Mathieson et al v. Wells Fargo Bank, N.A. et al
ORDER granting 40 Motion to Dismiss in accordance with the attached order. The Clerk is directed to terminate all pending deadlines and to close the case. Signed by Judge William F. Jung on 9/8/2021. (CCB)
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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
SCOTT MATHIESON and
TRUDY MATHIESON, and all others
CASE NO. 8:20-cv-2728-WFJ-SPF
WELLS FARGO BANK, N.A.,
as Trustee for the Pooling and Servicing
Agreement Dated as of June 1, 2006
Securitized Asset Backed Receivables
LLC Trust 2006-FR2 Mortgage
Pass-Through Certificates, Series 2006-FRS, LLC;
PHH MORTGAGE CORPORATION; and
ROBERTSON, ANSCHUTZ & SCHNEID, PL,
Before the Court is the motion to dismiss filed by Wells Fargo Bank, N.A.,
etc. (“Wells Fargo”)1 and PHH Mortgage Corporation (“PHH”) (Dkt. 40), the
response (Dkt. 43), and the reply (Dkt. 44).2 After careful consideration of the
allegations of the second amended complaint and attachments (Dkt. 35), the
Wells Fargo is described in this action as Wells Fargo Bank, N.A., as Trustee for the Pooling
and Servicing Agreement dated as of June 1, 2006 Securitized Asset Backed Receivables LLC
Trust 2006-FR2 Mortgage Pass-Through Certificates, Series 2006-FRS, LLC. Dkts. 1 & 24.
A notice of supplemental authority was filed recently. Dkt. 48 (citing TransUnion LLC v.
Ramirez, 141 S. Ct. 2190, 2205 (2021)).
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submissions of the parties, and the applicable law, the Court grants the motion.
In the second amended complaint, Plaintiffs Scott and Trudy Mathieson
bring two counts against both Defendants Wells Fargo and PHH: (1) violations of
the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559 et seq.
(Count I); and (2) violations of the Fair Debt Collection Practices Act (“FDCPA”),
15 U.S.C. § 1692 et seq. (Count II). The second amended complaint adds more
detail surrounding the allegedly violative communications, as well as the default
status of the loan during the relevant times Ocwen Loan Servicing, LLC
(“Ocwen”) and PHH, respectively, were servicing the loan. The allegations and
various exhibits describe the following scenario.3 See Dkts. 35, 35-1, 35-2, 35-3,
Events Leading to the Foreclosure
The Mathiesons purchased a home in Pasco County, Florida, in January
2006. Dkt. 35-1 ¶ 4. Mr. Mathieson executed a promissory note on January 6,
2006. Dkt. 35-1 ¶ 3 & at 8–13. A mortgage to secure the loan was recorded on
January 18, 2006. Dkt. 35-1 ¶ 4 & at 14–37. The loan was modified effective
April 1, 2016. Dkt. 35-1 ¶ 4 & at 39.
All well-pleaded facts are taken as true and viewed in the light most favorable to Plaintiffs. See
Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008).
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Mr. Mathieson signed the April 2016 modification agreement on February
10, 2016, and Ocwen signed on behalf of Wells Fargo on March 14, 2016. Dkt.
35-1 at 42−43; Dkt. 35 ¶ 9. The modification agreement names the servicer at the
time as Ocwen. Dkt. 35-1 at 38.
In this action, the Mathiesons allege that as part of the April 2016
modification agreement, the parties “stipulated that the loan was in default at the
time the modification was extended and that there was no sufficient income to
make monthly mortgage payments.” Dkt. 35 ¶ 10; Dkt. 35-1 at 39. The
modification agreement itself supports this allegation, as it contains the borrower’s
representation that the loan was in default: “I am in default under the Loan
Documents.” Dkt. 35-1 at 38, 42. The modification agreement further provides
that if the borrowers “do not comply with the terms of the Loan Documents, as
modified by this Agreement,” then the borrowers “will be in default.” Dkt. 35-1 at
In April 2017, Wells Fargo filed a foreclosure action against the Mathiesons.
Dkt. 35-1. Ocwen was the servicer of the loan when the foreclosure action was
filed, as is indicated by Ocwen’s verification of the foreclosure complaint in March
2017. Dkt. 35 ¶ 9 at 2; Dkt. 35-1 at 7. The state foreclosure complaint alleged that
the Mathiesons were in default on the “Note and Mortgage by failing to pay the
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payment due as of May 1, 2016.” Dkt. 35-1 at 3. The May 2016 default date,
however, derives from the payments due under the loan modification.
Wells Fargo sought a deficiency judgment as part of the “wherefore” clause
at the end of the one-count complaint for foreclosure in the event “the proceeds of
the sale are insufficient.” Dkt. 35-1 at 5. According to Wells Fargo’s counsel,
though, a deficiency judgment was never sought. Dkt. 40 at 11 (citing the docket
of the foreclosure action at Dkt. 30-1).
During the pendency of the foreclosure action, Defendant PHH became the
new servicer on the loan on June 1, 2019. Dkt. 35-2; Dkt. 35 ¶ 6. The June 4 loan
transfer notice recites the following “mini-Miranda” language at the bottom of
This communication is from a debt collector attempting to collect a
debt; any information obtained will be used for that purpose. However,
if the debt is in active bankruptcy or has been discharged through
bankruptcy, this communication is provided purely for informational
purposes only with regard to our secured lien on the above referenced
property. It is not intended as an attempt to collect a debt from you
Dkt. 35-2 at 1−8.
A final judgment of foreclosure was filed and recorded on August 16, 2019.
Dkt. 35 ¶ 13; Dkt. 43-2 (judgment). The property was noticed for foreclosure sale
to occur on September 17, 2019, and later rescheduled for sale on March 3, 2020,
which was the date it sold. Dkt. 35-4 at 2; Dkt. 43-2 at 3.
