Boullosa v. Wells Fargo Bank, N.A. et al

Filing 59

ORDERED: Defendant Wells Fargo Bank, N.A.'s, Motion to Dismiss Counts I and II of the Amended Complaint 48 is GRANTED as stated herein. Count II of Plaintiff's Amended Complaint is dismissed with prejudice. Plaintiff's claim under Fla. Stat. § 559.72(7) in Count I of the Amended Complaint is dismissed without prejudice. If Plaintiff so chooses, he is granted leave to file a Second Amended Complaint to re-allege his claim under Fla. Stat. § 559.72(7). Any cla im brought under Fla. Stat. § 559.72(7) must be alleged as a separate count from the Plaintiff's claim in Count I pursuant to Fla. Stat. § 559.72(9). The Second Amended Complaint must be filed within FOURTEEN (14) DAYS. If Plaintiff d oes not file a Second Amended Complaint within the time permitted, Wells Fargo shall file its Answer to Count I (the § 559.72(9) claim only) and Count III in accordance with the Federal Rules of Civil Procedure. Signed by Judge Charlene Edwards Honeywell on 5/22/2023. (JDE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
ANTHONY BOULLOSA,
Plaintiff,
v.

Case No: 8:22-cv-2642-CEH-CPT

WELLS FARGO BANK, N.A.,
EQUIFAX INFORMATION
SERVICES LLC, EXPERIAN
INFORMATION SOLUTIONS, INC.
and TRANS UNION LLC,
Defendants.
___________________________________/

ORDER
This matter comes before the Court on Defendant Wells Fargo Bank, N.A.’s,
Motion to Dismiss Counts I and II of the Amended Complaint (Doc. 48). As to Count
I, Wells Fargo requests dismissal of Plaintiff’s claims brought under the Florida
Consumer Collection Practices Act (“FCCPA”), specifically Fla. Stat. § 559.72(7), for
failure to state a claim. As to Count II, Wells Fargo moves to dismiss Plaintiff’s claim
brought under the Electronic Funds Transfer Act, 15 U.S.C. § 1693, et seq. (“EFTA”),
as time barred. Plaintiff concedes that its EFTA claim in Count II is time barred and
opposes the motion directed to the § 559.72(7) claim in Count I. The Court, having
considered the motion and being fully advised in the premises, will grant Defendant
Wells Fargo Bank, N.A.’s, Motion to Dismiss Counts I and II of the Amended

Complaint. Count II will be dismissed with prejudice. Plaintiff will be granted leave
to amend Count I.1
I.

BACKGROUND2
Wells Fargo is in the business of extending credit cards, consumer credit, and

reporting credit debt. Doc. 37 ¶¶ 33-35. At all relevant times in this matter, Wells Fargo
is a person subject to Florida Statute, § 559.72. Doc. 37 ¶ 37. Anthony Boullosa
(“Plaintiff”) created a personal credit card account with Wells Fargo. Id. ¶ 38. Pursuant
to the personal credit card account, Wells Fargo attempted to collect information
regarding the alleged debt owed on the account. Id. ¶ 39.
Prior to June 2021, Plaintiff opened both a checking account and a credit card
account with Wells Fargo. Id. ¶ 51. Shortly thereafter, an unknown party made two
fraudulent charges on the Plaintiff’s Wells Fargo checking account. Id. ¶ 52. Around
June 12, Plaintiff received seven phone calls from Wells Fargo asking for authorization
for a $5000 cash advance from his credit card to his checking account. Id. ¶ 53. Despite
the Plaintiff informing Wells Fargo that he did not make the cash transfer and
instructing them to stop, Wells Fargo proceeded with the cash transfer. Id. ¶¶ 54–55.

Plaintiff also asserts a claim against Wells Fargo in Count III based on an alleged violation
of the Fair Credit Reporting Act, 15 U.S.C. § 1681s-2(b) (“FCRA”). Count III is not
challenged in the motion to dismiss. Counts IV and V of the Amended Complaint are directed
against other parties.
2
The following statement of facts is derived from the Amended Complaint (Doc. 37), the
allegations of which the Court must accept as true in ruling on the instant Motion to Dismiss.
Linder v. Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de Centro Am., S.A. v.
Latin Am. Agribusiness Dev. Corp. S.A., 711 F.2d 989, 994 (11th Cir. 1983); see also Fed. R. Civ.
P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is a part of the
pleading for all purposes.”).
1

