Lawrence v. FPA Multifamily, LLC

Filing 109

ORDER: Defendant FPA Villa Del Lago, LLC's Motion to Dismiss Third Amended Complaint (Doc. # 74) is denied. Defendant Trinity Property Consultants, LLC's Motion to Dismiss Third Amended Complaint (Doc. # 94) is denied. Defendants' answers to the third amended complaint are due by June 24, 2021. Signed by Judge Virginia M. Hernandez Covington on 6/10/2021. (AR)

Case 8:20-cv-01517-VMC-JSS Document 109 Filed 06/10/21 Page 1 of 16 PageID 2246

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JUSTIN LAWRENCE,
individually and on behalf
of all others similarly
situated,
Plaintiff,
v.

Case No. 8:20-cv-1517-VMC-JSS

FPA VILLA DEL LAGO, LLC,
and TRINITY PROPERTY
CONSULTANTS, LLC,
Defendants.
/
ORDER
This matter comes before the Court upon consideration of
Defendant FPA Villa Del Lago, LLC’s Motion to Dismiss Third
Amended Complaint (Doc. # 74), filed on April 13, 2021, and
Defendant

Trinity

Property

Consultants,

LLC’s

Motion

to

Dismiss Third Amended Complaint, filed on May 7, 2021. (Doc.
# 94). Plaintiff Justin Lawrence responded to each Motion on
May 4, 2021, and May 28, 2021, respectively. (Doc. ## 89;
103). For the reasons set forth below, the Motions are denied.
I.

Background
Both the Court and the parties are familiar with the

facts of this putative class action. Accordingly, the Court
need not reiterate them in detail here. The case stems from

1

Case 8:20-cv-01517-VMC-JSS Document 109 Filed 06/10/21 Page 2 of 16 PageID 2247

Tallahassee

Community

College

student

Justin

Lawrence’s

desire to terminate his lease at an off-campus apartment
complex marketed to college students in light of the COVID19 pandemic. (Doc. # 69 at ¶¶ 29, 37-45).
Lawrence initially filed this putative class action
against FPA Multifamily, LLC, on July 2, 2020. (Doc. # 1).
FPA Multifamily moved to dismiss the complaint, and Lawrence
filed an amended complaint on August 24, 2020. (Doc. ## 10,
14). The amended complaint replaced Defendant FPA Multifamily
with FPA Villa Del Lago and John Doe Defendants 1-10. (Doc.
# 14). FPA Villa Del Lago then filed a motion to dismiss on
October 28, 2020. (Doc. # 28). On February 22, 2021, the
Honorable Mary S. Scriven, United States District Judge, who
was

originally

assigned

to

this

case,

entered

an

order

recusing herself for cause (Doc. # 46), and the case was
randomly reassigned to the undersigned. (Doc. # 47).
On March 4, 2021, the Court granted in part FPA Villa
Del Lago’s motion, dismissing without prejudice Lawrence’s
claims for breach of contract, breach of the implied covenant
of

good

faith

and

fair

dealing,

unjust

enrichment,

conversion, money had and received, and violations of Section
559.72(9) of the Florida Consumer Collection Practices Act
(“FCCPA”).

(Doc.

#

60).

The
2

Court

declined

to

dismiss

Case 8:20-cv-01517-VMC-JSS Document 109 Filed 06/10/21 Page 3 of 16 PageID 2248

Lawrence’s claims for rescission or for violations of Section
559.72(7) of the FCCPA, and granted leave to amend. (Id. at
24). Thereafter, Lawrence filed a second amended complaint on
March 18, 2021, which the Court sua sponte dismissed as a
shotgun pleading on March 24, 2021, again granting leave to
amend. (Doc. ## 63; 65).
Lawrence filed his third amended complaint on March 30,
2021, removing John Doe Defendants 1-10 and adding Trinity
Property Consultants, LLC, as a Defendant. (Doc. # 69). The
third

amended

complaint

includes

the

following

claims:

rescission against FPA Villa Del Lago (Count I), unjust
enrichment against all Defendants (Count II), and violations
of Sections 559.72(7) and 559.72(9) of the FCCPA against all
Defendants

(Count

III).

(Id.).