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After the foreclosure judgment but before the March 3 sale, Defendants sent
the Mathiesons four written communications—three letters and a motion to cancel
the sale with affidavit attached. Two of the three letters are not attached to the
second amended complaint but are attached to the response to the motion to
On January 14, 2020, PHH sent the Mathiesons “an early intervention
borrower assistance letter,” which “referenced foreclosure and that the maturity
[date] had been accelerated.” Dkt. 35 ¶ 18. The Mathiesons allege Wells Fargo
and PHH “then told the borrowers that reinstatement could occur by paying the
past due payments.” Dkt. 35 ¶ 18 (emphasis in original). The January 14
assistance letter, which is not attached to the second amended complaint, states that
PHH’s “records indicate this account is in foreclosure and its maturity date has
been accelerated” and that the “account can be reinstated by paying the past due
payment(s).” Dkt. 43-1 at 1 (Jan. 14 letter). The letter separately lists eight
“possible options,” including “Reinstatement: The account can be reinstated by
paying the past due amount(s).” Dkt. 43-1 at 3. The following language appears at
the bottom of each page of the January 14 letter:
This communication is from a debt collector attempting to collect a
debt; any information obtained will be used for that purpose. However,
if the debt is in active bankruptcy or has been discharged through
bankruptcy, this communication is purely provided to you for
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informational purposes only with regard to our secured lien on the
above referenced property. It is not intended as an attempt to collect a
debt from you personally. As may be required by state law, you are
hereby notified that a negative credit report reflecting on an
accountholder’s credit record may be submitted to a credit reporting
agency if credit obligation terms are not fulfilled.
Dkt. 43-1 at 1–5.
The Mathiesons allege that “a loss mitigation hold was placed on the
borrowers file” on January 29, 2020, which was “35 days prior to the scheduled
foreclosure sale and within 2 weeks of the Defendant sending its correspondence.”
Dkt. 35 ¶ 21. The January 29 letter, which is not attached to the second amended
complaint, states that the application for mortgage assistance was received and that
the application was complete as of January 27, 2020. Dkt. 43-1 at 6 (Jan. 29
letter). It further provides: “Any applicable foreclosure actions are on hold. Please
be aware that, although the foreclosure actions have begun, no foreclosure sale will
occur while we evaluate the complete package and if the account is approved for
an assistance option, the accountholder(s) must comply with all requirements of
the approved option.” Dkt. 43-1 at 6–7. Each page of the letter contains the same
debt collection language found in the January 14 letter. Dkt. 43-1 at 6–7.
On February 10, 2020, PHH wrote Mr. Mathieson that Plaintiffs’ account
qualified for certain “available options.” Dkt. 35-3 at 1 (Feb. 10 letter). The
February 10 letter, which is attached to the second amended complaint,
“conditionally approved [Plaintiffs] for a short sale or a deed-in-lieu of
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foreclosure.” Dkt. 35 ¶ 22. This loss mitigation letter gave the Mathiesons until
March 11, 2020, to send PHH four specific documents. Dkt. 35 ¶ 23; Dkt. 35-3 at
5. At the bottom of each page of the February 10 letter appears the same debt
collection disclaimer found in the January 14 and 29 letters. Dkt. 35-3 at 1–9.
The Mathiesons allege that they “started submitting the necessary
documents” on or around February 25, 2020. Dkt. 35 ¶ 27. Also on February 25,
Wells Fargo filed a motion to cancel the sale for the purposes of evaluating the
Mathiesons’ “eligibility to participate in loss mitigation opportunities” and gave
them until March 11, 2020, to submit the requested information. Dkt. 35 ¶¶ 24, 25;
Dkt. 35-4 at 2 (Feb. 25 motion). Wells Fargo submitted an affidavit of PHH with
an attachment in support of the motion. Dkt. 35 ¶ 26; Dkt. 35-4 at 5–15 (affidavit
and attachment). Attached to the affidavit was the February 10 letter of
conditional approval with the disclaimer language at the bottom of each page. Dkt.
35-4 at 7–15. On February 28, 2020, the state court denied the motion to cancel
the sale. Dkt. 35 ¶ 28; Dkt. 30-1 at 7 (state court docket showing entry of Feb. 28,
The Mathiesons allege that Defendants failed to follow the explicit
instructions provided in the judgment denying Defendants’ motion to cancel the
sale. Dkt. 35 ¶ 13. Specifically, they allege that Defendants should have set the
matter for hearing instead of sending only a letter with a proposed order to the
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court. Dkt. 35 ¶ 28. The Mathiesons also allege that no renewed objection to the
sale was made, nor any attempt to rescind the sale. Dkt. 35 ¶ 29. With respect to
the sale, the foreclosure judgment provides:
The sale date set by the judgment can only be canceled and rescheduled
by court order. Any motion or request to cancel this sale must be served
on all parties in conformity with Florida Rule of Civil Procedure
1.080(a) and must be set for hearing with proper notice. Claiming this
matter is an “emergency” does not avoid this requirement. A violation
of any party’s due process rights will subject the movant and/or counsel
to sanctions. See Jade Winds v. Citibank, 63 So. 3d 819 (3d DCA
If a Plaintiff wishes to cancel a sale, a written motion must be filed with
the Court in substantial compliance with Florida Rules of Civil
Procedure Form 1.996(c). The motion also must state the number of
times the Plaintiff has previously requested the cancelation of a sale and
must include an affidavit with supporting grounds for the motion. Any
proposed order prepared to cancel the sale must also include a date to
reschedule the sale.
Dkt. 43-2 at 3.
Overall, as previously noted, the second amended complaint contains more
details surrounding the two communications discussed in this Court’s prior order,
and it identifies additional communications. See Dkt. 34 (prior order discussing
Feb. 10 letter and Feb. 25 motion to cancel sale); Dkt. 35 ¶¶ 18, 21 (additional
communications of Jan. 14 and 29 letters). The Mathiesons also expand on the
allegations concerning the timing of the transfer of the loan from Ocwen to PHH.
See Dkt. 35 ¶¶ 14, 15. These additional allegations will be addressed under the
relevant grounds Defendants raise in support of dismissal.
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STANDARD FOR DISMISSAL
For purposes of a motion to dismiss, all well-pleaded factual allegations are
accepted as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Legal conclusions need not be
accepted as true unless supported by facts. Iqbal, 556 U.S. at 678–79; Papasan v.
