Summary
recognizing that court has discretion to decline to convert motion to dismiss into to summary judgment motion
Summary of this case from Muhammad v. Lee Cnty. Comm'n of Lee Cnty.Opinion
CASE NO. 2:11-cv-327-MEF (WO).
November 7, 2011
MEMORANDUM OPINION AND ORDER
Before the court is a Motion to Dismiss (Doc. # 13), filed by Defendants Countrywide Home Loans, Inc. ("Countrywide"), BAC Home Loans Servicing, L.P. ("BACHLS"), and Bank of America, N.A. ("BANA") (collectively "Defendants"). Also pending before the court is Plaintiff's Motion for Preliminary Injunction. (Doc. # 21.) After a careful review of the arguments of counsel and the relevant law, the court finds that Defendants' Motion to Dismiss is due to be GRANTED. Plaintiff's Motion for Preliminary Injunction is due to be DENIED as moot.
Attached to Plaintiff's Response (Doc. # 17) and Defendants' Reply (Doc. # 18) to the Motion to Dismiss are evidentiary records. Rule 12(d) provides, in pertinent part: "If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56." Fed.R.Civ.P. 12(d). Exercising its discretion, the court declines to convert Defendants' Motion to Dismiss to a motion for summary judgment, and consequently, will not consider any of the evidentiary submissions. See 5C Charles Alan Wright Arthur R. Miller, Federal Practice and Procedure § 1366 n. 17 (3d ed. 2004) (stating that "federal courts have complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it" and collecting cases); see also Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1232 (11th Cir. 2010) (stating that "[a] judge need not convert a motion to dismiss into a motion for summary judgment as long as he or she does not consider matters outside the pleadings. According to case law, `not considering' such matters is the functional equivalent of `excluding' them — there is no more formal step required.").
I. JURISDICTION AND VENUE
The court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1337, and 1367(a). The parties do not contest personal jurisdiction or venue, and the court finds adequate allegations in support of both.II. STANDARD OF REVIEW
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint for failure to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). A Rule 12(b)(6) motion tests the legal sufficiency of a complaint; thus, in assessing the merits of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("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.'" (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007))). To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), a complaint need not contain "detailed factual allegations," but must include enough facts "to raise a right to relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact)." Twombly, 550 U.S. at 545.
III. BACKGROUND
Accepting as true the factual allegations in the Complaint (Doc. # 1), the Court finds the following facts:
Plaintiff is a lawyer, and in October 2004, obtained a business mortgage from Countrywide on the building where she operates her law practice. (Compl. ¶ 8.) In 2006, Plaintiff refinanced her residential mortgage, also with Countrywide. (Compl. ¶ 9.) In July 2008, Countrywide was acquired by BACHLS.
Plaintiff also alleges that BANA "is the alter-ego of [BACHLS]." (Compl. ¶ 6.)
Plaintiff alleges that she always has made timely payments on both mortgages and has not been delinquent. (Compl. ¶ 11.) Despite her non-delinquency, Plaintiff alleges that Defendants have mishandled her mortgages through a variety of contrivances.
Regarding Plaintiff's residential mortgage, Plaintiff alleges that her troubles began in late 2009, when Defendants wrongfully assessed charges to her account. (Compl. ¶¶ 13-14.) In January 2010, Defendants notified Plaintiff that she had "fallen behind in her payments." (Compl. ¶ 12.) Plaintiff received several letters from Defendants in the following months stating that no payment had been received for her residential mortgage. (Compl. ¶ 18.) Throughout 2010, Defendants sent to Plaintiff numerous statements indicating that her residential mortgage account was "in default." (Compl. ¶ 19.) Defendants also noticed Plaintiff during this period that Defendants intended to accelerate her residential mortgage. (Compl. ¶ 20.) On September 8, 2010, Plaintiff responded to these developments when she submitted to Defendants a list of Plaintiff's payments on her residential mortgage and requested that Defendants correct their records to reflect that Plaintiff was not in default on her residential mortgage. (Compl. ¶ 24.) Defendants apparently did not respond positively to Plaintiff's request. Plaintiff alleges that on October 16, 2010, she was denied an application for credit based on Defendants' "misrepresentation to credit reporting agencies [("CRAs")] that her [residential] mortgage account was in default." (Compl. ¶ 26.) Plaintiff alleges that Defendants continue to report negative credit information to the CRAs despite the fact that Plaintiff has never been delinquent. Plaintiff, however, does not allege that she contacted the CRAs herself regarding Defendants' misrepresentative reporting.
