Opinion
CASE NO. 18-62440-CIV-RAR
2019-07-31
Manuel E. RIVAS, Plaintiff, v. MIDLAND FUNDING LLC, Defendant.
Donald A. Yarbrough, Fort Lauderdale, FL, for Plaintiff. Lauren Marshall Burnette, Erika Michele Ida Flo Smith, John Michael Marees, II, Messer Strickler, Ltd., Jacksonville, FL, for Defendant.
Donald A. Yarbrough, Fort Lauderdale, FL, for Plaintiff.
Lauren Marshall Burnette, Erika Michele Ida Flo Smith, John Michael Marees, II, Messer Strickler, Ltd., Jacksonville, FL, for Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
RODOLFO RUIZ, UNITED STATES DISTRICT JUDGE This matter addresses the applicability of state and federal law to representations allegedly made by a debt collector in the recovery of consumer debt. On April 3, 2019, Defendant Midland Funding LLC ("Midland") filed its Motion for Summary Judgment [ECF No. 23] ("Motion"). Plaintiff Manuel E. Rivas ("Rivas") filed a Response in Opposition on May 2, 2019 [ECF No. 34] ("Response") and Midland filed its Reply on May 8, 2019 [ECF No. 36] ("Reply"). Having carefully reviewed the parties' written submissions, the record, and applicable law, and being otherwise fully advised in the premises, it is hereby
Midland submitted a Statement of Material Facts along with its Motion for Summary Judgment [ECF No. 23-1] ("Midland SMF"). On May 2, 2019, Rivas filed his Response to Midland's SMF, including additional facts [ECF No. 33] ("Rivas SMF Response"). Rivas also filed an Affidavit in Opposition to Midland's Motion for Summary Judgment [ECF No. 30]. Midland responded to Rivas' additional facts in its Reply [ECF No. 36-1] ("Midland SMF Reply").
ORDERED and ADJUDGED that Midland's Motion for Summary Judgment is GRANTED for the reasons stated herein.
BACKGROUND
Several years ago, Rivas opened, used, and eventually defaulted on several credit card accounts. Midland SMF ¶ 1; Rivas SMF Response ¶ 1. Three of those accounts are relevant here. Specifically, Rivas defaulted on a Synchrony Bank/Amazon credit card ("Amazon Account"), a Synchrony Bank/TJ Maxx credit card ("TJ Maxx Account"), and a Synchrony Bank/Lowes credit card ("Lowes Account," and collectively with the Amazon Account and TJ Maxx Account, "Accounts"). Midland SMF ¶ 2; Rivas SMF Response ¶ 2. On February 17, 2017, Synchrony Bank sold the Accounts to Midland. Midland SMF ¶ 3; Rivas SMF Response ¶ 3.
On December 30, 2017, Midland filed two lawsuits in the County Court in and for Broward County, Florida against Rivas. Midland SMF ¶ 8; Rivas SMF Response ¶ 8. The first lawsuit, Midland Funding LLC v. Manuel Rivas , Case No. 18-000090 ("Amazon Lawsuit"), sought $4,561.98, plus costs, for the delinquent Amazon Account. Midland SMF ¶ 9; Rivas SMF Response ¶ 9. The second lawsuit, Midland Funding LLC v. Manuel Rivas , Case No. 18-000089 ("TJ Maxx Lawsuit"), sought $4,300.23, plus costs, for the TJ Maxx Account. Midland SMF ¶ 10; Rivas SMF Response ¶ 10. On January 3, 2018, Midland filed a third lawsuit, Midland Funding LLC v. Manuel Rivas , Case No. 18-000068 ("Lowes Lawsuit"), seeking $3,821.19, plus costs, for the Lowes Account. Midland SMF ¶ 11; Rivas SMF Response ¶ 11.
