Naftali v. Capasso et al

Filing 27

ORDER granting 15 Motion to Dismiss 1 Notice of Removal (State Court Complaint); granting 18 Motion to Dismiss 1 Notice of Removal (State Court Complaint) for Lack of Jurisdiction; denying 26 Emergency Motion for Temporary Restraining Order; denying 26 Motion to Stay; Amended Complaint due 7/31/2015. Signed by Judge Beth Bloom on 7/21/2015. (ls)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 15-CIV-60995-BLOOM/Valle
MOSHE NAFTALI,
Plaintiff,
v.
THOMAS CAPASSO, NATIONSTAR
MORTGAGE, LLC,
Defendants.
______________________________/
ORDER
THIS CAUSE is before the Court on Defendant Nationstar Mortgage LLC’s Motion to
Dismiss, filed under Fed. R. Civ. P. 12(b)(6), ECF No. [15], Defendant Thomas Capasso’s
Motion to Dismiss, filed under Fed. R. Civ. P. 12(b)(1) and 12(b)(6), ECF No. [18], and
Plaintiff’s Emergency Motion for a Temporary Restraining Order and/or Stay, ECF No. [26].
The Court is fully advised after careful review of the Motions, the record, the parties’ briefs, and
the applicable law.
I.

Background

On August 18, 2010, Defendant Nationstar Mortgage LLC (“Nationstar”) instituted a
foreclosure action in the Seventeenth Judicial Circuit Court of Broward County against Plaintiff.
See ECF No. [15-1] at 3.1 On August 19, 2014, the state court entered a final judgment of
foreclosure. See id. The foreclosure sale was originally scheduled for December 18, 2014, but
on December 15, 2014, Plaintiff filed a motion to cancel the foreclosure sale, and an order was
1

A district court may consider a document outside of a Complaint, when deciding a motion to dismiss,
without converting the motion into one for summary judgment only if the attached document is: (1) central to one of
the claims, and (2) undisputed, meaning that the authenticity of the document is not challenged. See Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002). Here, the Court finds that the state court docket from the foreclosure
case between the parties is central to Plaintiff’s claim, and no dispute exists.

entered rescheduling the sale on March 17, 2015.

On March 31, 2015, Plaintiff filed an

objection to the sale. Plaintiff then filed a Notice of Removal in state court on May 13, 2015,
which was docketed as the instant complaint the same day. See ECF No. [1]. The state court
overruled Plaintiff’s objection to the sale on May 14, 2015. This Court previously denied
Defendant Nationstar’s Motion to Remand, finding that Plaintiff’s initial pleading was intended
as an original complaint, and not as an attempt to remove the state court action to this forum.
See ECF No. [9].
Plaintiff’s Complaint seeks injunctive, declaratory and monetary relief, pursuant to the
Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., “Florida’s Unfair
Credit Practices and Consumer Protection Law,” and “Florida’s Fair Credit Extension
Uniformity Act,” ECF No. [1] at 6, which the Court construes as an attempt to describe the
Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201, et seq.
II.

Legal Standard

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-defendantunlawfully-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)). “To survive a motion to dismiss 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.’” 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). While the Court is required to accept all of the allegations contained in the complaint and
exhibits attached to the pleadings as true, this tenet is inapplicable to legal conclusions. Iqbal,
556 U.S. at 678; Thaeter v. Palm Beach Cnty. Sheriff’s Office, 449 F.3d 1342, 1352 (11th Cir.
2006) (“When considering a motion to dismiss . . . the court limits its consideration to the
pleadings and all exhibits attached thereto.”) (internal quotation marks omitted). Pro se litigants
are afforded a relaxed pleading standard. See Abele v. Tolbert, 130 F. App’x 342, 343 (11th Cir.
2005).
Finally, the Court has the obligation to answer questions as to the existence of subject
matter jurisdiction sua sponte. See Liberty Mut. Ins. Co. v. Wetzel, 424 U.S. 737, 740 (1976);
Arthur v. Haley, 248 F.3d 1302, 1303 n.1 (11th Cir. 2001).
III.

Analysis

Defendant Thomas Capasso’s Motion to Dismiss asserts that dismissal is warranted based
on the Rooker-Feldman2 doctrine, as does Defendant Nationstar’s Motion to Dismiss, in part.
The remaining grounds for dismissal in Defendant Nationstar’s Motion is based on the
applicability of res judicata, and that Plaintiff’s Complaint fails to state a claim under the
FDCPA and the remaining statutes cited therein. Plaintiff’s Motion urges the Court to enter an

2

Rooker v. Fid. Trust. Co., 263 U.S. 413 (1923); Dist. of Columbia Ct. of Appeals v. Feldman, 460 U.S.
462 (1983).