Defendants' alleged handling of Plaintiff's business mortgage follows a similar track. Problems began in late 2009, when Defendants wrongfully informed Plaintiff that there was no proof of insurance on file for her business mortgage account property. (Compl. ¶ 15.) Despite sending the required proof of insurance at least twice, Defendants continued to send notices to Plaintiff stating that it had no proof of insurance on file. (Compl. ¶¶ 16, 21, 22.) On account of Defendants' continued insistence that Plaintiff had not obtained insurance on her business mortgage property, Defendants wrongfully assessed a $900 "Hazard Insurance Payment" charge to Plaintiff's business mortgage account. (Compl. ¶ 23.) Several months later, in October of 2010, Defendants "unilaterally and wrongfully increased payment amount" on Plaintiff's business mortgage account, and proceeded to automatically withdraw the higher payment from Plaintiff's bank account. (Compl. ¶ 25.) Plaintiff responded by notifying her bank of the unauthorized withdrawal and then filing with her bank a stop payment form. (Compl. ¶¶ 27, 28.) Defendants' allegedly excessive and unauthorized withdrawals continued, causing Plaintiff to draft a November 17, 2010 letter to Defendants recounting the problems with her business mortgage account. (Compl. ¶ 34.) Shortly thereafter, Defendants returned $577.89 to Plaintiff's bank account, but requested payment for the same amount. (Compl. ¶ 31.) On January 18, 2011, Defendants sent to Plaintiff a notice of intent to accelerate Plaintiff's business mortgage account. (Compl. ¶ 37.) On January 21, 2011, Plaintiff alleges that Defendants "stopped recording payments made by Plaintiff as `Regular Payment' and instead recorded them as `Misc. Posting' on her accounts." (Compl. ¶ 38.)
Plaintiff alleges that Defendants wrongful conduct continued when Defendants cancelled Plaintiff's two credit card accounts, citing "seriously delinquency" as the reason. (Compl. ¶¶ 39, 41.) Plaintiff alleges that she was not delinquent in either account. (Compl. ¶¶ 40, 42.)
Plaintiff filed her seven-count Complaint on April 28, 2011, alleging several state law causes of action: fraudulent misrepresentation and/or suppression (Count I); negligent and/or wanton hiring, training, and supervision of the employees of Defendants responsible for handling or servicing Plaintiff's accounts (Count II); negligent and/or wanton servicing of Plaintiff's accounts (Count III); breach of contract (Count IV); and intentional infliction of emotional distress (Count VII). Plaintiff also brings claims under the Fair Debt Collections Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq., and the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. § 1681, et seq. (Counts V and VI).
IV. DISCUSSION
A. The FDCPA Claim
Defendants assert that Plaintiff's FDCPA claim should be dismissed for two reasons. First, as a matter of law, Defendants argue that "mortgage servicing companies are not debt collectors under the FDCPA." (Defs.' Br. in Support 5.) Defendants argue secondarily that Plaintiff's allegations fail to satisfy Rule 8(a)."The FDCPA was enacted by Congress to `eliminate abusive debt collection practices by debt collectors.'" Ausar-El ex rel. Small, Jr. v. BAC (Bank of America) Home Loans Servicing, LP, No. 11-10453, 2011 WL 4375971, at *1 (11th Cir. Sept. 21, 2011) (unpublished) (emphasis added) (quoting 15 U.S.C. § 1692(e)). A "debt collector" is a "term of art[,]" Small, Jr., 2011 WL 4375971, at *1, and is statutorily defined as:
any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. . . .
§ 1692a(6). In determining whether BACHLS (the same BACHLS here) was a debt collector, the Eleventh Circuit in Small, Jr. noted this general "debt collector" definition, but then focused on language found later in the same definitional subsection: "For the purpose of [§] 1692f(6) of this title, [the term `debt collector'] also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests." Id. In concluding that "an enforcer of a security interest only qualifies as a `debt collector' for the purpose of § 1692f(6)[,]" the Eleventh Circuit relied upon the statutory interpretation doctrine of expressio unius est exclusio alterius. Small, Jr., 2011 WL 4375971, at *1. In other words, because Congress defined a security interest enforcer as a debt collector only for purposes of § 1692f(6), it necessarily must have intended for security interest enforcers not to qualify as debt collectors under any other section of the FDCPA. Additionally, because "a party's general, not specific, debt collection activities are determinative of whether [that party] meet[s] the statutory definition of debt collector[,]" Kaltenbach v. Richards, 464 F.3d 524, 529 (5th Cir. 2006), this court is inclined to follow the Eleventh Circuit's determination that BACHLS is not a "debt collector" except for violations of § 1692f(6). Small, Jr., 2011 WL 4375971, at *1 (citing Montgomery v. Huntington Bank, 346 F.3d 693, 700 (6th Cir. 2003)). The Court also concludes, based on Plaintiff's allegations, that BANA and Countrywide are not "debt collectors" except for violations of § 1692f(6). Plaintiff alleges that BANA is merely an "alter-ego" of BACHLS. (Compl. ¶ 6.) As an "alter-ego," BANA should be treated no differently than BACHLS. Furthermore, Countrywide is alleged to be the original mortgagee for both mortgages. (Compl. ¶ 8.) As mortgagee, Countrywide is a security interest holder or enforcer and, accordingly, is not a debt collector except for the purposes of § 1692f(6).
