v. Bethel, 430 F. App’x
750, 752 (11th Cir. 2011)(“a court may not serve as de facto
counsel for a party or rewrite an otherwise deficient pleading
in order to sustain an action.”).
Having dismissed the only federal claim in the complaint,
the Court determines that it is appropriate to decline to
exercise supplemental jurisdiction over any state law claims
that the Bruces’ Complaint may attempt to array against
See 28 U.S.C. § 1367(c)(3)(“The district courts
may decline to exercise supplemental jurisdiction over a claim
. . . if the district court has dismissed all claims over
which it has original jurisdiction.”); see also Arnold v.
Tuskegee Univ., 212 F. App’x 803, 811 (11th Cir. 2006)(“When
the district court has dismissed all federal claims from a
case, there is a strong argument for declining to exercise
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
Defendants U.S. Bank, N.A., as Trustee Successor in
Interest to Bank of America, National Association, as
Trustee, Successor by Merger to Lasalle Bank, National
Association, as Trustee for Structured Asset Securities
Corporation Mortgage Pass-through and Albertelli Laws’
Motions to Dismiss the Verified Complaint (Doc. ## 8, 27)
Count Two of the Complaint, for violations of the FDCPA
is dismissed as time barred.
The Court declines to
exercise jurisdiction over the remaining state law claims
and those claims are dismissed without prejudice.
28 U.S.C. § 1367(c)(3).
The Clerk is directed to close the case.
DONE and ORDERED in Chambers in Tampa, Florida, this 15th
day of December, 2017.
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