Abanto v. Hayt, Hayt & Landau P.L. et al
Filing
53
ORDER granting 25 Motion to Dismiss Second Amended Complaint; denying 30 Motion for Leave to Amend Second Amended Complaint. Signed by Magistrate Judge John J. O'Sullivan on 9/19/2012. (mms)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 11-24543-CIV-O’SULLIVAN
[CONSENT CASE]
JUAN ABANTO,
Plaintiff,
v.
HAYT, HAYT & LANDAU, P.L.,
et al.,
Defendants.
_________________________/
ORDER
THIS MATTER is before the Court on the Defendants’ Motion to Dismiss Second
Amended Complaint (DE# 25, 6/2/12) and the Plaintiff’s Motion for Leave to Amend
Second Amended Complaint (DE# 30, 7/17/12). Having reviewed the applicable filings
and the law, it is
ORDERED AND ADJUDGED that the Defendants’ Motion to Dismiss Second
Amended Complaint (DE# 25, 6/2/12) is GRANTED as more fully discussed below. It is
further
ORDERED AND ADJUDGED that the Plaintiff’s Motion for Leave to Amend
Second Amended Complaint (DE# 30, 7/17/12) is DENIED as moot.
DISCUSSION
I.
The Plaintiff Failed to Give Timely Notice that the Debt Was Disputed.
The plaintiff’s Second Amended Complaint (DE# 23, 5/18/12) alleges that the
defendants violated the Fair Debt Collections Practices Act (“FDCPA”) (Count I) and the
Florida Consumer Collections Practices Act (“FCCPA”) (Count II). The plaintiff’s
allegations regarding violations of the FDCPA are due to the defendants’ filing of a
lawsuit in state court on behalf of the creditor. The plaintiff’s allegations are that the
defendants failed to attach documentation to the complaint in the state court action and
failed to validate the debt before filing a lawsuit on behalf of American Express in state
court. The plaintiff attached a copy of the letter dated September 2, 2011 from the
defendants providing notice of the intent to collect the debt and notice that the debt
would be assumed valid if the plaintiff failed to notify the defendants within 30 days of
receipt of the letter that the debt or any portion of it was disputed. (DE# 23, Ex. A,
5/18/12). The defendants sent a second letter dated October 4, 2011 (DE# 23, Ex. B,
5/18/12) that advised the plaintiff that the creditor would decide whether to file suit
within ten days of the date of the letter and provided a settlement offer. On October 13,
2011, the plaintiff sent a letter to give “notice that your claim is disputed.” (DE# 23, Ex.
C, 5/18/12)
Based on the allegations and the exhibits attached to the Second Amended
Complaint, it is undisputed that the plaintiff failed to give timely notice that the debt was
disputed and thus, verification of the debt was not required and the defendant was
entitled to assume the debt to be valid and to proceed with collection. See Paragraph
10 and Exhibits A, B, and C of the Second Amended Complaint (DE# 23, Ex. A, B, C,
5/18/12). Reese v. JPMorgan Chase & Co., 686 F. Supp. 2d 1291 (S.D. Fla. 2009) (“A
complaint warrants dismissal if a plaintiff fails to identify how conduct was unfair or
unconscionable under 15 U.S.C. § 1692(f).”) (other citation omitted). “If no written
demand is made within thirty days, ‘the collector may assume the debt to be valid.’”
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Antoine v. J.P. Morgan Chase Bank, 757 F. Supp. 2d 19, 23 (D.C. 2010) (quoting Avila
v. Rubin, 84 F.3d 222, 226 (7th Cir. 1996); 15 U.S.C. §1692g(a)(3)). Count I fails to
state a cause of action for violation of the FDCPA and is dismissed with prejudice.
II.
The Litigation Privilege Bars Count II.
Count II of the Second Amended Complaint alleges violations of the Florida
Consumer Collections Practices Act (“FCCPA”). The allegations of the complaint fail to
include facts describing who the defendants purportedly disclosed information to or
what information was disclosed. In Count II, the plaintiff alleges that the defendants did
not validate the debt or attach any documentation to the lawsuit filed on behalf of the
defendant in state court. Additionally, in Count II, the plaintiff alleges that the
defendants violated the FCCPA subsection 9 by claiming, attempting, or threatening to
enforce a debt when such persons knew that the debt was not legitimate. To support
the allegation, the plaintiff contends that the defendants violated the subsection by filing
a lawsuit on behalf of American Express in state court without the original wet ink
signature contract and no general ledger of the alleged account as required by law.