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During the next week, an unknown third party made several more fraudulent
transactions on the Plaintiff’s account in Virginia, Maryland, and Washington D.C.,
even though Plaintiff was in Hillsborough County during that time. Id. ¶¶ 56, 58–63.
On June 12, Plaintiff made ten phone calls to Wells Fargo to prevent the
unauthorized activity on his account. Id. ¶ 57. Furthermore, Plaintiff called Wells
Fargo once per week between June 12, 2021, and July 9, 2021, stating that the charges
were unauthorized. Id. ¶ 64. Plaintiff continued this practice between July 8, 2021, and
September 30, 2021. Id. ¶ 70. Regarding the alleged debt, Plaintiff contends that Wells
Fargo “repeatedly sent billing statements and collection letters—and also placed
telephone calls—to Plaintiff” to collect the alleged debt. Id. ¶ 71. Despite a police
report stating the transactions were unauthorized, Wells Fargo communicated with
Plaintiff requesting payment on the alleged debt between June 2021 and November
2022. Id. ¶ 74. Plaintiff alleges that “Wells Fargo’s conduct served no purpose other
than to abuse or harass Plaintiff into paying the Alleged Debt.” Id. ¶ 78.
At all relevant times, Wells Fargo had knowledge that the Alleged Debt was
created due to identity theft and fraud to which Plaintiff timely notified Wells Fargo.
Id. ¶ 72. Plaintiff filed and provided a police report regarding the identity theft and
fraud based on the Alleged Debt. Id. ¶ 74. Despite the knowledge that the Alleged Debt
was fraudulent, Wells Fargo sent billing statements and collection letters and placed
telephone calls to the Plaintiff demanding payment. Id. ¶ 189. Thus, Plaintiff contends

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that Wells Fargo’s conduct served no other purpose than to abuse or harass him into
paying the alleged debt. Id. ¶ 190.
Wells Fargo moves to dismiss Counts I (Fla. Stat. § 559.72(7) only) and II of
the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). Doc. 48 at
1. Wells Fargo does not seek dismissal of Plaintiff’s claims under Fla. Stat. § 559.72(9)
(in Count I) or Count III brought under the Fair Credit Reporting Act, 15 U.S.C. §
1681s-2(b) (“FCRA”). Doc. 48 at 1 n.1; Doc. 58 at 1 n.1. As to the claim in Count II,
Plaintiff concedes that it is time barred. Doc. 58 at 1 n.1. In the motion to dismiss,
Wells Fargo argues that Plaintiff failed to allege sufficient facts to demonstrate that the
communications were abusive or harassing. Doc. 48 at 11. In response, Plaintiff
contends that sufficient facts have been alleged to satisfy the requirements of Federal
Rule of Civil Procedure 8(a) and the purpose of the FCCPA. Doc. 58 at 3-11. For the
foregoing reasons, the motion to dismiss Counts I and II is due to be granted.
II.

LEGAL STANDARD
To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a

“short and plain statement of the claim showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Fed. R. Civ. P. 8(a)(2)). Labels,
conclusions and formulaic recitations of the elements of a cause of action are not
sufficient.

Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

Furthermore, mere naked assertions are not sufficient. Id. A complaint must contain
sufficient factual matter, which, if accepted as true, would “state a claim to relief that
is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial
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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.” Id.
(citation omitted).

The court, however, is not bound to accept as true a legal

conclusion stated as a “factual allegation” in the complaint. Id.
III.

DISCUSSION
A. Wells Fargo’s Motion to Dismiss Count I is granted with leave to
amend the complaint.
Florida Statutes § 559.72(7) provides that in the collection of debt “no person

shall: . . . (7) [w]illfully communicate with the debtor or any member of her or his
family with such frequency as can reasonably be expected to harass the debtor or her
or his family, or willfully engage in other conduct which can reasonably be expected
to abuse or harass the debtor or any member of her or his family.”3 Considering this
provision of the FCCPA, both the frequency of the alleged debt collection and the
language of the document must be analyzed to determine whether the communication
was made with the intent to abuse or harass. Lawrence v. FPA Villa Del Lago, LLC, 584
F. Supp. 3d 1105, 1114–15 (M.D. Fla. 2022) (citing Harrington v. Roundpoint Mortg.
Servicing Corp., No. 2:15-cv-322-FtM-SPC-MRM, 2017 WL 1378539, at *10 (M.D.
Fla. Apr. 11, 2017)). Although the FCCPA does not require a specific number of calls
to be actionable, for an FCCPA plaintiff to state a claim, the frequency, tone, and
purpose of the communications must be enough to constitute harassment. Sprogis v.

