Piester et al v. Franklin American Mortgage Company

Filing 26

ORDER GRANTING DEFENDANTS MOTION TO DISMISS. ORDER granting insofar as Count I and Count II are DISMISSED WITH PREJUDICE and Count III and Count IV are DISMISSED WITHOUT PREJUDICE 21 Motion to Dismiss. Amended Complaint due by 10/9/2019. Signed by Judge Robin L. Rosenberg on 10/4/2019. See attached document for full details. (amb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 19-CV-80651-ROSENBERG/REINHART
TREVOR PIESTER & LESLIE
PIESTER,
Plaintiffs,
v.
FRANKLIN AMERICAN
MORTGAGE COMPANY,
Defendant.
_____________________________/

ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
This cause is before the Court on Defendant’s Motion to Dismiss [DE 21]. Plaintiffs
filed a Response. Defendant did not file a Reply. For the reasons set forth below, the Motion is
granted.
I.

FACTUAL ALLEGATIONS

Plaintiffs executed and delivered a mortgage to Defendant to secure a debt. DE 1 at 1-2.
In the summer of 2018, Plaintiffs allege that Defendant communicated with them (both by mail
and by phone) in an effort to collect upon Plaintiffs’ debt. Id. Plaintiffs filed this suit, alleging
in Count I and Count II that Defendant’s mail correspondence was illegal debt collection activity
and alleging in Count III and Count IV that Defendant’s phone conversations were illegal debt
collection activity. Defendant answered by filing the Motion to Dismiss before the Court,
arguing that Plaintiffs’ operative First Amended Complaint should be dismissed.
II.

STANDARD OF REVIEW

When deciding a motion to dismiss, this Court must accept all factual allegations in a
complaint as true and take them in the light most favorable to the plaintiff; however, a plaintiff is

still obligated to provide grounds of his or her entitlement to relief which requires more than
labels, conclusions and a formulaic recitation of the elements of a cause of action. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 561-563 (2007). The facts as pled must state a claim for relief
that is plausible on the face of the pleading. Ashcroft v. Iqbal, 556 U.S. 662, 678-69 (2009).
III.

ANALYSIS

Each of Plaintiffs’ claims under the Fair Debt Collection Practices Act (“FDCPA”)
(Count I and Count III) and under the Florida Consumer Collections Practices Act (Count II and
Count IV) require that Defendant engaged in debt collection activity. See 15 U.S.C. § 1962e;
Fla. Stat. § 559.77(5). Defendant argues in its Motion that it did not engage in debt collection
activity as a matter of law. To analyze Defendant’s Motion, the Court first examines Plaintiffs’
correspondence-based claims (Count I and Count II) and then turns to Plaintiffs’ phone-based
claims (Count III and Count IV).
Count I and Count II.
Plaintiffs’ correspondence-based claims are premised upon loan statements Plaintiffs
received in the mail from Defendant. Plaintiffs attached those statements to their Amended
Complaint, alleging that the amounts on the statements were false and/or deceptive.
statements all follow the same format, and a sample statement appears below:

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The

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DE 19-1 at 2.
Defendant argues that the statements were merely informational—they were not intended
to collect a debt—and Defendant argues that it was required to send the statements pursuant to
the Truth in Lending Act (“TILA”). For support, Defendant cites to a plethora of authority for
the proposition that if a loan statement is sent pursuant to TILA, that statement does not qualify
as debt collection activity, provided the statement does not stray from the specific requirements
of the TILA statute. E.g., Green v. Specialized Loan Serv. LLC, 766 F. App’x 777, 784-85 (11th
Cir. 2019).
In Response, Plaintiffs do not argue that, in the general sense, a TILA-generated loan
statement is debt collection activity.

Instead, Plaintiffs argue that a TILA-generated loan

statement can be both informational and debt-collection activity—a proposition supported in the
law. E.g., Pinson v. Albertelli Law LLC, F. App’x 551, 553 (11th Cir. 2015) (“A communication
can have more than one purpose, for example, providing information to a debtor as well [as]
collecting a debt.”). Plaintiffs point to three components of the statements in this case that they
argue qualify as debt collection: (1) the statements contain an amount due and payment due date,
(2) the statements contain a payment coupon, and (3) the statements warn the Plaintiffs what may
occur if payment was not made. DE 22 at 4.
Other plaintiffs have made similar arguments in this District and in this Circuit. For
example, in Brown v. Select Portfolio Servicing, Inc., No. 16-CV-62999, 2017 WL 115723 (S.D.
Fla. Mar. 24, 2017), the district court considered a loan statement similar to the loan statement in
the instant case. In Brown, the loan statement appeared as follows:

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The Brown loan statement therefore: (1) showed an amount due with a payment due date, (2)
contained a payment coupon, and (3) notified the plaintiff what could happen if the plaintiff did
not pay. The Brown court found that the statement did not qualify as debt collection activity and
was instead merely information that the sender was permitted to transmit pursuant to TILA. The
Brown court’s decision was based in part upon direct guidance from the Consumer Financial
Protection Bureau. Brown, 2017 WL at *2-3. Other district courts have reached the same
conclusion. E.g., Jones v. Select Portfolio Serv., Inc., No. 18-CV-20289, 2018 WL 2316636
(S.D. Fla. May 2, 2018). Florida state courts are in accord. See Vaneck v. DiscoverFinancial
Servs., LLC, No. COCE14023621, 2015 WL 6775633 (Fla. 17th Cir. Ct. 2015). The Eleventh
Circuit, in an unpublished decision, has reached the same conclusion as well. Green, 766 F.
App’x 777 at 784-85. A loan statement that the Eleventh Circuit has held was not debt collection
activity consisted of the following:

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This loan statement (1) contained an amount for an overdue payment with a payment due date,
(2) arguably contained a payment coupon,1 and (3) informed the recipient of what could happen
if the recipient did not pay. And pursuant to Consumer Financial Protection Bureau TILA
guidance, a loan statement may contain all of the above-listed information and a payment
coupon as well. The sample, generic form for periodic loan statements published by the Bureau
appears as follows:

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The front and back page of the statement contain: (1) a monthly payment notice, (2) boxes the recipient can check,
(3) a return-address formatted in such a way as to permit easy return via mail, (4) instructions for payment, including
payment by check, and (5) alternative payment options.

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Appendix A to Part 1026—Closed-End Model Form and Clauses, Model Form H-30(b) (circular
emphasis added).
In Response, Plaintiffs rely upon a single citation to a case that found that the inclusion of
a payment coupon qualifies as debt collection activity: Jackson v. Carrington Mortgage Services,
LLC, No. 17-CV-60516, 2017 WL 4347382 (S.D. Fla. Sept. 9, 2017). However, Jackson found
that the inclusion of a payment coupon was debt collection activity because a payment coupon
was an addition to the Bureau’s model form but, as set forth above, the model form includes a
payment coupon. Id. at *3.
In summary, the Court finds cases such as Brown, Green, and Jones persuasive and
analogous to the instant case—Defendant’s loan statements did not qualify as debt collection
activity because they were “garden variety” TILA loan statements. See Green, 766 F. App’x at
785. As further amendment would be futile, Plaintiffs’ claims premised upon the mortgage
statements (Count I and Count II) are DISMISSED WITH PREJUDICE.
Count III and Count IV.
Plaintiffs third and fourth counts allege that telephone conversations between Defendant
and Plaintiffs contained deceptive debt collection activity.

Plaintiffs’ Amended Complaint

contains no factual allegations supporting these counts; instead, Plaintiffs rely upon
communications “which will be obtained through discovery.” DE 19 at 7. It is well settled that
in determining a motion to dismiss, a court should not assume that the plaintiff can prove facts
that were not alleged. Quality Foods de Centro Am., S.A. v. Latin AM. Agribusiness Dev. Corp.,
S.A., 711 F.2d 989, 995 (11th Cir. 1983). In Response, Plaintiffs are silent—Plaintiffs make no

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argument to defendant Count III and Count IV. Those counts are therefore DISMISSED
WITHOUT PREJUDICE WITH LEAVE TO AMEND.
IV.

CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendant’s Motion
to Dismiss [DE 21] is GRANTED insofar as Count I and Count II are DISMISSED WITH
PREJUDICE and Count III and Count IV are DISMISSED WITHOUT PREJUDICE.
Plaintiffs may file a second amended complaint by October 9, 2019. Because the amended
pleadings deadline expired in this case on July 30, 2019, Plaintiffs’ amended complaint may not
bring any new claims that were not brought in Plaintiffs’ Amended Complaint. In the event
Plaintiffs do not file an amended complaint, the Court will close this case.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 4th day of
October, 2019.

_______________________________
ROBIN L. ROSENBERG
UNITED STATES DISTRICT JUDGE

Copies furnished to Counsel of Record

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