On June 4, 2018, Rivas and Midland entered into an "Agreement-Stipulation of the Parties/Final Order Approving Stipulation/Order of Dismissal/Case Settled" ("Settlement Agreement") whereby all three lawsuits between the parties were settled for a total sum of $1,100. See Midland SMF ¶ 14-15; Rivas SMF Response ¶ 14-15. Pursuant to the Settlement Agreement [ECF No. 13-1], Rivas was required to make monthly payments of $50.00 beginning July 15, 2018 and continuing until the total sum of $1,100.00 was paid in full. Midland SMF ¶ 16; Rivas SMF Response ¶ 16. The Settlement Agreement states that "[s]hould [Rivas] default on this Stipulation, [Midland] shall be entitled to a judgment in the amount of $12,718.40 less all payments made." Settlement Agreement at 3. In other words, if Rivas failed to comply with the terms of the Settlement Agreement, he would be liable for the total debt on all three Accounts, less the payments he made towards the settled amount. See id. Additionally, the Settlement Agreement states that "[Rivas] may make payments online [via] midlandcreditonline.com ...." Id. (emphasis added).
Rivas notes that "Midland Credit Management, Inc. was authorized to accept Plaintiff's payments toward his debts owned by Midland pursuant to an agreement between Midland and Midland Credit Management, Inc....and that the settlement agreement required all payments be made to via the website." Rivas SMF Response ¶ 21. A review of the record shows that MCM was indeed authorized to service Midland's debt pursuant to an agreement between Midland and MCM, but that Rivas was not required to make payments via the Website. See Whiteman Dep. [ECF No. 31] at 46:6-17; Settlement Agreement.
The Settlement Agreement was docketed in the Amazon Lawsuit and required Midland to dismiss the companion lawsuits related to the TJ Maxx and Lowes Accounts. That same day, the Broward County Court issued an Order in the Lowes Lawsuit, requiring Midland to "submit a dismissal within 15 days." [ECF No. 13-2]. Notably, the Settlement Agreement is silent as to the merits of Midland's claims in all three lawsuits. See generally, Settlement Agreement.
MCM services Midland's debt pursuant to an agreement between both parties and Midland neither owns nor operates the Website. Whiteman Dep. [ECF No. 31] at 46:6-17; Midland SMF ¶ 21; Rivas SMF Response ¶ 21. On June 26, 2018, Rivas logged into non-party Midland Credit Management, Inc.'s ("MCM") website, www.midlandcreditonline.com ("Website"), to make his first payment and has since continued to make all payments pursuant to the Settlement Agreement. Midland SMF ¶¶ 20, 31; Rivas SMF Response ¶¶ 20, 31. Rivas made his payments directly to MCM, Midland's debt servicer, and those payments were never forwarded to Midland. Midland SMF ¶ 32; Rivas SMF Response ¶ 32. MCM kept an accounting of all payments made by Rivas through the Website and never communicated with Midland regarding Rivas' payments. SMF ¶¶ 33-34; Rivas SMF Response ¶¶ 33-34.
Despite being ordered to dismiss TJ Maxx and Lowes Lawsuits by June 19, 2018, Midland did not file notices of dismissal in those cases until January 2019. Midland SMF ¶ 37; Rivas SMF Response ¶ 37. Nonetheless, Midland did not file any pleadings or motions, propound discovery, set the matters for trial, issue subpoenas, or take the deposition of any witnesses before ultimately filing notices of dismissal. Midland SMF ¶ 38-39; Rivas SMF Response ¶ 38-39. Further, Rivas was unaware of any record activity in those lawsuits between June 2018 and January 2019. Id.
