Muradas et al v. M&T Bank et al
Filing
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ORDER denying 17 Defendant McCalla Raymer, LLC's Motion to Dismiss Count II of Plaintiffs' Amended Complaint. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 6/25/2013. (bon)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-60178-CIV-ROSENBAUM/HUNT
YAQUELIN MURADAS and
JOSE A. HERNANDEZ,
Plaintiffs,
v.
M&T BANK and MCCALLA RAYMER, LLC,
Defendants.
________________________________________/
ORDER ON DEFENDANT’S MOTION TO DISMISS
COUNT II OF AMENDED COMPLAINT
This matter is before the Court on Defendant McCalla Raymar LLC’s (“McCalla”) Motion
to Dismiss Count II of Plaintiffs’ Amended Complaint [D.E. 17]. The Court has carefully reviewed
the motion, the filings supporting and opposing the motions, and the other materials in the case file.
For the reasons stated below, the Court denies McCalla’s Motion to Dismiss.
I.
Background
Plaintiffs Yaquelin Muradas and Jose A. Hernandez filed an Amended Complaint on April
1, 2013, alleging claims against M&T Bank (“M&T”) and McCalla. Count II, the only count against
McCalla, accuses McCalla of malicious prosecution and seeks compensatory and punitive damages.
D.E. 14.
In 2007, Muradas and Hernandez executed a mortgage with Bank of America, N.A. (“Bank
of America”). See D.E. 14, ¶ 7. The monthly payments on the mortgage were made via online
payments from Muradas’s bank account. Id. ¶¶ 8, 10. Bank of America assigned the mortgage to
M&T in February 2012 but, according to Plaintiffs, never notified Plaintiffs of the mortgage transfer
and sent subsequent notices to an incorrect address. See id. ¶ 9, 14-2 at 1. As Hernandez and
Muradas were not aware of M&T’s status as the new mortgagee, they continued to make scheduled
payments online to Bank of America. D.E. 14, ¶¶ 10-11. Bank of America accepted the payments
for February, March, and April but sent notifications to Hernandez—at the same incorrect
address—alerting him to the change of mortgagee, stating, “We recently received your payment on
the above referenced loan and forwarded this payment to the new servicer. However, please note
that future payments may be returned to you.” Id. ¶ 10; e.g. D.E. 14-2 at 8. Plaintiffs claim that they
never received these notices and, because the payments were still being accepted, neither Hernandez
nor Muradas learned of any problem until their June 2012 statement revealed that the May 2012
payment had been returned to Muradas’s account. D.E. 14, ¶¶ 11-12.
On June 21, McCalla, on behalf of M&T, sent a letter to Hernandez demanding $13,947.19
to reinstate the mortgage. Id. ¶ 13. On June 28, Plaintiffs’ attorney responded to McCalla,
explaining, with accompanying documentation, that payments had been made through April and that
the payments for May and June had been tendered and returned. Id. ¶ 14; D.E. 14-2. Plaintiffs’
attorney included in the letter a check for the payments due in May, June, and July. D.E. 14, ¶ 14.
Plaintiffs’ attorney subsequently sent McCalla the payments for August, September, and October.
Id. ¶ 15.
On October 3, 2012, M&T, through McCalla, in the Seventeenth Judicial Circuit Court in
and for Broward County, Florida, filed a Lis Pendens and a Verified Complaint for Mortgage
Foreclosure (“foreclosure”) against Plaintiffs. See id. ¶ 17; D.E. 14-3. The Notice of Lis Pendens
and the Complaint were signed by Peter Kapsales, Esq., on behalf of McCalla. D.E. 14, ¶ 18.
Paragraph 6 of the Complaint states, “There is a default under the terms of the Note and Mortgage
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for failure by the original mortgagor, the current property owner, or anyone on behalf of those liable
on the Note and Mortgage to make the payment due on February 1, 2012, and all subsequent
payments.” D.E. 14-3 at 4. No other default was alleged. See id. Plaintiffs assert that at the time
of the filing of the foreclosure action, M&T and McCalla knew that all payments due were, in fact,
paid or tendered and the mortgage was not in default. D.E. 14, ¶ 22. On December 11, Plaintiffs
filed an answer to the Complaint, denying that the mortgage was in default and alleging affirmative
defenses of payment and failure by M&T to provide notice of default. Id. ¶ 23. On December 21,
McCalla filed a notice of voluntary dismissal of the foreclosure. Id. ¶ 24.
