Minter v. The Albertelli Firm, P.C. et al

Filing 8

OPINION AND ORDER adopting Magistrate Judge Janet F. King's Final Report and Recommendation 6 , granting U.S. Bank Trust N.A.'s and Caliber Home Loans, Inc.'s Motion to Dismiss 5 . Plaintiff's claims against The Albertelli Firm, P.C. are dismissed without prejudice and this action is dismissed. Signed by Judge William S. Duffey, Jr on 11/16/17. (ddm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RICA MINTER,
Plaintiff,
v.

1:17-cv-01513-WSD

THE ALBERTELLI FIRM, P.C.,
CALIBER HOME LOANS, INC.,
U.S. BANK TRUST N.A. as Trustee
for LSF8 Master Participation Trust,
Defendants.

OPINION AND ORDER
This matter is before the Court on Magistrate Judge Janet F. King’s Final
Report and Recommendation [6] (“R&R”). The R&R recommends: (1) the Court
grant Defendants U.S. Bank Trust N.A.’s (“U.S. Bank”) and Caliber Home Loans,
Inc.’s (“CHL”) Motion to Dismiss [5]; and (2) dismiss claims against The
Albertelli Firm, P.C. (“Albertelli”) for lack of service.1 Plaintiff Rica Minter does
not oppose the motion or object to the R&R. The Court finds no plain error in the
R&R and adopts the recommendations of the Magistrate Judge.
1

The Court refers to U.S. Bank, CHL, and Albertelli collectively as
“Defendants.”

I.

BACKGROUND
A.

Facts2

On March 29, 2005, Richard Minter executed an Adjustable Rate Note
(“Note”) in the amount of $233,200 and executed a Security Deed on real property
in McDonough, Georgia, to secure repayment of the Note in favor of Homequest
Capital Funding, LLC. ([5.2]). On August 25, 2009, Homequest’s nominee,
Mortgage Electronic Registration Systems Inc., assigned the Security to HSBC
Mortg. Services Inc. ([5.3] at 2). On March 31, 2014, HSBC assigned the
mortgage to Defendant U.S. Bank. ([5.3] at 4). On May 29, 2014, HSBC assigned
the mortgage to U.S. Bank again, in care of CHL, as the loan servicer. ([5.3] at 5).
On March 31, 2017, Defendant Albertelli sent to Plaintiff, “as Administer of
the Estate of Richard Minter, Sr.,” a notice of foreclosure sale to be conducted on
May 2, 2017, pertaining to the Note and Deed to Secure Debt held by Defendant
U.S. Bank. (Compl. at 2, 5). Albertelli stated at the bottom of this letter “THIS
AN ATTEMPT TO COLLECT A DEBT. ANY INFORMATION OBTAINED
WILL BE USED FOR THAT PURPOSE.” (Compl. at 2, 5). On April 27, 2017,
2

The Court recites facts from the R&R and the record. The parties have not
objected to any facts in the R&R, and the Court finds no plain error in them. The
Court thus adopts the facts set out in the R&R. See Garvey v. Vaughn, 993 F.2d
776, 779 n.9 (11th Cir. 1993).

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Plaintiff responded to Albertelli via certified mail identifying herself as “Owner
and Administer of the Estate of Richard Minter Sr.” (Compl. at 2, 7-8). Plaintiff
characterized her letter as being “a notice sent pursuant to the Fair Debt Collection
Practices Act, 15 USC 1692G Sec. 908(b) that your claim is disputed.” (Compl. at
7). Plaintiff further stated, “I am exercising my ‘Borrowers Rights’ and request
validation of this debt for review and or audit.” (Id.).
B.

Procedural History

On April 28, 2017, the day after requesting validation of the debt, Plaintiff
filed the instant complaint labeled as a “Petition for Declaratory Judgment
Pursuant to Rule 57 of the Federal Rules of Civil Procedure.” (Compl. at 1).
Plaintiff seeks a declaratory judgment and a stay of all foreclosure proceedings.
(Compl. at 4). Plaintiff contends that Defendants are debt collectors that violated
the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692g(b), by
failing to validate the debt and must cease and desist in conducting the foreclosure
sale. (Compl. at 2-4).
On May 1, 2107, the Magistrate Judge advised Plaintiff of her responsibility
to timely effect service of process on each Defendant. ([4]).
On May 18, 2017, CHL and U.S. Bank filed a Motion to Dismiss Plaintiff’s
Complaint. ([5]). CHL and U.S. Bank seek dismissal of the Complaint,

