Bruce et al v. U.S. Bank National Association et al

Filing 32

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
TAMPA DIVISION
ROY W. BRUCE and ALICE BRUCE,
Plaintiffs
v.

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
LASALLE
BANK,
NATIONAL
ASSOCIATION,
AS
TRUSTEE
FOR
STRUCTURED
ASSET
SECURITIES
CORPORATION MORTGAGE PASS-THROUGH
and ALBERTELLI LAW,
Defendants.
______________________________/
ORDER
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
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).

Pro se Plaintiffs Roy Bruce and Alice Bruce

have responded to the Motions. (Doc. ## 18, 29).

The Court

grants the Motions to Dismiss as explained below.
I.

Background
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
foreclosure action.

(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

other things:
This letter shall serve as my Notice of Rescission
of the alleged transaction described in a Note and
Mortgage
dated
10/12/2004.
The
described
transaction in the Note and Mortgage was not
consummated.
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. §
1635(b).
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.
(Id.).
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
2

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
FCCPA.
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).
II.

Legal Standard
A.

Rule 12(b)(1), Fed. R. Civ. P.

Federal

courts

are

courts

of

limited

jurisdiction.

“[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
should

itself

raise

the

question
3

of

subject

matter

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).
Motions

to

dismiss

for

lack

of

subject

matter

jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) may attack
jurisdiction facially or factually.
323

F.3d

920,

924

n.5

(11th

challenge, the plaintiff enjoys

Cir.

Morrison v. Amway Corp.,
2003).

On

a

facial

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
it

would

defending

against

a

motion

brought

12(b)(6).”(internal citations omitted)).

under

Rule

Thus, the Court

accepts as true all the allegations in the complaint and
construes them in the light most favorable to the plaintiff.
Id.
B.

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
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.
4

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).

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).
In

accordance

with

Twombly,

Federal

Rule

of

Civil

Procedure 8(a) calls “for sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its
face.’”

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
misconduct alleged.”

Id.

III. Analysis
The
violations

only
of

federal

the

FDCPA,

count
which

of
is

the

Complaint

found

in

is

Count

for
Two.

However, a claim under the FDCPA must be made within one year
5

of the alleged violation.

15 U.S.C. § 1692k(d).

Here, the

three letters attached to the Complaint, all bear a date from
2015.

However, this case was filed on August 24, 2017.

And,

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).

A cursory

review of the Complaint leads to the determination that Count
Two is time barred.
358

F.3d

840,

845

See La Grasta v. First Union Sec., Inc.,
(11th

Cir.

2004)(“[A]

Rule

12(b)(6)

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.”).
And,

in

limitations

response
arguments,

to

the

the

Defendants’

Bruces

merely

statute
state:

of
“The

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.

The Court

thus finds that the FCDCPA claim is subject to dismissal as
time barred.
However, in an abundance of caution, the Court also

6

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.

To

be sure, the Verified Complaint employs the labels “consumer”
and “debt collector” liberally.
allegations

provided

to

the

application of these terms.

Yet, the limited factual

Court

do

not

support

the

In Fuller v. Becker & Poliakoff,

P.A., 192 F. Supp. 2d 1361, 1366-67 (M.D. Fla. 2002), the
court explained:
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.

7

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
constitute

a

prohibited

communication

under

the

FDCPA.

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
claim.
Even though complaints by pro se plaintiffs are liberally
construed,

“a

pro

se

litigant

is

not

relieved

of

his

obligation to allege sufficient facts to support a cognizable
legal

claim

and

the

court

may

not

rewrite

a

deficient

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
8

that the Bruces’ Complaint may attempt to array against
Defendants.

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
supplemental

jurisdiction

claims.”).

The

state

over

law

the

claims

remaining
are

state

dismissed

law

without

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

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)
are GRANTED.

(2)

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.
9

See

28 U.S.C. § 1367(c)(3).
(3)

The Clerk is directed to close the case.
DONE and ORDERED in Chambers in Tampa, Florida, this 15th

day of December, 2017.

10