Allain, 478 U.S. 265, 286 (1986); Davila v. Delta Air Lines, Inc., 326 F.3d 1183,
1185 (11th Cir. 2003) (“[U]nwarranted factual deductions or legal conclusions
masquerading as facts will not prevent dismissal.”). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556); see also Belanger v.
Salvation Army, 556 F.3d 1153, 1155 (11th Cir. 2009) (reviewing grant of motion
to dismiss de novo and “accepting the allegations in the complaint as true and
construing them in the light most favorable to the plaintiff”). In drawing all
reasonable inferences from the factual allegations in the plaintiff’s favor, a court is
authorized to dismiss a claim based on a dispositive issue of law. Neitzke v.
Williams, 490 U.S. 319, 326 (1989).
Documents attached as exhibits to the complaint and documents referenced
in the complaint may be considered in ruling on a motion to dismiss. See Reese v.
Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1215–16 (11th Cir. 2012)
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(treating dunning letter attached to complaint as part of the complaint for Fed. R.
Civ. P. 12(b)(6) purposes).4 Documents attached to the response to the motion to
dismiss may also be considered without converting the motion into a summary
judgment. See Crawford’s Auto Ctr., Inc. v. State Farm Mut. Auto. Ins. Co., 945
F.3d 1150, 1162 (11th Cir. 2019) (applying rule—that court may consider
“exhibits attached to a motion to dismiss without converting the motion into one
for summary judgment if the exhibits are (1) central to the plaintiff’s claim and (2)
their authenticity is not disputed”—to exhibits attached to an opposition to the
motion). Documents attached to the response, however, may not be used to amend
the complaint. Guerrero v. Target Corp., 889 F. Supp. 2d 1348, 1355 n.6 (S.D.
Fla. 2012) (citing Long v. Satz, 181 F.3d 1275, 1278–79 (11th Cir. 1999), which
held that district court did not abuse discretion in denying request to amend
complaint found in responsive memorandum to motion to dismiss).
Defendants argue that 1) neither Defendant is a debt collector, 2) the
Mathiesons fail to identify any actionable communications, 3) Defendants’ conduct
leading up to the denial of the motion to cancel sale is not actionable, and 4) the
See also Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1205 (11th Cir. 2007) (considering 21
exhibits attached to complaint as part of the pleading “for all purposes” under Fed. R. Civ. P.
10(c)); La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004) (considering
documents central to or referenced in complaint and matters judicially noticed); Wright v. AR
Res., Inc., No. 8:20-cv-985-T-33CPT, 2020 WL 4428477, at *2 (M.D. Fla. July 31, 2020)
(dismissing FDCPA complaint).
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claim that Defendants communicated directly with the Mathiesons when they were
represented by counsel is unsupported by any factual allegations. Dkts. 40 & 44.
The Mathiesons attach two new documents to their response to the motion to
dismiss: the January 14 and 29 letters from PHH. Dkt. 43-1. They argue that the
post-foreclosure letters, motion, and affidavit, together with Defendants’ conduct
leading up to the sale, constitute a violation of the FDCPA and FCCPA.
Wells Fargo as a Debt Collector
Defendants argue that the allegation that Wells Fargo is a debt collector is
not only conclusory but contradicted by other allegations and attachments.
Defendants also contend that Wells Fargo is a creditor not subject to the FDCPA or
FCCPA. The Court agrees.
To state a plausible claim for relief under the FDCPA, a plaintiff must first
allege that the defendant is a debt collector, and second that the defendant engaged
in an act or omission related to debt collection that is prohibited by the FDCPA.
Reese, 678 F.3d at 1216–17.5 A “debt collector” includes one who engages (1) “in
any business the principal purpose of which is the collection of any debts,” or (2)
“who regularly collects or attempts to collect, directly or indirectly, debts owned or
due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). The FDCPA
usually does not apply to creditors trying to collect their own debts. Pinson v.
See also Owens-Benniefield v. BSI Fin. Servs., 806 F. App’x 853, 856 (11th Cir. 2020).
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JPMorgan Chase Bank, Nat’l Ass’n, 942 F.3d 1200, 1209 (11th Cir. 2019) (citing
Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309, 1313 (11th Cir. 2015)).
The definition of “debt collector” may nevertheless include a creditor “who, in the
process of collecting his own debts, uses any name other than his own which
would indicate that a third person is collecting or attempting to collect such debts.”
15 U.S.C. § 1692a(6); Pinson, 942 F.3d at 1209 (“false-name exception”);
Davidson, 797 F.3d at 1314 n.5.6
Even if a person qualifies as a debt collector under one of the two statutory
definitions—the business’s principal purpose is debt collection, or the person
regularly collects debts owed another—there are exceptions that may apply to
exclude the otherwise established debt collector from the FDCPA. Id. at 1314.
Two of the exclusions from the term “debt collector” include a person collecting or
attempting to collect a debt due (1) when that debt originated with such person, or
(2) when the debt was not in default at the time it was obtained by such person. 15
U.S.C. § 1692a(6)(F)(ii)−(iii).
The second amended complaint alleges that Defendant Wells Fargo is a debt
collector under the FDCPA. 7 Dkt. 35 ¶ 48. However, more than this conclusory
See also Teetrick v. Bank of Am., N.A., No. 6:18-cv-2061-Orl-22DCI, 2019 WL 1787520, at *3
n.3 (M.D. Fla. Apr. 24, 2019) (citing 15 U.S.C. § 1692a(6)(F)(ii) and case law that provide that
creditors are not generally subject to the FDCPA and noting that plaintiff did not assert in the
pleadings that the exceptions to this rule applied).
In accordance with the FCCPA, Wells Fargo is alleged to be a person seeking to collect
consumer debts. Dkt. 35 ¶ 40. The FCCPA does not restrict its application to statutorily defined
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statement is required. Alhassid v. Nationstar Mortg., LLC, 771 F. App’x 965, 968
(11th Cir. 2019). 8 Nowhere in the second amended complaint does it state that the
“principal purpose” of Wells Fargo’s business is debt collection, nor that Wells
Fargo regularly collects debts owed or due another at the time of collection. The
Mathiesons, therefore, fail to allege any factual content to reasonably infer that
Wells Fargo meets the initial statutory definition of a debt collector, much less falls
into a statutory exception under section 1692a(6)(F).
