US Bank N.A. v. Capparelli

Filing 38

ORDER AND OPINION granting in part and denying in part 20 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 20 Motion for More Definite Statement; granting in part and denying in part 28 Motion to Dismiss for Failure to State a Claim. Signed by Judge Kenneth A. Marra on 6/19/2014. (ir)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-80323-CIV-MARRA/MATTHEWMAN
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE FOR LXS 2006-2N,
Plaintiff,
vs.
MARGARET P. CAPPARELLI, et al.,
Defendant(s)/Third Party Plaintiff(s),
vs.
ONEWEST BANK GROUP, LLC, a foreign
limited liability company, and ONEWEST
BANK, FSB, a foreign corporation,
Third Party Defendants.
________________________________________/
ORDER AND OPINION
THIS CAUSE is before the Court upon U.S. Bank, N.A., as Trustee for the LXS
2006-2N (“U.S. Bank” or “Plaintiff”) Motion to Dismiss Third Party Complaint or, in
the alternative, Motion for More Definite Statement [DE 20], and OneWest Bank
Group, LLC and Onewest Bank, FSB (together “Third Party Defendants” or “OWB”)
Third Party Defendants’ Motion to Dismiss Third Party Plaintiff’s Complaint [DE 28].
U.S. Bank and Third Party Defendants will be collectively referred to as “Movants.”
The Court has carefully reviewed the entire Court file and is fully advised in the
premises.

Introduction
On February 28, 2013, Plaintiff filed a mortgage foreclosure action in the
Circuit Court of the Fifteenth Judicial Circuit against Defendant and Third Party
Plaintiff, Margaret P. Capparelli (“Capparelli”). Capparelli was served with the
Complaint on March 5, 2013, and on March 20, 2013, Capparelli served her Answer,
Affirmative Defenses, Counterclaim and Third-Party Complaint. Capparelli’s
Counterclaim and Third-Party Complaint (“TPC”) asserts the following statutory and
common law claims: (1) breach of contract; (2) violations of state and federal
deceptive and unfair trade practices laws; (3) illegal consumer collection practices,
and (4) violations of state and federal RICO laws. Plaintiff’s Complaint seeks to
repossess the property and damages. The counterclaim and TPC seek, among other
things, damages, actual and consequential damages, injunctive relief, declaratory
relief, pre- and post-judgment interest, attorneys’ fees and costs. Capparelli1
removed this mortgage foreclosure action pursuant to 28 U.S.C. § 1441, claiming this
state action is within the original jurisdiction of this Court and properly removed
under 28 U.S.C. § 1332 (diversity of citizenship; amount in controversy). Plaintiff and

1

Capparelli is a Florida resident. It is well established that for removal to be
proper under 28 U.S.C. § 1441 “no defendant can be a citizen of the state in which
the action was brought.” Tillman v. R.J. Reynolds Tobacco, 253 F.3d 1302, 1305 (11th
Cir. 2001) (citing 28 U.S.C. § 1441(b). Inasmuch as removal by a resident defendant is
a procedural defect that does not deprive a federal court of subject matter
jurisdiction when complete diversity exists, objections to removal based on residency
of defendant are waived if plaintiff fails to file a motion for remand within the
statutory 30-day deadline. 28 U.S.C.A. §§ 1441(b), 1447(c).
Page 2 of 21

Third Party Defendants filed the instant Motions to Dismiss pursuant to Fed. R. Civ. P.
12(b)(6).
Standard of Review for Motions to Dismiss
The general rule in federal court is that a complaint need only set forth “a
short and plain statement of the claim showing that the pleader is entitled to relief.”
Fed. R. Civ. P. 8(a)(2). However, to survive a Rule 12(b)(6) motion to dismiss, a
plaintiff is required to provide factual allegations that raise a right of relief above the
speculative level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “While a
complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations, [ ] a plaintiff's obligation to provide the ‘grounds' of his
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do ... Factual allegations must
be enough to raise a right to relief above the speculative level on the assumption that
all of the complaint's allegations are true.” Id. (citations omitted). Plaintiff must
plead enough facts to state a plausible basis for the claim. Id. “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570).
To resolve a motion to dismiss, the district court “may begin by identifying
allegations that, because they are mere conclusions, are not entitled to the
assumption of truth.” Id. Then, “[w]hen there are well-pleaded factual allegations,
Page 3 of 21

