Negron v. CITI MORTGAGE INC.

Filing 71

ORDER ON MOTIONS TO DISMISS denying 46 Defendant Safeguard Properties' Motion to Dismiss; denying 65 Defendant Sea Moore's Motion to Dismiss. Defendant Safeguard Properties and Defendant Sea Moore shall, to the extent that they have not already done so, respond to the Second Amended Complaint by April 17, 2017. Signed by Judge Beth Bloom on 4/7/2017. (mc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 16-cv-61776-BLOOM/Valle
WILLIAM NEGRON
Plaintiff,
v.
CITIMORTGAGE INC.
and SAFEGUARD PROPERTIES,
Defendants.
__________________________________/
ORDER ON MOTIONS TO DISMISS
THIS CAUSE is before the Court on Defendant Safeguard Properties’ (“Safeguard”)
Motion to Dismiss, ECF No. [46], and Defendant Sea Moore, Inc.’s (“Sea Moore”) Motion to
Dismiss, ECF No. [65], (collectively, the “Motions to Dismiss”), both of which seek dismissal of
Counts II and III of Plaintiff William Negron’s (“Plaintiff”) Second Amended Complaint, ECF
No. [43]. The Court has reviewed the Motions to Dismiss, the record, and the applicable law, and
is otherwise fully advised. In addition, the Court had the benefit of oral argument during a
hearing held on April 5, 2017. For the reasons set forth below, the Motions to Dismiss are
denied.
I. BACKGROUND
On July 25, 2016, Plaintiff, proceeding pro se, filed suit against Defendant CitiMortgage
Inc. (“CitiMortgage”) and Safeguard, asserting thirteen claims, including claims for violations of
the Fair Debt Collection Practices Act (“FDCPA”) and the Florida Consumer Collection
Practices Act (“FCCPA”). See ECF No. [1]. On October 18, 2016, the Court granted in part a

Case No. 16-cv-61776-BLOOM/Valle
motion to dismiss filed by Safeguard, dismissing without prejudice Plaintiff’s FDCPA and
FCCPA claims against Safeguard. ECF No. [26] (“October 18, 2016 Order”). 1 On February 7,
2017, Plaintiff, through counsel, filed a Second Amended Complaint, ECF No. [43], which
reasserted, among other claims that were previously dismissed, the FDCPA claim against
Safeguard (as well as against a newly named defendant—Sea Moore) (Count II) and the FCCPA
claim against Safeguard (as well as against CitiMortgage and Sea Moore) (Count III). At issue
here are the FDCPA and FCCPA claims against Safeguard and Sea Moore.
The facts of this case were set forth in the October 18, 2016 Order. However, those facts
bear repeating here. According to the Second Amended Complaint, on or about October 23,
2013, Plaintiff took possession of property located at 7735 Yardley Dr., # 402, Tamarac, FL
33321 (the “Property”), through a bankruptcy trustee sale. Id. at ¶¶ 26-27. On or about August
27, 2015, CitiMortgage, “the mortgage servicing agent for [Plaintiff’s mortgage on the
Property],” initiated foreclosure proceedings on the Property. 2 See id. at ¶¶ 1, 28.
On December 20, 2015, Plaintiff arrived to the Property after having been away and
discovered that Safeguard, a “property preservation firm,” “and/or its agent/contractors had
trespassed and broken into his Property, changed the locks to his front door, damaged and stole
his personal property, and furthermore charged Plaintiff for such activity masked as
‘winterization’ charges.” Id. at ¶¶ 1, 30. All of this was done despite Plaintiff having previously
“confirmed and verified with [CitiMortgage] that he was occupying the Property and that there
1

With respect to Plaintiff’s FDCPA claim against Safeguard, the Court found dispositive that the initial
Complaint “fail[ed] to definitively allege the existence of a debt”—a threshold requirement for claims
brought under the FDCPA. Id. at 16; see generally Brown v. Budget Rent-A-Car Sys., Inc., 119 F.3d 922,
924 (11th Cir. 1997) (noting a threshold requirement to an FDCPA claim is that “the prohibited practices
alleged were used in an attempt to collect a debt as defined by the [FDCPA]”). As for Plaintiff’s FCCPA
claim against Safeguard, the Court noted that the initial Complaint failed to identify under which
provision or provisions of the FCCPA on which Plaintiff’s claim was based. ECF No. [26] at 20.
2
CitiMortgage did not serve notice of the foreclosure proceedings on Plaintiff, but instead served notice
on the previous owner of the Property on or about October 5, 2015. Id. at ¶ 28.