To the contrary, the allegations establish that Wells Fargo is a creditor. The
second amended complaint alleges that the loan was “held by Wells Fargo” and the
modification was “executed by and on behalf of Wells Fargo.” Dkt. 35 ¶¶ 9, 14.
The state court determined Wells Fargo to be the creditor in the mortgage
foreclosure judgment entered in favor of Wells Fargo. Dkt. 43-2. These
allegations establish not that Wells Fargo is a debt collector; rather, Wells Fargo is
much more akin here to a creditor not subject to the FDCPA. Wells Fargo,
although not the originator of the 2006 loan, held the original note at the time the
“debt collectors,” unlike the FDCPA. Alhassid v. Nationstar Mortg., LLC, 771 F. App’x 965,
969 (11th Cir.2019) (citing Oppenheim v. I.C. Sys., Inc., 627 F.3d 833, 839 (11th Cir. 2010));
Daley v. Bono, 420 F. Supp. 3d 1247, 1257 n.9 (M.D. Fla. 2019); compare 15 U.S.C. § 1692c(a)
(“a debt collector may not communicate with a consumer in connection with the collection of
any debt”) with Fla. Stat. § 559.72 (“In collecting consumer debts, no person shall . . .”)
In Alhassid, the allegations of the complaint established that Nationstar acquired the loan as
servicer before the default date. 771 F. App’x at 968. The dismissal of Alhassid’s FDCPA claim
was affirmed on appeal for failure to allege that the debt was in default at the time it was
obtained by Nationstar. Id. at 968–69.
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foreclosure suit was filed in April 2017. Dkt. 24-3 ¶ 6. To the extent Wells Fargo
may have been trying to collect a debt after the foreclosure judgment, the debt
belonged to Wells Fargo and not some third party.
The Court notes that the Mathiesons, for the first time, rely on the transfer of
service notice of June 4, 2019, for the proposition that an entity other than Wells
Fargo is the creditor. See Dkt. 35 ¶ 16 (“Defendant, PHH, in page 7 of the
servicing transfer document gave an explicit FDCPA Verification by and on behalf
of creditor SABR 2006-FR2, an entity that appears to be missing entirely from the
state court foreclosure action.”) (emphasis added); Dkt. 35-2. 9 The Mathiesons
seem to suggest that SABR 2006-FR2, the entity described as the creditor in the
notice, is not the same entity as Defendant Wells Fargo Bank, N.A., as Trustee for
the Pooling and Servicing Agreement dated as of June 1, 2006 Securitized Asset
Backed Receivables LLC Trust 2006-FR2 Mortgage Pass-Through Certificates,
Series 2006-FRS. Nevertheless, the Mathiesons concede that the named Defendant
Wells Fargo is the same entity that “obtained an undisturbed final judgment in the
state court foreclosure.” Dkt. 43 at 14. Consequently, their attempt to argue that
The Wells Fargo entity that appeared in the complaint and final judgment in the state court
foreclosure is “Wells Fargo Bank, N.A., as Trustee for the Pooling and Servicing Agreement
dated as of June 1, 2006 Securitized Asset Backed Receivables LLC Trust 2006-FR2 Mortgage
Pass-Through Certificates, Series 2006-FR2.” Dkts. 24-3 & 43-2 (emphasis added). In the
present case, for reasons that remain unclear, the Mathiesons named as a defendant “Wells Fargo
Bank, N.A., as Trustee for the Pooling and Servicing Agreement dated as of June 1, 2006
Securitized Asset Backed Receivables LLC Trust 2006-FR2 Mortgage Pass-Through
Certificates, Series 2006-FRS.” Dkt. 35 (emphasis added).
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the notice of transfer negates the possibility that Wells Fargo is a creditor because
the validation lacks the “name of the actual creditor to whom the debt is owed” is
The allegations and attachments fail to demonstrate that Wells Fargo meets
the statutory definition of a debt collector under either the FDCPA or FCCPA, or
any exclusion under section 1692a(6)(F). The Mathiesons’ argument that the
disclaimers at the bottom of each page in the written communications transform
Wells Fargo into a debt collector will be discussed within the section below
regarding conduct and communications.11
PHH as a Debt Collector
The same statutory framework set forth above applies to determine whether
PHH is a debt collector. The second amended complaint alleges that PHH is a debt
collector and a servicer of the loan. Dkt. 35 ¶¶ 6, 40, 48. Because the allegations,
assumed as true, meet the initial statutory definition of “debt collector,” the issue
becomes whether a statutory exception under section 1692a(6)(F), specifically
Service transfer letters are typically informational as opposed to an attempt to collect a debt.
See Wood v. Citibank, N.A., No. 14-civ-2819-T-27EAJ, 2015 WL 3561494, at *4 (M.D. Fla.
June 4, 2015) (finding transfer notices “purely informational” and not attempts to collect debt);
Shallenburg v. PNC Bank, N.A., No. 18-civ-2225-T-36TGW, 2020 WL 555447, at *9 n.8 (M.D.
Fla. Feb. 4, 2020) (citing Fenello v. Bank of Am., NA, 577 F. App’x 899, 902 (11th Cir. 2014))
(finding letter identifying entity as “debt collector” does not “transform” that entity into a debt
collector under FDCPA at pleading stage).
Courts often discuss disclaimers asserted in communications in conjunction with an analysis of
whether the communication is in connection with a debt. See, e.g., Alhassid, 771 F. App’x at
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subsection (iii), applies to exclude PHH from liability under the statute. See 15
U.S.C. § 1692a(6)(F)(iii) (“debt collector” is not a person “attempting to collect
any debt . . . which was not in default at the time it was obtained by such
The Mathiesons argue, in part, that the status of PHH as a debt collector
derives from the status of Ocwen. They posit that if Ocwen was a debt collector in
both February 2016 (when it signed the modification agreement) and June 2019
(when PHH became the servicer), then PHH is also a debt collector. Dkt. 43 at
15−19. The Court has not previously addressed the status of the original loan prior
to the May 2016 default under the loan modification agreement, which prompted
the foreclosure action. Dkt. 34 at 17–20. The question of PHH’s status will be
resolved against the backdrop of the factual history of the mortgage loan.