The pleading deficiencies that plaintiff alleges constitute violations of the FCCPA
were addressed in a factually similar case, Krawczyk v. Centurion Capital Corp., 2009
WL 395458, *9 (N.D. Ill. Feb. 18, 2009). In Krawczyk, the court found that “failing to
attach the agreement to the complaint does not make the allegation of indebtedness
‘false.’” Id. The court explained that compliance with procedural pleading requirements
was well within the province of the state court judge. Id. The court concluded that “a
judgment about the quality of the pleadings and evidence submitted in state court
should be left to the discretion of the state court judge.” Id. The Krawczyk court held
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that the failure to attach documentary evidence of debt to the state court complaint was
“insufficient to sustain a claim under the FDCPA.” In the present case, the procedural
deficiencies that form the basis of the alleged violations of the FCCPA are equally
inadequate and subject to dismissal.
Additionally, Florida’s litigation privilege “may be considered in resolving a motion
to dismiss when the complaint affirmatively and clearly shows the conclusive
applicability of the defense to bar the action.” Jackson v. Bellsouth Telecomms., 372
F.3d 1250, 1277 (11th Cir. 2004); see Fariello v. Gavin, 873 So. 2d 1243, 1245 (Fla. 5th
DCA 2004) (dicta) (recognizing that the defense may be raised in exceptional cases on
a motion to dismiss when the “facts giving application to the [litigation privilege] defense
are clearly apparent on the face of the complaint”).
In the present case, the allegations and certain exhibits to the Second Amended
Complaint that address the timing of the correspondence between the defendants and
the plaintiff reveal on their face that the defendants were entitled to assume the debt to
be valid based on the plaintiff’s untimely notice of dispute and request for validation.
“Under Florida law, absolute immunity ‘must be afforded to any act occurring during the
course of a judicial proceeding ... so long as the act has some relation to the
proceeding.” McCorriston v. L.W.T., Inc., 536 F. Supp. 2d 1268, (M.D. Fla. 2008)
(quoting Echevarria, McCalla, Raymer Barrett & Frapier v. Cole, 950 So.2d 380, 384
(Fla. 2007)). The state court debt collection action remains pending. Count II is
dismissed for failing to state a cause of action.
Finally, the claim against the individual attorney defendant is subject to
dismissal. See Garcia v. Jefferson Capital Systems, LLC, 2007 WL 1364382, *1 n.2
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(May 9, 2007)(recognizing that “‘individuals do not become ‘debt collectors’ simply by
working for or owning stock in a debt collection company, ... the Act does not
contemplate personal liability for shareholders or employees of debt collection
companies who act on behalf of those companies....’”)(quoting Pettit v. Retrieval
Masters Creditors, 211 F.3d 1057, 1059 (7th Cir. 2000)(citations omitted). The plaintiff’s
motion for leave to amend to add two additional attorneys as defendants would be
subject to dismissal on the same grounds and thus, is futile. Hall v. United Ins. Co. of
America, 367 F.3d 1255, 1263 (11th Cir. 2004)(“[A] district court may properly deny
leave to amend the complaint under Rule 15(a) when such amendment would be
futile.”). Where, as here, the complaint as amended is still subject to dismissal, denial
of leave to amend is justified. Burger King Corp. v. Weaver, 169 F.3d 1310, 1320 (11th
Cir. 1999) (affirming denial of motion for leave to amend based on futility). The
plaintiff’s motion for leave to amend to add two additional attorneys is denied.
DONE AND ORDERED, in Chambers, at Miami, Florida, this 19th day of
September, 2012.
JOHN J. O’SULLIVAN
UNITED STATES MAGISTRATE JUDGE
Copies furnished to:
All Counsel of Record
Copies mailed by Chambers to:
Juan Abanto, pro se
4250 SW 67 Avenue #22
Miami, FL 33155
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