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was a change of ownership[,]” and despite “obvious external signs at the Property [indicating]
that it was occupied . . . .” Id. at ¶ 31. The Second Amended Complaint specifically alleges that
Safeguard was acting on behalf of CitiMortgage and that Safeguard hired Sea Moore to perform
the “lock-out” and conduct the property preservation services on the Property. See id. at ¶¶ 1,
32.
CitiMortgage filed an Answer and Affirmative Defenses to the Second Amended
Complaint on February 21, 2017. See ECF No. [47]. In their respective Motions to Dismiss,
Safeguard and Sea Moore seek dismissal of the FDCPA and FCCPA claims against them
(Counts II and III), arguing that the Second Amended Complaint fails to sufficiently allege
collection activity arising from a consumer debt by Safeguard and Sea Moore and that neither
Safeguard nor Sea Moore constitute “debt collectors” under the FDCPA. See ECF No. [46] at 46; ECF No. [65] at 4-7. The Court heard oral argument on the Motions to Dismiss at a hearing
held on April 5, 2017. 3
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). To satisfy the Rule 8
pleading requirements, a complaint must provide the defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it rests. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512,
(2002). While a complaint “does not need detailed factual allegations,” it must provide “more
than labels and conclusions” or “a formulaic recitation of the elements of a cause of action.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

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Additionally, at the hearing held on April 5, 2017 the Court also addressed Safeguard’s request that a
portion of Paragraph 1 of the Second Amended Complaint—which relates to a law review article—be
struck pursuant to Rule 12(f). See ECF No. [43] at ¶ 1. The Court granted that request and set forth its
reasoning on the record.

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(explaining that the Rule 8(a)(2) pleading standard “demands more than an unadorned, thedefendant-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 that “[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); see also
Am. Dental Assoc. v. Cigna Corp., 605 F.3d 1283, 1288-90 (11th Cir. 2010).
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); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D.
Fla. 2009) (“On a motion to dismiss, the complaint is construed in the light most favorable to the
non-moving party, and all facts alleged by the non-moving party are accepted as true.”); Iqbal,
556 U.S. at 678. A court considering a Rule 12(b) motion is generally limited to the facts
contained in the complaint and attached exhibits, including documents referred to in the
complaint that are central to the claim. See Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959
(11th Cir. 2009); Maxcess, Inc. v. Lucent Technologies, Inc., 433 F.3d 1337, 1340 (11th Cir.
2005) (“[A] document outside the four corners of the complaint may still be considered if it is
central to the plaintiff’s claims and is undisputed in terms of authenticity.”) (citing Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)). While the court is required to accept as true all
allegations contained in the complaint, courts “are not bound to accept as true a legal conclusion
couched as a factual allegation.” Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678. “Dismissal

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pursuant to Rule 12(b)(6) is not appropriate ‘unless it appears beyond doubt that the plaintiff can
prove no set of facts in support of his claim which would entitle him to relief.’” Magluta v.
Samples, 375 F.3d 1269, 1273 (11th Cir. 2004) (quoting Conley v. Gibson, 355 U.S. 41, 45-46
(1957)).
III. DISCUSSION
A. FDCPA Claim against Safeguard and Sea Moore (Count II)
The FDCPA, 15 U.S.C. § 1692 et seq., was enacted to “eliminate abusive debt collection
practices by debt collectors, to insure that those debt collectors who refrain from using abusive
debt collection practices are not competitively disadvantaged, and to promote consistent State
action to protect consumers against debt collection abuses.” 15 U.S.C. § 1692(e). The FDCPA
therefore prohibits debt collectors from using “false, deceptive, or misleading representation[s]
or means” and “unfair or unconscionable means” while collecting or attempting to collect any
debt. Id. §§ 1692(e), (f). “In order to prevail on an FDCPA claim, a plaintiff must prove that:
(1) the plaintiff has been the object of collection activity arising from consumer debt; (2) the
defendant is a debt collector as defined by the FDCPA; and (3) the defendant has engaged in an
act or omission prohibited by the FDCPA.” Bentley v. Bank of America, N.A., 773 F. Supp. 2d
1367, 1371 (S.D. Fla. 2011) (quoting Kaplan v. Assetcare, Inc., 88 F. Supp. 2d 1355, 1360-61
(S.D. Fla. 2000)). Under 15 U.S.C. § 1692f(6), the specific provision of the FDCPA under
which Plaintiff alleges liability on the parts of Safeguard and Sea Moore, see ECF No. [43] at ¶¶
42, 44, a debt collector may not “[t]ake[] or threaten[] to take any nonjudicial action to effect
dispossession or disablement of property if there is no present right to possession of the property
claimed as collateral through an enforceable security interest[,]” 15 U.S.C. § 1692f(6)(A).

