Shallenburg v. PNC Bank, N.A.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

DEBORAH M. SHALLENBURG

and MICHAEL P. SHALLENBURG,

Plaintiffs,

v. Case No: 8:18-cv-2225-T-36TGW

PNC BANK, N.A., d/b/a PNC

MORTGAGE, and JAMES E.

ALBERTELLI, P.A., d/b/a “ALAW,”

Defendants.

___________________________________/

ORDER

This cause comes before the Court upon Defendant James E. Albertelli, P.A.’s Motion to

Dismiss, (Doc. 57), and Defendant PNC Bank, N.A.’s Motion to Dismiss Amended Complaint

with Prejudice and to Strike Demand for Jury Trial, (Doc. 70). The Court, having considered the

parties’ submissions and being fully advised in the premises, will dismiss Plaintiffs’ Fair Debt

Collection Practices Act claim, deny PNC Bank, N.A’s motion, and grant Plaintiffs leave to file a

second amended complaint.

I. BACKGROUND1

On or about December 30, 2014, PNC Bank, N.A., d/b/a “PNC Mortgage” (“PNC”), filed

a mortgage foreclosure action against Deborah M. Shallenburg and Michael P. Shallenburg

(collectively, “Plaintiffs”) in Florida’s Sixth Judicial Circuit, in and for Pinellas County, Florida

(the “Foreclosure Case”). (Doc. 49 ¶30). The Foreclosure Case pertained to the mortgage (the

1 The facts are derived from Plaintiffs’ amended complaint (the “Amended Complaint”), (Doc.

11), the allegations of which the Court must accept as true in ruling on the Motion, see Linder v.

Portocarrero, 963 F.2d 332, 334 (11th Cir. 1992); Quality Foods de Centro Am., S.A. v. Latin Am.

Agribusiness Dev. Corp. S.A., 711 F. 2d 989, 994 (11th Cir. 1983).

“Mortgage”) and promissory note on Plaintiffs’ homestead residence, which is located at 769 45th

Avenue Northeast, St. Petersburg, Florida 33703 (the “Property”). Id. at ¶31. During the pendency

of the Foreclosure Case, James E. Albertelli, P.A. (“ALAW”) was substituted as counsel for PNC.

Id. at ¶32. On or about January 10, 2018, the state court entered a final judgment of foreclosure in

favor of PNC in the amount of $431,287.28 (the “Final Judgment”). Id. at ¶33. The Final Judgment

itemized its $431,287.28 total by the following categories: (1) principal due on the notice secured

by the Mortgage; (2) interest of the note and Mortgage; (3) pre-accelerated late charges; (4)

additional costs; (5) property inspections; (6) escrow advance; and (7) attorney’s fees. Id. at ¶35;

(Doc. 49-1 at 2). The Final Judgment directed the Clerk of the Circuit Court to sell the Property

by public sale on May 10, 2018, if the Final Judgment’s total amount with interest and all costs

accrued subsequent to the Final Judgment were not paid. (Docs. 49 ¶34; 49-1 at 2–3).

Prior to the May 10, 2018 court sale date, Plaintiffs obtained a private contract for the sale

of the Property, which scheduled the closing for April 30, 2018. (Doc. 49 ¶37). To secure the

precise amount required for this closing, including the Final Judgment’s 5.53% annual interest rate

for post-judgment interest, Plaintiffs sent a letter to PNC, in which they requested a payoff figure

for the loan. Id. at ¶38.

ALAW, on behalf of PNC, responded to Plaintiffs’ request for this amount on or about

March 27, 2018, advising Plaintiffs that the Final Judgment’s total had increased to $455,159.52

(the “Original Payoff Quote”). Id. at ¶¶39–50, 44; (Doc. 49-2 at 1). This increase resulted from:

(1) eighty-four days of post-judgment interest in the amount of $5,310.48; (2) “Escrow” in the

amount of $9,383.00; (3) “Net Other Fees (Inspections)” in the amount of $45.00; (4) “Recording”

in the amount of $10.00; (5) “Corporate Advance” in the amount of $8,923.76; and (6)

“Outstanding Attorney’s Fees and Costs Not Included in Corporate Advance” in the amount of

$200.00. (Docs. 49 ¶¶39–40; 49-2 at 2). The Original Payoff Quote thus represented a $23,872.24

increase from the Final Judgment’s $431,287.28 total. (Doc. 49 ¶41). The Original Payoff Quote’s

$5,310.48 sum for eighty-four days of post-judgment interest allegedly constituted the only line-

item authorized by the Final Judgment. Id. at ¶42. Neither PNC nor ALAW filed a motion in the

Foreclosure Case to amend the Final Judgment to include the Original Payoff Quote’s remaining

itemized increases. Id. at ¶43.

On April 5, 2018, Plaintiffs’ counsel sent a “Notice of Error and Updated Payoff Request”

letter to ALAW and PNC, together with a third-party authorization form. Id. at ¶45. In addition to

disputing the unauthorized post-judgment amounts, this letter requested certain information,

including a breakdown of the “Escrow” and “Corporate Advance” amounts owed. Id. at ¶46; Doc.

49-3 at 2. The next day, via e-mail, ALAW’s “Reinstatement/Payoff” department responded that

ALAW lacked sufficient information to “prepare the letter.” (Docs. 49 ¶47; 49-4 at 1). Tora

Spraggs (“Spraggs”), an ALAW employee, advised Plaintiffs’ counsel that escrow was due in the

amount of $43,317.96, compared to the Final Judgment’s $33,934.96 line-item for escrow, because

PNC had indicated that it paid an additional $9,383.00 in escrow that PNC was “allowed to have

recouped on [its] behalf” since the entry of the Final Judgment. (Docs. 49 ¶48; 49-5 at 1). As to

the $8,923.76 “Corporate Advance” amount listed in the Original Payoff Quote, Spraggs explained

that PNC showed a total corporate advance in the amount of $10,068.76, of which $3,450.00 was

included in the Final Judgment’s $431,287.28 total. (Docs. 49 ¶49; 49-5 at 1). Spraggs further

explained that the $8,923.76 “Corporate Advance” amount resulted from subtracting $455.00 and

$690.00 from this $10,068.76 total. (Docs. 49 ¶51; 49-5 at 1). According to Spraggs, this $455.00

amount represented fees billed on May 3, 2017, whereas the $690.00 amount represented fees and

costs billed on January 11, 2018. (Docs. 40 ¶50; 49-5 at 1). Both amounts were included in the

Final Judgment’s “Attorney Fee” line-item, which totaled $3,450.00. (Docs. 40 ¶50; 49-5 at 1).

Plaintiffs’ counsel again disputed the “Escrow” and “Corporate Advance” charges and

requested a conversation with ALAW regarding such charges. (Doc. 49 ¶52). On April 9, 2018,

Spraggs responded to the reiterated objection of Plaintiffs’ counsel by providing a flood policy

charge incurred prior to the Final Judgment in the amount of $6,258.00 and a hazard insurance

policy charge incurred approximately three months after the Final Judgment in the amount of

$3,125.00. Id. at ¶53; (Doc. 49-6 at 1). After Plaintiffs’ counsel reiterated the request to discuss

the discrepancies with ALAW’s attorneys, an ALAW attorney advised Plaintiffs’ counsel that he

was attempting to resolve the issue with PNC. (Doc. 49 ¶¶54–55).

On approximately April 26, 2018, ALAW provided an updated loan pay-off amount via

letter dated April 20, 2018, which contemplated amounts due through May 1, 2018 (the “Updated

Payoff Quote”). Id. at ¶56; (Doc. 49-7 at 2). Whereas the Original Payoff Quote had increased the

Final Judgment’s $431,287.28 total to $455,159.52, the Updated Payoff Quote listed $457,018.68

as the total amount due, which represented a $25,731.40 increase from the Final Judgment’s total.

(Doc. 49 ¶¶40, 56–57). The Updated Payoff Quote’s $7,080.64 total for one-hundred twelve days

of post-judgment interest allegedly constituted the only line-item authorized by the Final

Judgment; the Final Judgment purportedly did not authorize the remaining $18,650.76 of the

$25,731.40 increase (the “Remaining Amount”) without following the specific procedures therein

and obtaining judicial approval. Id. at ¶¶58–59. Neither ALAW nor PNC filed a motion to amend

the Final Judgment in the Foreclosure Case to include these other amounts. Id. at ¶60.

