Owens-Benniefield v. Nationstar Mortg. LLC

258 F.Supp.3d 1300

Vickie OWENS–BENNIEFIELD, Plaintiff,

v.NATIONSTAR MORTGAGE LLC, Defendant.

Case No.: 8:17-cv-540-T-33TGW.

United States District Court, M.D. Florida, Tampa Division.

Signed June 15, 2017

Vickie Owens–Benniefield, Tampa, FL, pro se.

Hallie Smith Evans, Akerman LLP, Tampa, FL, William P. Heller, Akerman LLP, Fort Lauderdale, FL, for Defendant.

ORDER

VIRGINIA M. HERNANDEZ COVINGTON, UNITED STATES DISTRICT JUDGE

This matter comes before the Court pursuant to Defendant Nationstar Mortgage LLC's Amended Motion to Dismiss (Doc. # 23), filed on May 15, 2017. Pro se Plaintiff Vickie Owens–Benniefield filed a response on May 23, 2017. (Doc. # 25). For the reasons that follow, the Motion is granted in part and denied in part.

I. Background

In January of 2008, Owens–Benniefield took out a mortgage to purchase a property in Tampa, Florida. (Doc. # 17 at ¶¶ 14–15). Owens–Benniefield struggled to pay the mortgage, so she "completed a deed in lieu of foreclosure in which the debt was forgiven by Federal Home Loan Mortgage Corporation on February 24, 2015." (Id. at ¶ 15). Owens–Benniefield received a letter, which was addressed to the Comptroller of the Currency and indicated "the Deed in Lieu of Foreclosure was approved by the investor Federal Home Loan Mortgage Corporation." (Id. at ¶ 17). Defendant Nationstar Mortgage LLC "was a party to the transaction for the Deed in Lieu as they had to execute an Assignment of Mortgage in order for the transaction to be completed on February 24, 2015." (Id. at ¶ 18); see also (Doc. # 17–1 at 9)(assigning Nationstar's interest in the mortgage to Federal Home Loan Mortgage Corporation). Owens–Benniefield's "obligation at that point as of February 2015, was forgiven." (Doc. # 17 at ¶ 19); see also (Doc. # 17–1 at 11)(recording the release of mortgage).

Yet, on March 17, 2016, despite the mortgage debt having "been recorded and released by Federal Home Loan Mortgage Corporation," Nationstar began attempting to collect the debt. (Doc. # 17 at ¶ 21). Owens–Benniefield "began to receive numerous telephone calls from [Nationstar's] agents in attempts to collect a debt." (Id. at ¶ 22). Nationstar "placed multiple automated calls per day to [Owens–Benniefield's] cellular telephone for several months prior to the filing of this action." (Id. at ¶ 23). Nationstar also used a "prerecorded or artificial voice" during some phone calls. (Id. at ¶ 76). Between March and April of 2016, Nationstar "placed at least 9 collection calls to [Owens–Benniefield's] cellular telephone." (Id. at ¶ 24). Owens–Benniefield also "received letters and mortgage statements" from Nationstar, even though its "rights were assigned to Federal Home Loan Mortgage Corporation." (Id. at ¶ 26; Doc. # 17–1 at 65–66; 79–80).

Nationstar then "prepared and recorded another assignment of mortgage to Community Loan fund of New Jersey," which was "recorded on August 22, 2016, and dated June 27, 2016." (Id. at ¶ 27; Doc. # 17–1 at 31). According to Owens–Benniefield, this was an "[i]nvasion of [her] personal information as [Nationstar] had no right to give personal information to [a] third party." (Doc. # 17 at ¶ 27). Indeed, Nationstar "has transferred [Owens–Benniefield's] confidential information to several third parties," including an attorney in Michigan who "has stated he does not know [her] and is un[a]ware of why [her] personal information was sent to his office." (Id. at ¶ 30; Doc. # 17–1 at 33–35).

Nationstar also "placed debt on [Owens–Benniefield's] credit report which caused [her] to be denied credit and has caused [her] great emotional stress to try and clear this matter." (Doc. # 17 at ¶ 28). But, Nationstar denied they were trying to collect a debt in their communications with the Consumer Protection Bureau. (Id. at ¶ 31). Nationstar "sent the Internal Revenue Service a mortgage interest statement which shows [Owens–Benniefield as] owing a balance of $132,009.33." (Id. at ¶ 32).

Owens–Benniefield filed suit in state court against Nationstar and other defendants in April of 2016, alleging various statutory and common law causes of action. (Doc. # 7 at 11; Doc. # 7–1). Subsequently, all claims except for a TCPA claim against Nationstar were dismissed in that action. The case remains pending as to the sole TCPA claim. (Doc. # 7 at 12).

