Ferrer v. Bayview Loan Servicing, LLC et al

Filing 117

ORDER denying 92 Defendant's Motion to Dismiss for Lack of Jurisdiction under Rooker-Feldman; denying as moot 105 Ferrer's Motion to Stay pending resolution of the motion to dismiss. Signed by Judge Robert N. Scola, Jr on 11/15/2017. (mc)

United States District Court
for the
Southern District of Florida
Maria Ferrer, Plaintiff,
v.
Bayview Loan Servicing, LLC, and
others, Defendants,

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Civil Action No. 15-20877-Civ-Scola
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Order Denying Motion to Dismiss
This matter is before the Court upon the Defendants Bayview Loan
Servicing, LLC and M&T Bank’s Motion to Dismiss Counts 1 and 2 for Lack of
Subject Matter Jurisdiction Pursuant to the Rooker-Feldman Doctrine (ECF No.
92). The pro se Plaintiff, Maria Ferrer, filed a response (ECF No. 104), and the
Defendants filed a reply (ECF No. 106). The Court has considered all supporting
and opposing submissions, the record in this case, and the applicable law.
Accordingly, the Court denies the motion to dismiss.
1. Background
This case has a lengthy history. Pro se Plaintiff Maria Ferrer brought suit
against the Defendants, alleging violations of the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 (“FDCPA”), the Florida Consumer Collections Practices Act
§ 559.72(9) (“FCCPA”), and the Telephone Consumer Protection Act 47 U.S.C. §
227 (“TCPA”), related to the servicing of her mortgage. (First Am. Compl. ¶¶ 1-2,
ECF No. 7.) Ferrer alleges throughout that the Defendants sought to collect “an
alleged but non-existing debt.” (Id. at ¶¶ 13, 21, 45-47, 49, 51, 61.)
Ferrer sent debt validation request letters in response to debt notifications
and collection notices from the Defendants. (Id. at ¶¶ 18, 20.) Ferrer did not
receive a response to her request but the Defendants continued collection efforts
by calling Ferrer’s cell phone number repeatedly, instituting a foreclosure action
against her, and mailing collection notices every month. (Id. at ¶ 21.) Additionally,
Bayview, Ferrer claims, called her cell phone 53 times between February 21,
2014, and October 23, 2014—sometimes multiple times in one day. (Id. at ¶ 28.)
As a result, Ferrer filed this action, alleging violations of the FDCPA (Count
1), the FCCPA (Count 2), and the TCPA (Count 3), while a foreclosure proceeding
was taking place in the state court. Therefore, the Court stayed this action for
almost two years while the foreclosure proceeding progressed through the state
court system. (See ECF Nos. 62, 65.) The state court entered a final judgment of
foreclosure in Bayview’s favor in December of 2015. (ECF No. 92-1.) Ferrer

challenged the judgment by filing appeals to the Third District Court of Appeal,
the Florida Supreme Court, and the United States Supreme Court, all of which
were denied or dismissed. (ECF Nos. 92-2, 92-3, 92-4.) Accordingly, the
Defendants now move for dismissal of Counts 1 and 2 of Ferrer’s amended
complaint, arguing that the Court lacks subject matter jurisdiction under the
Rooker-Feldman doctrine.
2. Legal Standard
“Final judgments . . . rendered by the highest court of a State in which a
decision could be had, may be reviewed by the Supreme Court” where a person
claims that the State court’s decision violates his or her federal (Constitutional or
statutory) rights. 28 U.S.C. § 1257. In other words, the Supreme Court has—but
a district court lacks—jurisdiction to consider a case where the plaintiff is
challenging the legitimacy of a “final determination made in a state judicial
proceeding.” Hollins v. Wessel, 819 F.2d 1073, 1074 (11th Cir. 1987) (citing
Rooker v. Fidelity Trust Co., 263 U.S. 413, 416 (1923) and D.C. Court of Appeals v.
Feldman, 460 U.S. 462, 476 (1983)). This is commonly referred to as the RookerFeldman doctrine. See Brown v. R.J. Reynolds Tobacco Co., 611 F.3d 1324, 1330
(11th Cir. 2010) (“The doctrine bars the losing party in state court from seeking
what in substance would be appellate review of the state judgment in a United
States district court, based on the losing party’s claim that the state judgment
itself violates the loser’s federal rights.”) (internal quotation marks omitted). “The
doctrine extends not only to constitutional claims presented or adjudicated by a
state court, but also to claims that are ‘inextricably intertwined’ with a state court
judgment. A federal claim is inextricably intertwined with a state court judgment
if the federal claim succeeds only to the extent that the state court wrongly
decided the issues before it.” Goodman ex rel. Goodman v. Sipos, 259 F.3d 1327,
1332 (11th Cir. 2001) (citation omitted).
“Under the Rooker-Feldman doctrine, ‘[i]t is well-settled that a federal
district court lacks jurisdiction to review, reverse, or invalidate a final state court
decision.” Velardo v. Fremont Inv. & Loan, 298 F. App’x 890, 892 (11th Cir. 2008).
The Eleventh Circuit “delineat[ed] the boundaries of the Rooker-Feldman doctrine:
‘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.’” Nicholson v. Shafe, 558
F.3d 1266, 1274 (11th Cir. 2009) (quoting Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005)).