LEGAL STANDARD
Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(C). In making this assessment, the Court "must view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party," Stewart v. Happy Herman's Cheshire Bridge, Inc. , 117 F.3d 1278, 1285 (11th Cir. 1997) (citation omitted), and "must resolve all reasonable doubts about the facts in favor of the non-movant." United of Omaha Life Ins. Co. v. Sun Life Ins. Co. of Am. , 894 F.2d 1555, 1558 (11th Cir. 1990) (citation omitted). The movant's initial burden on a motion for summary judgment "consists of a responsibility to inform the court of the basis for its motion and to identify those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993) (alterations and internal quotation marks omitted) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Once the moving party has shouldered its initial burden, the burden shifts to the non-moving party to "demonstrate the existence of evidence that would support a verdict in its favor." Id. (citing Celotex , 477 U.S. at 322–23, 106 S.Ct. 2548 ). "[I]f reasonable minds might differ on the inferences arising from undisputed facts, then a court should deny summary judgment." Id. (quoting Washington v. Dugger 860 F.2d 1018, 1020 (11th Cir.1988) ) (citations omitted).
ANALYSIS
I. Summary judgment on Counts I and II is warranted because Rivas has failed to establish that Midland engaged in an act or omission prohibited by the FDCPA.
Rivas brings his first two claims under the Fair Debt Collection Practices Act, 15 U.S.C. section 1692, et seq . ("FDCPA"). The FDCPA is a consumer protection statute intended to "eliminate abusive debt collection practices, to ensure that debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent state action in protecting consumers against debt collection abuses." Kurtzman v. Nationstar Mortg. LLC , 709 F. App'x 655, 658 (11th Cir. 2017) (internal quotations and citations omitted) (quoting section 1692e). To satisfy a claim under the FDCPA, a plaintiff must demonstrate that (1) he has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector under the FDCPA; and (3) the defendant engaged in an act or omission prohibited by the FDCPA. Muller v. Midland Funding, LLC , No. 14-CV-81117-KAM, 2015 WL 2412361, at *3 (S.D. Fla. May 20, 2015) (citing Sanz v. Fernandez , 633 F. Supp. 2d 1356, 1359 (S.D. Fla. 2009) ).
Here, Rivas claims that Midland is a debt collector and seeks relief under section 1692e, which provides that "[a] debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt." 15 U.S.C. § 1692e. Specifically, Count I of the Amended Complaint alleges that Midland falsely represented the amounts of the alleged debts on the Website in violation of section 1692e, while Count II alleges that Midland violated section 1692e(2)(A) by failing to timely dismiss the TJ Maxx and Lowes Lawsuits—thereby falsely representing the legal status of said lawsuits "as open cases." See Am. Compl. ¶¶ 35-38.
A. Midland is a "debt collector" as defined by the FDCPA.
As an initial matter, Midland argues it is not a "debt collector" as defined by the FDCPA and therefore the substantive provisions of the statute do not apply to it. "The requirements of the FDCPA apply ‘only to professional debt-collectors[.]’ " Id. (quoting Crawford v. LVNV Funding, LLC , 758 F.3d 1254, 1258 n.3 (11th Cir. 2014) ); see also Harris v. Liberty Cmty. Mgmnt., Inc. , 702 F.3d 1298, 1302 (11th Cir. 2012) (explaining the FDCPA's "restrictions apply only to ‘debt collectors’ "). "Whether an individual or entity is a ‘debt collector’ is determinative of liability under the FDCPA." Birster v. American Home Mort. Servicing, Inc. , 481 F. App'x 579, 581-82 (11th Cir. 2012).
The FDCPA defines "debt collector" as any person (1) "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) "who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6) (emphasis added). Accordingly, an entity can be considered a "debt collector" either through the "principal purpose" definition or the "regularly collects" definition. Davidson v. Capital One Bank (USA), N.A. , 797 F.3d 1309, 1315 (11th Cir. 2015) (noting that "one of the two statutory standards" under § 1692a(6) "must be met" before an entity can qualify as a "debt collector."). Midland maintains it does not fall under either definition.
In opposition, Rivas posits—without specifying which statutory definition he seeks to apply—that Midland's role in debt collection litigation makes it a "debt collector" under the statute. Specifically, Rivas points to Midland's three state court suits against him to collect debts, as well as Midland's practice of purchasing thousands of unrelated, defaulted debts each year and its filing of "thousands of lawsuits" to collect those debts. Resp. at 1. Rivas argues that Midland's status as a "debt collector" is also established by its indirect communication with consumers via letters. Id.