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As a preliminary matter, in the October 18, 2016 Order, the Court noted the
“considerable division among district courts regarding the issues of whether property
preservation companies constitute debt collectors and whether their services relate to debt
collection[,]” but found no reason to explore those issues given that the initial Complaint failed
to allege the existence of any underlying debt. See ECF No. [26] at 16 n.5 (quoting Alqaq v.
CitiMortgage, Inc., 2014 WL 1689685, at *3 (N.D. Ill. Apr. 29, 2014)); see generally Alqaq,
2014 WL 1689685, at *3 (“The issue of whether entities engaged in property protection related
to foreclosures, such as Safeguard . . ., are debt collectors within the meaning of the FDCPA or
entities whose conduct violates the FDCPA has divided district courts.”) (collecting cases). The
Court finds that that deficiency has since been cured by the Second Amended Complaint’s
allegations of an underlying mortgage between Plaintiff and CitiMortgage. See, e.g., ECF No.
[43] at ¶¶ 1, 10. As such, the issues as to whether property preservation companies such as
Safeguard and Sea Moore and their property preservation activities fall within the ambit of the
FDCPA are now properly before the Court.
These issues essentially turn on the FDCPA’s definition of a “debt collector,” which is
found at 15 U.S.C. § 1692a(6) and provides that a debt collector is “any person who uses any
instrumentality of interstate commerce or the mails in any business the principal purpose of
which is the collection of any debts, or who regularly collects or attempts to collect, directly or
indirectly, debts owed or due or asserted to be owed or due another.” Safeguard and Sea Moore
argue that property preservation companies like themselves do not constitute debt collectors
under the FDCPA and that their services do not relate to debt collection. In support of that
argument, Safeguard and Sea Moore cite to three cases wherein the specific kind of activity
alleged in this case—including property preservation activity—was found to have fallen outside

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the scope of the FDCPA. See ECF No. [46] at 4-5 (citing Alqaq, 2014 WL 1689685; Gordon v.
Bank of New York Mellon Corp., 964 F. Supp. 2d 937 (N.D. Ind. 2013); Platek v. Safeguard
Props., 2014 WL 2808908 (W.D. Pa. June 19, 2014)); ECF No. [65] at 5-6 (same). The cases
relied upon by Safeguard and Sea Moore, however, are each distinguishable from this case.
The court in Alqaq held that Safeguard and a codefendant’s alleged conduct—which
included breaking into the plaintiff’s property, winterizing the property, and stealing personal
belongings—“was incidental to debt collection and was not dispossession or disablement of
property to enforce a security interest within the purview of § 1692f(6)(A).” 2014 WL 1689685,
at *3-4.

Similarly, relying on Alqaq, the court in Platek held that Safeguard’s property

preservation activities fell outside the scope of the FDCPA and reasoned, in part, as follows:
[F]ederal regulations, state law and municipal ordinances often impose duties on
mortgagees to secure and protect foreclosed property from deterioration. . . . In
addition to potentially placing mortgagees in a situation of “damned if you do,
damned if you don’t,” deeming the fulfillment of preservation duties as “debt
collection” misconstrues the “principal purpose” of such activity . . . .
Platek, 2014 WL 2808908, at *1 (citing Alqaq, 2014 WL 1689685, at *3) (internal citation
omitted). However, the reasoning employed by the courts in Alqaq and Platek reflect that an
important consideration in both cases was that the plaintiffs had alleged the entry of a final
judgment of foreclosure in favor of the mortgagees. See Alqaq, 2014 WL 1689685, at *3
(“Although the conduct complained of appears to have been improper and even tortious as
performed, it was, as stated in notices, to secure and winterize foreclosed property.
CitiMortgage’s security interest was recognized and foreclosed in proceedings . . . . Plaintiff
then had a 30-day possessory interest in the property. No facts alleged indicate that the action
taken by Safeguard and A & D was disablement or dispossession in enforcement of security
interests or debt collection.”) (emphasis added); Platek, 2014 WL 2808908, at *1 (“Plaintiff’s