a court should assume their veracity and then determine whether they plausibly give
rise to an entitlement to relief.” Id. When ruling on a motion to dismiss for failure
to state a claim upon which relief may be granted, a court must limit its
consideration to the complaint, the written instruments attached to it as exhibits,
and “documents incorporated into the complaint by reference, and matters of which
a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007) (citation omitted); GSW, Inc. v. Long County, Ga., 999 F.2d
1508, 1510 (11th Cir. 1993).
If an action is dismissed it should generally be dismissed without prejudice.
Stevens v. Premier Cruises, Inc., 215 F.3d 1237, 1239-40 (11th Cir. 2000). Leave to
amend, however, “need not be granted where amendment would be futile.” Id.;
Hall v. United Ins. Co. of Am., 367 F.3d 1255, 1263 (11th Cir. 2004); see, also,
Freeman v. Dean Witter Reynolds, Inc., 865 So.2d 543, 553 (Fla. Dist. Ct. App. 2003).
When a motion to amend is denied based upon futility, the court makes a legal
conclusion that any amendment to the complaint necessarily would fail. St. Charles
Foods, Inc. v. Am.'s Favorite Chicken Co., 198 F.3d 815, 822 (11th Cir. 1999).
Discussion
Beginning in May 2011, Capparelli, a borrower, alleges that OWB, as owner and
holder of the mortgage loan at issue in the underlying foreclosure case, began
communicating with Capparelli in an effort to modify her loan. Capparelli alleges
that the content of these communications constituted: (1) a breach of contract; (2)
Page 4 of 21

violations of the Federal Deceptive and Unfair Trade Practices Act (“FDUPTA”); (3)
violations of several sections of the Fair Debt Collection Practices Act (“FDCPA”) and
Florida Consumer Collection Practices Act (“FCCPA”); and (4) violations of the
Racketeer Influenced and Corrupt Organizations Act (“RICO”) on the part of OWB.
Movants argue Capparelli’s claims fail to state causes of action under Rule 12(b)(6).
OWB also raises a time-bar issue as to one claim.
Both OWB and Plaintiff argue the Court should dismiss the TPC in its entirety
because Capparelli has not pled her complaint with the required specificity under
Rule 8 to give “fair notice” of the claims brought. In particular, Capparelli makes no
distinction between U.S. Bank and the Third Party Defendants and merely lumps them
together in each claim and provides no factual basis to distinguish their conduct.
Capparelli responds that no distinction between U.S. Bank and OWB is necessary
because she has alleged that they are agents of one another, that they operated in
concert and as a common enterprise, and therefore are liable for all actions
committed by each other. Compl. ¶¶ 50, 51, 40-55.
The Court agrees with Movants that Capparelli’s purported allegations of
agency and common enterprise are naked and baseless assertions. Nowhere in the
TPC does Capparelli allege any grounds to suggest these entities are agents or
instrumentalities of one another. Lumping Movants together creates confusion and
makes the analysis of the Complaint unnecessarily burdensome, and results in
Capparelli making accusations that are just not accurate. Court Appointed Receiver
Page 5 of 21

of Lancer Offshore, Inc. v. Citco Grp. Ltd., 05-60080-CIV, 2011 WL 1233126, *2 (S.D.
Fla. Mar. 30, 2011). By comingling the factual allegations against all defendants,
realleging every previous allegation by reference in each claim for relief, and
presenting all counts under the doctrine of joint and several liability, Capparelli has
effectively placed the onus on Movants to discern which, if any, of the allegations are
brought against them. This is wholly improper. Accordingly, on these grounds alone,
the Court will dismiss the TPC. However, there are several other arguments that the
Court will address so that Cappaarelli is apprised of other problems with the TPC
when considering the filing of an Amended Third Party Complaint.
Count I
Count I of the TPC asserts that Plaintiff and OWB breached their duties under
the note and mortgage by committing one or more of the following acts and/or
omissions:
a.