In the instant case, in the malicious prosecution count against McCalla, Plaintiffs allege, inter
alia, that 1) no probable cause supported the foreclosure, 2) Defendants commenced the foreclosure
against Plaintiffs with malice, 3) McCalla’s signing and filing of the erroneous Complaint
constituted “intentional misconduct, and . . . a wanton and reckless disregard” for Plaintiffs’ rights
and interests, and 4) McCalla’s behavior has caused Plaintiffs to suffer humiliation, shame, and
mental pain and anguish, and has damaged Plaintiffs reputations, employment opportunities, and
credit abilities. Id. ¶¶ 35-43.
McCalla has moved to dismiss Count II of Plaintiffs’ Amended Complaint for failure to state
a claim upon which relief can be granted. See D.E.17. In particular, McCalla contends that it was
not a “party” to the foreclosure action, that Plaintiffs failed to demonstrate that they instigated the
filing of the foreclosure with malice, that McCalla was diligent in providing information to M&T
and filed the foreclosure complaint only after being instructed to do so by M&T, that Plaintiffs did
not demonstrate that they suffered any damages resulting from the existence of the lis pendens on
their property between October and December 2012, and that Plaintiffs failed to show that
Defendants filed for foreclosure without probable cause, or with intent to injure the Plaintiffs. See
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D.E. 17, ¶¶ 4-11. Plaintiffs filed a response to McCalla’s Motion. See D.E. 18. McCalla did not file
a reply brief in support of its Motion.
II.
Discussion
A.
Standard for Motion to Dismiss
A pleading in a civil action must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While a complaint “does not need
detailed factual allegations,” it must provide “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)’s
pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation”).
Nor can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557 (alteration in original)).
The Supreme Court has emphasized “[t]o survive a motion to dismiss a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Id. (quoting Twombly, 550 U.S. at 570).
When reviewing a motion to dismiss, a court, as a general rule, must accept the plaintiff’s
allegations as true and evaluate all plausible inferences derived from those facts in favor of the
plaintiff. See Chaparro v. Carnival Corp., 693 F.3d 1333, 1337 (11th Cir. 2012); Miccosukee Tribe
of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002).
Upon engaging in this analysis, a court should deny a motion to dismiss where the pleading asserts
non-conclusory, factual allegations, that, if true, would push the claim “across the line from
conceivable to plausible.” Iqbal, 556 U.S. at 680 (quoting Twombly, 550 U.S. at 570) (quotation
marks omitted); Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting
Twombly, 550 U.S. at 570) (explaining that allegations in a complaint “must . . . contain sufficient
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factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”). A claim
is facially plausible when the plaintiff’s factual allegations “allow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
B.
Standard for Malicious Prosecution Claim
To plead a claim for malicious prosecution under Florida law, Plaintiffs must allege the
following elements:
(1) an original criminal or civil judicial proceeding against the present
plaintiff was commenced or continued; (2) the present defendant was
the legal cause of the original proceeding against the present plaintiff
as the defendant in the original proceeding; (3) the termination of the
original proceeding constituted a bona fide termination of that
proceeding in favor of the present plaintiff; (4) there was an absence
of probable cause for the original proceeding; (5) there was malice on
the part of the present defendant; and (6) the plaintiff suffered damage
as a result of the original proceeding.
Alamo Rent-A-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1355 (Fla. 1994). “The failure of a plaintiff
to establish any one of these six elements is fatal to a claim of malicious prosecution.” Id.
C.
Analysis of Plaintiffs’ Claim
After reviewing the Amended Complaint, the Court finds that Plaintiffs’ allegations meet the
requirements of Rule 8(a), and Plaintiffs have sufficiently stated a claim for malicious prosecution.
The first and third elements are not in dispute and are sufficiently pled. See D.E. 17; see also D.E.
14, ¶¶ 17, 24.
With regard to the second element, Plaintiffs have alleged that McCalla filed the foreclosure
against Hernandez and Muradas on behalf of M&T. D.E. 14, ¶¶ 17-18. McCalla contends, however,
that it “was not the Plaintiff in the foreclosure action” and, therefore, the second element is not
satisfied. D.E. 17, ¶ 4. But Florida courts have held that attorneys filing lawsuits can still be liable
for malicious prosecution even when they are not the actual plaintiffs in the suits that they file. See
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Rushing v. Bosse, 652 So. 2d 869, 875 (Fla. 4th DCA 1995) (holding that attorneys filing a lawsuit
may be held liable for malicious prosecution if “the evidence establishes that they instituted a claim
which a reasonable lawyer would not regard as tenable or unreasonably neglected to investigate the
facts and law in making a determination to proceed”).