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contending: (1) it is an improper shotgun pleading; (2) that the FDCPA claim fails
because neither is a debt collector and because foreclosure proceedings are
excluded from the FDCPA; and (3) that declaratory relief is not available. ([5]).
Plaintiff did not respond to the motion.
On September 5, 2017, the Magistrate Judge issued her Final R&R, which
recommends granting the Motion to Dismiss filed by U.S. Bank and CHL. ([6] at
8-18). The Magistrate Judge also recommended that Plaintiff’s claims against
Albertelli be dismissed without prejudice because Plaintiff failed to properly serve
Albertelli within the 90 days required by Fed. R. Civ. P. 4(m). ([6] at 18-24).
Plaintiff does not object to the R&R and has not filed proof of service on Albertelli
in response to the R&R.
II.

DISCUSSION
A.

Legal Standards
1.

Review of a Magistrate Judge’s R&R

After conducting a careful and complete review of the findings and
recommendations, a district judge may accept, reject, or modify a magistrate
judge’s report and recommendation. 28 U.S.C. § 636(b)(1); Williams
v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983).
Where, as here, no party objects to the R&R, the Court conducts a plain error

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review of the record. See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.
1983).
2.

Motion to Dismiss Standard

On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must “assume that the factual allegations in the
complaint are true and give the plaintiff[] the benefit of reasonable factual
inferences.” Wooten v. Quicken Loans, Inc., 626 F.3d 1187, 1196 (11th Cir.
2010). Although reasonable inferences are made in the plaintiff’s favor,
“‘unwarranted deductions of fact’ are not admitted as true.” Aldana v. Del Monte
Fresh Produce, N.A., 416 F.3d 1242, 1248 (11th Cir. 2005) (quoting S. Fla. Water
Mgmt. Dist. v. Montalvo, 84 F.3d 402, 408 n.10 (11th Cir. 1996)). Similarly, the
Court is not required to accept conclusory allegations and legal conclusions as true.
See Am. Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)
(construing Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007)).
“To 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.’”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Mere “labels and
conclusions” are insufficient. Twombly, 550 U.S. at 555. “A claim has facial

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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.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). This requires more than
the “mere possibility of misconduct.” Am. Dental, 605 F.3d at 1290 (quoting
Iqbal, 556 U.S. at 679). The well-pled allegations must “nudge[] their claims
across the line from conceivable to plausible.” Id. at 1289 (quoting Twombly, 550
U.S. at 570).
B.

Analysis
1.

CHL and U.S. Bank’s Motion
a.

Shotgun Pleading

The Magistrate Judge concluded that Plaintiff’s Complaint is an
impermissible “shotgun” pleading because it fails to recite any facts specific to her
causes of action, fails to delineate causes of action in separate counts, offers little
more than threadbare recitals of the elements of a cause of action, and includes
rambling legal conclusions and vague and conclusory allegations. ([6] at 9-10).
The Court finds no plain error in the Magistrate Judge’s finding that Plaintiff’s
Complaint is an impermissible “shotgun pleading” that fails to meet the
requirements of Rule 8 of the Federal Rules of Civil Procedure and dismissal is
warranted on this basis alone. See, e.g., Osahar, 297 F. App’x at 864; Maldonado

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v. Snead, 168 F. App’x 373, 377 (11th Cir. 2006); Magluta v. Samples, 256 F.3d
1282, 1284 (11th Cir. 2001); Johnson Enters. of Jacksonville, Inc. v. FPL Group,
Inc., 162 F.3d 1290, 1333 (11th Cir. 1998).
b.

The FDCPA Claim

The Magistrate Judge also concluded that Plaintiff failed to plead facts
raising even an inference that U.S. Bank and CHL are “debt collectors” under the
FDCPA. ([6] at 13-17). The FDCPA prohibits debt collectors from, among other
things, using “false, deceptive, or misleading representation or means in
connection with the collection of any debt.” 15 U.S.C. § 1692e. To state a claim
for relief under the FDCPA, a plaintiff must allege that: (1) the defendant is a
“debt collector;” (2) the challenged conduct is related to debt collection activity;
and (3) the defendant engaged in an act or omission prohibited by the FDCPA.
Gardner v. TBO Capital, LLC, 986 F. Supp. 2d 1324, 1332 (N.D. Ga. 2013) (citing
Reese v. Ellis, Painter, Ratteree & Adams, LLP, 678 F.3d 1211, 1216 (11th Cir.
2012)); Frazier v. Absolute Collection Serv., Inc., 767 F. Supp. 2d 1354, 1363
(N.D. Ga. 2011). Under the FDCPA, a “debt collector” is one who engages “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