According to the alleged facts, Ocwen was servicing the loan in February
2016 when the original loan was in default. Dkt. 35 ¶¶ 9−10. The loan
modification clearly recites that the loan was in default when Mr. Mathieson
signed the modification in February 2016 and when Ocwen signed it in March
2016. Dkt. 35-1 at 39, 42−43. However, the precise date Ocwen began servicing
the loan is missing from the pleadings and attachments.
The FCCPA’s definition of “debt collector” is similar to that of the FDCPA with respect to
excluding those persons who obtained the debt when the debt was not in default. See Fla. Stat. §
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It is well-settled law that if Ocwen began servicing the loan before the
stipulated default referred to in the loan modification, Ocwen was not a “debt
collector” at that time. See Fenello v. Bank of Am., NA, 577 F. App’x 899, 902
(11th Cir. 2014) (concluding that district court was correct that servicer was not
debt collector because debt was not in default at time entity became the servicer);
Church v. Accretive Health, Inc., No. Civ. 14-57-WS-B, 2015 WL 7572338, at *8
(S.D. Ala. Nov. 25, 2015) (citing Fenello, 577 F. App’x at 902). Taking the
factual allegations as true, as it must, this Court cannot determine either way if
Ocwen was servicing the loan prior to the default that led to the modification and,
therefore, cannot conclude Ocwen is excluded from the definition of “debt
collector.” The absence of facts concerning Ocwen’s status at the time it initially
began servicing the loan, however, is not definitive of whether Ocwen or PHH is a
debt collector in this action.
Assuming for argument’s sake that Ocwen was a debt collector at the time of
the 2016 modification, Ocwen would not necessarily continue as a debt collector
under certain circumstances. Defendants rely on authority stating that a
modification of the original loan may create an obligation anew, depending on the
language of the modification. See Bailey v. Sec. Nat’l Servicing Corp., 154 F.3d
384, 387 (7th Cir. 1998) (holding that servicer is not debt collector where servicer
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sought to collect on new obligation under forbearance agreement). In Bailey, the
If [the mortgage servicer] seeks to collect on payments currently due
under the new superseding agreement then [the mortgage servicer] is
not a “debt collector” under the Act . . . because the debtor is not in
default under that agreement. One more “if” might help: if we did not
make this common-sense distinction between defaulted agreements and
superseding agreements not in default, we would be ignoring the terms
and the parties’ undoubted purpose behind the new payment plans by
saying that a debtor in default can never have his slate wiped clean or
given a last chance to become credit-worthy under a new plan. We also
would be saying that a mortgage servicer . . . is a debt collector that is
subject to the hyper-technical requirements of the Act no matter how
far down the line it is hired to service a debt that superseded a debt
previously in default (perhaps many years earlier as mortgages
typically last that long.)
154 F.3d at 387; see also McWhorter v. Ocwen Loan Servicing, LLC, No. 2:15-cv1831-MHH, 2017 WL 3315375, at *4 (N.D. Ala. Aug. 3, 2017) (citing Bailey, 154
F.3d at 387, but deferring ruling to consider additional documents related to
whether loan modification superseded original agreement). If the 2016
modification created a new obligation, Ocwen would not be classified as a debt
collector as to the new agreement.
The 2016 modification by its terms waives all unpaid late charges, sets forth
a new interest rate and new monthly payment amount, and makes payments due
and owing April 1, 2016, the effective date of the modification. Dkt. 35-1 at 39.
The agreement states these new terms “shall supersede any provisions to the
contrary in the Loan Documents.” Dkt. 35-1 at 39. This language unequivocally
Case 8:20-cv-02728-WFJ-SPF Document 49 Filed 09/08/21 Page 19 of 32 PageID 533
changes the terms of the original defaulted loan.13 Additionally, the foreclosure
action was based on the May 2016 default under the modification, after at least one
payment had been made under the modification agreement. Under this set of facts,
Ocwen was not a debt collector under the modification agreement because a new
contractual obligation concerning the loan was created.
Fast forward to June 2019 when PHH began servicing the loan: The precise
status of Ocwen after the May 2016 default occurred is disputed. Defendants
assert that Ocwen is either a creditor or, at the least, a mortgage servicer exempted
from the definition of “debt collector.” A “debt collector does not include the
consumer’s creditors, a mortgage servicing company, or an assignee of debt, as
long as the debt was not in default at the time it was assigned.” Perry v. Stewart
Title Co., 756 F.2d 1197, 1208 (5th Cir. 1985) (emphasis added). 14
As to Ocwen’s creditor status, Defendants argue that Ocwen became a
creditor when it signed the modification agreement and was a creditor at the time
of the May 2016 default. The Mathiesons assert that Ocwen only serviced, and did
not originate, the modification loan. Defendants cite no authority for considering
The facts demonstrated in an exhibit attached to the complaint override the more generalized,
conclusory allegations of the complaint. See Farquharson v. Citibank, N.A., 664 F. App’x 793,
802 (11th Cir. 2016) (citing F.T.C. v. AbbVie Prod. LLC, 713 F.3d 54, 63 (11th Cir. 2013)).
See also Fenello, 577 F. App’x at 902 (citing Perry, 756 F.2d at 1208); Janke v. Wells Fargo
& Co., 805 F. Supp. 2d 1278, 1281 (M.D. Ala. 2011) (quoting Perry, 756 F.2d at 1208).
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Ocwen as the actual creditor under the modification agreement. While is it true
that Ocwen signed the agreement, the agreement names Ocwen as the servicer and
does not identify Ocwen as the creditor of the loan as modified. Indeed, paragraph
4.N. of the agreement refers to the “Lender,” which is impliedly a different entity
than the servicer under the agreement. Dkt. 35-1 at 41. Without more, there is
nothing to suggest that the debt originated with Ocwen to make Ocwen a creditor.