Rivas also maintains that Midland is a "debt collector" under the FDCPA by virtue of its registration with the state of Florida as a "consumer collection agency." Indeed, the Florida Consumer Collection Practices Act, Fla. Stat. Chapter 559 ("FCCPA") requires that "consumer collection agencies" register with the state. Fla. Stat § 559.553. However, the definition of a "consumer collection agency" under the FCCPA is broader than the definition of a "debt collector" under the FDCPA. See, e.g, Schauer v. General Motors Acceptance Corp. , 819 So. 2d 809, 812 (Fla. 4th DCA 2002) (concluding the FCCPA "is not restricted to debt collectors" as it "mandates that no person shall engage in certain practices in collecting consumer claims whether licensed by the division or not"). Thus, the simple fact that Midland is registered as a "consumer collection agency" under the FCCPA does not automatically qualify it as a "debt collector" under the FDCPA.
As explained below, Midland's conduct does not bring it within the purview the FDCPA's "regularly collects" definition pursuant to recent United States Supreme Court case law. However, Midland does qualify as a "debt collector" under the FDCPA's "principal purpose" definition as recently examined by the United States Court of Appeals for the Third Circuit.
i. Midland does not qualify as a "debt collector" under the FDCPA's "regularly collects" definition.
Midland's debt collection litigation activity does not transform it into a "debt collector" under the "regularly collects" definition. In Henson v. Santander Consumer USA Inc. , ––– U.S. ––––, 137 S. Ct. 1718, 198 L.Ed.2d 177 (2017), the Supreme Court held that individuals and entities who regularly purchase debts originated by someone else and then seek to collect those debts for their own account are not "debt collectors" subject to the FDCPA. There, petitioners sued a company, Santander, that purchased their defaulted debts from a third party and then "sought to collect in ways petitioners believe troublesome under the [FDCPA]." Id. at 1720-21. The Court focused on the plain language of the statute, placing an emphasis on the definition of a "debt collector" to include those who regularly seek to collect debts "owed ... another." Id. at 1721. The Court reasoned:
[B]y its plain terms this language seems to focus our attention on third party
collection agents working for a debt owner—not on a debt owner seeking to collect debts for itself. Neither does this language appear to suggest that we should care how a debt owner came to be a debt owner—whether the owner originated the debt or came by it only through a later purchase. All that matters is whether the target of the lawsuit regularly seeks to collect debts for its own account or does so for "another." And given that, it would seem a debt purchaser like Santander may indeed collect debts for its own account without triggering the statutory definition in dispute, just as the Fourth Circuit explained.
Id. at 1721-22 (emphasis added). Here, Midland, like Santander, is a debt buyer that buys defaulted debts from third parties. See Rivas SMF Response ¶¶ 41-43; see also Hinkle v. Midland Credit Mgmt., Inc. , 827 F.3d 1295 at n.1 (11th Cir. 2016) ("Midland Funding is a debt buyer that purchases charged-off debt accounts. Midland Credit Management is a debt collector that specializes in servicing debt accounts purchased by Midland Funding."). By filing suit to collect these purchased debts, Midland is simply collecting debts "for its own account."
Thus, as explained in Henson , Midland does not fall under the "regularly collects" prong of the FDCPA's definition of "debt collector." Filing lawsuits against Rivas to collect debts purchased from a third party, as well as the purchase of thousands of defaulted debts each year and the filing of lawsuits to collect those debts, is of no moment. Nor is the fact that Midland indirectly communicates with consumers via letters and by filing state court lawsuits through MCM. All of this activity—designed to collect Midland's own debts—clearly establishes that it is not a "debt collector" under the "regularly collects" prong of the FDCPA.
ii. Midland does qualify as a "debt collector" under the FDCPA's "primary purpose" definition.