In

the

third

amended

complaint, Lawrence also asserts claims on behalf of the
following class:
All people who paid the costs of rent and fees for
and on behalf of students residing at The Social
2700 Student Spaces for the Spring and Summer 2020
semester who moved out prior to the completion of
the semester because of school closures relating to
COVID-19.
(Id. at ¶ 87). The third amended complaint alters the class
to include only those students “residing at The Social 2700
Student

Spaces,”

rather

than

3

those

residing

at

all

of

Case 8:20-cv-01517-VMC-JSS Document 109 Filed 06/10/21 Page 4 of 16 PageID 2249

Defendants’ Florida apartment complexes. (Doc. # 14 at ¶ 47).
Both FPA Villa Del Lago and Trinity Property move to
dismiss

the

third

amended

complaint.

(Doc.

##

74;

94).

Lawrence has responded to each Motion (Doc. ## 89; 103), and
they are now ripe for review.
II.

Legal Standard
On a motion to dismiss pursuant to Federal Rule of Civil

Procedure

12(b)(6),

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).
But,
[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)

(quotations and citations omitted). Courts are not “bound to
accept as true a legal conclusion couched as a factual
4

Case 8:20-cv-01517-VMC-JSS Document 109 Filed 06/10/21 Page 5 of 16 PageID 2250

allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). The
Court must limit its consideration to “well-pleaded factual
allegations,

documents

central

to

or

referenced

in

the

complaint, and matters judicially noticed.” La Grasta v.
First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004).
III. Analysis
Defendants seek to dismiss all counts against them.
(Doc. ## 74; 94). The Court will address each claim in turn.
A.

Rescission

First, FPA Villa Del Lago moves to dismiss Count I,
arguing that it “fails to properly allege the elements of a
claim for rescission, specifically (5) that the moving party
received benefits from the contract and seeks to restore them
to the other party, and (6) that the moving party has no
adequate remedy at law.” (Doc. # 74 at 10). This repeats the
arguments made in FPA Villa Del Lago’s first motion to
dismiss, which was denied as to this requested relief. (Doc.
## 28; 60).
As the Court noted in its previous order, Lawrence’s
claim

for

rescission

is

sufficiently

pled

to

survive

dismissal. (Doc. # 60 at 7-10). Regarding the fifth element
of a rescission claim – that the plaintiff has restored or
offered to restore to the defendant the benefits conferred by
5

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the

agreement

-

Lawrence

alleges

that

he

vacated

the

apartment in April 2020, thus returning possession of the
apartment to FPA Villa Del Lago. (Doc. # 69 at ¶¶ 49, 77, 80)
(“Plaintiff moved all of his possessions out of the apartment
on April 26, 2020[,] and thoroughly cleaned the apartment.”).
And, Lawrence avers a willingness to return the parties to
the status quo. See (Id. at ¶ 111) (“This case is suitable
for rescission because the parties can be equitably restored
to their original position or, if that result would not be
equitable,

a

balance

of

equities

can

otherwise

be

achieved.”). Taken together, this element is sufficiently
pled. See Smith v. Jackson, No. 16-81454-CIV-MARRA, 2017 WL
1047033, at *3 (S.D. Fla. Mar. 20, 2017) (“Here, the Amended
Complaint pleads that Plaintiff offered to return the horse
to Jackson . . . and the Court finds this to be sufficient.
Whether restoration is possible cannot be resolved at the
motion to dismiss stage.”).
As to the sixth element – that the plaintiff has no
adequate remedy at law – Count I has been pled in the
alternative. (Doc. # 69 at ¶ 112) (“This count for rescission
is pleaded in the alternative to any claim for legal relief.
To the extent no remedy at law is available, rescission is
appropriate.”). Thus, the Motion is denied as to Count I.
6

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B.

Unjust Enrichment

Second, Defendants move to dismiss Count II, Lawrence’s
claim for unjust enrichment, because it (1) fails to establish
that the lease is invalid and (2) the claim is based on
Defendants’ allegedly wrongful conduct. (Doc. # 74 at 13-14;
Doc. # 94 at 10-12). Lawrence responds that this claim may be
pled in the alternative, that the lease was invalid, and that
it would “be unjust to allow Trinity to retain monies that it
collected that are not owed due to rescission of the [lease].”
(Doc. # 89 at 4-5; Doc. # 103 at 5).
“To establish unjust enrichment under Florida law, a
plaintiff must prove that ‘(1) plaintiff has conferred a
benefit on the defendant, who has knowledge thereof; (2)
defendant

voluntarily

accepts

and

retains

the

benefit

conferred; and (3) the circumstances are such that it would
be inequitable for the defendant to retain the benefit without
first paying the value thereof to the plaintiff.’” Rosado v.
Barry Univ., Inc., 499 F. Supp. 3d 1152, 1159 (S.D. Fla. 2020)
(quoting Duty Free World, Inc. v. Mia. Perfume Junction, Inc.,
253 So.3d 689, 693 (Fla. 3d DCA 2018)).
“Generally, ‘[n]o cause of action in unjust enrichment
can exist where the parties’ relationship is governed by an
express

contract.