To complete the closing of the Property on April 30, 2018, Plaintiffs transferred

$457,018.68 via wire transfer to ALAW’s trust account on behalf of PNC. Id. at ¶61. This

$457,018.68 payment contemplated full payment of the Updated Payoff Quote total of the same

amount. Id. at ¶62. Plaintiffs risked losing the private sale of the Property if they did not pay the

Remaining Amount. Id. Indeed, Plaintiffs faced a choice: either (1) lose the private sale of the

Property, risk losing equity in the Property by virtue of the court sale’s reduced universe of bidders

and bid values, and suffer negative credit reporting consequences of the Final Judgment for years;

or (2) pay the Updated Payoff Quote in full via their private sale, even though the total included

the Remaining Amount. Id. at ¶69. Thereafter, on ALAW and PNC’s motion, the state court

cancelled the May 10, 2018 foreclosure sale, vacated the Final Judgment, ordered the Clerk of the

Circuit Court to return the original note to Plaintiffs’ counsel, and dismissed the Foreclosure Case.

Id. at ¶¶63–64; (Doc. 49-9 at 1). Neither ALAW nor PNC moved the state court to amend the Final

Judgment prior to the court’s vacation of the Final Judgment and dismissal of the Foreclosure

Case. (Doc. 49 ¶65). ALAW or PNC2 retain the Remaining Amount, less the $3,125.00 unearned

portion of the homeowners’ policy premium, and less the $4,882.00 flood policy premium

refunded to Plaintiffs by insurance carriers. Id. at ¶66. Consequently, ALAW or PNC retain

$18,650.76 less $8,007.00, which equals $10,643.76. See id.

Plaintiffs’ operative complaint contains two counts: (1) one count against ALAW and PNC

(collectively, “Defendants”) for allegedly violating the Florida Consumer Collection Practices Act,

Fla. Stat. § 559.55 et seq. (the “FCCPA”); and (2) one count against ALAW for allegedly violating

the Fair Debt Collection Practices Act, 15 U.S.C. § 1692a et seq. (the “FDCPA”). (Doc. 49 ¶¶74–

88). In their FCCPA count, Plaintiffs aver, inter alia, that Defendants violated § 559.72(9) “by

attempting to collect the alleged [d]ebt with knowledge that the alleged [d]ebt is not legitimate or

2 Plaintiffs specifically allege that “ALAW and/or PNC retain the entire $18,650.76” total of the

Remaining Amount. (Doc. 49 ¶66).

asserting the existence of a legal right with the knowledge that the right does not exist.” Id. at ¶74.

Similarly, in their FDCPA count, Plaintiffs aver, inter alia, that ALAW violated §§ 1692e and

1692f of the FDCPA by “using false, deceptive, and misleading representations in connection

with” its collection of the debt and the Remaining Amount “and by using unfair and

unconscionable means to collect” the debt and the Remaining Amount. Id. at ¶81.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a pleading must include a “short and

plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556

U.S. 662, 677–78 (2009) (internal quotation marks omitted) (quoting Fed. R. Civ. P. 8(a)(2)).

Labels, conclusions and formulaic recitations of the elements of a cause of action are not sufficient.

Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, mere

naked assertions are not sufficient. Id. A complaint must contain sufficient factual matter, which,

if accepted as true, would “state a claim to relief that is plausible on its face.” Id. (quoting Twombly,

550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Id. (internal citation omitted). The court, however, is not bound to accept as true a legal

conclusion stated as a “factual allegation” in the complaint. Id.

III. ANALYSIS

Both ALAW and PNC move to dismiss the Amended Complaint. (Docs. 57, 70). The Court

begins with ALAW’s motion and will then address PNC’s motion.

A. ALAW’s Motion to Dismiss

In moving for dismissal, ALAW argues that (1) Plaintiffs lacks Article III standing; (2) the

Amended Complaint constitutes a shotgun pleading; and (3) Plaintiffs do not sufficiently allege

that ALAW is a “debt collector” under the FDCPA. (Doc. 57 at 5–6). The FDCPA claim is due to

be dismissed.

i. Article III Standing

An inquiry into standing is necessarily a threshold examination. See Warth v. Seldin, 422

U.S. 490, 498 (1975). United States Supreme Court precedent demonstrates that “the ‘irreducible

constitutional minimum’ of standing consists of three elements.” Spokeo, Inc. v. Robins, 136 S.

Ct. 1540, 1547 (2016) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). To

establish standing, the plaintiff, as the party seeking to invoke federal jurisdiction, 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. At the pleading stage of

the litigation, “the plaintiff must ‘clearly . . . allege facts demonstrating’ each element.” Id.

(quoting Warth, 422 U.S. at 518).

ALAW challenges Plaintiffs’ efforts to establish an injury in fact. (Doc. 57 at 5). “To

establish an injury in fact, a plaintiff must demonstrate he or she suffered ‘an invasion of a legally

protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or

hypothetical.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). “For an injury to be

particularized, it must affect the plaintiff in a personal and individual way.” Id. (internal quotation

marks omitted). Further, “[a] concrete injury must be de facto; that is, it must actually exist.” Id.

(internal quotation marks omitted). A concrete injury is an injury that is “real” and not “abstract.”

Id. Yet, “concrete” is not necessarily synonymous with “tangible,” as intangible injuries can

nevertheless be concrete. Id. at 1549. In Spokeo, the United States Supreme Court recognized that

both history and Congress’ judgment play a crucial role in determining whether an intangible harm

constitutes an injury in fact. Id. “Congress may ‘elevat[e] to the status of legally cognizable injuries

concrete, de facto injuries that were previously inadequate in law.’’” Id. (alterations in original)

(quoting Lujan, 504 U.S. at 578). Notably, “Congress’ role in identifying and elevating intangible

harms does not mean that a plaintiff automatically satisfies the injury-in-fact requirement wherever

a statute grants a person a statutory right and purports to authorize that person to sue to vindicate

that right.” Id. Indeed, “Article III requires a concrete injury even in the context of a statutory

violation.” Id. As such, an alleged “bare procedural violation, divorced from any concrete harm,”

cannot “satisfy the injury-in-fact requirement of Article III.” Id. However, the violation of a

procedural right granted by statute may “in some circumstances” be sufficient to constitute injury

in fact. Id. In such a case, the plaintiff “need not allege any additional harm beyond the one

Congress has identified.” Id. (original emphasis removed).

Plaintiffs sufficiently allege an injury in fact for their FDCPA claim. In Meyer v. Fay

Servicing, LLC, this Court recognized that § 1692e “creates a right to receive truthful

representations of the character and amount of a debt,” whereas § 1692f “prohibits the use of unfair

or unconscionable means to collect or attempt to collect any debt.” 385 F. Supp. 3d 1235, 1241

(M.D. Fla. 2019) (Chappell, J.). A plaintiff who alleges that a defendant deprived him or her of

rights under these provisions sufficiently alleges standing, even absent any additional showing of

harm. Id. (finding that the plaintiff’s allegation that the defendant deprived him of the right to

information under §§ 1692e and 1692f was “enough to confer standing without any additional

showing of harm”). The Court also recently emphasized that courts across the country recognize

that §§ 1692e and 1692f provide consumers with substantive rights which “necessarily protect

their Congressionally recognized, concrete interests in being free from abusive debt collection

practices, and that violations of these statutes’ provisions therefore give rise to concrete injuries

sufficient to confer Article III standing.” Gause v. Med. Bus. Consultants, Inc., No. 8:18-cv-1726-

17AAS, ___ F. Supp. 3d ___, 2019 WL 6716635, at *13 (M.D. Fla. Dec. 12, 2019) (Kovachevich,

J.).

Plaintiffs allege that ALAW violated § 1692e of the FDCPA by using “false, deceptive,

and misleading representations” in connection with its collection of the debt and the Remaining

Amount. (Doc. 49 ¶81). Similarly, Plaintiffs allege that ALAW violated § 1692f of the FDCPA by

“using unfair and unconscionable means” in collecting the debt and the Remaining Amount. Id.

Plaintiffs’ allegations extend beyond a mere deprivation of information or violation of their interest

in being free from abusive debt collection practices, as they allege that they suffered financial loss.