3. Analysis
In their motion to dismiss, the Defendants argue that Ferrer’s FDCPA and
FCCPA claims are barred by the Rooker-Feldman doctrine because, in essence,
this case constitutes a challenge to the validity of the promissory note and
mortgage involved in the underlying state court foreclosure proceeding. Ferrer
counters that Rooker-Feldman is not applicable in this case, because she claims
that the Defendants’ collection practices violated the FDCPA and FCCPA because
they failed to properly validate the underlying debt prior to filing the foreclosure
action. Indeed, this is not a case that fits into the narrow category delineated by
the Supreme Court in Exxon—in which state court loser files suit to challenge the
judgment in federal Court. Ferrer filed this case while the foreclosure proceeding
was pending in the state court, alleging several violations of the FDCPA in the
form of repeated telephone calls, the failure to disclose that communications were
from a debt collector, and the failure to properly validate the debt after her
requests. (First Am. Compl. ¶¶ 28-29, 48, 52.) These alleged violations do not
require the Court to undo the state foreclosure judgment as the Defendants
argue, because they relate to the Defendants’ alleged debt collection practices, not
directly to the validity of the underlying note and mortgage.
Moreover, Rooker-Feldman “does not apply, however, where a party did not
have a reasonable opportunity to raise his federal claim in state proceedings.”
Casale v. Tillman, 558 F.3d 1258, 1260 (11th Cir. 2009). While the parties seem
to agree that Ferrer generally challenged the validity of the debt in the state court
foreclosure proceeding, there is no indication that she challenged the Defendants’
debt collection practices, which is the basis of her FDCPA claim, in the state
court. Therefore, the Rooker-Feldman doctrine does not apply in this case to
deprive the Court of jurisdiction over Ferrer’s claims.
Nevertheless, “[i]n parallel litigation, a federal court may be bound to
recognize the claim- and issue-preclusive effects of a state-court judgment, but
federal jurisdiction over an action does not terminate automatically on the entry
of judgment in the state court.” Exxon Mobil Corp., 544 U.S. at 293. The
Defendants raise a valid point in noting that Ferrer’s response to the motion to
dismiss confirms that she also aims to challenge the validity of the underlying
debt—a challenge that was repeatedly rejected in the state court. (See Reply at 3,
ECF No. 106.)
Ferrer states that “[i]n essence, the Plaintiff is alleg[ing] that by attempting
to collect the underlying debt and enforce the note and mortgage through
foreclosure before validating the debt, the State Court Action was premature, and
the Plaintiff was injured by being effectively prevented from resolving the debt and
reinstating the note and mortgage. Validating the debt would have enabled the
Plaintiff to save the property secured by the note and mortgage.” (Resp. at 12,

ECF No. 104.) In other words, through this lawsuit, Ferrer is also attempting to
challenge, once again, the validity of the underlying debt, which is an issue
already decided by the state court. The Defendants argue that Ferrer’s claims are
thus nothing more than an attempt to relitigate issues she raised as defenses in
the state foreclosure action. (Mot. at 3, ECF No. 92.)
In general, issue preclusion operates to prevent relitigation of issues
already decided between the parties in a prior lawsuit. Brown v. R.J. Reynolds
Tobacco Co., 611 F.3d 1324, 1332 (11th Cir. 2010). Under Florida law, in order
for issue preclusion to apply, “the parties and issues [must be] identical, and []
the particular matter [must] be fully litigated and determined in a contest which
results in a final decision of a court of competent jurisdiction.” Id. (quoting
Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So. 2d 1216, 1235
(Fla. 2006)). Thus, to the extent that Ferrer intends to attack the validity of the
underlying debt, Ferrer’s claims—especially her FCCPA claim, which is premised
upon Florida Statutes section 559.72(9)1—are likely barred by preclusion
principles. However, the motion to dismiss is premised upon the lack of
jurisdiction, not the application of issue preclusion, and it was incumbent upon
the Defendants to fully develop their argument and support it with citations to
legal authority. See S.D. Fla. L.R. 7.1(a)(1); see also Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“There is no burden upon the
district court to distill every potential argument that could be made based upon
the materials before it[.]”).
4. Conclusion
For the foregoing reasons, the Defendants’ motion to dismiss for lack of
jurisdiction under Rooker-Feldman (ECF No. 92) is denied. Therefore, in addition,
Ferrer’s motion to stay pending resolution of the motion to dismiss (ECF No. 105)
is denied as moot.
Done and ordered at Miami, Florida, on November 15, 2017.

________________________________
Robert N. Scola, Jr.
United States District Judge

Section 559.72(9) states that “[i]n collecting consumer debts, no person shall [c]laim,
attempt, or threaten to enforce a debt when such person knows that the debt is not
legitimate, or assert the existence of some other legal right when such person knows that
the right does not exist.
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