This

is

because
7

the

theory

of

unjust

Case 8:20-cv-01517-VMC-JSS Document 109 Filed 06/10/21 Page 8 of 16 PageID 2253

enrichment is equitable in nature and is, therefore, not
available when there is an adequate legal remedy.” Frayman v.
Douglas Elliman Realty, LLC, --- F. Supp. 3d ----, 2021 WL
299951, at *16 (S.D. Fla. Jan. 25, 2021) (quoting Zarella v.
Pac. Life Ins. Co., 755 F. Supp. 2d 1218, 1227 (S.D. Fla.
2010)). “However, this rule does not apply where one of the
parties asserts that the contract governing the dispute is
invalid.” Am. Infoage, LLC v. Regions Bank, No. 8:13-cv-1533SDM-TGW, 2014 WL 4794748, at *6 (M.D. Fla. Sept. 25, 2014)
(citation omitted). “It is only upon a showing that an express
contract exists that the unjust enrichment . . . count fails.
Until an express contract is proven, a motion to dismiss a
claim

for

.

.

.

unjust

enrichment

on

these

grounds

is

premature.” Mobil Oil Corp. v. Dade Cnty. Esoil Mgmt. Co.,
982 F. Supp. 873, 880 (S.D. Fla. 1997) (citation omitted).
Here, although the Lawrence and FPA Villa Del Lago’s
relationship is governed by the lease, Lawrence alleges that
the lease is invalid by virtue of his rescission. (Doc. # 69
at ¶ 121 (“The Student Housing Lease Contract was invalid as
Plaintiff and class members rescinded the contract as pled in
Count I.”)). The Court is not convinced that Lawrence may
rely on such rescission to allege that the lease agreement
was invalid, but the parties have not sufficiently briefed
8

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this issue. Accordingly, the Court declines to dismiss Count
II for this reason. See Cent. Magnetic Imaging Open MRI of
Plantation, Ltd. v. State Farm Mut. Auto. Ins. Co., 789 F.
Supp. 2d 1311, 1317 (S.D. Fla. 2011) (“A party may only
recover under an unjust enrichment theory when there is no
valid express or implied-in-fact contract.”).
As to the argument that Lawrence’s claim for unjust
enrichment

is

based

on

Defendants’

allegedly

wrongful

conduct, “[a] number of courts hold that a claim of unjust
enrichment may not be predicated on a wrong committed by a
defendant.” AIM Recycling Fla., LLC v. Metals USA, Inc., No.
18-60292-CIV-ZLOCH, 2019 WL 1991946, at *1 (S.D. Fla. Mar. 4,
2019); see Electrostim Med. Servs., Inc. v. Lindsey, No. 8:11cv-2467-VMC-TBM, 2012 WL 1560647, at *4 (M.D. Fla. May 2,
2012) (“Where a plaintiff predicates their unjust enrichment
claim on wrongful conduct of a defendant, then the plaintiff’s
right of recovery, if any, arises from the wrong of the
alleged

tort

rather

than

unjust

enrichment.”

(citation

omitted)). However, this unjust enrichment claim does not
appear to arise out of an alleged tort. See Staaldam Beheer
B.V. v. ASAP Installations, LLC, No. 8:09-cv-2226-EAK-EAJ,
2010

WL

1730780,

(“[R]escission

is

at
a

*3

(M.D.

contractual
9

Fla.

Apr.

remedy,

not

28,
a

2010)

tort.”).

Case 8:20-cv-01517-VMC-JSS Document 109 Filed 06/10/21 Page 10 of 16 PageID 2255

Accordingly, the Motion is denied as to Count II.
C.

Florida Consumer Collection Practices Act

Third, Defendants move to dismiss Count III, Lawrence’s
claims for violations of Sections 559.72(7) and 559.72(9) of
the FCCPA. The Court will address each provision in turn.
1. Section 559.72(7)
Defendants

move

to

dismiss

Lawrence’s

claim

for

violations of Section 559.72(7) of the FCCPA, arguing that it
“fails

to

demonstrate

that

the

allegedly

harassing

communications . . . were conducted with such frequency as to
reasonably be expected to harass the debtor.” (Doc. # 94 at
13-14; Doc. # 74 at 16). Trinity Property also argues that
“the Lease Agreement includes an explicit provision wherein
.