See, e.g., id. at ¶¶85–86. According to Plaintiffs, they were forced to pay the Remaining Amount—

a sum of $18,650.76—or “risk[] losing the private sale” of the Property. Id. at ¶62. Indeed,

Plaintiffs aver that they were forced to pay this “illegitimate debt,” which deprived them of

$18,650.76. Id. at ¶70. Plaintiffs’ allegations plausibly establish that their payment affected them

in a personal and individual way because it deprived them of a sum of money. In addition to the

alleged financial damages, Plaintiffs claim that they “suffered emotional distress, anxiety,

inconvenience, annoyance, fear, confusion and loss of sleep” because they believed that

“Defendants could hold their [c]losing hostage by charging amounts not authorized by the Final

Judgment.” Id. at ¶68. For the same reason, the financial loss also constitutes a real and existent

injury to Plaintiffs, rather than an abstract injury. As such, the alleged injury is an invasion of a

legally protected interest that is both particularized and concrete.3 Further, the alleged injury is

actual, as Plaintiffs allegedly incurred the financial loss, rather than hypothetical.

3 Plaintiffs allege that “ALAW and/or PNC retain the entire $18,650.76” total of the Remaining

Amount, (Doc. 49 ¶66), but assert in their response to PNC’s motion that PNC “eventually”

refunded an amount ambiguously described as “nearly $11,000.00 of the [Remaining Amount],”

(Doc. 73 at 6 n.1). This assertion does not alter the Court’s conclusion that the alleged injury is

particularized and concrete. Even if the Court speculates and construes the vague assertion as

Plaintiffs also allege a claim against Defendants under the FCCPA. The FCCPA authorizes

a debtor to bring a lawsuit against any person who, in collecting consumer debts, “claim[s],

attempt[s], or threaten[s] to enforce a debt when such person knows that the debt is not legitimate,

or assert[s] the existence of some other legal right when such person knows that the right does not

exist.” Fla. Stat. §§ 559.77(1), 559.72(9). In Meyer, the plaintiff alleged that the defendants

violated § 559.72(9) of the FCCPA. 385 F. Supp. 3d at 1242–43. The Court held that Plaintiff had

alleged standing under the FCCPA. Id. at 1241. To reach this conclusion, the Court recognized

that “[t]he FCCPA permits statutory damages and, therefore, a plaintiff ‘is not required to prove

actual damages, but only a violation of one of the prohibited practices in the FCCPA.’” Id. (internal

quotation marks omitted) (quoting Laughlin v. Household Bank, Ltd., 969 So.2d 509, 513 (Fla. 1st

DCA 2007)). Consequently, the Court recognized that the plaintiff’s allegation that the defendant

deprived him of his statutory right to receive information sufficiently stated a concrete injury under

the FCCPA. Id.

Like Meyer, Plaintiffs allege that Defendants violated § 559.72(9), contending that

Defendants demanded the Remaining Amount in the Updated Payoff Quote and the unauthorized

amounts in the Original Payoff Quote while knowingly and falsely representing the Remaining

Amount as legitimate and falsely asserting that they possessed the legal right to collect the

Remaining Amount from Plaintiffs without following the explicit procedures required by the Final

Judgment. (Doc. 49 ¶¶75, 77). Plaintiffs’ allegations extend beyond the plaintiff’s allegations in

Meyer, as Plaintiffs allege financial loss, in additional to emotional distress, anxiety, loss of sleep,

stating that Plaintiffs recouped the financial losses incurred as a result of the alleged misconduct,

Plaintiffs have alleged violations of statutes conferring substantive rights which “necessarily

protect [consumers’] Congressionally recognized, concrete interests in being free from abusive

debt collection practices.” Gause, 2019 WL 6716635, at *13.

and other symptoms. For the same reasons as above, Plaintiffs’ alleged injury is an invasion of a

legally protected interest that is concrete and particularized and an actual injury. Consequently,

Plaintiffs sufficiently allege an injury in fact for the FCCPA claim.

Therefore, Plaintiffs have standing because they sufficiently allege that they suffered an

injury in fact and they allege sufficient facts as to the remaining elements of the standing inquiry.

Accordingly, ALAW’s motion to dismiss is denied on this ground.

ii. Shotgun Pleading

Over the course of four sentences, inclusive of legal citations, ALAW also attacks the

Amended Complaint as a shotgun pleading. (Doc. 57 at 5–6). This argument is unavailing.

In Weiland v. Palm Beach County Sheriff’s Office, the Eleventh Circuit identified four

types of shotgun complaints:

The most common type—by a long shot—is a complaint containing

multiple counts where each count adopts the allegations of all

preceding counts, causing each successive count to carry all that

came before and the last count to be a combination of the entire

complaint. The next most common type . . . is a complaint . . . replete

with conclusory, vague, and immaterial facts not obviously

connected to any particular cause of action. The third type of

shotgun pleading is one that commits the sin of not separating into

a different count each cause of action or claim for relief. Fourth, and

finally, there is the relatively rare sin of asserting multiple claims

against multiple defendants without specifying which of the

defendants are responsible for which acts or omissions, or which of

the defendants the claim is brought against.

792 F.3d 1313, 1321–23 (11th Cir. 2015) (internal footnotes omitted).

For those cases with multiple defendants, “the complaint should contain specific

allegations with respect to each defendant; generalized allegations ‘lumping’ multiple defendants

together are insufficient to permit the defendant, or the Court, to ascertain exactly what [the]

plaintiff is claiming.” J.V. by K.V. v. Duval Cnty. Sch. Bd., No. 3:16-cv-1009-J-34MCR, 2017 WL

4226590, at *1 (M.D. Fla. Sept. 22, 2017) (Howard, J.) (citing W. Coast Roofing & Waterproofing,

Inc. v. Johns Manville, Inc., 287 F. App’x 81, 86 (11th Cir. 2008) (per curiam)). “[T]he unifying

characteristic of all types of shotgun pleadings is that they fail to one degree or another, and in one

way or another, to give the defendants adequate notice of the claims against them and the grounds

upon which each claim rests.” Weiland, 792 F.3d at 1323.

In light of ALAW’s sole citation to Brogan v. Volusia County, Florida, No. 6:17-cv-745-

Orl-40KRS, 2018 WL 2359145, at *3 (M.D. Fla. May 24, 2018) (Byron, J.), and its failure to

provide any accompanying analysis of the Amended Complaint, the Court construes this section

of ALAW’s motion as contending that the Amended Complaint lacks specific allegations as to

each of Defendants and improperly lumps Defendants together. (Doc. 57 at 5–6). In Brogan, the

operative complaint included twenty-six counts against twenty defendants over the course of four-

hundred twenty-eight paragraphs that spanned eighty-seven pages. Brogan, 2018 WL 2359145, at

*3. In analyzing the complaint, the Court characterized the plaintiff’s “kitchen-sink pleading” as

“replete with vague, conclusory, and repetitive allegations,” which often failed to distinguish

among the defendants. Id. This Court further recognized the lack of specific factual allegations as

to each defendant, despite the complaint’s indiscriminate allegations that each of the defendants

knew the circumstances leading to the wrongful conduct. Id. This Court dismissed the operative

complaint without prejudice as a shotgun complaint, recognizing that this deficient pleading style

precluded the Court from discerning which facts pertained to which defendant and failed to apprise

the defendants of the grounds upon which each claim rested. Id.