Here, Plaintiffs have pled that their attorney sent a letter notifying McCalla that the mortgage
was not in default, provided McCalla with proof that payments through April 1 had been paid and
the payments for May and June had been tendered and returned, and sent McCalla a check for the
payments due for May, June, and July 2012. D.E. 14, ¶ 14. Based on these facts, Plaintiffs assert
that McCalla “knew at the time of the filing of the Foreclosure Action that all payments due on the
Mortgage were paid.” D.E. 14, ¶ 22. This fact, taken as true, means that the foreclosure action, based
on the failure to make monthly payments, was untenable from its inception.
Nor do McCalla’s contentions that it was acting on M&T’s instruction after M&T
investigated the payments, D.E. 17, ¶ 7, and that it notified Plaintiffs of an escrow shortage, which,
having not been paid, allegedly provided a reasonable basis to file foreclosure, id. ¶ 8, alter the
analysis. These arguments are defenses to be litigated and do not demonstrate the insufficiency of
Plaintiffs’ pleading. Rather, Plaintiffs’ Complaint adequately alleges facts supporting the second
element of a malicious prosecution claim.
The next elements to consider include probable cause for the original proceeding and malice
on the part of McCalla. Mancusi, 632 So. 2d at 1355. These elements can be examined together:
“In an action for malicious prosecution it is not necessary for plaintiff to prove actual malice; legal
malice is sufficient and may be inferred from, among other things, a lack of probable cause . . . .”
Id. at 1357; Reed v. State, 837 So. 2d 366, 369 (Fla. 2002) (holding that legal malice merely requires
proof of an intentional act performed without legal justification or excuse, and such malice may be
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inferred from one’s acts and does not require proof of evil intent or motive); Morgan International
Realty, Inc. v. Dade Underwriters Insurance Agency, 617 So. 2d 455, 458 (Fla. 3d DCA 1993)
(holding that malice may be either actual or subjective malice or legal malice, which may be inferred
from circumstances such as the want of probable cause, even though no actual malevolence or
corrupt design is shown). In a malicious-prosecution action against an attorney, “it is the attorney's
reasonable and honest belief that his client has a tenable claim that is the attorney's probable cause
for representation, and not the attorney's conviction that his client must prevail.” Endacott v. Int'l
Hospitality, Inc., 910 So. 2d 915, 920 (Fla. 3d DCA 2005).
McCalla contends that Plaintiffs have not shown that McCalla engaged in its actions “with
the intent to injure.” D.E. 17, ¶ 10. But, under the law, McCalla’s argument is irrelevant. If
McCalla lacked probable cause to file the foreclosure Complaint and those facts are sufficiently pled,
the “malice” element is satisfied—intent to injure is not necessary and need not be pled. Here,
Plaintiffs sufficiently allege the lack of probable cause. See D.E. 14 ¶, 20-22. In their Amended
Complaint, Plaintiffs aver that all required payments were paid or tendered and that McCalla knew
this. Id. As discussed above, this sufficiently asserts that the foreclosure action was untenable,
meaning Plaintiffs have alleged McCalla, as attorneys, lacked probable cause to file the foreclosure
action. Id. ¶ 37. Accordingly, the Court finds that the Amended Complaint meets the requirements
for the fourth and fifth elements.
Finally, the Court analyzes the sixth element—Plaintiffs’ damages allegations. McCalla
argues that “none of the allegations stated in the [C]omplaint show that the Lis Pendens . . . caused
any damages to the Plaintiffs.” D.E. 17, ¶ 9. Contrary to McCalla’s suggestion, Plaintiffs’ factual
allegations of damages are sufficient. Plaintiffs claim that McCalla’s actions damaged their
reputations, their employment opportunities, and their ability to lease an automobile or residence or
engage in other credit-reliant transactions. D.E. 14, ¶ 42. Plaintiffs further contend that McCalla’s
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conduct has “humiliated, frightened, shamed, and intimidated” them and caused them “great mental
pain and anguish.” Id. ¶ 43. Thus, the Complaint plainly pleads the damages that Plaintiffs suffered
as a result of McCalla’s initiation of the foreclosure action. As Plaintiffs have sufficiently alleged
all elements of malicious prosecution that, if true, would entitle them to relief, Count II of the
Amended Complaint shall not be dismissed.
III.
Conclusion
For the foregoing reasons, it is ORDERED and ADJUDGED that Defendant’s Motion to
Dismiss Count II of Plaintiffs’ Amended Complaint [D.E. 17] is DENIED.
DONE AND ORDERED at Fort Lauderdale, Florida, this 25th day of June 2013.
_______________________________
ROBIN S. ROSENBAUM
UNITED STATES DISTRICT JUDGE
Copies to:
The Honorable Patrick M. Hunt
Counsel of Record
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