.

.

Lawrence

agreed

he

could

be

contacted

by

debt

collectors.” (Doc. # 94 at 13).
Section 559.72(7) prohibits persons from “[w]illfully
communicat[ing] with the debtor . . . with such frequency as
can reasonably be expected to harass the debtor[,] . . . or
willfully engage in other conduct which can reasonably be
expected

to

abuse

or

harass

the

debtor.”

Fla.

Stat.

§

559.72(7) (2020). “[T]he statute’s use of the word ‘willful’
means that the calls must be done consciously, and thus that
the

statute

concerns

both

‘the
10

purpose

as

well

as

the

Case 8:20-cv-01517-VMC-JSS Document 109 Filed 06/10/21 Page 11 of 16 PageID 2256

frequency of the creditor’s calls.’” Harrington v. Roundpoint
Mortg. Servicing Corp., No.

2:15-cv-322-SPC-MRM, 2017 WL

1378539, at *10 (M.D. Fla. Apr. 11, 2017) (citing Story v. J.
M. Fields, Inc., 343 So.2d 675, 677 (Fla. 1st DCA 1977)).
Lawrence alleges that Defendants made the following six
communications regarding his alleged debt:
52. On May 1, 2020, Trinity Property Consultants,
LLC, sent Plaintiff an email indicating May rent
was due May 1, 2020, even though Plaintiff did not
owe it. FPA Villa Del Lago, LLC, and Trinity
Property Consultants, LLC, knew this debt for rent
was not legitimate.
53. On May 7, 2020, Trinity Property Consultants,
LLC, called Plaintiff telling Plaintiff that he
needed to send money for the May rent.
54. On May 12, 2020, Trinity Property Consultants,
LLC, sent Plaintiff an email advising him that he
had a balance due.
* * *
56. Plaintiff received an outstanding balance
statement from The Social 2700 Student Spaces dated
May 15, 2020 with various charges including a key
and gate card fee of $150.00, early termination fee
of $417.00, insufficient notice fee of $417.00, May
rent of $417.00 and bedroom paint fee of $250.00 as
well as utility charges. The notice further stated
if Plaintiff is unable to make a timely payment,
his account will be forwarded to a collection
provider and his credit may be adversely affected.
FPA Villa Del Lago, LLC, and Trinity Property
Consultants, LLC, knew these were not legitimate
debts however they attempted to collect them
anyway.
57. On May 19, 2020, Plaintiff received an email
11

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from Trinity Property Consultants, LLC, indicating
that his keys had been received, but he was still
being charged the $150.00 fee for not returning his
keys. This communication was an attempt to collect
a[] debt they knew was obviously illegitimate and
icing on top of the harassment cake.
58. On or about July 16, 2020, Trinity Property
Consultants, LLC, called Lawrence asking for
payment of the outstanding rent and charges due The
Social 2700 Student Spaces.
(Doc.

#

69

at

¶¶

52-58).

Lawrence

does

not

specify

communications made by FPA Villa Del Lago, but taking all
reasonable inferences in Lawrence’s favor, he alleges that at
least some of these communications can be attributed to FPA
Villa Del Lago. (Id. at ¶¶ 134-35). Indeed, FPA Villa Del
Lago does not argue for dismissal on this basis. See (Doc. #
74 at 18 (discussing “FPA and Trinity’s [alleged] attempts to
receive payment from Plaintiff”)).
Although Lawrence does not provide facts demonstrating
that this frequency of communications is harassing, or that
that

the

communications

contained

harassing

or

abusive

language, the allegation that Defendants made these six debtrelated communications is just sufficient to survive a motion
to dismiss. See Ortega v. Collectors Training Inst. Of Ill.,
Inc., No. 09-21744-CIV-GOLD/MCALILEY, 2010 WL 11505559, at *6
(S.D. Fla. Mar. 31, 2010) (“Under Florida law, there is no
bright-line rule for determining whether a communication is
12