The Amended Complaint is silent as to any communication with or harassment of Plaintiff’s
family members. See Doc. 37.
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Suntrust Bank, No. 6:13-CV-365-RBD-KRS, 2013 WL 2456090, at *1 (M.D. Fla. June
6, 2013).
In analyzing a motion to dismiss under § 559.72, courts consider several factors
including:
(1) the volume and frequency of attempts to contact the debtor, (2) the
volume and frequency of contacts with the debtor, (3) the duration of the
debt collector’s attempted communication and collection, (4) the debt
collector’s use of abusive language, (5) the medium of the debt collector’s
communication, (6) the debtor’s disputing the debt or the amount due,
(7) the debtor’s demanding a cessation of the communication, (8) the debt
collector’s leaving a message, (9) the debt collector’s calling at an
unreasonable hour, (10) the debt collector’s calling the debtor at work,
(11) the debt collector’s threatening the debtor, (12) the debt collector’s
lying to the debtor, (13) the debt collector’s impersonating an attorney or
a public official, (14) the debt collector’s contacting a friend, co-worker,
employee, employer, or family member, and (15) the debt collector’s
simulating or threatening legal process.
Leahy-Fernandez v. Bayview Loan Serv’g, LLC, 159 F. Supp. 3d 1294, 1304-05 (M.D. Fla.
2016) (quoting Valle v. Nat’l Recovery Agency, No. 8:10–cv–2775–SDM-MAP, 2012 WL
1831156, at *1 (M.D. Fla. May 18, 2012)); McCamis v. Servis One, Inc., No. 8:16-CV1130-JSM-AEP, 2016 WL 4063403, at *4 (M.D. Fla. July 29, 2016). In LeahyFernandez, the court granted the motion to dismiss when there were allegations of mail
being sent once a month to collect debt. 159 F. Supp. 3d at 1305. In that case, the court
found the complaint did not state that the letters contained abusive language, that the
defendant had contacted any of the plaintiff’s friends or family, or that the defendant
threatened the plaintiff. Id.
Furthermore, several courts have analyzed the abuse and harassment
requirement of § 559.72(7) and have found that allegations of alleged frequency, which
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were greater than those in the Amended Complaint here, did not rise to the level of a
violation. See Dennis v. Reg’l Adjustment Bureau, Inc., No. 09-61494-CIV, 2010 WL
3359369, at *3 (S.D. Fla. July 7, 2010) (six telephone calls in six months did not
constitute harassment); Schauer v. Morse Operations, Inc., 5 So. 3d 2, 4 (Fla. 4th DCA
2009) (holding that seven phone calls in sixth months was not sufficient); Lawrence,
584 F. Supp. 3d at 1115 (five emails and one phone call with at worst neutral language
was not sufficient under § 559.72(7)). Thus, when a plaintiff fails to adequately allege
the frequency of the communications (how often and how many communications
were sent) the plaintiff fails to state a claim for which relief may be granted. Mesa v.
Pennsylvania Higher Educ. Assistance, No. 16-24577-CIV, 2017 WL 8812736, at *9 (S.D.
Fla. Dec. 13, 2017) (“Because Plaintiff fails to allege anything regarding the frequency
of FedLoan's communications, we have no basis to find that FedLoan's conduct could
plausibly violate section 559.72(7).”); McFadden v. Fla. Foreclosure Att'ys PLLC, No.
8:13-CV-2501-MSS-EAJ, 2014 WL 12623693, at *4 (M.D. Fla. July 7, 2014) (“In the
absence of a higher frequency of communication, Plaintiff’s Amended Complaint does
not state a plausible claim for relief.”).
In the instant case, Plaintiff fails to state a claim for which relief may be granted
under § 559.72(7) because the Amended Complaint does not assert factual allegations
of frequency or abusive language. In Bonanno v. New Penn Financial, LLC, No. 5:17CV-229-JSS-PRL, 2017 WL 3219517, (M.D. Fla. July 28, 2017), the court granted
defendant’s motion to dismiss finding plaintiff’s allegation of having received
“multiple calls” was “too vague to support her claim that she was harassed” in
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violation of § 559.72(7) of the FCCPA. Id., 2017 WL 3219517, at *5. Similarly, in the
Amended Complaint here, Plaintiff alleges that Wells Fargo “repeatedly sent billing
statements and collection letters—and placed telephone calls—to Plaintiff” between
“June 18, 2021, and the filing of the Complaint.” Doc. 37 ¶ 71. The language in the
Amended Complaint fails to adequately allege the frequency of the communications,
such as whether they were sent daily, monthly, weekly, and how many
communications were made over the period.4 The use of the term “repeatedly,” like
the use of “multiple calls” in Bonanno, could mean as few as two or three
communications over that time, which is insufficient to support a finding of
harassment under § 559.72(7).
Furthermore, the Amended Complaint fails to provide adequate factual
allegations of frequency to survive a motion to dismiss. When a plaintiff fails to
sufficiently allege any ultimate fact regarding frequency, the motion to dismiss should
be granted for failure to state a claim under § 559.72(7). See Mesa v. Pennsylvania Higher
Educ. Assistance, No. 16-24577-CIV, 2017 WL 8812736, at *9 (S.D. Fla. Dec. 13, 2017)