Although Midland cannot qualify as a "debt collector" under the "regularly collects" prong of the FDCPA definition of "debt collector," the record establishes that Midland does qualify as a "debt collector" based on its "principal purpose" as a debt collecting entity. In support of this proposition, Rivas cites Barbato v. Greystone All., LLC , 916 F.3d 260 (3d Cir. 2019) for the premise that a debt buyer that does not service debt can still be a "debt collector" under the FDCPA's principal purpose definition. In Barbato , the Court analyzed the text of the FDCPA when it comes to "principal purpose" as follows:
An entity qualifies under the definition if the "principal purpose" of its "business" is the "collection of any debts." "Principal" is defined as "most important, consequential, or influential," Principal, Webster's Third New International Dictionary 1802 (1976) ("Webster's Third"), and "purpose" is defined as "something that one sets before himself as an object to be attained: an end or aim" and "an object, effect, or result aimed at, intended, or attained," id. at 1847. Thus, an entity that has the "collection of any debts" as its "most important" "aim" is a debt collector under this definition. While it is true that "collection" can be defined as "the act or process of collecting," it can also be defined as "that which is collected." Collection, Random House Dictionary of the English Language 290 (1973). So defined, the focus shifts from the act of collecting to what is collected, namely, the acquired debts. As long as a business's raison d'être is obtaining payment on the debts that it acquires, it is a debt collector. Who actually obtains the payment or how they do so is of no moment.
Id. at 267 (emphasis added). Applying this logic, the Third Circuit reasoned that because the defendant's "only business is the purchasing of debts for the purpose of collecting on those debts" and without the collection of those debts, the defendant would "cease to exist," the defendant fell within the FDCPA's "principle purpose" definition. Id. at 268.
Here, like the defendant in Barbato , Midland has acknowledged that a) it buys thousands of defaulted debts every year; b) it is the plaintiff in thousands of state court suits to collect those debts; and c) it is not involved in any other business. Rivas SMF Response ¶¶ 41-43; Midland SMF Reply ¶¶ 41-43. Thus, and again like the defendant in Barbato , without the collection of its purchased debts, Midland would have no reason to exist. This is not a situation, for example, where Midland "buy[s] debt for the charitable purpose of forgiving it, or ... buys debt for the purpose of reselling it to unrelated parties at a profit" in which case Midland's "principal purpose would not be collection." See Barbato , 916 F.3d at 268. Here, the record indicates that Midland's "most important aim" is "the collection of debts." Id. at 267.
Consequently, the Court, presented with undisputed facts regarding the nature of Midland's business, and in full agreement with the Third Circuit's textual analysis of section 1692a(6)'s "principal purpose" definition, finds that Midland is a "debt collector." Id. at 269 (citations omitted) (noting that as the Supreme Court acknowledged in Henson , the language in section 1692a(6) "sweeps more broadly to include ‘any principal purpose of which is the collection of any debts’ " ... without regard to whether that entity delegates it collective activities."). Of course, that hardly ends the analysis. Although Midland is now subject to the FDCPA given the Court's conclusion that it is a "debt collector," Rivas has failed to establish that Midland has committed any acts or omissions prohibited by the FDCPA.
B. Count I fails because Midland did not make any representations through the Website.
As explained above, a plaintiff must also establish that the defendant engaged in a prohibited act or omission to satisfy a claim under the FDCPA. Muller , 2015 WL 2412361, at *3. Count I avers that Midland falsely represented the amounts of alleged debts in violation of section 1692e. Am. Compl. ¶ 36. However, Plaintiff has not presented any record evidence to suggest that Midland made representations through MCM's Website.
Indeed, Midland's representative testified that MCM was responsible for keeping an account of the payments made through the Website; that the money paid via the Website was paid to MCM and never forwarded to Midland; and the money paid via the Website ultimately went into a holding account owned by MCM. Whiteman Dep. at 26:2-27:21. Rivas has not presented, and the record does not contain, any evidence to suggest that the representations, which were indisputably made via the MCM-controlled Website, were made by Midland. Thus, even when viewing all the evidence and factual inferences reasonably drawn from the evidence in the light most favorable to Rivas, the complete lack of record evidence to support this claim mandates the entry of summary judgment on Count I as a matter of law.