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counsel is attempting to ‘federalize’ putative state law claims or violations . . . regarding the
deprivation of, or interference with, personal property. This is particularly true given Plaintiff’s
candid admissions that he was, for years, ‘unable to make the monthly payments’ on his
mortgage (the purported ‘debt,’ under the FDCPA, being collected), that he defaulted on the
mortgage, and that the foreclosure proceedings against him ‘progressed normally’ to an
uncontested entry of judgment in the mortgagee’s favor.”) (emphasis added). Here, by contrast,
it is not alleged, nor has it been indicated by the parties, that a final judgment of foreclosure in
favor of CitiMortgage has been entered. The Court finds this distinction significant; in effect, it
allows the reasonable inference that the underlying mortgage (the debt for purposes of the
FDCPA) remains unsatisfied.
Like the courts in Alqaq and Platek, the court in Gordon held that Safeguard and a
codefendant’s alleged conduct—which included breaking into the plaintiff’s home, removing
plaintiff’s personal belongings, and trashing plaintiff’s home—“[was] not inherently associated
with the collection of a debt.” Gordon, 964 F. Supp. 2d at 948. At oral argument, Safeguard and
Sea Moore emphasized that debt collection is by no means their principal purpose, and, relying
heavily on Gordon, argued that their alleged conduct was, at most, incidental to debt collection.
However, central to the holding in Gordon was that “there [was] no allegation that plaintiffs
actually owed any debt. . . . [as] plaintiffs [] alleged that they purchased their property with cash
and ha[d] no outstanding loans or mortgages on the property.” Id. As Judge Moody explained:
All that has been alleged is that defendant [] ordered contractors to break into
plaintiff’s home, remove personal property, and trash the home. There are no
allegations that any defendant made any sort of communication, threat, or any
mention regarding a debt owed by plaintiffs. Without any sort of allegation that
these acts were done in an attempt to collect a debt, they are not sufficient to bring
plaintiffs under the protection of the FDCPA.

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Id. at 948-49. To be sure, the Court agrees with Judge Moody’s observation that the kind of
conduct alleged in Gordon (and in this case) is not “inherently associated with the collection of a
debt.” Id. at 948 (emphasis added). But here, unlike in Gordon, there are allegations of an
underlying debt—namely, the mortgage between Plaintiff and CitiMortgage—as well as
allegations that Safeguard and Sea Moore’s conduct was undertaken at the behest of
CitiMortgage—the mortgagee. See ECF No. [43] at ¶¶ 1, 32; cf. Gordon, 964 F. Supp. 2d at 949
(“If there was no attempt to collect a debt in this case, plaintiffs do not have a claim for the
violation of the FDCPA. . . . In this case, plaintiffs have not alleged the existence of a debt, that
either defendant [Bank of New York Mellon Corporation] or defendant Safeguard were
attempting to collect a debt, or even that defendant [Bank of New York Mellon Corporation] or
defendant Safeguard mistakenly believed that plaintiffs were obligated to pay a debt.”) (internal
citations omitted) (emphasis added).
In contrast to the cases discussed above, in Simpson v. Safeguard Props., LLC, 2013 WL
2642143 (N.D. Ill. 2013), the court determined that allegations similar to those presented in
Plaintiff’s Second Amended Complaint stated a claim against Safeguard under the FDCPA, and
were sufficient to reasonably infer that Safeguard is a debt collector for purposes of the FDCPA.
The court reasoned as follows:
Although Simpson does not allege that Safeguard collects or attempts to collect
debts on behalf of mortgage companies, entities that contact consumers
attempting to facilitate communication with creditors have been found to be “debt
collectors.” Safeguard argues that the facts in Simpson's complaint demonstrate
that Safeguard is merely a messenger. However, the allegation that Safeguard
markets its services to mortgage companies makes it reasonable to infer that
Safeguard attempts to regularly facilitate the collection of debts, which the court
finds qualifies under § 1692a(6) as “regular[ ] … attempts to collect, ... indirectly,
debts ... asserted to be owed or due another.”
Id. at *2 (internal citations omitted) (alterations in original) (emphasis added).

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Given the specific allegations in this case, the Court finds Simpson persuasive. As
discussed, the Second Amended Complaint alleges an underlying debt (the mortgage) and that
the alleged conduct of Safeguard and Sea Moore was initiated on behalf of CitiMortgage (the
mortgagee), whose status as a debt collector for purposes of the FDCPA does not appear to be in
dispute.