The Court notes that the Plaintiff identifies with specificity the number of calls he made to
Wells Fargo. See, e.g., Doc. 37 ¶¶ 57, 64, 70. The only time he alleges a specific number of
calls placed by Wells Fargo to him was the seven calls requesting authorization for the cash
transfer. Doc. 37 ¶ 53. Plaintiff specifically identifies one letter from Wells Fargo dated June
18, 2021 (Doc. 37-3), one bill with a due date of August 2, 2021 (Doc. 37-1), a letter from
Wells Fargo dated May 26, 2022 (Doc. 37-15), and a letter from Wells Fargo dated September
30, 2021 (Doc. 37-23), but otherwise his allegations regarding Wells Fargo’s communications
specifically relating to collecting a debt are general, vague, and lack the factual specificity
required to state a claim for violation of § 559.72(7). Doc. 37 ¶¶ 71 (“repeatedly sent billing
statements”), 72 (“repeated debt collection communications”), 74 (“communicated with
Plaintiff between June 2021 and November 2022”), 189 (“sent billing statements and
collection letters—and placed telephone calls—to Plaintiff demanding payment”).
4

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(granting motion to dismiss where plaintiff failed to allege with any degree of
specificity how often the notices were sent); McFadden, 2014 WL 12623693, at *4
(M.D. Fla. July 7, 2014) (granting motion to dismiss when plaintiff was sent eight
letters in six months due to the absence of higher frequency of communication). In the
Amended Complaint, Plaintiff alleges that “Wells Fargo communicated with Plaintiff
between June 2021 and November 2022 wherein Wells Fargo demanded payment
from Plaintiff on the Alleged Debt.” Doc. 37 ¶¶ 74, 189. The allegations of this
paragraph, even considered with the “repeatedly” language of paragraph seventy-one,
fail to provide sufficient detail as to how often and how many communications were
made in connection with the alleged debt. When considered in totality, the factual
allegations, even taken in a light most favorable to the Plaintiff, lack specificity as to
the frequency and content of the communications.
On the factor of abusive or threatening language in the communications to the
Plaintiff, the Amended Complaint does not allege any specific language that is abusive
or threatening to Plaintiff or his family members. In analyzing the communications
that are allegedly harassing or abusive, the Plaintiff points to Exhibit A of the
Amended Complaint. When considering the language of Exhibit A, nothing in the
document constitutes anything that would rise to the level of being abusive. In fact,
the Amended Complaint does not allege facts to support that the communications
were abusive or threatening. The only time the abuse language is used is in the legal
conclusion at the end of Count I which states that the Defendant’s conduct had been
abusive or harassing as required under the statute. Doc. 37 ¶¶ 78, 192. Such conclusory
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allegations will not pass muster under Iqbal and Twombley. While adequate factual
allegations sufficient to demonstrate either abuse or harassment will suffice to state a
claim for relief under § 559.72(7), the Amended Complaint here fails to allege ultimate
facts to establish either.
Since the Plaintiff’s Amended Complaint at most contains a generalized
assertion of “repeated” communications to collect on a debt, the Plaintiff has failed to
provide sufficient factual allegations to state a claim under § 559.72(7). Accordingly,
the Defendant’s motion to dismiss Count I will be granted with leave to amend.
B. The motion to dismiss Count II of the Amended Complaint is granted
with prejudice.
Plaintiff concedes the arguments raised in Defendant’s motion to dismiss that
Count II is time barred. Doc. 58 at 1n.1. Accordingly, Count II is due to be dismissed
with prejudice. It is hereby
ORDERED:
1.

Defendant Wells Fargo Bank, N.A.’s, Motion to Dismiss Counts I and

II of the Amended Complaint (Doc. 48) is GRANTED as stated herein.
2.

Count II of Plaintiff’s Amended Complaint is dismissed with prejudice.

3.

Plaintiff’s claim under Fla. Stat. § 559.72(7) in Count I of the Amended

Complaint is dismissed without prejudice.
4.

If Plaintiff so chooses, he is granted leave to file a Second Amended

Complaint to re-allege his claim under Fla. Stat. § 559.72(7). Any claim brought under
Fla. Stat. § 559.72(7) must be alleged as a separate count from the Plaintiff’s claim in
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Count I pursuant to Fla. Stat. § 559.72(9). The Second Amended Complaint must be
filed within FOURTEEN (14) DAYS.
5.

If Plaintiff does not file a Second Amended Complaint within the time

permitted, Wells Fargo shall file its Answer to Count I (the § 559.72(9) claim only)
and Count III in accordance with the Federal Rules of Civil Procedure.
DONE AND ORDERED in Tampa, Florida on May 22, 2023.

Copies to:
Counsel of Record and Unrepresented Parties, if any

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