C. Count II fails because Midland did not make material misrepresentations regarding the legal status of the debts.
Count II alleges that Midland violated the FDCPA by falsely representing the legal status of the debts related to the TJ Maxx and Lowes Accounts. Am. Compl. ¶ 40. Rivas posits that a violation of the FDCPA occurred when Midland failed to timely dismiss the lawsuits related to those accounts after entry of the Settlement Agreement. Id.
The FDCPA prohibits a debt collector from using false, misleading, or deceptive representations in connection with the collection of a debt, including a false representation of "the character, amount, or legal status of any debt." 15 U.S.C. § 1692e(2)(A) (emphasis added). However, Courts throughout the country have consistently held that only material misrepresentations constitute a violation of the FDCPA. See, e.g. , Anselmi v. Shendell & Assocs., P.A., No. 12-61599-CIV, 2015 WL 11121357, at *6 (S.D. Fla. Jan. 7, 2015) (citing Miljkovic v. Shafritz & Dinkin, P.A., No. 8-14-CV-635-T-33TBM, 2014 WL 3587550, at *8 (M.D. Fla. July 18, 2014), aff'd on other grounds, 791 F.3d 1291 (11th Cir. 2015) ("[T]o state a § 1692e claim, the plaintiff must allege that the conduct was materially misleading"); Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1033 (9th Cir. 2010) (concluding that false but non-material representations are not likely to mislead the least sophisticated consumer and therefore are not actionable under section 1692e ); Hahn v. Triumph P'ships, LLC, 557 F.3d 755, 758 (7th Cir. 2009) ("[A] statement cannot mislead unless it is material, so a false but nonmaterial statement is not actionable" under the FDCPA.); Miller v. Javitch, Block & Rathbone, 561 F.3d 588, 596 (6th Cir. 2009) (concluding that a false but non-material statement is not actionable under § 1692e ); Maynard v. Cannon, 401 F. App'x 389, 397 (10th Cir. 2010) (stating the "FDCPA does not result in liability for every statement later alleged to be inaccurate, no matter how small or ultimately harmless."); Gabriele v. Am. Home Mortgage Servicing, Inc., 503 F. App'x 89, 94-96 (2d Cir. 2012) (collecting cases).
To be "material," "a statement must influence a consumer's decision or ability to pay or challenge a debt." Anselmi, 2015 WL 11121357, at *6 (citing Miljkovic , 2014 WL 3587550, at *8 ). This materiality requirement limits liability under the FDCPA to "genuinely false or misleading statements that ‘may frustrate a consumer's ability to intelligently choose his or her response.’ " Id. (quoting Powell v. Palisades Acquisition XVI, LLC, 782 F.3d 119, 125-27 (4th Cir. 2014) ); see also Hahn, 557 F.3d at 758 ("The statute is designed to provide information that helps consumers to choose intelligently, and by definition immaterial information neither contributes to that objective (if the statement is correct) nor undermines it (if the statement is incorrect)."). "Thus, only misstatements that are important in the sense that they could objectively affect the least sophisticated consumer's decisionmaking are actionable." Id. (quoting Powell, 82 F.3d at 125-27); see also Lox v. CDA, Ltd., 689 F.3d 818, 826-27 (7th Cir. 2012) (to be actionable under the FDCPA the false or misleading statement must have the ability to influence the consumer's decision); Gabriele, 503 F. App'x at 94-96 (statements that could "impede a consumer's ability to respond to or dispute collection, violate the FDCPA.").