Moreover, the Second Amended Complaint also alleges that Safeguard’s “main

business purposes is to act as a property preservation firm in the bank-engaged foreclosure field
services industry for mortgage holders/service providers[,]” and further, that Safeguard
“represent[s] itself as a company that ‘inspects and maintains defaulted and foreclosed properties
for a wide range of clients in the mortgage industry, from local loan servicing companies to
national publicly traded mortgage servicing corporations.” ECF No. [43] at ¶¶ 12-13 (emphasis
added). These allegations are analogous to the allegation in Simpson that Safeguard “markets its
services to mortgage companies.” 2013 WL 2642143, at *2. As in Simpson, this Court draws
the reasonable inference from the allegations in the Second Amended Complaint that Safeguard
and Sea Moore attempt to regularly facilitate the collection of debts, which qualifies under 15
U.S.C. § 1692a(6) as “regular[] . . . attempts to collect, . . . indirectly, debts . . . asserted to be
owed or due another.” See Simpson, 2013 WL 2642143, at *2 (quoting § 1692a(6)); see also
Flippin v. Aurora Bank, FSB, 2012 WL 3260449 (N.D. Ill. Aug. 8, 2012) (allegations that
defendant changed the locks on the house and “winterized” it by turning off the water supply and
disconnecting the hot water heater at the mortgagee bank’s direction and also took plaintiff’s
personal belongings from the house adequately pled that defendant was a debt collector for the
purpose of § 1692f); Bywater v. Wells Fargo Bank, N.A., 2014 WL 1256103 (ND. Ill. Mar. 24,
2014) (“Plaintiff alleges that A-Son’s, acting in concert with LPS, changed the locks on the
home and removed some of plaintiff’s personal property, and also destroyed or damaged other

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personal property, before any foreclosure case had even been filed, let alone proceeded to
judgment. That activity, which plaintiff alleges was part of an effort to evict her and her family
from the home, is within the scope of what subsection 1692f(6) prohibits. . . . The complaint
alleges that both LPS and A-Son’s are in the business of securing properties for mortgage lenders
in connection with foreclosures, . . . which is sufficient to bring them within the scope of section
1692a(6)’s expanded definition of a ‘debt collector.’”); Schlaf, et al. v. Safeguard Properties,
LLC, 2016 WL 612866 (N.D. Ill. Feb. 16, 2016) (analogizing Simpson, 2013 WL 2642143, and
holding that the allegations in the complaint—that Safeguard advertised as part of its services the
facilitation of contact between delinquent borrowers and mortgage companies, and that
Safeguard, upon inspection of the plaintiff’s residence, left a door hanger on the door requesting
the recipient to contact the mortgagee bank—sufficiently alleged that Safeguard is a debt
collector).
Accordingly, the Court finds that, for purposes of the FDCPA, the Second Amended
Complaint sufficiently alleges that Safeguard and Sea Moore are debt collectors and that the
activity in which they allegedly engaged relates to debt collection.
B. FCCPA Claim against Safeguard and Sea Moore (Count III)
The FCCPA, §§ 559.55 et seq., like its federal counterpart, the FDCPA, is designed, in
part, to eliminate abusive practices in consumer debt collection. Abby v. Paige, 903 F. Supp. 2d
1330, 1334 (S.D. Fla. 2012). As such, FCCPA claims are similar to FDCPA claims in that the
FCCPA only applies to collection activity arising from a consumer debt and requires an act or
omission prohibited by the FCCPA. See Trust Co. v. Foxx, 971 F. Supp. 2d 1106, 1114 (M.D.
Fla. 2013) (citing Fla. Stat. § 559.55(1)). In seeking dismissal of Plaintiff’s FCCPA claim,
Safeguard and Sea Moore rely on the same arguments they make against Plaintiff’s FDCPA

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claim—namely, that the Second Amended Complaint fails to sufficiently allege that their acts
were done in an attempt to collect a debt or that Safeguard constitutes a debt collector. 4 See ECF
No. [46] at 6; ECF No. [65] at 7. These arguments are equally unpersuasive in this context.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED AND ADJUDGED as follows:
1. Defendant Safeguard Properties’ Motion to Dismiss, ECF No. [46], is DENIED.
2. Defendant Sea Moore’s Motion to Dismiss, ECF No. [65], is DENIED.
3. Defendant Safeguard Properties and Defendant Sea Moore shall, to the extent that they
have not already done so, respond to the Second Amended Complaint by April 17, 2017.
DONE AND ORDERED in Miami, Florida this 7th day of April, 2017.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:

Counsel of Record

4

The Court notes that, in contrast to the second element required of an FDCPA claim, the FCCPA
prohibits acts of “persons” and, accordingly, is not limited to “debt collectors.” Id.; Kelly v. Davis, 2014
WL 12515345, at *7 (M.D. Fla. July 17, 2014) (“In the specific context of the FCCPA, the second
requirement differs from the FDCPA in that the FCCPA, by its terms, prohibits acts of ‘persons’ as well
as those of ‘debt collectors.’”).

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