Engaging in duress2 by requiring Capparelli to default on her obligations
in order to request mortgage assistance;

b.

Engaging in bad faith by failing to fully and adequately disclose to
Capparelli the consequences of a strategic default;

c.

Misrepresenting to Capparelli the loan modification process, request for
mortgage assistance process and administration process so as to create
an unreasonable risk of harm; and

2

As to a claim of “duress,” duress is generally considered a means of voiding a
contract entered into under duress, and it is not an element of a breach of contract
claim. Ferrari v Board of Health, 24 Fla. 390, 5 So. 1(1888); Davis v Hefty Press, Inc.,
152 Fla. 385, 11 So. 2d 884 (1943).
Page 6 of 21

d.

Intentionally interfering in Capparelli’s personal finances and
contractual affairs by instructing Capparelli to stop making the
payments due under the loan and placing Capparelli in financial
jeopardy from which any recovery would be impossible.

TPC ¶ 59. Of the “terms” allegedly breached, none are alleged to be in the Note or
Mortgage. To state a cause of action for breach of contract, one must allege (1) a
valid contract; (ii) a breach; and (iii) damages stemming therefrom. J.J. Gumberg
Co. v. Janis Servs., Inc., 847 So. 2d 1048, 1049 (Fla. Dist. Ct. App. 2003).3 Rather
than a breach, it appears Capparelli is alleging violations of the covenant of “good
faith and fair dealing.” However, alleging a breach of the obligation of good faith
and fair dealing requires the concomitant allegation that an express term of the
contract has been breached. Centurion Air Cargo, Inc. v. United Parcel Serv. Co.,
420 F.3d 1146, 1152 (11th Cir. 2005) (“a claim for a breach of the implied covenant of
good faith and fair dealing cannot be maintained under Florida law in the absence of
a breach of an express term of a contract”); Barnes v. Burger King Corp., 932 F.
Supp. 1420, 1438-39 (S.D. Fla. 1996) (“a party cannot maintain a claim for breach of
the implied covenant of good faith where the party cannot claim a breach of any
express contractual provision”). The TPC merely alleges that OWB and Plaintiff
engaged in bad faith, but fails to identify the terms of the Note or Mortgage that OWB

3

In a diversity case, the Court applies Florida law. See Pendergast v. Sprint
Nextel Corp., 592 F.3d 1119, 1132-33 (11th Cir. 2010); Royal Ins. Co. of America v.
Whitaker Contracting Corp., 242 F.3d 1035, 1040 (11th Cir. 2001); George v. Wells
Fargo Bank, N.A., 13-80776-CIV, 2014 WL 61487, n.3 (S.D. Fla. Jan. 8, 2014).
Page 7 of 21

and Plaintiff allegedly violated. Consequently, without alleging a violation of an
express term of a contract between OWB, Plaintiff and Capparelli, Capparelli has
failed to state a cause of action in Count I. For this additional reason, Count I will be
dismissed.4
Count II
In Count II, Capparelli asserts a claim for violation of the Florida Deceptive and
Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.201 et seq. The FDUTPA
prohibits “[u]nfair methods of competition, unconscionable acts or practices, and
unfair or deceptive acts or practices in the conduct of any trade or commerce[.]” Id.
§ 501.204(1). The FDUTPA's purpose is “[t]o protect the consuming public and
legitimate business enterprises from those who engage in unfair methods of
competition, or unconscionable, deceptive, or unfair acts or practices in the conduct

