Bohringer v. Bayview Loan Servicing, LLC

141 F.Supp.3d 1229

Peter Bohringer, et al., Plaintiffs,

v.Bayview Loan Servicing, LLC, Defendant.

CASE NO. 15–21053–CIV–ALTONAGA/O'Sullivan

United States District Court, S.D. Florida.

Signed September 10, 2015

Alex D. Weisberg, Weisberg Consumer Law Group, P.A., Cooper City, FL, for Plaintiffs.

William P. Heller, Marc J. Gottlieb, Sumeet H. Chugani, Akerman LLP, Fort Lauderdale, FL, for Defendant, Bayview Loan Servicing, LLC.

ORDER

CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE

THIS CAUSE came before the Court on Defendant, Bayview Loan Servicing, LLC's ("Bayview['s]") Motion to Dismiss Amended Complaint ... ("Motion") [ECF No. 29], filed June 25, 2015. On July 22, 2015, Plaintiffs, Peter and Aprill Bohringer (together, "Plaintiffs") filed a Response ... ("Response") [ECF No. 40], to which Bayview filed a Reply ... ("Reply") [ECF No. 43]. The Court has carefully reviewed the parties' written submissions; the First Amended Complaint ... ("Amended Complaint") [ECF No. 21]; the record; and applicable law.

I. BACKGROUND¹

A. The Amended Complaint

Around August 2006, Plaintiffs entered into a mortgage loan agreement (the "Loan") with Countrywide Mortgage, with Plaintiffs' principal residence serving as security for the debt. (See Am. Compl.

¶¶ 11, 13).² Former defendant, Bank of America, N.A. ("BANA"), subsequently acquired the Loan and began servicing it. (See id. ¶ 14). In October 2009, Plaintiffs filed for relief under Chapter 13 of the U.S. Bankruptcy Code, but the Loan was not included in their bankruptcy plan. (See id. ¶¶ 15–16). In March 2013, Plaintiffs and BANA entered into a modification agreement regarding the Loan, and Plaintiffs thereafter made all monthly payments owed to BANA. (See id. ¶¶ 17–18).

The last monthly payment statement Plaintiffs received from BANA was dated February 18, 2014 (the "February 18 Statement"); the February 18 Statement reflected Plaintiffs were current on their payments and stated the next monthly payment, in the amount of $2,087.33, was due by March 1, 2014. (See id. ¶¶ 19–21, 34). Plaintiffs' payment on the February 18 Statement posted on February 24, 2014. (See id. ¶ 23). In the meantime, on February 21, 2014, BANA informed Plaintiffs Bayview would begin servicing Plaintiffs' account on March 16, 2014. (See id. ¶ 22).

According to Plaintiffs, "Bayview contends that Plaintiffs were behind in their payments at the time it acquired the servicing rights to the [Loan]." (Id. ¶ 24 (alteration added)). Plaintiffs point to a letter Bayview sent on September 11, 2014 to the New York Department of Financial Services (the "September 11 Letter"), in which Bayview states:

[O]ur records indicate that the loan was past due for the month of January 2014 when Bayview acquired the servicing rights on March 16th, 2014. For said reason the account is due for the July 2014 monthly payment. Furthermore, our records indicate that the loan was transferred with the correct payment amount of $2,051.47. However, due to the status of the loan, the payment submitted on April 30, 2014 was placed in suspense as the loan was due for the February 2014 monthly payment and was considered a partial payment.

(Id. ¶ 25 (alteration added)). Thus, Plaintiffs allege "[d]espite its records indicating that the [L]oan was transferred with the correct payment amount, [Bayview] asserted that the [L]oan was behind." (Id. ¶ 26 (alterations added)).

Plaintiffs also allege "[o]n several occasions" they "provided Bayview with notice that they had made all required payments." (Id. ¶ 27 (alteration added)). Plaintiffs do not specify when or how they provided such notice, but they nevertheless conclude it follows "Bayview knew, or should have known, that Plaintiffs were current in their payments at the time of transfer, and not behind." (Id. ¶ 28).

After the foregoing allegations, the Amended Complaint provides greater detail about the Plaintiffs' alleged payment history on the Loan. As for the March 2014 payment, on March 19, 2014, Plaintiffs made a partial payment of $1,044.00, which they supplemented on May 5, 2014 with a payment to Bayview of $1,043.67. (See id. ¶¶ 32, 37). Plaintiffs paid Bayview the April 2014 payment on April 30, 2014, in the amount of $2,051.47. (See id. ¶ 38). They sent the same amount on May 12, 2014, presumably for the May 2014 payment. (See id. ¶ 39).

Meanwhile, on April 22, 2014, Plaintiffs sent a letter to Bayview (the "April 22 Letter"), informing it they had not received any monthly account statements since Bayview began servicing the Loan, and requesting Bayview send them the statements. (See id. ¶ 36). Bayview responded in a letter dated May 21, 2014 (the "May 21 Letter"),³ stating:

Dear Mr. and Mrs. Bohringer:

This letter is in response to the recent correspondence received in our office regarding the above referenced account.