As to Ocwen’s status as a servicer, an agent who is authorized to undertake
collection activity—or acquires the authority to collect the money on behalf of
another—has “obtained” a debt under the FDCPA. Carter v. AMC, LLC, 645 F.3d
840, 843 (7th Cir. 2011); Geiger v. Fla. Hosp. Mem’l Med. Ctr., No. 6:16-cv-1477Orl37GJK, 2017 WL 1177310, at *4 (M.D. Fla. Mar. 29, 2017) (citing Carter, 645
F.3d at 843). To show that Ocwen had begun servicing the loan before the default
under the modification, Defendants rely on Kanarick v. Santander Consumer USA,
Inc., No. 9:13-cv-8003, 2014 WL 12464922, at *4–5 (S.D. Fla. Aug. 22, 2014).
The Kanarick court determined that servicer Santander was not a debt collector
because Triad, the entity which Santander acquired, had procured the loan predefault. 2014 WL 12464922, at *5. Thus, the court concluded Santander was not a
debt collector because Triad was not one; Santander “stood in the shoes” of Triad.
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The Mathiesons counter that PHH is a debt collector because PHH acquired
the loan post-default. The class allegations state that PHH “purchased” Ocwen,
one of the largest mortgage servicers in the country. Dkt. 35 ¶ 34. On the docket,
Defendants filed documents showing this transaction as a merger between Ocwen
and PHH. Dkts. 30-3; 30-4. The Court considers these documents on this motion
to dismiss because they are central to an issue raised in the operative complaint—
whether PHH is a debt collector.
The type of transfer matters for purposes of the FDCPA. In Brown v.
Morris, the mortgage servicing company acquired the loan through merger with
the original mortgage holder, not specific assignment. 243 F. App’x 31, 34–35
(5th Cir. 2007). The court held that the mortgage servicing company did not
“obtain” the mortgage while in default and was, therefore, not a debt collector.15
Other fellow district courts have found on a motion to dismiss that based on the
June 2019 merger of PHH and Ocwen, PHH stands in the shoes of Ocwen.16 Cf.
Turner v. PHH Mortg. Corp., 467 F. Supp. 3d 1244, 1247 (M.D. Fla. 2020)
(dismissing complaint with prejudice, finding debt of convenience fees originated
A debt acquired by assignment after default can make the assignee a debt collector. See
Deutsche Bank Nat’l Tr. Co. v. Foxx, 971 F. Supp. 2d 1106, 1114 (M.D. Fla. 2013).
If Ocwen were determined to be a debt collector, then PHH would also be a debt collector
regardless of whether PHH acquired the loan by merger or assignment.
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with Ocwen, and thereby PHH as successor by merger to Ocwen). 17 Consequently,
if Ocwen as a mortgage servicer began servicing the loan before the mortgage was
in default, PHH is not a debt collector under the statute. Because Ocwen began
servicing the modification agreement before the Mathiesons defaulted under that
agreement, PHH is exempt under subsection section 1692a(6)(F)(iii).18
Conduct and Communications by Wells Fargo and PHH
Even assuming Wells Fargo and/or PHH are debt collectors as pled by the
Mathiesons, the alleged communications and conduct do not fall under the
FDCPA. The questioned communications or conduct must be “related to” debt
collection. Cilien v. U.S. Bank Nat’l Ass’n, 687 F. App’x 789, 792 (11th Cir.
2017) (citing Reese, 678 F.3d at 1216).
Cases following Turner include: Bardak v. Ocwen Loan Servicing, LLC, No. 8:19-cv-111124TGW, 2020 WL 5104523, at *3 (M.D. Fla. Aug. 12, 2020) (dismissing complaint with
prejudice), appeal voluntarily dismissed, No. 20-13297-BB (11th Cir. Mar. 17, 2021); Lang v.
Ocwen Loan Servicing, LLC, No. 3:20-cv-81-J-20MCR, 2020 WL 5104522, at *2 (M.D. Fla.
July 17, 2020) (same); Garbutt v. Ocwen Loan Servicing, LLC, No. 8:20-cv-136-T-36JSS, 2020
WL 5641999, at * 4 (M.D. Fla. Sept. 22, 2020) (same).
The Mathiesons’ remaining arguments addressing the June 2019 transfer notice lack merit.
First, they claim that the transfer notice names an entity other than Defendant Wells Fargo—
"SABR 2006-FR2”—as the creditor. They argue that the notice is misleading because only the
true creditor should be named in the FDCPA verification found in the transfer notice. Dkt. 43 at
13–15. Second, they assert that only debt collectors can send an FDCPA verification and,
therefore, the transfer notice constitutes an admission by PHH that it is a debt collector. Id. As
Defendants point out, the transfer notice was required post-merger based on the change in the
mailing address for payments. See 12 CFR § 1024.33(b)(2)(i); Dkt. 35-2 at 1, 3. In any event,
notifying the borrower of the assignment or transfer of a mortgage is not debt collection activity.
Cf. Owens-Benniefield v. Nationstar Mortg. LLC, 258 F. Supp. 3d 1300, 1308–10 (M.D. Fla.
2017) (citations omitted) (finding that assigning mortgage to another company, transferring the
servicing rights to another servicer, and notifying customer of both events did not constitute debt
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In a prior order, the Court determined that the loss mitigation letter
(2/10/2020), the motion to cancel the sale with the attached affidavit of PHH
(2/25/2020), and the conduct before and after the sale of the property (3/3/2020),
do not constitute debt collection activity. Dkt. 34 at 7–17. The Mathiesons assert,
however, that the prior ruling on the February 10 letter and the February 25 motion
with the affidavit “was without the benefit of additional facts which clearly show
debt collection attempts.” Dkt. 43 at 5. They further assert that the February 25
motion and the conduct leading up to the March 3 sale “in tandem with
representations made” violate the FDCPA. Dkt. 43 at 9.
The Court applies the least sophisticated consumer standard to analyze the
additional alleged facts and determine whether the communication or conduct
violates the FDCPA. LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193
(11th Cir. 2010). When determining whether a communication conveys
information “in connection with the collection of any debt,” the Court looks to its
specific language—does the communication merely inform or does it decisively
demand payment and assess additional fees if payment is not tendered? Caceres v.