Here, unlike the twenty-six counts against twenty defendants over the course of eighty-

seven pages in Brogan, the Amended Complaint names two defendants and sets forth two counts

over the course of fifteen pages. Plaintiffs bring the FDCPA claim solely against ALAW4 and the

FCCPA claim against each of Defendants. See, e.g., (Doc. 49 ¶¶71–72, 80, 87–88). Although

Plaintiffs refer to Defendants collectively in Count I, see, e.g., id. at ¶74, Weiland does not

“prohibit all instances where a count lodges a claim against multiple defendants, but rather only

where such a claim fails to provide Defendants with adequate notice of the claims against them,”

Continental 322 Fund, LLC v. Albertelli, 317 F. Supp. 3d 1124, 1140 (M.D. Fla. 2018) (Chappell,

J.). Courts have approved of claims lodged against multiple defendants “where the activities

undertaken by each defendant were alleged.” Id. Although Plaintiffs bring the FCCPA claim

against Defendants and refer to Defendants collectively thereunder, the Amended Complaint

sufficiently describes the activities undertaken by each of the Defendants. For example, Plaintiffs

detail PNC’s filing of the Foreclosure Case and PNC’s alleged failure to amend the Final Judgment

before the Original Payoff Quote, the Updated Payoff Quote, or the state court’s dismissal of the

Foreclosure Case. (Doc. 49 ¶¶43, 60). Plaintiffs repeatedly emphasize that ALAW acted on PNC’s

behalf and with PNC’s approval. Id. at ¶28. Plaintiffs detail ALAW’s conduct, such as their

contention that ALAW sent the Original Payoff Quote to Plaintiffs on PNC’s behalf and their

allegation that Spraggs explained the “Escrow” and “Corporate Advance” amounts to Plaintiffs’

counsel upon his objection. Id. at ¶¶44, 49. The Amended Complaint contains factual allegations

with respect to each of Defendants, which provide Defendants with sufficient notice of the claims

against them and the grounds upon which each claim rests. ALAW’s shotgun pleading argument

accordingly fails. Of course, whether Plaintiffs predicate their FDCPA and FCCPA claims upon

4 While a few of the allegations under the FDCPA claim refer to “Defendants,” the remaining

allegations under the FDCPA claim make clear that Plaintiffs lodge the claim against ALAW only

and clear up any confusion caused by these haphazard allegations. See, e.g., (Doc. 49 ¶¶81, 87–

88).

sufficient factual content to state a claim is a separate inquiry, and the Federal Rules of Civil

Procedure provide Defendants with the mechanism—a Rule 12(b)(6) motion—to move to dismiss

a claim predicated upon insufficient factual content.

iii. ALAW as a “Debt Collector” Under the FDCPA

In its final attack, ALAW argues that Plaintiffs do not sufficiently allege that ALAW

constitutes a “debt collector” under the FDCPA.5 (Doc. 57 at 6). ALAW contends that Plaintiffs’

only allegation regarding ALAW’s possible status as a “debt collector” is their conclusory

allegation that ALAW constitutes a “debt collector” under the FDCPA, which is otherwise

unsupported with any factual allegations. Id. Upon review, the Court agrees that Plaintiffs fail to

sufficiently allege that ALAW constitutes a “debt collector” under the FDCPA.

In passing the FDCPA, Congress sought to protect consumers from “abusive debt

collection practices by debt collectors . . . [and] to insure that those debt collectors who refrain

from using abusive debt collection practices are not competitively disadvantaged . . . .” 15 U.S.C.

§ 1692(e). As the United States Supreme Court recently reiterated, the FDCPA pursues these

purposes by “imposing affirmative requirements on debt collectors and prohibiting a range of debt-

collection practices.” Rotkiske v. Klemm, 140 S. Ct. 355, 358 (2019). Unsurprisingly, then, the

requirements of the FDCPA apply “only to professional debt-collectors.” Crawford v. LVNV

Funding, LLC, 758 F.3d 1254, 1258 n.3 (11th Cir. 2014).

A “debt collector” under the FDCPA is a term of art. Correa v. BAC Home Loans Servicing

LP, No. 6:11-cv-1197-Orl-22DAB, 2012 WL 1176701, at *11 (M.D. Fla. Apr. 9, 2012) (Conway,

5 ALAW also vaguely asserts that (1) whether either payoff quote included improper amounts is

immaterial because the Final Judgment’s entry “does not stop additional fees that need to be paid”

by Plaintiffs; and (2) “Plaintiffs are improperly attempting to turn an affirmative defense into an

affirmative cause of action.” (Doc. 57 at 1, 4). These statements are unclear and unsupported by

legal argument or further factual development. Accordingly, and in light of the Court’s analysis

herein, the Court declines to address these undeveloped contentions.

J.). 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.”6 15 U.S.C. § 1692a(6). The

FDCPA also enumerates exclusions from this definition. Id.

Plaintiffs allege that ALAW violated §§ 1692e and 1692f of the FDCPA.7 Section 1692e

makes it unlawful for a “debt collector” to “use any false, deceptive, or misleading representation

or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. Section 1692f similarly

proscribes a “debt collector” from using “unfair or unconscionable means to collect or attempt to

collect any debt.” Id. § 1692f. For Plaintiffs’ FDCPA claim to survive dismissal at this stage of the

litigation, Plaintiffs must plausibly allege sufficient factual content to allow the Court to draw a

reasonable inference that ALAW constitutes a “debt collector” under the FDCPA. Davidson v.

Capital One Bank (USA), N.A., 797 F.3d 1309, 1313 (11th Cir. 2015) (quoting Iqbal, 556 U.S. at

678); Kurtzman v. Nationstar Mortg. LLC, 709 F. App’x 655, 659 (11th Cir. 2017) (per curiam)).

A plaintiff’s mere assertion that a defendant constitutes a “debt collector” under the FDCPA in the

absence of further allegations supporting the proposition that the defendant either operates a

business that has a principal purpose of collecting debts, or regularly attempts to collect the debts

of another, fails to plausibly allege that such defendant constitutes a “debt collector.” Farguharson

v. Citibank, N.A., 664 F. App’x 793, 799–800 (11th Cir. 2016) (per curiam). Accordingly, as

6 The FDCPA also defines a “debt collector” as “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” for the purpose of 15 U.S.C. § 1692f(6), an unfair practices subsection of the

FDCPA. 15 U.S.C. § 1692a(6). Plaintiffs do not allege that ALAW violated § 1692f(6).

7 Plaintiffs specifically allege that ALAW violated §§ 1692e(2)(A), 1692e(5), 1692e(10), and

1692f(1). (Doc. 49 ¶87).

Plaintiffs bring an FDCPA claim against ALAW, the law requires Plaintiffs to plausibly allege

sufficient factual content to allow the Court to draw a reasonable inference that ALAW constitutes

a “debt collector” under the FDCPA.

Plaintiffs contend that, at all material times alleged in the Amended Complaint, ALAW

constituted a “debt collector as defined by” the FDCPA. (Doc. 49 ¶20). Plaintiffs further aver that,

“[a]t all material times alleged herein, ALAW uses instrumentalities of interstate commerce or the

mails in a business the principal purpose of which is the collection of debts.” Id. at ¶9. Plaintiffs

also allege that, “[a]t all material times herein, ALAW regularly collects or attempts to collect,

directly or indirectly, debts owed or due or asserted to be owed or due another.” Id. at ¶10. As

should be obvious, these latter allegations are nearly verbatim quotations of the “debt collector”

definition under § 1692a(6). In seeking to allege that ALAW qualifies as a “debt collector” under

the first provision of the FDCPA’s definition for the term, Plaintiffs merely add “[a]t all material

times herein” and slightly alter the definition by amending “any instrumentality” to

“instrumentalities,” “any business” to “a business” and “any debts” to just “debts.” Plaintiffs’

effort to allege that ALAW qualifies as a “debt collector” under the second provision of the

FDCPA’s definition for the term reveals even more resemblance to the definition, as Plaintiffs

simply add “[a]t all material times herein” before proceeding to recite the second provision of the

definition verbatim.

However, a plaintiff who quotes the FDCPA’s “debt collector” definition and states that a

defendant qualifies as a “debt collector” does not sufficiently allege that a defendant qualifies as a

“debt collector.” Barber v. Rubin Lublin, LLC, No. 1:13-cv-975-TWT, 2013 WL 6795158, at *9

(N.D. Ga. Dec. 20, 2013); cf. Correa, 2012 WL 1176701, at *12–14 (finding that the plaintiff had

failed to sufficiently allege that the defendants were debt collectors where he simply cited to “debt

collector” definition and alleged in a conclusory manner that the defendants qualified as debt

collectors). In Barber, the plaintiff’s complaint alleged twice that the defendant was a “debt

collector.” 2013 WL 6795158, at *9. First, the plaintiff quoted the “debt collector” definition and

stated that the defendant qualified as a “debt collector.” Id. The court explained that this assertion

constituted a legal conclusion and was void of any factual content. Id. Second, the plaintiff referred

to the notice that he received from the defendant and asserted again that the defendant qualified as

a “debt collector” by quoting the statutory definition. Id. However, the court found this allegation

to be insufficient because it prohibited the court from reasonably inferring that the defendant

operated a business, the principal purpose of which was collecting debts on the basis of the sole

collection alleged in the operative complaint. Id. In concluding that the plaintiff had failed to

sufficiently plead that the defendant constituted a “debt collector,” the court emphasized that the

plaintiff had not provided sufficient factual content to enable the court to reasonably infer that

defendant qualified as a “debt collector” under either definition of the term. Id. (citing Reese v.

Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1218 (11th Cir. 2012)).

Here, Plaintiffs’ conclusory allegation that ALAW is a “debt collector” under the FDCPA

and separate regurgitation of the “debt collector” definition are insufficient to enable the Court to

reasonably infer that ALAW is a “debt collector.” These allegations are devoid of factual content

and simply parrot the statutory definition. As emphasized above, the question is whether Plaintiffs

alleged sufficient factual content to enable the Court to reasonably infer that ALAW either “[(1)]

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).

In addition to the allegations cited above, Plaintiffs point to other allegations in an effort

to show that they plausibly allege that ALAW is a “debt collector.” Plaintiffs allege that ALAW

“itself and through its subsidiaries, regularly extends, services, and collects debts from consumers

in Pinellas County, Florida.” (Doc. 49 ¶8). Plaintiffs also allege that “[a]t all material times herein,

ALAW acted on behalf of, with the approval of, and with full authority on behalf of, PNC within

the scope of ALAW’s relationship with PNC.” Id. at ¶28. Plaintiffs also point out their reference

to, and attachment of, the Final Judgment, their allegation that ALAW was substituted as counsel

for PNC, and the Final Judgment as showing that PNC held a lien for the total sum. (Doc. 61 at

11). But, even assuming the truth of these allegations and viewing them collectively with the

allegations mentioned above simply does not allow the Court to reasonably infer that ALAW

utilized an instrumentality of interstate commerce or the mails in a business of which collecting

debts served as the principal purpose, regardless of ALAW’s collection of “debts from

consumers,” PNC’s lien, and any action by ALAW on behalf of PNC. Rather, such allegations

may be construed to supply the inference that debt collection serves as some of ALAW’s business,

but not that debt collection serves as the “principal purpose” of ALAW’s business. See Davidson,

797 F.3d at 1317 (finding that the complaint provided a basis for the court to plausibly infer that

debt collection constituted some of the defendant’s business, but it failed to provide any basis for

the court to infer that debt collection served as the “principal purpose” of the defendant’s business).

Nor do the allegations enable the Court to reasonably infer that ALAW regularly collects,

directly or indirectly, debts that are owed or due or claimed to be owed or due another. Even

assuming the veracity of the allegations and assuming that ALAW’s activity on behalf of PNC in

the instant action qualifies as the collection of, or an attempt to collect, debts owed or asserted to

be or due another, there is no indication of the extent to which ALAW regularly collects or attempts

to collect “debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). Indeed,

aside from the legal conclusions offered above, Plaintiffs’ only additional allegation relevant to

the second definition under § 1692a(6) is their assertion that ALAW “itself and through its

subsidiaries, regularly extends, serves, and collects debts from consumers in Pinellas County,

Florida.” (Doc. 49 ¶8) (emphasis added). Yet, even when assuming the truth of this allegation,

there is no indication whether ALAW’s allegedly regular extension, servicing, and collection of

debts from consumers, at least some portion of which is also accomplished through subsidiaries,

constitutes ALAW’s regular collection of its own debts or debts of others.

A person must regularly collect or attempt to collect debts for others to qualify as a “debt

collector” under the FDCPA’s second definition for the term. Henson v. Santander Consumer USA

Inc., 137 S. Ct. 1718, 1724 (2017) (emphasizing that “the [FDCPA] defines debt collectors [under

its second definition] to include those who regularly seek to collect debts ‘owed . . . another’ and

“you have to attempt to collect debts owed another before you can ever qualify as a debt collector”

under the second definition of the term); Davidson, 797 F.3d at 1316 (“[A] person must regularly

collect or attempt to collect debts for others in order to qualify as a ‘debt collector’ under the

second definition of the term.”); McFadden v. U.S. Bank, N.A., No. 8:14-cv-2068-T-35MAP, 2015

WL 10352994, at *5 (M.D. Fla. Oct. 7, 2015) (Scriven, J.) (framing the inquiry as whether the

defendant-bank regularly collected on debts owed or due another at the time of collection, per

Davidson, and finding that the plaintiff had failed to sufficiently allege that the defendant-bank

constituted a “debt collector” because the subject debt was owed to the defendant at the time of its

collection, not another).

A quest for other allegations providing sufficient factual content to allow the Court to

reasonably infer that ALAW meets the “debt collector” definition proves unavailing and does not

alter this conclusion.8 The law does not demand “detailed factual allegations” at this early stage of

the litigation, Iqbal, 556 U.S. at 678 (internal quotation marks omitted), but it does demand “factual

content that allows the court to draw the reasonable inference” that ALAW is a “debt collector”

under the FDCPA, Davidson, 797 F.3d at 1313 (internal quotation marks omitted). While close,

the requisite factual content is absent here. 9 Thus, Plaintiffs fail to sufficiently allege that ALAW

constitutes a “debt collector” under the FDCPA. Plaintiffs’ FDCPA claim against ALAW is

therefore due to be dismissed. However, because the underlying facts and circumstances relied on

by Plaintiffs may present a proper subject of relief, the Court will provide Plaintiffs with leave to

amend this count. Dysart v. BankTrust, 516 F. App’x 861, 865 (11th Cir. 2013) (per curiam).

Accordingly, the dismissal shall be without prejudice, to Plaintiffs’ right to file a second amended

complaint.

8 Plaintiffs attach the Original Payoff Quote and the Updated Payoff Quote to the Amended

Complaint. (Docs. 49-2, 49-7). The Court generally must limit itself to a consideration of the

pleadings and exhibits attached thereto on a Rule 12(b)(6) motion. Grossman v. Nationsbank, N.A.,

225 F.3d 1228, 1231 (11th Cir. 2000) (per curiam). Each attached letter states that ALAW “may

be considered a debt collector” and states that the letter is an “attempt to collect a debt,” (Docs.

49-2, 49-7) (emphasis removed), but a letter that identifies an entity as a “debt collector” does not

“transform” such entity into a “debt collector” under the FDCPA at the pleading stage, Fenello v.

Bank of Am., N.A., 577 F. App’x 899, 902 (11th Cir. 2014) (per curiam) (rejecting the plaintiffs’

argument on appeal that the district court erred in dismissing the plaintiffs’ FDCPA claim by

concluding that the defendant was not a “debt collector” because the correspondence that the

plaintiffs received from the defendant identified the defendant as a “debt collector” under the

FDCPA). As such, even when viewed collectively with the other allegations, the Court is not left

with the reasonable inference that ALAW is a “debt collector” under the FDCPA.

9 By comparison, in Reese v. Ellis, Painter, Ratterree & Adams, LLP, the Eleventh Circuit held

that the plaintiffs had sufficiently alleged that the defendant-law firm constituted a “debt collector”

under the second provision of the definition where the complaint alleged that “the law firm is

‘engaged in the business of collecting debts owed to others incurred for personal, family[,] or

household purposes’ and that, in the year prior to the complaint’s filing, “the firm had sent to more

than 500 people ‘dunning notice[s]’ containing ‘the same or substantially similar language’ to that

found in the letter and documents attached to the complaint” 678 F.3d at 1218–1219 (alterations

in original).

B. PNC’s Motion to Dismiss

PNC argues that the Court must dismiss the Amended Complaint with prejudice because

(1) the Mortgage, the Final Judgment, and Florida law entitle PNC to collect the additional sums

post-judgment; and (2) Plaintiffs fail to allege that PNC had actual knowledge that the sought

amounts were illegitimate, and Plaintiffs further fail to plead any facts supporting such actual

knowledge on behalf of PNC. (Doc. 70 at 8–15). PNC alternatively moves to strike Plaintiffs’ jury

trial demand. Id. at 2, 15–22.

i. PNC’s Ability to Collect Additional Post-Judgment Sums Under the

Mortgage, Final Judgment, and Florida Law

PNC first argues that the Court must dismiss the Amended Complaint because the

Mortgage, the Final Judgment, and Florida law permitted PNC to collect additional sums post-

judgment. (Doc. 70 at 8–14). This argument thus casts doubt on the alleged illegitimacy of the debt

or the assertion of such a purportedly nonexistent legal right in the collection of the debt under

Florida Statutes § 559.72(9). This argument is unavailing.