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abusive or harassing in nature; rather, to violate the FCCPA,
the

behavior

must

be

evaluated

as

a

whole

under

the

circumstances.”). This analysis is better left to the summary
judgment stage, at which point the Court will have the benefit
of discovery regarding the communications.
As

to

Trinity

Property’s

argument

that

Lawrence

consented to debt-related calls, the Lease Agreement itself
curbs such consent to the extent the communications violate
other law: “To the extent permitted by applicable law, you
hereby expressly authorize us, our representative(s), and any
collection agency or debt collector . . . to communicate with
you.” (Doc. # 94-1 at 18 (emphasis added)). And, Trinity
Property cites to no authority supporting such consent to an
alleged FCCPA violation. Therefore, the Motion is denied as
to Lawrence’s claim under Section 559.72(7) of the FCCPA.
2. Section 559.72(9)
Regarding Lawrence’s claim for violations of Section
559.72(9) of the FCCPA, the Court previously dismissed this
claim because Lawrence failed to allege facts showing that
Defendants knew the debt was not legitimate. (Doc. # 60 at
23-24). Defendants again move for dismissal of this claim,
arguing that Lawrence has not properly alleged that the debt
was illegitimate as Lawrence “was contractually obligated to
13

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pay the entire lease term, regardless of whether he terminated
his lease early,” and because “Trinity was not aware that .
. . Lawrence had vacated the premises until May 15, 2020.”
(Doc. # 74 at 18; Doc. # 94 at 15). Additionally, Defendants
argue

that

Lawrence

still

fails

to

adequately

plead

knowledge. (Doc. # 74 at 19; Doc. # 94 at 16).
Section 559.72(9) prohibits a person from “claim[ing],
attempt[ing], or threaten[ing] to enforce a debt when such
person knows that the debt is not legitimate, or assert[ing]
the existence of some other legal right when such person knows
that the right does not exist.” Fla. Stat. § 559.72(9). “A
demand for payment upon a legitimate debt will not support a
claim under [S]ection 559.72(9).” Locke v. Wells Fargo Home
Mortg., No. 10-60286-CIV, 2010 WL 4941456, at *3 (S.D. Fla.
Nov. 30, 2010). “[A] party must allege knowledge or intent by
the debt collectors . . . to state a cause of action” under
Section 559.72(9) of the FCCPA. Bentley v. Bank of Am., N.A.,
773

F.

Supp.

2d

1367,

1373

(S.D.

Fla.

2011)

(internal

quotation marks and citation omitted); see also Wilson v.
Badcock Home Furniture, No. 8:17-cv-2739-VMC-AAS, 2017 WL
11614458, at *2 (M.D. Fla. Dec. 29, 2017) (“[T]o state a . .
. claim for assertion of a non-existent legal right, a
plaintiff must plead that the [d]efendant asserted a legal
14

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right that did not exist and that the [d]efendant had actual
knowledge that the right did not exist.” (citation omitted)).
Here, Lawrence has sufficiently alleged that Defendants
sought to collect a debt it knew was not legitimate or to
which it did not have a legal right. For example, Trinity
Property allegedly attempted to collect “the $150.00 charge
for failure to return keys when it knew the charge was not
legitimate because the keys had in fact been returned.”

(Id.

at ¶ 143); cf. Neptune v. Whetstone Partners, LLC, 34 F. Supp.
3d 1247, 1251 (S.D. Fla. July 28, 2014) (finding that the
plaintiff

sufficiently

claimed

a

violation

of

Section

599.72(9) of the FCCPA in alleging that Defendant sought
payment on a loan when the payment of that loan was not yet
due). Again, FPA Villa Del Lago does not argue it did not
participate in this debt collection. (Doc. # 74). Making all
reasonable inferences in Lawrence’s favor, the Court finds
that

the

third

amended

complaint

sufficiently

alleges

knowledge of this illegitimate debt. See Williams v. Educ.
Credit Mgmt. Corp., 88 F. Supp. 3d 1338, 1347 (M.D. Fla. 2015)
(“Section

559.72(9)

requires

actual

knowledge.

.

.

.

Plaintiff, however, was not required to specifically allege
that ECMC had any documentation that would establish actual
knowledge that she did not in fact owe the debt. Rather, in
15

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opposing a motion to dismiss, the non-moving party is entitled
to all reasonable inferences that can be drawn from the wellpleaded facts in the complaint.”).
Therefore, the Motion is denied as to Lawrence’s claim
for

violations

of

Section

559.72(9)

of

the

FCCPA.

As

previously noted, the Court will be in a better position to
determine the legitimacy of the various alleged debts at
summary judgment.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant FPA Villa Del Lago, LLC’s Motion to Dismiss
Third Amended Complaint (Doc. # 74) is DENIED.

(2)

Defendant Trinity Property Consultants, LLC’s Motion to
Dismiss Third Amended Complaint (Doc. # 94) is DENIED.

(3)

Defendants’ answers to the third amended complaint are
due by June 24, 2021.
DONE and ORDERED in Chambers, in Tampa, Florida, this

10th day of June, 2021.

16