4

If Capparelli is attempting to assert that OWB or Plaintiff owed her a
fiduciary duty, that claim also fails. Bruhl v. PricewaterhouseCoopers Int'l, No. 0323044-Civ, 2008 WL 899250, at *4 (S.D. Fla. Mar.31, 2008) (conclusory allegations that
a fiduciary relationship exists between a bank and its borrower, without any
supporting factual assertions, are insufficient to state a claim for breach of an
implied fiduciary duty); see also Capital Bank v. MVB, Inc., 644 So.2d 515, 521 (Fla.
Dist. Ct. App. 1994) (special circumstance were found to transform the bank's
traditional status as a non-fiduciary arms-length lender into a fiduciary with a duty to
disclose. This transformation occurred, and Capital Bank was found to have breached
its fiduciary duty, when Capital Bank facilitated a transaction between two of its
customers, it expressly invited a customer's reliance by urging the customer to trust
that the bank's plans would benefit his business, it possessed confidential information
about each customer, and it failed to disclose material information to the customer
which failure resulted in harm to the customer). Court Appointed Receiver of Lancer
Offshore, Inc. v. Citco Grp. Ltd., 05-60080-CIV, 2011 WL 1233106, *7 (S.D. Fla. Mar.
30, 2011).
Page 8 of 21

of any trade or commerce.” Id. § 501.202(2). A practice is unfair if it “offends
established public policy” or is “immoral, unethical, oppressive, unscrupulous, or
substantially injurious to consumers.” PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842
So.2d 773, 777 (Fla. 2003) (internal quotation marks omitted). The TPC alleges:
The Plaintiff and Third Party Defendants violated the Act by engaging in
unfair and deceptive acts and practices, including, but not limited to,
establishing a loan modification evaluation process specifically designed
and intended to unreasonably delay, hinder, obstruct and otherwise
frustrate the homeowner’s request for mortgage assistance in order to
ultimately deny the request; establishing a loan modification evaluation
process specifically designed and intended to cause the homeowner to
become significantly behind in their loan payments so that a mortgage
foreclosure would be unavoidable and inevitable; failing to fully and
adequately disclose to the homeowner their loan modification process
and length of delays which may occur so that the homeowner may make
informed decisions throughout the process and reinstate the loan if
necessary; establishing a loan modification evaluation process
specifically designed and intended to place the homeowner in financial
jeopardy from which any recovery would be unfeasible; establishing a
loan modification evaluation process specifically designed and intended
to interfere and control the homeowner’s personal finances and
governance by requiring that the mortgage loan be in default prior to
any request for mortgage assistance and intentionally delaying the
modification so that the homeowner’s personal financial situation is
irreparably prejudiced; and, continuing to engage in the collection of
the debt so as to pressure and/or coerce the homeowner into resolving
the situation to the detriment of the homeowner and the advantage of
the Third Party Defendants.
TPC, ¶ 67. OWB and Plaintiff argue that this claim must be dismissed because they
are statutorily exempt from FDUTPA.
The parties or activities excluded from operation of FDUPTA are set forth in
section 501.212, Florida Statutes, which states, in part, that FDUPTA does not apply

Page 9 of 21

to “(4) Any person or activity regulated under laws administered by . . . (b) Banks and
savings and loan associations regulated by the Office of Financial Regulation of the
Financial Services Commission; [and] (c) Banks or savings and loan associations
regulated by federal agencies[.]” Fla. Stat. § 501.212(4)(b) and (c).
The first question then is whether the service provided to Capparelli by
Plaintiff and OWB was by a bank or savings and loan association regulated by the
Office of Financial Regulation of the Financial Services Commission or other federal
agency. W.S. Badcock Corp. v. Myers, 696 So. 2d 776, 782 (Fla. Dist. Ct. App. 1996).
If so, Florida courts then resolve questions about the applicability of this provision by
looking to the activity which is the subject of the lawsuit, and whether that activity is
subject to the regulatory authority of the federal agency. Id. at 782-83. See, also,
Groves v. U.S. Bank, 8:10-CV-2665-T-17TGW, 2011 WL 2192821 (M.D. Fla. June 6,
2011).
U.S. Bank is a subsidiary of U.S. Bancorp, a national bank. TPC ¶ 34. U.S. Bank
asserts it is regulated by the SEC under the National Bank Act and is therefore not
subject to FDUPTA. DE 24, Ex. 1. OneWest Bank, FSB claims to be exempt asserting
it is a federal savings bank also listed with the SEC. Capparelli responds that whether
the statutory exemption applies to Movants is a question of fact to be resolved at
trial or through summary judgment. The Court agrees.
OWB adds that if this Court decides that it is not exempt under FDUPTA, the
TPC still fails to state a claim upon which relief can be granted because it does not
Page 10 of 21