1. The Final Judgment

The Court begins by examining PNC’s argument that the Final Judgment permitted the

collection of additional sums post-judgment. A brief review of Plaintiff’s FCCPA claim against

PNC is warranted. Plaintiffs’ sole claim against PNC is grounded in Florida Statutes § 559.72(9).

(Doc. 59 ¶74). This subsection of the FCCPA provides that, “[i]n collecting consumer debts, no

person shall . . . [c]laim, attempt, or threaten to enforce a debt when such person knows that the

debt is not legitimate, or assert the existence of some other legal right when such person knows

that the right does not exist.”10 Fla. Stat. § 559.72(9). Further, the FCCPA defines “debt” or

10 Thus, the statute focuses on the actions of “person[s],” rather than the actions of debt collectors.

Bentley v. Bank of Am., N.A., 773 F. Supp. 2d 1367, 1372 (S.D. Fla. 2011); see Schauer v. Gen.

Motors Acceptance Corp., 819 So.2d 809, 811–12 (Fla. 4th DCA 2002) (stating that the FCCPA

“consumer debt” as “any obligation or alleged obligation of a consumer to pay money arising out

of a transaction in which the money, property, insurance, or services which are the subject of the

transaction are primarily for personal, family, or household purposes, whether or not such

obligation has been reduced to judgment.” Id. § 559.55(6).

Plaintiffs allege that the Updated Payoff Quote constituted a “claim, attempt, or threat[] to

enforce a debt” under § 559.72(9).11 (Doc. 49 ¶26). Plaintiffs cite Paragraph 8 of the Final

Judgment to allege that the Final Judgment “explicitly required” PNC to follow certain procedures

“to add any amounts to the Final Judgment except post-judgment interest.” Id. at ¶36 (original

emphasis removed). Plaintiffs attach the Final Judgment to the Amended Complaint. (Doc. 49-1).

Paragraph 8 of the Final Judgment provides:

If the Plaintiff incurs additional expenses subsequent to the entry of

this final judgment but prior to the sale date specified in Paragraph

6, Plaintiff may, by written notice served on all parties and

adjudication at a hearing with notice, seek to amend this final

judgment to include said additional expenses.

Id. at 4.

“seeks in part to protect in-state consumers from the illegal and/or unscrupulous practices of debt

collectors and other persons”). PNC does not challenge the applicability of such language, but

instead argues, inter alia, that it was entitled to collect post-judgment sums. (Doc. 70 at 8–14).

11 Plaintiffs also allege that the Original Payoff Quote constituted a “claim, attempt, or threat[] to

enforce a debt” under § 559.72(9). (Doc. 49 ¶25). However, Plaintiffs’ claim against Defendants

for violation of § 559.72(9) states that, “[s]pecifically, Defendant demanded the [Remaining

Amount] portion of the alleged Debt (i.e., $18,850.76) within the Original and Updated Payoff

[Quotes].” Id. at ¶75. Significantly, $18,850.76 constituted the total of the Remaining Amount, as

provided in the Updated Payoff Quote, whereas $18,561.76 constituted the total for the allegedly

unauthorized amounts in the Original Payoff Quote. See id. at ¶39. The FCCPA claim against PNC

also consistently references the “Unauthorized Amounts,” which the Amended Complaint defines

as the unauthorized $18,650.76 included in the Updated Payoff (defined as “Remaining Amount”

in this Order). Id. at ¶59. Accordingly, the Court construes Plaintiffs’ FCCPA claim as pertaining

to the Updated Payoff Quote and the Remaining Amount. To the extent that Plaintiffs intend for

their FCCPA claim to include the Original Payoff Quote, they may desire to clarify their

allegations upon amendment.

Plaintiffs contend the Remaining Amount “was not authorized to be added to the Final

Judgment amount without following the specific and explicit procedures required by the Final

Judgment and obtaining judicial approval.” (Doc. 49 ¶59). Relying on the language of Paragraph

8, Plaintiffs allege that neither of Defendants filed a motion in the Foreclosure Case to amend the

Final Judgment to include the Updated Payoff Quote’s additional (1) $9,383.00 for “Escrow”; (2)

$45.00 for “Net Other Fees (Inspections”); (3) $10.00 for “Recording”; (4) $8,923.76 for

“Corporate Advance”; and (5) $200.00 for “Outstanding Attorney’s Fees and Costs Not Included

in Corporate Advance.” Id. at ¶60. Plaintiffs allege that they suffered emotional distress, anxiety,

and fear, among other symptoms, by believing that “Defendants could hold their [c]losing hostage

by charging amounts not authorized by the Final Judgment.” Id. at ¶68.

The Final Judgment provided $431,287.28 as the amount due and owed to PNC. (Doc. 49-

1 at 2). This total amount incurred interest “at the prevailing statutory interest rate of 5.53 percent

per year from this date [of the Final Judgment] through December 31 of this current year.” Id. As

such, Plaintiffs contend that the line-item for post judgment interest in the Updated Payoff Quote

constituted the only “authorized” amount “pursuant to the Final Judgment.” (Doc. 49 ¶58).

But, PNC argues that the Final Judgment “provides for and/or contemplates PNC’s

recovery of additional sums.” (Doc. 70 at 12). The Final Judgment clearly contemplates the accrual

of certain costs subsequent to the Final Judgment, as it directs the Clerk of Circuit Court to sell the

Property on May 10, 2018, “[i]f the total sum with interest at the [5.53% interest rate] and all costs

accrued subsequent to this judgment are not paid.” (Doc. 49-1 at 3). PNC contends that Paragraph

8 merely provides a “permissive mechanism” by which PNC could have sought to amend the Final

Judgment before the scheduled foreclosure sale. (Doc. 70 at 12). Under PNC’s interpretation of

Paragraph 8, PNC could have elected to move to amend the Final Judgment to include its additional

incurred expenses following the entry of the Final Judgment, but it was not required to move, even

if it sought the collection of these expenses.

Plaintiffs allege that PNC was not authorized to add the Remaining Amount to the Final

Judgment without following the procedures set forth in the Final Judgment and obtaining judicial

approval. While “may” constitutes permissive language, a competing interpretation of Paragraph

8 is that its language provides the mechanism for PNC to collect any additional expenses incurred

after the Final Judgment, rather than providing PNC with one possible avenue for collecting such

additional expenses, which PNC could elect to utilize in its discretion. The Court also notes that

the Final Judgement requires PNC to advance all “subsequent required costs” and states that

reimbursement or credit for PNC’s such costs must be “by court order based upon a written motion

and adjudication at a hearing with notice,” except for the Clerk fee and certain publishing costs.

(Doc. 49-1 at 3). The Court presently must accept Plaintiffs’ allegations as true. Erickson v.

Pardus, 551 U.S. 89, 94 (2007). As such, accepting Plaintiffs’ allegations as true and in light of

this analysis, PNC’s interpretation of Paragraph 8 of the Final Judgment does not defeat the

plausibility of Plaintiffs’ FCCPA claim against PNC at this stage of the litigation.

2. The Mortgage

PNC also asserts that the Mortgage authorizes PNC to recover additional costs. Id. at 11.

In support, PNC attaches the Mortgage and accompanying Loan Modification Agreement to the

motion. (Docs. 70-1, 70-2). PNC relies on the language of the Mortgage. (Doc. 70 at 9–11).

Notably, Plaintiffs did not attach these documents to the Amended Complaint. “[A] court may

consider a document attached to a motion to dismiss without converting the motion into one for

summary judgment if the attached document is (1) central to the plaintiff’s claim and (2)

undisputed.” Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005); see Brooks v. Blue Cross &

Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (“[W]hen the plaintiff refers to

certain documents in the complaint and those documents are central to the plaintiff’s claim, then

the Court may consider the documents part of the pleadings for purposes of Rule 12(b)(6)

dismissal, and the defendant’s attaching such documents to the motion to dismiss will not require

conversion of the motion into a motion for summary judgment.”) “A document is central to a

complaint when it is a ‘necessary part of [the plaintiff’s] effort to make out a claim.” Madura v.