Here, it is undisputed that Midland failed to timely file notices of dismissal in the TJ Maxx and Lowes Lawsuits. Midland SMF ¶ 37; Rivas SMF Response ¶ 37. Further, Midland did not actively litigate either matter in any way before filing its notices of dismissal. No pleadings or motions were filed, no discovery was propounded, no depositions were taken. The matters were never set for trial, nor were any subpoenas issued. Midland SMF ¶ 38-39; Rivas SMF Response ¶ 38-39. And Rivas was not aware of any record activity in either lawsuit between June 2018 and January 2019. Id. Moreover, Rivas testified that if he failed to make his payments pursuant to the Settlement Agreement, he would be liable for the debts on all the Accounts less the payments he had already made. Rivas Dep. [ECF No. 32] at 59:16-60:4. It is further undisputed that Rivas has timely made all his payments pursuant to the Settlement Agreement. Midland SMF ¶ 27; Rivas SMF Response ¶ 27.
Accordingly, even under the least sophisticated consumer standard, the fact that both lawsuits were not timely dismissed could not have reasonably influenced Rivas' decision as the consumer, nor impacted his ability to pay or challenge the amount due under the global Settlement Agreement that explicitly settled all three debts. See Settlement Agreement; Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643, 645-46 (7th Cir. 2009) ("If a statement would not mislead the unsophisticated consumer, it does not violate the FDCPA even if it is false in some technical sense."). Thus, even assuming Midland somehow made a false statement by failing to timely dismiss the lawsuits, such a representation would be immaterial and therefore not actionable under the FDCPA. Consequently, Midland is entitled to summary judgment as to Count II.
"The least sophisticated consumer can be presumed to possess a rudimentary amount of information about the world and a willingness to read a collection notice with some care. However, the test has an objective component in that [w]hile protecting naive consumers, the standard also prevents liability for bizarre or idiosyncratic interpretations of collection notices by preserving a quotient of reasonableness...." LeBlanc v. Unifund CCR Partners , 601 F.3d 1185, 1194 (11th Cir. 2010) (internal quotations and citations omitted) (alteration in original); Barany–Snyder v. Weiner, 539 F.3d 327, 333 (6th Cir. 2008) (noting the "least-sophisticated consumer" standard is an objective test); Jacobson v. Healthcare Fin. Servs., Inc., 516 F. 3d 85 (2nd Cir. 2008) (same).
II. Summary judgment on Counts III and IV is warranted because Rivas has failed to establish that Midland made misleading representations on the Website.
Rivas brings Counts III and IV under the FCCPA. See supra at 1301 n.3. The FCCPA prohibits a debt collector from "asserting the existence of [a] legal right when such person knows that the right does not exist." LeBlanc , 601 F.3d at 1192 (citing Fla. Stat. § 559.72(9) ). Specifically, Rivas claims Midland violated the FCCPA by representing amounts in excess of those due under the Settlement Agreement on the Website (Count III), and seeks a permanent injunction prohibiting Midland from continuing to represent those amounts (Count IV). Am. Compl. ¶¶ 39-43.
Rivas' argument as to Counts III and IV necessarily assumes that Midland was responsible for the allegedly false representations on the Website. However, as in Count I, there is no indication anywhere in the record that Midland exercised any control over the Website or the amounts represented therein. Again, Midland's representative testified that MCM was responsible for keeping an account of the payments made through the Website; that the money paid via the Website was paid to MCM and never forwarded to Midland; and the money paid via the Website ultimately went into a holding account owned by MCM. Whiteman Dep. [ECF No. 31] at 26:2-27:21.
Rivas has not presented, and the record does not contain, any evidence to suggest that Midland was aware of, or had any control over, the amounts being displayed on the Website. Thus, even when viewing all the evidence and factual inferences reasonably drawn from the evidence in the light most favorable to Rivas, the complete lack of record evidence to support this claim mandates the entry of summary judgment on Counts III and IV as a matter of law.
III. Summary judgment on Count V is warranted because Rivas has failed to establish a prima facie case for malicious prosecution under Florida law.