contain the particularity required under Rule 9(b) of the Federal Rules of Civil
Procedures. See Stires v. Carnival Corp., 243 F. Supp. 2d 1313, 1322 (M.D. Fla. 2002)
(“Most courts construing claims alleging violations of the Federal Deceptive Trade
Practices Act or its state counterparts have required the heightened pleading
standard requirements of Rule 9(b).”). Federal courts in this district have come out
on both sides of this issue, and the undersigned has yet to weigh in on this question.
See Randolph v. J.M. Smucker Co., 13-80581-CIV, 2014 WL 1018007, *4 (S.D. Fla. Mar.
14, 2014). Compare Guerrero v. Target Corp., 889 F. Supp. 2d 1348, 1354-55 (S.D.
Fla. 2012) (finding that the pleading requirements of Rule 9(b) do not apply to a
FDUPTA claim) with Llado-Carreno v. Guidant Corp., 09-20971-CIV, 2011 WL 705403,
*5 (S.D. Fla. Feb. 22, 2011) (finding that Rule 9(b) does apply to FDUPTA claims); and
Begualg Inv. Mgmt. Inc. v. Four Seasons Hotel Ltd., 10-22153-CIV, 2011 WL 4434891
(S.D. Fla. Sept. 23, 2011) (“the allegations relating to the FDUPTA violation . . . have
failed to meet the requisite particularity under Rule 9(b)”).
Because the FDUPTA is a consumer and business protection statute that is
remedial in nature,5 this Court is inclined to align with the courts that construe the

5

The provisions of this part shall be construed liberally to promote the
following policies:
(1)
To simplify, clarify, and modernize the law governing consumer
protection, unfair methods of competition, and unconscionable,
deceptive, and unfair trade practices.
(2)
To protect the consuming public and legitimate business enterprises
from those who engage in unfair methods of competition, or
unconscionable, deceptive, or unfair acts or practices in the conduct of
Page 11 of 21

FDUPTA liberally in favor of consumers. Fonte v. AT & T Wireless Services, Inc., 903
So.2d 1019, 1024 (Fla. Dist. Ct. App. 2005) (“FDUTPA is a remedial statute designed to
protect consumers”). “FDUTPA was enacted to provide remedies for conduct outside
the reach of traditional common law torts such as fraud, and therefore, ‘the plaintiff
need not prove the elements of fraud to sustain an action under the statute.’”
Florida v. Tenet Healthcare Corp., 420 F. Supp. 2d 1288, 1310 (S.D. Fla. 2005)
(quoting Davis v. Powertel, Inc., 776 So. 2d 971, 974 (Fla. Dist. Ct. App. 2000)).
Moreover, “Florida state courts have stated that FDUTPA claims are ‘a somewhat
unique tortious act because, although it is similar to a claim of fraud, it is different in
that, unlike fraud, a party asserting a deceptive trade practice claim need not show
actual reliance on the representation or omission at issue.’” Costa v. Kerzner Int'l
Resorts, Inc., No. 11–60663–Civ, 2011 WL 2519244, at *2 (S.D. Fla. June 23, 2011)
citing State of Fla., Office of Atty. Gen., Dept. of Legal Affairs v. Wyndham Int'l,
Inc., 869 So.2d 592, 598 (Fla. Dist. Ct. App. 2004); State of Fla., Office of Atty. Gen.,
Dept. of Legal Affairs v. Tenet, 420 F. Supp. 2d 1288, 1310–11 (S.D. Fla. 2005); and
Davis v. Powertel, Inc., 776 So.2d 971, 974 (Fla. Dist. Ct. App. 2000) (“[T]he plaintiff
need not prove the elements of fraud to sustain an action under the statute.”).

any trade or commerce.
(3)
To make state consumer protection and enforcement consistent with
established policies of federal law relating to consumer protection.
Fla. Stat. § 501.202 (2014). See also Beacon Prop. Mgmt., Inc. v. PNR, Inc., 890 So.2d
274, 279 (Fla. Dist. Ct. App. 2004).
Page 12 of 21