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asserted to be owed or due another.” 15 U.S.C. § 1692a(6); see also Reese, 678
F.3d at 1218.
The Magistrate Judge found that U.S. Bank, the undisputed owner of the
debt on the property at issue, is not a debt collector, noting that “[t]he complaint
does not allege that Defendant’s business has as its principle [sic] purpose debt
collection – nor do any inferences arise that such is the case – or allege that
Defendant was attempting to collect on a ‘debt owed or due . . . another.’” ([6] at
15).
With respect to CHL, the loan servicer on the debt, the Magistrate Judge
found that “the complaint fails to allege facts raising a reasonable inference that it
is a ‘debt collector’ as defined by 1692a(6).” ([6] at 15). As Plaintiff’s servicer,
CHL is not liable under the FDCPA for its actions to collect the debt. See
McWeay v. Citibank, N.A., 521 F. App’x 784 (11th Cir. 2013) (loan servicer was
not a “debt collector” within meaning of FDCPA).
The Magistrate Judge also found that U.S. Bank became the debt owner and
CHL became Plaintiff’s loan servicer before the loan went into default, providing
yet another reason neither could be considered a debt collector under the FDCPA.
([6] at 15).

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The Magistrate Judge recommends the Court grant U.S. Bank’s and CHL’s
motion to dismiss Plaintiff’s FDCPA claim against them with prejudice. ([6] at
17). The Court finds no plain error in these findings and recommendations, and
Plaintiff’s FDCPA claim against U.S. Bank and CHL is dismissed with prejudice.
See Slay, 714 F.2d at 1095.
c.

Declaratory Judgment

The Magistrate Judge found that Plaintiff cannot state a plausible claim for
declaratory relief requiring Defendants to stop any foreclosure activity on the
property. ([6] at 17). The Magistrate Judge concluded that “[a] declaratory
judgment is unavailable in this case ‘because all material rights have accrued based
on past events[, that is, Plaintiff’s loan default,] and what Plaintiff seeks is an
advisory opinion on the validity of the future act[, that is, the foreclosure sale,] of
another party.” ([6] at 17-18, citing Milani v. One West Bank FSB, 491 Fed.
Appx. 977, 979 (11th Cir. 2012)). The Magistrate Judge recommends that
Plaintiff’s claim for declaratory relief be dismissed with prejudice. ([6] at 18).
The Court finds no plain error in these findings and recommendations, and
Plaintiff’s declaratory judgment claim is dismissed. See Slay, 714 F.2d at 1095.

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2.

Dismissal for Failure to Serve Albertelli

The Magistrate Judge recommends that the claims against Albertelli be
dismissed pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. Rule
4(m) states:
If a defendant is not served within 90 days after the complaint is filed,
the court—on motion or on its own after notice to the plaintiff—must
dismiss the action without prejudice against that defendant or order
that service be made within a specified time. But if the plaintiff shows
good cause for the failure, the court must extend the time for service
for an appropriate period.
Plaintiff filed the Complaint in this action on April 28, 2017. ([1]). Rule
4(m) required service to be made on Albertelli by July 27, 2017. The record
reflects that Plaintiff failed to serve Albertelli before that deadline.
On September 5, 2017, the Magistrate Judge issued her Final R&R,
notifying Plaintiff of her recommendation that the action against Albertelli be
dismissed for failure to comply with Rule 4(m). Plaintiff did not object or
otherwise respond to this recommendation. The Court finds no plain error in the
Magistrate Judge’s findings or recommendation that Plaintiff’s claims against
Albertelli be dismissed without prejudice because Plaintiff failed to properly serve
them within the 90 days required by Rule 4(m). Plaintiffs have not shown good
cause for this failure. See Slay, 714 F.2d at 1095. Accordingly, Plaintiff’s claims
against Albertelli are dismissed without prejudice.
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III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that Magistrate Judge Janet F. King’s Final

Report and Recommendation [6] is ADOPTED.
IT IS FURTHER ORDERED that U.S. Bank Trust N.A.’s and Caliber
Home Loans, Inc.’s Motion to Dismiss [5] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s claims against The Albertelli
Firm, P.C. are DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that this action is DISMISSED.

SO ORDERED this 16th day of November, 2017.

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