However, Plaintiff's FDCPA count fails to allege a specific provision of the FDCPA that Defendants violated. Rather, Plaintiff merely alleges that Defendants "violated this statute and profited as a result." (Compl. ¶ 65.) As stated above, Defendants may qualify as "debt collectors" only if Plaintiff alleges violations of § 1692f(6). However, Defendants are presently in the position of not knowing whether they are, in fact, debt collectors. This is the reason for which an FDCPA plaintiff must allege a violation of a specific provision of the FDCPA. See Nix v. Welch White, P.A., 55 F. App'x 71, 73 (3d Cir. 2003) ("[T]he complaint here fails to satisfy the minimal pleading requirements of Rule 8(a) because it merely alleges defendants' actions `embodied violations of the [FDCPA]' and `violated the [FDCPA] in other ways.' These are conclusory allegations. . . . As a result, plaintiffs did not provide notice to defendants as to how their actions allegedly violated the FDCPA."); see also Twombly, 550 U.S. at 555. Accordingly, Plaintiff's FDCPA claim is due to be dismissed without prejudice.
B. The FCRA Claim
C. The State Law Claims
15 U.S.C. § 1681s-2 28 U.S.C. § 1367See Shotz v. City of Plantation, Fla. 344 F.3d 1161 1185
V. CONCLUSION
For the reasons set forth above, it is ORDERED that: Defendants' Motion to Dismiss (Doc. # 13) is GRANTED; Plaintiff's Complaint (Doc. # 1) is DISMISSED without prejudice; supplemental jurisdiction over Plaintiff's state law claims is DECLINED; and Plaintiff's Motion for Preliminary Injunction (Doc. # 21) is DENIED as moot. Failure to file an Amended Complaint on or before November 28, 2011, will result in dismissal of this action with prejudice.
A copy of this checklist is available at the website for the USCA, 11th Circuit at www.ca11.uscourts.gov Effective on April 9, 2006, the new fee to file an appeal will increase from $255.00 to $455.00. CIVIL APPEALS JURISDICTION CHECKLIST 1. Appealable Orders : Appeals from final orders pursuant to 28 U.S.C. § 1291: 28 U.S.C. § 158Pitney Bowes, Inc. v. Mestre 701 F.2d 1365 1368 28 U.S.C. § 636 In cases involving multiple parties or multiple claims, 54Williams v. Bishop 732 F.2d 885 885-86 Budinich v. Becton Dickinson Co. 108 S.Ct. 1717 1721-22 100 L.Ed.2d 178LaChance v. Duffy's Draft House, Inc. 146 F.3d 832 837 Appeals pursuant to 28 U.S.C. § 1292(a): Appeals pursuant to 28 U.S.C. § 1292(b) and Fed.R.App.P. 5: 28 U.S.C. § 1292 Appeals pursuant to judicially created exceptions to the finality rule: Cohen v. Beneficial Indus. Loan Corp. 337 U.S. 541 546 69 S.Ct. 1221 1225-26 93 L.Ed. 1528Atlantic Fed. Sav. Loan Ass'n v. Blythe Eastman Paine Webber, Inc. Gillespie v. United States Steel Corp. 379 U.S. 148 157 85 S.Ct. 308 312 13 L.Ed.2d 199 2. Time for Filing Rinaldo v. Corbett 256 F.3d 1276 1278 4 Fed.R.App.P. 4(a)(1): 3 THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURT NO LATER THAN THE LAST DAY OF THE APPEAL PERIOD — no additional days are provided for mailing. Fed.R.App.P. 4(a)(3): Fed.R.App.P. 4(a)(4): Fed.R.App.P. 4(a)(5) and 4(a)(6): Fed.R.App.P. 4(c): 28 U.S.C. § 1746 3. Format of the notice of appeal : See also 3pro se 4. Effect of a notice of appeal : 4 Courts of Appeals have jurisdiction conferred and strictly limited by statute: (a) Only final orders and judgments of district courts, or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under , generally are appealable. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." , , (11th Cir. 1983). 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