After reviewing your account, our records show that your loan is in Bankruptcy Chapter 13 effective October 5, 2009. For said reason, we are unable to generate billing statements on your account. Please note your account is currently due for April 1, 2014 in the amount of $2,051.47.

We trust this letter serves to clarify our position.

If you have any further questions, please contact our Customer Service Department at....

(May 21 Letter (alteration added); see also Am. Compl. ¶¶ 40–41).

At the bottom of the May 21 Letter is a notice in a smaller, different font, that states:

Bayview Loan Servicing, LLC is a debt collector. This letter is an attempt to collect a debt and any information obtained will be used for that purpose. To the extent that your obligation has been discharged or is subject to an automatic stay of bankruptcy this notice is for compliance and informational purposes only and does not constitute a demand for payment or any attempt to collect such obligation.

(May 21 Letter; see also Am. Compl. ¶ 42).

Plaintiffs claim Bayview did not (1) include in the May 21 Letter the notices required by 15 U.S.C. section 1692g(a) ; or (2) send Plaintiffs a statement of their rights, as required by 15 U.S.C. section 1692g(a), within five days after the May 21 Letter (or at any other time). (See id. ¶¶ 43–45).

The first statement of account Bayview sent to Plaintiffs was dated December 4, 2014 (the "December 4 Statement"); it stated $6,154.41 was due on the Loan. (See id. ¶¶ 35, 47–48). Yet, according to Plaintiffs, they had continued making their regular monthly payments each month for June, July, August, September, October, November, and December; the December payment having been sent on December 4, 2014—the same day Bayview sent the December 4 Statement. (See id. ¶ 46).

Plaintiffs also allege Bayview assessed charges on their account that were not expressly authorized by law or by their debt agreement: on March 26, 2014, five charges labeled "Corp. Advance Adjustment," totaling $1,716.00; on April 10, 2014, a $14.00 charge labeled "Property Preservation;" on May 9, 2014, $300.00 in "Attorney Advances;" and on May 15, 2014, another $14.00 charge labeled "Property Preservation." (Id. ¶¶ 29–31).

Plaintiffs assert four counts against Bayview under the FDCPA, 15 U.S.C. section 1692 et seq. : violation of 15 U.S.C. section 1692e(2)(A) for "falsely representing the character, amount, or legal status of Plaintiffs' debt" (Count I); violation of 15 U.S.C. section 1692e(10) for "using false, deceptive, or misleading representations or means in connection with the collection of Plaintiffs' debt" (Count II); violation of 15 U.S.C. section 1692f(1) for "collecting, or attempting to collect, an amount not expressly authorized by the agreement creating the debt or by law" (Count III); and violation of 15 U.S.C. section 1692g(a) for "failing to provide Plaintiffs with the notices required by 15 U.S.C. § 1692g(a), either in the initial communication with Plaintiffs, or in writing within 5 days thereafter" (Count IV). Plaintiffs also seek relief against Bayview under the Florida Consumer Collection Practices Act ("FCCPA"), Florida Statute section 559.55 et seq., on the ground Bayview violated Florida Statute section 559.72(9) by "knowingly claiming, attempting, or threatening to enforce a debt when the debt is not legitimate, or asserting the existence of some other legal right when the right does not exist." (Count V).⁴

B. The Original Complaint

The pleading that preceded the Amended Complaint was a Complaint ... ("Original Complaint") [ECF No. 1], filed March 16, 2015. The Original Complaint asserted claims against Bayview as the sole defendant: two counts under the FDCPA (the first count for violation of 15 U.S.C. section 1692g(a) and the second for violation of 15 U.S.C. section 1692e(11) ); one count under the FCCPA; and one count under the TILA. (See Original Compl. Counts I–IV). Bayview moved to dismiss the Original Complaint (see [ECF No. 8] ), and, after a hearing held on May 22, 2015 (the "May 22 Hearing"), the Court granted the motion, dismissed the Original Complaint, and granted Plaintiffs leave to amend. (See May 22 Order [ECF No. 17]; May 22 Hearing Transcript [ECF No. 28] ).

Plaintiffs' FDCPA and FCCPA claims in the Original Complaint were based in part on a letter Bayview sent to Plaintiffs on March 27, 2014 (the "March 27 Letter") (attached to the Original Complaint as Exhibit A), that Plaintiffs alleged was Bayview's "initial communication with Plaintiffs with respect to the [Loan]" (Original Compl. ¶¶ 21–23). The claims were also based on Bayview's subsequent communications with Plaintiffs—communications as to which Plaintiffs provided no detailed allegations (see id. ¶¶ 28–30). At the May 22 Hearing, the Court found the March 27 Letter could not form the basis of an FDCPA or FCCPA claim because the letter was not made in connection with the collection of a debt: it was simply an initial communication to Plaintiffs that Bayview was the new servicer of the Loan, and nothing in the letter suggested Bayview sought payment of any kind. (See May 22 Hr'g Tr. 18:1–8; 20:5–10). Nevertheless, the...