Owens–Benniefield then initiated the present action in this Court on March 6, 2017. (Doc. # 1). Nationstar filed its motion for more definite statement or to dismiss on March 30, 2017. (Doc. # 6). The Court granted that motion on April 21, 2017. (Doc. # 14). Since initiation of this action, but before Owens–Benniefield filed her Amended Complaint, Nationstar acknowledged in a letter to the Florida Attorney General's Office that the debt was waived when Owens–Benniefield's deed-in-lieu was executed. (Doc. # 17 at ¶¶ 52, 199, 252; Doc. # 15–1).

Owens–Benniefield filed her Amended Complaint, alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692 et seq. ; the Telephone Consumer Protection Act (TCPA), 47 U.S.C. §§ 227 et seq. ; the Fair Credit Reporting Act (FCRA), 15 U.S.C. §§ 1681 et seq. ; the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. §§ 2601, et seq. ; the Graham–Leach–Bliley Act (GLBA), 15 U.S.C. §§ 6801, et seq. ; the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. §§ 559.55 et seq. ; and Chapter 494, Fla. Stat., governing mortgage brokerage and lending. (Doc. # 17). The Amended Complaint also asserts various common law claims including fraud, negligence, and intentional infliction of emotional distress. (Id. ). Nationstar filed its Amended Motion to Dismiss the Amended Complaint on May 15, 2017. (Doc. # 23). Owens–Benniefield filed a response on May 23, 2017. (Doc. # 25). The Motion is ripe for review.

II. Legal Standard

On a motion to dismiss, this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff. Jackson v. Bell S outh Telecomms., 372 F.3d 1250, 1262 (11th Cir. 2004). Further, this Court favors the plaintiff with all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health & Human Servs., 901 F.2d 1571, 1573 (11th Cir. 1990) ("On a motion to dismiss, the facts stated in [the] complaint and all reasonable inferences therefrom are taken as true."). However,

[w]hile 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.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). Courts are not "bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986). "The scope of review must be limited to the four corners of the complaint." St. George v. Pinellas Cty., 285 F.3d 1334, 1337 (11th Cir. 2002).

Furthermore, the Court construes pro se pleadings liberally and holds them to a less stringent standard than those drafted by attorneys. Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003). But, "a pro se litigant is still required to conform to procedural rules, and a district judge is not required to rewrite a deficient pleading." McFarlin v. Douglas Cty., 587 Fed.Appx. 593, 595 (11th Cir. 2014).

III. Analysis

The Court will analyze each of Owens–Benniefield's eleven counts in turn.

A. FDCPA

Count 1 alleges Nationstar violated numerous provisions of the FDCPA. The Court notes as a preliminary matter that the FDCPA contains a one-year statute of limitations. 15 U.S.C. § 1692k(d). This action was initiated on March 6, 2017, so any communications sent before March 6, 2016, are time-barred under the FDCPA.

Nationstar contends the Amended Complaint does not state a claim under the FDCPA because Owens–Benniefield has insufficiently pled that Nationstar is a debt collector, engaged in debt collection activity, or otherwise violated the subsections identified by Owens–Benniefield.

1. Debt Collector and Debt Collection Activity

First, Nationstar argues Owens–Benniefield has not sufficiently alleged facts to support a reasonable inference that it is a debt collector. (Doc. # 23 at 2). A "debt collector" includes, among others, (1) "any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts," or (2) any person "who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." Davidson v. Capital One Bank, N.A., 797 F.3d 1309, 1314 (11th Cir. 2015) (quoting 15 U.S.C. § 1692a(6) ).

An allegation merely tracking the statutory definition of debt collector is insufficient. See Farquharson v. Citibank, N.A., 664 Fed.Appx. 793, 799–800 (11th Cir. 2016) ("In their Amended Complaint, Plaintiffs assert that Citigroup and Wolfe are each ‘debt collectors'; however, such ‘threadbare recitals of a cause of action's elements' do not suffice."). Nationstar argues that its self-identification as a debt collector attempting to collect a debt in its letters and other communications with Owens–Benniefield, (Doc. # 17–1 at 65–66, 79–80), does not support that it is, in fact, a debt collector. See Fenello v. Bank of Am., NA, 577 Fed.Appx. 899, 902 (11th Cir. 2014) ("An entity cannot transform itself into a ‘debt collector’ within the meaning of the FDCPA simply by noting in a letter that it may be considered one under the Act."). Still, while it is not determinative, self-identification as a debt collector is relevant. See Bohringer v. Bayview Loan Servicing, LLC, 141 F.Supp.3d 1229, 1240 (S.D. Fla. 2015) ("[A]lthough not...