Meyer v. Fay Servicing, LLC

385 F.Supp.3d 1235

Paul MEYER, Plaintiff,

v.FAY SERVICING, LLC and McCalla, Raymer, Leibert, Pierce, LLC, Defendants.

Case No: 2:19-cv-88-FtM-38UAM

United States District Court, M.D. Florida, Fort Myers Division.

Signed May 6, 2019

Filed May 7, 2019

Melissa Miller Thalji, Scott Stamatakis, Stamatakis Thalji & Bonanno, Tampa, FL, for Plaintiff.

Frank Edward Morreale, Tanya L. Cronau, Nelson, Mullins, Riley & Scarborough, LLP, Jacksonville, FL, Charles Porter Gufford, McCalla Raymer, LLC, Orlando, FL, Matthew D. Morton, McCalla Raymer, LLC, Tampa, FL, for Defendants.

OPINION AND ORDER ¹

SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Fay Servicing, LLC's ("Fay Servicing") Motion to Dismiss (Doc. 7) filed on March 12, 2019, and Defendant McCalla, Raymer, Leibert, Pierce, LLC's ("MRLP") Motion to Dismiss (Doc. 12) filed on April 1, 2019. On March 26, 2019, and April 22, 2019, Plaintiff Paul Meyer ("Meyer") filed Memorandums of Law in Opposition to Defendants' motions and requested a hearing. (Docs. 11; 15). For the following reasons, Defendants' motions are granted in part and denied in part and Plaintiff's motion for a hearing is denied.

BACKGROUND²

This is an action brought under the Federal Fair Debt Collection Practices Act, 15 U.S.C. § 1692, et seq. ("FDCPA"), and Florida's Consumer Collection Practices Act, Fla. Stat. § 559, et. seq. ("FCCPA") for an unlawful debt collection (collectively the "Acts"). (Doc. 1). Fay Servicing, a debt collection company, acquired Meyer's delinquent home mortgage. (Id. at ¶ 9). On October 29, 2018, Meyer, through counsel, requested reinstatement and payoff figures for his loan. (Doc. 1-1). Nine days later, Meyer received a demand letter from MRLP, a law firm providing debt collection services. (Id. ). The letter outlined the amounts required to pay off and reinstate Meyer's mortgage. (Id. ). Meyer alleges the letter fails to properly itemize and disclose all the fees and costs included in the reinstatement amount and fails to specify what fees are included in the "corporate advances" category (Doc. 1 at ¶ 12). He is therefore unable to determine the validity of the amounts alleged to be owed to Fay Servicing. Consequently, Meyer maintains this letter violates the FDCPA and FCCPA.

Defendants move to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(1) and (6). First, Defendants argue Plaintiff lacks standing and, therefore, this Court should dismiss the Complaint for lack of subject matter jurisdiction. (Docs. 7 at 8-9; 12 at 3-5). Next, Defendants argue Meyer fails to state a claim for relief under the FCCPA and FDCPA. (Docs. 7 at 4-7; 12 at 3-7). Lastly, MRLP contends this Court should refrain from exercising supplemental jurisdiction over Plaintiff's FCCPA counts. (Doc. 12 at 7-8). The Court addresses these arguments below.

STANDARDS OF REVIEW

Motions to dismiss based upon lack of standing "attack the court's subject matter jurisdiction, and are therefore considered pursuant to Rule 12(b)(1)." Honeywell v. Harihar Inc , No. 218CV618FTM29MRM, 2018 WL 6304839, at *2 (M.D. Fla. Dec. 3, 2018) (citing Finstad v. Fla., Dep't of Bus. & Prof'l Regulation , 2007 WL 3451000, *1 (M.D. Fla. Nov. 14, 2007) ; Doe v. Pryor , 344 F.3d 1282, 1284 (11th Cir. 2003) ). A defendant's attack on subject matter jurisdiction occurs in two forms: facial and factual. See Garcia v. Copenhaver, Bell & Associates, M.D.'s PA , 104 F.3d 1256, 1260 (11th Cir. 1997) (citing Lawrence v. Dunbar , 919 F.2d 1525, 1528-29 (11th Cir. 1990) ). When there is a facial attack, like Defendants raise here, the Court takes the allegations in the complaint as true in deciding the motion. See Morrison v. Amway Corp. , 323 F.3d 920, 924 n.5 (11th Cir. 2003) ).