Therefore, because the undersigned finds that Rule 9(b) does not apply to FDUTPA
claims, its requirements cannot serve as a basis to dismiss those claims. Toback v.
GNC Holdings, Inc., 13-80526-CIV, 2013 WL 5206103, n.1 (S.D. Fla. Sept. 13, 2013)
(Rule 9(b) does not apply to FDUPTA); Galstaldi v. Sunvest Cmtys. USA, LLC, 637 F.
Supp. 2d 1045, 1058 (S.D. Fla. 2009) (same).
OWB’s third argument is that its conduct in prelitigation negotiations prior to
the foreclosure proceeding does not constitute trade or commerce. Capparelli
responds that their pre-foreclosure negotiations is not what is alleged in the TPC.
“[A]t the time the request for mortgage assistance was made all loan payments were
current. It was at the Third Party Defendants’ request that the loan went into
default (manufactured default) and Capparelli’s claims arise from OWB’s conduct
thereafter. At no time material to the Third Party Plaintiff’s claims and allegations
was there a judicial foreclosure proceeding initiated or pending between the parties.
All of OWB’s alleged conduct and actions indisputably involved trade or commerce
(interstate telephone communications and interstate mail).” DE 31 at 6.
The Court finds OWB’s supplemental arguments rely upon facts outside the TPC
which the Court cannot consider on a Motion to Dismiss. Thus, Count II will not be
dismissed on these grounds. Nonetheless, Capparelli must distinguish and
differentiate the factual allegations and theories directed to one defendant in a
count separate from every other defendant (unless certain defendants are alleged to
be jointly liable for a particular claim). She must correspond allegations of fact or
Page 13 of 21

law under each claim separately against each defendant or set of defendants sued
jointly, and state exactly what constitutes the basis for liability against each.
Count III
Count III, entitled “Illegal Consumer Collection,” is a claim pursuant to 15
U.S.C. § 1692, et seq., the Fair Debt Collection Practices Act (“FDCPA”), and
§ 559.55, Florida Statutes, Florida Consumer Collection Practices Act (“FCCPA”). The
TPC alleges that Plaintiff’s and OWB’s collection activities violated the FDCPA and
FCCPA “in that they were claiming, attempting and threatening to collect and
enforce the consumer mortgage debt by foreclosure action where they knew or
should have known that:
a.

Their claim was the direct approximate result of their direct and
material interference in Capparelli’s personal finances;

b.

Continuing to directly communicate with Capparelli after notice of
representation in an effort to further intimidate, harass and coerce the
Defendant into a disadvantageous legal and equitable position; and,

c.

Third Party Defendants’ unconscionable and deceptive methods and
practices in collecting the loan should preclude them from seeking
judicial enforcement.”

TPC ¶ 74.
Movants urge the Court to dismiss this Count on the basis that the bank is not a
debt collector within the meaning of the statute,6 and that foreclosing on a security

6

Section 1692a of the FDCPA defines “debt collector” as the following:
The term “debt collector” means any person who uses any
instrumentality of interstate commerce or the mails in any
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interest is not debt collection activity under the FDCPA. In support of their position,
Movants rely on Warren v. Countrywide Home Loans, Inc., 342 Fed. Appx. 458, 460
(11th Cir. 2009) (determining that “the act of foreclosing on a security interest is not
debt collection activity for the purposes of the FDCPA”) and Birster v. American
Home Mortg. Servicing, Inc., 2011 WL 2678927 (S.D. Fla. 2011) (“Birster I”) (holding
that mortgage servicer does not engage in the collection of a debt).
However, Movants have ignored the fact that the exact legal contention upon
which they rely from Birster I was reversed, and that the holdings in Warren and
Birster I have been called into question by the Eleventh Circuit's later opinions in
Birster v. American Home Mortg., Servicing, Inc., 481 F. App'x 579, 583 n. 2 (11th Cir.
2012) (“Birster II”) and Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d
1211 (11th Cir. 2012) (“Reese”). See Santiago v. EverBank, 2013 WL 1176074 (N.D.
Ala. Mar.19, 2013).