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“Order of Temporary Restraining and/or . . . Stay preventing any further wrongful acts in the
Lower Court until Plaintiff’s Federal lawsuit merits have been heard.” ECF No. [26] at 5. The
Court will address each of these arguments below.
a. The applicability of the Rooker-Feldman doctrine
The Rooker-Feldman doctrine provides that federal district courts have “no authority to
review final judgments of a state court,” Nicholson v. Shafe, 558 F.3d 1266, 1271 (11th Cir.
2009), “because that task is reserved for state appellate courts, or as a last resort, the United
States Supreme Court.” Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009). “The
Supreme Court has reiterated that the scope of the doctrine is narrow and is ‘confined to cases of
the kind from which the doctrine acquired its name: cases brought by state-court losers
complaining of injuries caused by state-court judgments rendered before the district court
proceedings commenced and inviting district court review and rejection of those judgments.’”
Lozman v. City of Riviera Beach, Fla., 713 F.3d 1066, 1072 (11th Cir. 2013) (quoting Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005)). The Rooker-Feldman
analysis is a two-part inquiry: first, whether the state court proceedings have ended, and second,
whether the plaintiff’s claims are “inextricably intertwined” with the state court judgment. See
Velazquez v. South Fla. Fed. Credit Union, 546 F. App’x 854, 856-57 (11th Cir. 2013).
i. Whether the state court proceedings have ended
In order for Rooker-Feldman to apply, the state court proceedings must end, which
occurs in three scenarios:
(1) when the highest state court in which review is available has affirmed the
judgment below and nothing is left to be resolved, (2) if the state action has
reached a point where neither party seeks further action, and (3) if the state court
proceedings have finally resolved all the federal questions in the litigation but
state law or purely factual questions (whether great or small) remain to be
litigated.
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Nicholson, 558 F.3d at 1275 (quoting Federacion de Maestros de Puerto Rico v. Junta de
Relaciones del Trabajo de Puerto Rico, 410 F.3d 17, 21 (1st Cir. 2005)). Determining the issue
of whether the state court proceedings have ended requires examining the state of the
proceedings “at the time the plaintiff commences the federal court action.” Id. at 1279.
Here, Plaintiff commenced the instant federal action on May 13, 2015.

The first

Nicholson scenario does not apply because the Third District Court of Appeal, not the Florida
Supreme Court, dismissed Plaintiff’s state appeal. See Velazquez v. South Fla. Fed. Credit
Union, 546 F. App’x 854, 857 (11th Cir. 2013) (“In this case, the first test has not been satisfied.
Under Florida Rule of Appellate Procedure 9.030(a)(2)(A), the Florida Supreme Court has
discretionary jurisdiction over the case. The highest state court to affirm the trial court in this
case was the Third District Court of Appeal, meaning that the highest state court available did
not affirm the judgment below.”). Also, the second Nicholson scenario does not apply because,
at the time Plaintiff filed the instant federal action, Plaintiff (as the defendant in the underlying
case) filed an objection to the sale and transfer of title, which was not ruled upon until one day
after the instant action was filed, and the parties proceeded with filings after the instant federal
action was filed. Cf. Velazquez, 546 F. App’x at 858 (“Because there was nothing pending in
state court at the time district court proceedings began, nor was anything filed in state court after
that time, there was never parallel litigation in this case.”).
However, the third Nicholson scenario does apply. At the time Plaintiff filed the instant
federal action, the only issue remaining was the disposition of the foreclosure sale and transfer of
title. See ECF No. [15-1]. Furthermore, all attempts to seek relief after the filing of the instant
federal action constituted collateral attacks on the state court judgment, which did not involve

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any federal questions needing resolution. The record does not indicate that after May 13, 2015,
any federal questions remained to be litigated in the state court proceeding.
ii. Whether Plaintiff’s claims are “inextricably intertwined” with the statecourt judgment
A federal claim is “inextricably intertwined” with a state-court judgment: “(1) where the
success of the federal claim would effectively nullify the state-court judgment; and (2) where the
federal claim succeeds only to the extent that the state court wrongly decided the issues.”
Figueroa v. Merscorp, Inc., 766 F. Supp. 2d 1305, 1316 (S.D. Fla. 2011) (quoting Springer v.
Perryman, 401 F. App’x 457, 458 (11th Cir. 2010)). See also Casale, 558 F.3d at 1260.
“District courts in the Eleventh Circuit have recognized a distinction between FDCPA
claims seeking to overturn state court judgments and FDCPA claims seeking to hold defendants
liable for violations of the statute occurring during collection efforts preceding any judgment.”
Collins v. Erin Capital Mgmt, LLC, 991 F. Supp. 2d 1195, 1203 (S.D. Fla. 2013) (citing cases).
See also id. at 1203-04 (“This approach is consistent with the law in other circuits.”) (citing
cases). However, this distinction does not permit claims couched in terms of the FDCPA that, in
effect, seek to vacate the state court’s judgment. This applies not only to the aspects of the state
court’s judgment which upheld the validity of the debt, but also to claims which a plaintiff had a
reasonable opportunity to raise in the state proceedings, e.g., claims “he would have been
permitted to raise [] as a defense.” Id. at 1204 (citing Harper v. Chase Manhattan Bank, 138 F.
App’x 130, 133 n.2 (11th Cir. 2005) (“TILA . . . and FDCPA claims are brought in Florida
courts.”)).
In the Complaint, Plaintiff alleges violations of the FDCPA and FDUTPA, and seeks to
“[v]acate and stay the foreclosure until all issues in dispute are resolved,” declaratory relief,
actual and statutory damages, and fees and costs. The attempt to use the FDCPA and FDUTPA
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as a basis to vacate and stay the foreclosure action falls squarely within the province of RookerFeldman because it seeks relief from this Court which requires adjudging that the state court’s
final judgment of foreclosure was invalid. See Velazquez, 546 F. App’x at 858 (“He alleges
fraud upon the court; in reality, he objects because the state appellate court was not persuaded by
his evidence of fraud and because it did not sanction opposing counsel. In short, Velazquez is
seeking reversal of the state courts’ decisions.”). Thus, to the extent Plaintiff’s Complaint is a
collateral attack on the state court findings, and the causes of action all relate to the state claims,
Rooker-Feldman precludes the Court from considering Plaintiff’s claims.