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations as true and view them in a light most favorable to the plaintiff. See Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). This preferential standard of review, however, does not permit all pleadings adorned with facts to survive to the next stage of litigation. The Supreme Court has been clear on this point – a district court should dismiss a claim where a party fails to plead facts that make the claim facially plausible. See Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A claim is facially plausible when the court can draw a reasonable inference, based on the facts pled, that the opposing party is liable for the alleged misconduct. See Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. This plausibility standard requires "more than a sheer possibility that a defendant has acted unlawfully." See id. (citing Twombly , 550 U.S. at 557, 127 S.Ct. 1955 (internal quotation marks omitted)).

DISCUSSION

As a threshold matter, Defendants assert Plaintiff lacks standing to bring claims under the FCCPA and FDCPA. (Docs. 7 at 8-9; 12 at 3-5). Next, Defendants argue Plaintiff fails to state a claim a relief under both Acts. (Docs. 7 at 4-7; 12 at 3-7). The Court first determines whether Plaintiff has standing and will then address Defendants' Fed. R. Civ. P. 12(b)(6) attack.

A. Meyer Has Standing to Bring Claims Under the FCCPA and FDCPA

Defendants first argue Meyer lacks standing under the FCCPA and FDCPA and, therefore, this Court should dismiss the Complaint for lack of subject matter jurisdiction. (Docs. 7 at 8-9; 12 at 3-5). Specifically, Defendants contend Meyer has not alleged a concrete injury in fact by mere receipt of the demand letter. (Docs. 7 at 8-9; 12 at 3-5). Meyer responds he alleges a concrete injury because Defendants failed to itemize and explain the amounts owed under the "corporate advances" category and thus did not allow him to determine whether such amounts were valid. (Docs. 11 at 14-17; 15 at 3-6).

Standing is "an essential and unchanging part of the case-or-controversy requirement of Article III" of the United States Constitution. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The standing doctrine "developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). To establish Article III standing a "plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Id. (citing Lujan , 504 U.S. at 560-61, 112 S.Ct. 2130 ).

The alleged injury must consist of "an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical." Id. at 1548 (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ) (internal quotation marks omitted)). That holds true regardless of whether the alleged injury is tangible or intangible. See id. at 1549. "Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly ... allege facts demonstrating’ each element" of standing. Id. at 1547 (citation omitted).

In Spokeo , the Supreme Court addressed whether a violation of a procedural right granted by statute presents an injury sufficient to constitute a concrete injury to satisfy the three requirements of standing. Id. The respondent alleged that the petitioner violated the FCRA by including false information about him in a consumer report. See id. at 1546. The Supreme Court held that, although a concrete injury may be intangible to satisfy Article III:

Congress' role in identifying and elevating intangible harms does not mean that a plaintiff automatically satisfied the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the contact of a statutory violation.

Id. at 1549. Consequently, "a bare procedural violation, divorced from any concrete harm, [could not] satisfy the injury-in-fact requirement of Article III." Id. (citing Summers v. Earth Island Inst. , 555 U.S. 488, 496, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) and Lujan , 504 U.S. at 572, 112 S.Ct. 2130 ). That said, the Court recognized "the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact," and "a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified." Id.

Plaintiff's allegation that he was deprived of the right to information is sufficient to confer standing under the FDCPA. The Eleventh Circuit recently applied Spokeo in Church v. Accrective Health, Inc. , 654 Fed. App'x 990 (11th Cir. 2016) to a suit brought under the FDCPA. In Church , the Eleventh Circuit recognized the violation of a statutory right is not a "hypothetical or uncertain" injury, but "one that Congress has elevated to the status of a legally cognizable injury." Id. at 995. Specifically, the Eleventh Circuit examined whether a plaintiff had standing to bring a claim under the FDCPA arising from plaintiff's receipt of a letter advising her that she owed a debt without including required FDCPA disclosures. The Eleventh Circuit found plaintiff had standing because "[the plaintiff's] right to receive the disclosures is not hypothetical or uncertain; [the plaintiff] did not receive information to which she alleges she was entitled." Id. at 994-95.

Thereafter, in Perry v. Cable News Network, Inc. , 854 F.3d 1336, 1339-40 (11th Cir. 2017), the Eleventh Circuit reiterated that "the violation of a procedural right granted by statute can be sufficient in some circumstances to constitute injury in fact" so that "a plaintiff in such a case need not allege any additional harm beyond the one Congress has identified." Perry , 854 F.3d at 1339-40 (quoting Spokeo , 136 S. Ct. at 1549 ...