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.... For the purpose of section
1692f(6) of this title, such term also includes any person
who uses any instrumentality of interstate commerce or
the mails in any business the principal purpose of which is
the enforcement of security interests....
15 U.S.C. § 1692a(6). The substantive provisions of the FDCPA that follow § 1692a
prohibit “debt collectors” from taking certain actions. Therefore, whether an
individual or entity is a “debt collector” is determinative of liability under the FDCPA.
Birster v. Am. Home Mortgage Servicing, Inc., 481 F. App'x 579, 581-82 (11th Cir.
2012).
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The Eleventh Circuit has now made clear, “a communication related to debt
collection does not become unrelated to debt collection simply because it also
relates to the enforcement of a security interest.”• Reese, 678 F.3d at 1218; Birster
II, 481 F. App'x at 583 (“[A]n entity can both enforce a security interest and collect a
debt.”); see also Rotenberg v. MLG, P.A., No. 13-cv-22624-UU, 2013 WL 5664886, at
*3 (S.D. Fla. Oct.17, 2013) (holding that a defendant law firm was engaged in debt
collection activity under the FDCPA when it sent an allegedly deceptive notice to the
plaintiff along with a mortgage foreclosure complaint); Samson v. Marinosci Law
Grp., P.C., 13-61677-CIV, 2013 WL 5789216 (S.D. Fla. Oct. 29, 2013); Lara v.
Specialized Loan Servicing, LLC, 1:12-CV-24405-UU, 2013 WL 4768004 (S.D. Fla. Sept.
6, 2013) (a debt collector could be liable under the FDCPA even though it was also
enforcing a security interest); Lewis v. Marinosci Law Grp., P.C., 13-61676-CIV, 2013
WL 5789183 (S.D. Fla. Oct. 29, 2013). Accordingly, the motions to dismiss Count III
based on the legal contention that foreclosing on a security interest is not debt
collection activity under the FDCPA will be denied.
OWB also argues that at least part of Capparelli’s claims for individual
violations of the FDCPA by OWB are time-barred because some of the contact with
OWB which Capparelli alleges gives rise to her FDCPA claim, occurred prior to April 1,
2012, more than one year before Capparelli filed her TPC. Pursuant to 15 U.S.C.
§1692, Capparelli only had one year to bring her claim from the date of the alleged
violation.
Page 16 of 21

Capparelli has alleged that OWB’s violations of the FDCPA occurred between
May 2011 and August 2012. While it is apparent from the face of the TPC that several
referenced communications from OWB occurred prior to April 1, 2012, FDCPA claims
are not time barred to the extent that it alleges a discrete violation of the FDCPA
within the limitations period. McCorriston v. L.W.T., Inc., 536 F. Supp. 2d 1268, 1272
(M.D. Fla. 2008) (“In this case, the filing of the state court action on April 5, 2006 was
well within the one-year limitations period. That Defendants sent a dunning letter
outside the limitations period does not render Plaintiff's FDCPA claim time-barred,
where, as here, Plaintiff has alleged a discrete violation within the limitations
period”); Kaplan v. Assetcare, Inc., 88 F. Supp. 2d 1355, 1360 (S.D. Fla. 2000) (the
court may assert jurisdiction and allow the case to go forward based only on the
communications that fall within the statutorily permitted time period). Accordingly,
the motions to dismiss Count III on these grounds will be denied. However, when
repleading this count, Capparelli should only raise those alleged violations that
occurred on or after April 1, 2012. Regardless of this ruling, this count is dismissed,
as stated earlier, for lumping the defendants and failing to state exactly what
constitutes the basis for liability against each.
Count IV
This last count is labeled, “Violations of § 895.01, et seq., Florida Statutes, and
18 U.S.C. § 1961, 1962 & 1964.” In attempting to state a RICO claim, Capparelli
makes only conclusory and unsupported allegations that the Third Party Defendants
Page 17 of 21