The motions to

dismiss must, accordingly, be granted as to Plaintiff’s request to vacate and stay the state
foreclosure action.3
b. Whether Plaintiff’s Complaint states a claim under FDUTPA and the
FDCPA
The FDCPA provides that:
A debt collector may not use unfair or unconscionable means to collect or attempt
to collect any debt. Without limiting the general application of the foregoing, the
following conduct is a violation of this section: (1) the collection of any amount
(including any interest, fee, charge, or expense incidental to the principal
obligation) unless such amount is expressly authorized by the agreement creating
the debt or permitted by law.
15 U.S.C. § 1692f(1). Also, the FDCPA provides that “[a] debt collector may not use any
false, deceptive, or misleading representation or means in connection with the collection of any
debt.” 15 U.S.C. § 1692e. “The false representation of (A) the character, amount, or legal status
of any debt; or (B) any services rendered or compensation which may be lawfully received by

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As the Court is dismissing Plaintiff’s request to vacate and stay the state foreclosure action based on the
Rooker-Feldman doctrine, the Court need not address Defendant Nationstar’s res judicata argument because it is
premised upon Plaintiff’s Complaint as it pertains to the impropriety of the foreclosure and that the foreclosure
judgment should be vacated.

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any debt collector for the collection of a debt” also constitute violations of the FDCPA. 15
U.S.C. § 1692e(2).
FDUTPA prohibits unfair or deceptive acts or practices “in the conduct of any trade or
commerce.” Fla. Stat. § 501.204(1). The statute defines “trade or commerce” as “the advertising,
soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good
or service, or any property, whether tangible or intangible, or any other article, commodity, or
thing of value, wherever situated.” Fla. Stat. § 501.203(8).
The Court finds that Plaintiff’s Complaint contains numerous recitals of “‘naked
assertion[s]’ devoid of ‘further factual enhancement,’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)), and “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements,” which “do not suffice.” Iqbal, 556 U.S. at
678.

While Plaintiff’s Complaint does allege denials of requests for a full and accurate

accounting and reinstatement of payments, see ECF No. [1] at 5, and that Defendants used
Plaintiff’s telephone “as a means of harassment . . . with the intent to annoy Plaintiff,” id. at 13,
the Complaint does not indicate the nature of any correspondence between Plaintiff and
Defendants, in addition to which Defendant was responsible for which acts complained of. See
Joseph v. Bernstein, No. 13-24355-CIV, 2014 WL 4101392, at *3 (S.D. Fla. Aug. 19, 2014)
(“When a complaint indiscriminately lumps all defendants together it fails to comply with Rule
8.”) Plaintiff’s FDCPA and FDUTPA claims are accordingly due to be dismissed without
prejudice because they fail to give each defendant fair notice of the nature of the claim and
grounds on which the claim rests. See id.

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IV.

Plaintiff’s Emergency Motion for a Temporary Restraining Order or Stay

Plaintiff requests the Court to enter an “Order of Temporary Restraining and/or . . . Stay
preventing any further wrongful acts in the Lower Court until Plaintiff’s Federal lawsuit merits
have been heard.” ECF No. [26] at 5. Plaintiff further brings the Court’s attention to the fact
that a hearing on a writ of possession in the foreclosure proceeding is scheduled for July 22,
2015. See id. at 1. For the reasons set forth above regarding the Rooker-Feldman doctrine, the
Court is without jurisdiction to do so.
V.

Conclusion

Being fully advised, it is ORDERED AND ADJUDGED that:
1. Defendants’ Motions to Dismiss, ECF Nos. [15] and [18], are GRANTED.
2. Plaintiff’s Emergency Motion for a Temporary Restraining Order and/or Stay, ECF No.
[26], is DENIED.
3. Plaintiff shall file an Amended Complaint, consistent with this Order, on or before July
31, 2015. The failure to do so or show cause will result in dismissal of this case without
prejudice and without further notice.
DONE AND ORDERED in Fort Lauderdale, Florida, this 21st day of July, 2015.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:

counsel of record
Moshe Naftali, Pro Se
120 NW 83rd Way
Coral Springs, FL 33071
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