Bank of Am., N.A., 767 F. App’x 868, 870 (11th Cir. 2019) (per curiam) (alteration in original)

(quoting Day, 400 F.3d at 1276). “In this context, ‘undisputed’ means the authenticity of the

document is not challenged.” Day, 400 F.3d at 1276. Additionally, under Rule 201(b) of the

Federal Rules of Evidence, judicial notice of an adjudicative fact is appropriate when such fact (1)

is generally known within the court’s territorial jurisdiction; or (2) is capable of being accurately

and readily determined from sources whose accuracy cannot reasonably be questioned. Fed. R.

Evid. 201(b). The Eleventh Circuit has cautioned that “the taking of judicial notice of facts is, as

a matter of evidence law, a highly limited process.” Shahar v. Bowers, 120 F.3d 211, 214 (11th

Cir. 1997).

To the extent that PNC requests the Court to consider the Mortgage and the accompanying

Loan Modification Agreement, the Court denies such request. Although PNC attaches these

documents to the motion, the motion is devoid of any argument as to why such consideration is

appropriate. PNC instead merely recites caselaw regarding a court’s ability to consider certain

documents. Although PNC argues that the Court may consider “the documents before the Court”

in ruling on its motion, it fails to articulate the basis for such consideration. (Doc. 70 at 3). PNC

does not provide any argument as to why the Mortgage or Loan Modification Agreement are

central to Plaintiffs’ claim or otherwise a “necessary part” of Plaintiffs’ effort to bring the FCCPA

claim. Madura, 767 F. App’x at 870 (internal quotations omitted). Similarly, to the extent that

PNC requests the Court to take judicial notice of the documents, the motion lacks any supporting

argument. In the context of discussing the Mortgage’s purported jury trial waiver, PNC includes a

footnote containing general judicial notice principles, but no argument for the applicability of these

principles. (Doc. 70 at 4). PNC does not specify whether it requests the Court to take judicial

notice of the entirety of the Mortgage or Loan Modification Agreement, or specific provisions of

such documents.

The Court’s concerns regarding the authenticity of these documents further compounds its

reluctance to consider, or take judicial notice of, these documents. While the Court is mindful that

it may consider publicly filed documents upon consideration of a Rule 12(b)(6) motion, U.S. ex

rel. Osheroff v. Humana, Inc., 776 F.3d 805, 811 n.4 (11th Cir. 2015), and the Mortgage and Loan

Modification Agreement indicate that the were filed with the Pinellas County Clerk of the Circuit

Court and Comptroller on May 18, 2005, and June 30, 2014, respectively, each document is an

unofficial copy, (Docs. 70-1 at 1; 70-2 at 1). Furthermore, although Plaintiffs do not explicitly

address the authenticity of the documents in responding to the motion to dismiss, PNC has not

provided any testimony, either through an affidavit or otherwise, claiming that the documents are

authentic. See Harrington v. RoundPoint Mortg. Servicing Corp., No. 2:15-cv-322-FtM-38MRM,

2015 WL 5155003, at *2 (M.D. Fla. Sept. 1, 2015) (Chappell, J.) (declining to judicially notice a

mortgage provided in support of a motion to strike a jury demand where the plaintiff had not

admitted the authenticity of the mortgage and the defendant, in seeking to strike the jury demand,

failed to provide any testimony averring that the mortgage was authentic or a certified copy of the

mortgage). These circumstances raise concerns regarding the accuracy of the documents. As such,

the Court declines to consider, or take judicial notice of, the Mortgage and the Loan Modification

Agreement.

PNC cites to, or quotes, provisions of the Mortgage to support its argument that the

Mortgage permitted PNC to recover additional costs. For example, citing to Paragraph 1 of the

Mortgage, PNC asserts that “Plaintiffs agreed to pay the principal and interest when due, in

addition to any prepayment charges, late charges, and escrow funds as applicable.” (Doc. 70 at

11). By way of another example, PNC quotes Paragraph 9 of the Mortgage, which purportedly

“authorizes the Lender to ‘do and pay for whatever is reasonable or appropriate to protect [the]

Lender’s interest in the Property and rights under this Security Instrument.’” Id. In light of PNC’s

failure to justify its construed request for consideration or judicial notice of the Mortgage, such

quoted or cited provisions are supplied without context or definitions. As a result, the Court must

speculate as to the meaning of certain terms, whether PNC provides the entire paragraph, whether

PNC accurately summarizes the language, and the interplay between the Mortgage’s paragraphs.

The Court accordingly declines to delve into the interpretation of the Mortgage at this early stage

of the litigation.

PNC relies heavily on Holliston v. Florida Default Law Group, P.A., No. 8:07-cv-336-T-

26EAJ, 2008 WL 8946060 (M.D. Fla. Mar. 13, 2008) (Lazzara, J.), in making this argument, as

well. In Holliston, the defendant had filed a residential foreclosure action on behalf of its client,

Chase Home Finance, LLC. Id. at *1. After the plaintiff requested quotes to reinstate his home

loan and pay off applicable costs and fees for the purpose of halting the foreclosure action, the

defendant forwarded payoff and reinstatement letters to the plaintiff’s agents. Id. at *2-3. The

quotes reflected the plaintiff’s payments to Chase during his Chapter 13 bankruptcies, which

occurred during the foreclosure action, and included post-judgment advances made by Chase to

protect certain collateral. Id. at *3. The plaintiff wired the amount to pay off the entirety of the

note and subsequently filed a lawsuit against the defendant, which alleged claims under the

FDCPA and the FCCPA. Id. at *1, 4. The plaintiff did not contest the stated amounts, but instead

asserted that the defendant did not have a legal right to collect amounts that were not included in

the summary final judgment of foreclosure. Id. at *4. In conducting its analysis, the Court

examined the note and the mortgage. Id. at *6. For example, the Court noted that the plaintiff had

agreed, per the Mortgage’s terms, to pay all escrow items for assessments and taxes, premiums for

all required insurance, and mortgage insurance. Id. However, the critical distinction between

Holliston and the instant action is the procedural posture: the Court in Holliston examined the

mortgage’s terms upon ruling on the parties’ cross-motions for summary judgment, whereas PNC

now asks the Court to dismiss Plaintiffs’ FCCPA claim with prejudice on the basis of selected

language from the Mortgage. The Court is unpersuaded. For the reasons stated above, and in

absence of any argument advanced by PNC regarding the propriety of analyzing the Mortgage’s

language to evaluate Plaintiffs’ claims at this stage of the litigation, the Court declines to rely on

the provided language from the Mortgage to dismiss Plaintiffs’ FCCPA claim.

3. Remaining Arguments

PNC concludes by making a series of unpersuasive arguments to argue for the dismissal of

the FCCPA claim. (Doc. 70 at 12–14). First, Plaintiff argues that, contrary to Plaintiffs’ allegations

that they were forced to pay the Remaining Amount, the “record demonstrates otherwise.” Id. at

13. PNC points to Plaintiffs’ initial complaint, in which Plaintiffs brought the FCCPA claim

against PNC Bank Financial Services Group, Inc., and the exhibits thereto to claim that Plaintiffs

could have accepted PNC’s offer of $450,700, as conveyed by ALAW, which constituted

$6,318.68 less than what Plaintiffs paid to avoid the foreclosure sale. Id. at 13 (citing (Doc. 2-1 at

51–52)). “A district court ruling on a motion to dismiss is not required to disregard documents that

the plaintiff himself filed with his original complaint.” Gross v. White, 340 F. App’x 527, 534

(11th Cir. 2009) (per curiam) (holding that the district court did not consider any materials outside

of the pleadings in ruling on a motion to dismiss when it considered documents that the plaintiff

had attached to his original complaint).

Even if the Court considers the cited exhibit from the original complaint, Plaintiffs’

rejection of PNC’s offer does not render Plaintiffs’ claim implausible.12 The Court reiterates that

it must accept Plaintiffs’ allegations as true. Plaintiffs allege that they owed only $438,367.92—

the sum of the Final Judgment’s 431,287.28 total and $7,080.64 for one-hundred twelve days of

interest. See (Doc. 49 ¶58). Significantly, the purported $450,000 offer constituted a notably larger

amount than this $438,367.92 total. Indeed, Plaintiffs allege that they shortly thereafter transferred

the Updated Payoff Quote’s total, which included the Remaining Amount, to complete the closing

on April 30, 2018, because, otherwise, they risked losing the private sale of their home. (Doc. 49

¶61–62). Plaintiffs’ apparent rejection of the $450,000 offer and payment of the Updated Payoff

Quote does not somehow render valid the Remaining Amount. Thus, PNC’s argument is

unavailing.