committed two or more predicate acts and intentionally interfered with Capparelli’s
quiet enjoyment of her home, engaged in deceptive practices in order to fabricate a
foreclosure claim against her, and used illegal collection practices in order to
improperly coerce Capparelli into waiving or relinquishing her rights to her property.
This count does not pass the Iqbal and Twombly tests and will be dismissed for the
additional reasons stated below.
The Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§
1961-1968, permits “any person injured in his business or property by reason of a
violation of [18 U.S.C. § 1962]” to bring a civil suit against the violator. Section
1964(c). One may be liable under the RICO statute if he uses or invests income
derived “from a pattern of racketeering activity” to acquire an interest in or to
operate an enterprise engaged in interstate commerce, § 1962(a); if he acquires or
maintains an interest in or control of such an enterprise “through a pattern of
racketeering activity,” § 1962(b); if, while employed by or associated with such an
enterprise, he conducts or participates in the conduct of its affairs “through a
pattern of racketeering activity,” § 1962(c); or if he “conspir[es] to violate any of the
provisions of subsections (a), (b), or (c),” § 1962(d). RICO defines “racketeering
activity” to mean “any act or threat involving” enumerated state-law crimes, any
“act” indictable under certain specified federal statutes, and various federal
“offenses.”• Section 1961(1). In order to establish a “pattern of racketeering
activity,” the statute requires proof of “at least two acts of racketeering activity”•
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within a 10-year period. Section 1961(5). A person found to have violated RICO in a
civil action is liable for treble damages, costs and attorney's fees. Section 1964(c).
Movants argue that Count IV fails to properly plead a RICO claim because there
are no factual allegations that: establish the existence of an enterprise, show an
agreement on the part of U.S. Bank and other Defendants to violate state law or
otherwise engage in a conspiracy, show U.S. Bank and other Defendants engaged in
enterprise activities separate and apart from their regular business activities, state
the two predicate crimes upon which the allegations are based, or show the requisite
injury to business or property that was the result of the alleged substantive RICO
violation. Movants further complain that U.S. Bank is lumped with other defendants
in a vague and conclusory statement that reads that all of the parties “did cooperate
jointly and severally in the commission of two or more of the RICO predicate acts.”
TPC ¶ 79. The Court agrees this count is wholly inadequate to assert a cause of
action for a RICO violation. The Eleventh Circuit has affirmed dismissals of RICO
claims where the allegations are “merely conclusory and unsupported by any factual
allegations,” as we have here. See Republic of Panama v. BCCI Holdings
(Luxembourg) S.A., 119 F.3d 935, 949 (11th Cir. 1997). Accordingly, Count IV will be
dismissed for this additional reason.
Conclusion
In accordance with the conclusion made herein, it is hereby
ORDERED AND ADJUDGED that U.S. Bank, N.A., as Trustee for the LXS 2006-2N
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Motion to Dismiss Third Party Complaint or, in the alternative, Motion for More
Definite Statement [DE 20] is granted in part and denied in part; and that OneWest
Bank Group, LLC and Onewest Bank, FSB Third Party Defendants’ Motion to Dismiss
Third Party Plaintiff’s Complaint [DE 28] is granted in part and denied in part.
Federal Rule of Civil Procedure 15(a) provides that leave to amend “shall be
freely granted when justice so requires.” Therefore, in accordance with the usual
practice upon granting a motion to dismiss, leave to replead the complaint will be
permitted. Capparelli is reminded that she must distinguish and differentiate the
factual allegations and theories directed to one defendant in a count separate from
every other defendant (unless certain defendants are alleged to be jointly liable for a
particular claim). She must correspond allegations of fact or law under each claim
separately against each defendant or set of defendants sued jointly, and state exactly
what constitutes the basis for liability against each.
Capparelli may file an Amended Third Party Complaint on or before July 7,
2014. If Capparelli fails to file an Amended Third Party Complaint by this date, the
Court will assume Capparelli has abandoned her cause and this case will be dismissed
without further notice to the parties. Assuming Capparelli files an Amended Third
Party Complaint, the parties are directed to file an updated joint scheduling report

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within 14 days of receipt of the Amended TPC, so that this case can proceed in an
orderly fashion.
DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County,
Florida, this 19th day of June, 2014.
_________________________
KENNETH A. MARRA
United States District Judge

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