McCalla Raymer, LLC, 755 F.3d 1299, 1302–03 (11th Cir. 2014). If the
communication, even in part, conveys information to induce a debtor to pay, it falls
within the scope of the FDCPA. Id. at 1302.
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The letters and notices, including the two new January 2020 letters (Dkt. 431), contain the debt collection disclaimer language. All include the phrase that
PHH is a debt collector who is “attempting to collect a debt.” Nevertheless, as will
be explained, none of the written communications demand payment under the loan
or threaten additional fees or charges if the borrower fails to make payment (or
fails to do something else). Caceres, 755 F.3d at 1302 (looking specifically to
statements demanding payment and discussing additional fees if payment is not
made). As such, none of the written communications constitute debt collection
The January 14 letter, titled “early intervention – borrower assistance,” lists
options for the borrower—none of which demand payment, much less threaten
additional fees if payment is not made. Dkt. 43-1 at 1–5. The assistance options
include reinstatement by paying the past due amount, a refinance, a modification of
the mortgage terms, a forbearance plan, a repayment plan, a sale of the property, a
short sale, or a deed in lieu of foreclosure.20 Dkt. 43-1 at 1, 3. No past, present, or
future payment amounts appear in the assistance letter. It informs the debtor that if
See also Farquharson, 664 F. App’x at 802 (holding letter outlining loan modification
program was not “in connection with the collection of any debt” because it did not demand or
request payment); Reese, 678 F.3d at 1218 (holding letter demanding payment and threatening
additional charges if payment not made was debt collection, even though it related to
enforcement of a security interest).
The loan documents gave the borrower the right to reinstate the loan at any time prior to the
foreclosure sale. Dkt. 35-1 at 25.
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a foreclosure sale is scheduled, as it was, then the completed mortgage assistance
application must be received “at least seven (7) days in advance of the scheduled
sale date.” Dkt. 43-1 at 2. None of the information in the January 14 letter is false,
nor would it be confusing or misleading to the least sophisticated consumer. See
McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1020 (7th Cir. 2014) (holding
that confusion and misleading may be factual determinations, but dismissal is
appropriate when it is “apparent from a reading of the letter that not even a
significant fraction of the population would be misled by it”).21
The January 29 letter that followed acknowledges receipt of the completed
mortgage assistance application. Dkt. 43-1 at 6. The contents explain that the
review for the options “may take up to 30 calendar days” from January 27. Dkt.
43-1 at 6. It informs that if further documentation is required, a notice will be sent
outlining the information needed with a reasonable deadline for submission and
that “foreclosure protection will be extended, provided the requested
documentation is received within the timeframe outlined in the applicable notice.”
Dkt. 43-1 at 6. The letter advises that “no foreclosure sale will occur while we
evaluate the complete package and if the account is approved for an assistance
See also Buchanan v. Northland Grp., Inc., 776 F.3d 393, 397 (6th Cir. 2015) (holding that
although generally whether a letter is deceptive or misleading is a question of fact, courts may
dismiss a claim at the pleading stage if, after drawing all reasonable inferences from the
allegations in favor of the plaintiff, the complaint fails to allege a plausible theory of relief—
where even an unsophisticated consumer would not be confused).
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option, the accountholder(s) must comply with all requirements of the approved
option.” Dkt. 43-1 at 7. Like the January 14 letter, it does not demand payment or
threaten additional fees if payment is not made, nor does it state any monetary
The second amended complaint alleges that Wells Fargo and PHH sent all
the communications “with the intent of receiving payment—by virtue of loss
mitigation/new loans or by a stipulated agreed upon price as part of a short sale (or
consideration for the purposes of a deed in lieu).” Dkt. 35 ¶ 50. The Mathiesons
argue that by offering reinstatement in the loss mitigation discussions postjudgment (and while there was a conditional loss mitigation hold), Wells Fargo and
PHH requested payment of all past due amounts under the mortgage. Dkt. 43 at
7−8. They also argue that pursuing the short sale or deed in lieu options is
“furtherance of collection activity.” Dkt. 43 at 9.
In support of this argument, the Mathiesons rely on the Third Circuit case of
Allen v. LaSalle Bank, N.A., 629 F.3d 364 (3d Cir. 2011). Allen is distinguishable,
however, because it involves different issues and different claims under the
FDCPA. In Allen, a payoff quote to settle an arrearage for a mortgage debt was
The February 10 loss mitigation letter outlines the additional documentation needed by the
deadline of March 11, 2020. Dkt. 35 ¶ 23; Dkt. 35-3 at 5. As discussed in detail in a prior order,
the February 10 letter does not attempt to collect a debt and is, therefore, not a covered
communication. Dkt. 34 at 7–12.
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sent to the homeowner after the foreclosure suit was filed. 629 F.3d at 365. After
the allegedly violative communications, Ms. Allen counterclaimed in the
foreclosure action. Id. at 366. The foreclosure action was dismissed, and Ms.
Allen then filed a class action in federal court, reasserting violations of the FDCPA
and state law. Id. The district court dismissed the complaint for failure to state a
claim under section 1692f(1). Id. The Third Circuit reversed and remanded to
allow the district court to determine whether the agreement or state law authorized
the amounts sought and “express[ed] no opinion as to whether Allen . . . alleged a
viable claim.” Id. at 369.
Unlike Allen, the instant case does not involve section 1692f(1), which
covers the collection or attempt to collect any amount not expressly authorized by
the agreement creating the debt or by law. Rather, the second amended complaint
asserts a violation of 15 U.S.C. § 1692e(5). Dkt. 35 ¶ 53. Section 1692e, titled
“False or misleading representations,” prohibits a debt collector from using “any
false, deceptive, or misleading representation or means in connection with the
collection of any debt.” Specifically, section 1692e(5) makes it a violation of the
statute for a debt collector to threaten “to take any action that cannot legally be
taken or that is not intended to be taken.” The Mathiesons articulate the violation
[Wells Fargo and PHH violated] 15 U.S.C. § 1692e(5) by threatening
to take an action (the cancellation of the sale and avoid sale) that was
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not intended to be taken by virtue of Defendants’ failure to stop same
by its willful noncompliance with a court order. Moreover, the
indication to the Defendant [sic], that a loss mitigation hold existed
(when it did not by virtue of the sale going forward) violated the
Dkt. 35 ¶ 53.23
The first sentence of section 1692e maintains the overarching requirement
that the false “representation or means” be used “in connection with the collection
of any debt.” Under subsection (5) of section 1692e, the communication or
conduct must be threatened action “not intended to be taken.” In the second
amended complaint, the phrase “not intended to be taken” refers to stopping or
avoiding the sale of the property.