Count V of the Complaint alleges that Midland committed malicious prosecution for failing to timely dismiss the TJ Maxx and Lowes Lawsuits. Am. Compl. ¶¶ 44-45. Under Florida law, a plaintiff must establish six elements to support a claim of malicious prosecution: (1) an original judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damages as a result of the original proceeding. Kingsland v. City of Miami , 382 F.3d 1220, 1234 (11th Cir. 2004) (citing Durkin v. Davis , 814 So. 2d 1246, 1248 (Fla. 2d DCA 2002) ).
"It is axiomatic that a plaintiff in a malicious prosecution case must, as an essential element of that cause of action, establish that the prior litigation giving rise to the malicious prosecution suit ended with a ‘bona fide termination’ in that party's favor." Doss v. Bank Of Am., N.A. , 857 So. 2d 991, 994 (Fla. 5th DCA 2003). In other words, the suit on which the malicious prosecution claim is based must have "ended in a manner indicating the original defendant's (and current plaintiff's) innocence of the charges or allegations contained in the first suit, so that a court handling the malicious prosecution suit, can conclude with confidence, that the termination of the first suit was not only favorable to the defendant in that suit, but also that it demonstrated the first suit's lack of merit." Id. (citing Prosser, Torts 4th ed., at 838; 850–51; RESTATEMENT (SECOND) OF TORTS , § 660 Comment a). Thus, "suits that terminate because of technical or procedural reasons or considerations other than the merits of the first suit, are not ‘bona fide terminations’ and will not support a malicious prosecution suit." Id.
Suits that end as the result of settlements or joint stipulations "generally do not clearly demonstrate the lack of merit of the first suit, they are usually found insufficient to constitute ‘bona fide terminations’ of the prior litigation." Id. (citing Della–Donna v. Nova University, Inc. , 512 So. 2d 1051 (Fla. 4th DCA 1987) ; Prosser, Torts 4th ed., at 854). However, under Florida law, bargaining or negotiating for the termination of litigation does not necessarily negate the "bona fide" nature of the termination. Id. Whether the settlement of a lawsuit constitutes a "bona fide termination" in favor of a person against whom the suit was brought "depends on the total circumstances surrounding the withdrawal or abandonment." Id. (citing Union Oil of California v. Watson , 468 So. 2d 349, 355 (Fla. 3d DCA 1985) ; RESTATEMENT (SECOND) OF TORTS , § 674 comment on clause (b)). A termination "is favorable if the dismissal indicates the lack of merit of the case against the defendant in a civil case." Id. (citing Union Oil , 468 So. 2d at 354 ).
Rivas claims that he obtained a "bona fide termination" of the underlying suits because "the state court's June 4, 2018 order required dismissal." Resp. at 8. While Rivas is correct that the state court order required dismissal pursuant to the Settlement Agreement, the Settlement Agreement is completely silent as to the merits of the underlying claims. Thus, the Settlement Agreement does not "clearly demonstrate" that the suits lacked merit. See generally, Settlement Agreement. Rivas has not cited any case law to support the proposition that Midland's untimely dismissal of the suits somehow transforms the Settlement Agreement into a bona fide termination to support a claim for malicious prosecution under Florida law.
Notably, Rivas admitted that he owed debts to Midland and that he understood that the lawsuits were filed against him because he had defaulted on the Accounts. See Rivas Dep. 37:8-41:10. ("Q. What is your understanding as to why Midland filed that lawsuit? A. I was in default of the credit card, whatever I owed.").
Given that Rivas has not presented record evidence indicating the underlying suits, which were resolved via Settlement Agreement, lacked merit, he has failed to establish that he obtained a "bona fide termination" to support a claim for malicious prosecution under Florida law. Consequently, summary judgment is warranted on Count V as a matter of law.
CONCLUSION
Based upon the foregoing, it is hereby
ORDERED AND ADJUDGED that the Motion for Summary Judgment [ECF No. 23 ] is GRANTED . Final judgment will be entered in accordance with the foregoing by separate order.
DONE AND ORDERED in Miami, Florida, this 31st day of July, 2019.