The Mathiesons argue that Wells Fargo and PHH crafted the February 25
motion to cancel sale in a manner to secure the denial and never intended to stop
the sale on March 3. Dkt. 43 at 10−11. Defendants allegedly manifested their lack
of intention through their “willful noncompliance” with the instructions in the
foreclosure judgment by failing to correctly seek cancellation. Dkt. 35 ¶ 53. The
purported noncompliance includes the Defendants’ failure to set the motion for
With respect to the FCCPA, the second amended complaint alleges that Wells Fargo violated
section 559.72 by both “claiming a debt” and “threatening to collect a debt” when “such person
knows that the debt is not legitimate and asserted the existence of some other legal right when
such person knows that the right does not exist.” Dkt. 35 ¶¶ 44, 45.
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hearing “and instead sen[ding] only a letter with proposed order.” Dkt. 35 ¶¶ 28,
Although the foreclosure judgment states that the motion “must be set for
hearing,” courts—not counsel—typically notice and set hearings, and hearings are
not necessarily set at the parties’ request. None of the exhibits central to the claim
substantiate that the motion was knowingly, improperly written to ensure its denial.
Moreover, inferring the underlying reasons for the denial of the motion would only
be conjecture on the part of anyone other than the state court judge. Likewise,
Defendants’ decision not to renew or appeal within the brief three-day period
between the denial and the sale does not evidence that they never intended to stop
the sale. To the contrary, Defendants sought to cancel the sale as soon as they
received the additional documents from the Mathiesons.24 The Court concludes
that the alleged facts stretch well beyond the limits of section 1692e(5).
Finally, the Court examines the last sentence of paragraph 53 of the second
amended complaint: that Defendants’ indication to the Mathiesons that a “loss
mitigation hold existed (when it did not by virtue of the sale going forward)
violated the FDCPA.” The January 29 letter places a hold on the account based on
the completed borrower’s application. Dkt. 35 ¶ 21. The letter informs of the
Filing a motion to cancel a sale is not threatened action; it is decisive action to stop the sale.
The disposition of the motion rests solely with the state court.
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review process, which may take up to 30 days and result in the sending of a notice
to the borrower of any documents needed. Dkt. 43-1 at 6.
The subsequent February 10 letter outlines the options, giving the borrower
until March 11 to provide the documents. Dkt. 35-3 at 1, 5. The Mathiesons
submitted some of the requested documents on February 25, which prompted
Defendants to file the motion to cancel the sale. Dkt. 35 ¶ 28. That Defendants
were unsuccessful in the state court in stopping the sale does not make the hold
acknowledged on January 29 false or misleading. At the time, the mortgage
interest had already been foreclosed, but no deficiency could be sought before the
sale. Defendants did not pursue a deficiency after the sale. On these allegations,
placing a hold on an account and informing the borrower of that fact, particularly
after the borrower submitted a mortgage assistance application, was not false or
misleading, even to an unsophisticated consumer.25 Most importantly, the hold
and subsequent unsuccessful attempt to stop the scheduled foreclosure sale are not
connected with the collection of the underlying mortgage debt. 26
For the first time in the third version of the complaint, the Mathiesons add a conclusory
paragraph in each count that Defendants “contacted a known represented party on or after
August 19, 2020 after active knowledge of representation.” Dkt. 35 ¶¶ 46, 55. The foreclosure
judgment was filed on August 16, 2019, and this action was filed in November 2020. None of
the alleged violative debt collection conduct is alleged to have occurred after March 3, 2020. In
their response, the Mathiesons assert that a letter acknowledging a receipt of a notice of error
was sent to them instead of their counsel. Dkt. 43 at 22. However, these facts are not alleged in
the second amended complaint.
The alleged actions occurred between the foreclosure judgment and the sale. Although
Defendants reserved the right to seek a deficiency in the complaint, they never sought one, nor
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Having concluded the allegations are insufficient to establish PHH or Wells
Fargo is a “debt collector” and the communications or conduct are false or
misleading, the Court finds dismissal of this action appropriate. The allegations,
and all reasonable inferences therefrom, fail to allege a plausible claim—such that
even an unsophisticated consumer would not be confused or misled by the written
communications or conduct. To the extent that the FCCPA claims may be viable,
the Court declines to exercise supplemental jurisdiction, as strongly encouraged
where federal claims are dismissed prior to trial. See 28 U.S.C. § 1367(c)(3);
Farquharson, 664 F. App’x at 798 (citing Baggett v. First Nat’l Bank of
Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997)). The dismissal of the FCCPA
count is without prejudice to refiling in state court. See Ingram v. Sch. Bd. of
Miami-Dade Cnty., 167 F. App’x 107, 109 (11th Cir. 2006) (holding dismissal of
state law claims is without prejudice where district court dismisses all claims over
which it has original jurisdiction); 28 U.S.C. § 1367(d) (tolling statute of
limitations on state claims).
It is therefore ORDERED AND ADJUDGED that the motion to dismiss
(Dkt. 40) is granted. Count II seeking relief under the FDCPA is dismissed with
could they before the sale. See Dkt. 34 at 17 n.13 (discussing authorities concerning debt
collection and mortgage deficiencies).
Case 8:20-cv-02728-WFJ-SPF Document 49 Filed 09/08/21 Page 32 of 32 PageID 546
prejudice. Count I seeking relief under the FCCPA is dismissed without prejudice.
The Clerk is directed to close the case.
DONE AND ORDERED at Tampa, Florida, on September 8, 2021.
COPIES FURNISHED TO:
Counsel of record
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