Finally, PNC argues that Plaintiffs could have exercised their statutory right of redemption,

pursuant to Florida Statutes § 45.0315.13 “The right of redemption is a common law and statutory

12 Nor does this exhibit conflict with the allegations in the Amended Complaint. See Hoefling v.

City of Miami, 811 F.3d 1271, 1277 (11th Cir. 2016) (“A district court can generally consider

exhibits attached to a complaint in ruling on a motion to dismiss, and if the allegations of the

complaint about a particular exhibit conflict with the contents of the exhibit itself, the exhibit

controls.”).

13 PNC also argues that Plaintiffs could have: (1) “continued negotiating and/or sought to extend

the Closing Date in order to allow time for their counsel’s questions to be answered”; or (2) “sought

emergency relief from the trial court and called their ‘dispute’ over the figures to the court’s

right incident to every mortgage.” Morris v. Osteen, 948 So.2d 821, 825 (Fla. 5th DCA 2007).

When used with respect to a mortgagor, the phrase “right of redemption” references “the right of

a mortgagor, before being foreclosed from that right, to satisfy the mortgage indebtedness and thus

clear the property from the encumbrance of the mortgage.” Id. The statute provides:

At any time before the later of the filing of a certificate of sale by

the clerk of the court or the time specified in the judgment, order, or

decree of foreclosure, the mortgagor or the holder of any

subordinate interest may cure the mortgagor’s indebtedness and

prevent a foreclosure sale by paying the amount of moneys specified

in the judgment, order, or decree of foreclosure, or if no judgment,

order, or decree of foreclosure has been rendered, by tendering the

performance due under the security agreement, including any

amounts due because of the exercise of a right to accelerate, plus the

reasonable expenses of proceeding to foreclosure incurred to the

time of tender, including reasonable attorney’s fees of the creditor.

Otherwise, there is no right of redemption.

Fla. Stat. § 45.0315.

Referencing this language, PNC merely asserts that Plaintiffs could have exercised this

right. (Doc. 70 at 3, 13). Without specifically addressing the right of redemption, Plaintiffs agree

that Florida law permits PNC’s collection of certain amounts advanced by PNC to collect its

collateral after the Final Judgment’s entry, emphasize that its claim does not contradict Florida

law, and, significantly, reiterate that the issue is PNC’s failure to follow the Final Judgment’s

procedures for the collection of such amounts. (Doc. 73 at 7). As emphasized above, the FCCPA

prohibits a person, in collecting a debt, from claiming, attempting, or threatening to enforce such

debt when the person knows that the debt is illegitimate, or asserting the existence of a legal right

when the person knows that such right is non-existent. Fla. Stat. § 559.72(9). Whether Plaintiffs

could have exercised their statutory right of redemption to satisfy their indebtedness and clear the

attention.” (Doc. 70 at 13). Neither of these arguments are persuasive in light of the Court’s

assumption of Plaintiffs’ allegations as true.

Property from the Mortgage does not defeat Plaintiffs’ allegation at this stage of the litigation that

PNC improperly attempted to collect the Remaining Amount as part of the debt owed under the

Final Judgment after Plaintiffs requested the amount to pay off the loan. Plaintiffs allege that PNC

should have sought the Remaining Amount by moving to amend the Final Judgment, rather than

seeking such amount through the Updated Payoff Quote. Accepting Plaintiffs’ allegations as true,

the FCCPA claim against PNC survives this attack on the pleading.

Accordingly, PNC’s argument that the Amended Complaint must be dismissed because the

Mortgage, the Final Judgment, and Florida law entitled PNC to collect additional sums post-

judgment is unpersuasive.

ii. PNC’s Actual Knowledge

PNC further argues that the FCCPA claim against PNC must be dismissed because

Plaintiffs failed to state that PNC had actual knowledge that the amounts sought were illegitimate

and further failed to plead any facts supporting any actual knowledge by PNC. (Doc. 70 at 14–15).

This argument is unavailing.

A plaintiff bringing a claim under § 559.72(9) must show that the defendant had actual

knowledge that the debt was illegitimate or that it was seeking to enforce a non-existent legal right.

Bacelli v. MFP, Inc., 729 F. Supp. 2d 1328, 1337 (M.D. Fla. 2010) (Whittemore, J.) (“Section

[559.72(9)] requires by its terms actual knowledge.”) (emphasis in original); see LeBlanc v.

Unifund CCR Partners, 601 F.3d 1185, 1192 n.12 (11th Cir. 2010) (stating that § 559.72(9) of the

FCCPA requires the plaintiff to show that the defendant “possessed actual knowledge that the

threatened means of enforcing the debt was unavailable”) (emphasis in original). District courts

within the Eleventh Circuit, including this Court, have analyzed, at the pleading stage, whether a

plaintiff who brings a claim under § 559.72(9) sufficiently pleads that the defendant had actual

knowledge. E.g., Williams v. Educ. Credit Mgmt. Corp., 88 F. Supp. 3d 1338, 1347 (M.D. Fla.

2015) (Honeywell, J.) (recognizing that § 559.72(9) “requires actual knowledge” in ruling on the

defendant’s motion to dismiss); Lima v. Bank of Am., N.A., 249 F. Supp. 3d 1308, 1313 (S.D. Fla.

2017) (concluding that, even assuming that the alleged debt was illegitimate, the plaintiff failed to

plead sufficient facts to establish that the defendants had actual knowledge that she did not owe

such debt); Bentley, 773 F. Supp. 2d at 1372–73 (citing to caselaw discussing actual knowledge in

the context of analyzing a motion to dismiss).

Despite PNC’s claim that Plaintiffs fail to allege sufficient facts to show PNC’s actual

knowledge because the Amended Complaint sets forth only a formulaic recitation of the claim’s

elements, a review of Plaintiffs’ allegations demonstrates otherwise. (Doc. 70 at 15). PNC received

the Final Judgment in its favor, which itemized the amount owed and due to PNC. (Docs. 49 ¶30;

49-1 at 2). Plaintiffs asked PNC for a payoff figure to secure the exact amount needed for the

closing. (Doc. 49 ¶38). After receiving the Original Payoff Quote, which ALAW sent on PNC’s

behalf, Plaintiffs’ counsel explicitly notified PNC of his objections by sending the “Notice of Error

and Updated Payoff Request” to PNC, which advised PNC that the Original Payoff Quote’s total

contained “incorrect and illegitimate amounts not allowable by law or contract” and advised that

“only post-judgment interest (and a few other incidental costs or fees) may be added to the total

amount currently due and owing.” (Docs. 49 ¶¶44–45; 49-3 at 2). Plaintiffs’ counsel advised that

the “Escrow” and “Corporate Advance” costs were not owed on the loan. (Doc. 49-3 at 2).

Plaintiffs’ counsel thereafter repeatedly reiterated his objections to ALAW, which “acted on behalf

of, with the approval of, and with full authority on behalf of, PNC within the scope of ALAW’s

relationship with PNC.” (Docs. 49 ¶¶28, 52; 49-6 at 2).

The communication continued. After not receiving further explanation, despite telephone

calls, voicemails, and e-mails, Plaintiffs’ counsel again requested to discuss the discrepancies on

April 16, 2018. (Doc. 49 ¶54). In response, an ALAW attorney informed Plaintiffs’ counsel that

he was “attempting to resolve the issue”—the objections of Plaintiffs’ counsel to certain

amounts—with PNC. Id. at ¶55. Afterwards, Plaintiffs received the Updated Payoff Quote, which

included a larger total to pay off the loan. Id. at ¶56. While this total differed from the Original

Payoff Quote’s total, the Updated Payoff Quote nonetheless included the same categories of

purportedly owed amounts to which Plaintiffs’ counsel had objected in the Notice and subsequent

communications. (Docs. 49-2 at 2; 49-7 at 2). On this basis, Plaintiffs allege that PNC violated §

559.72(9) by attempting to collect an alleged debt with knowledge that such debt was illegitimate

or by asserting the existence of a legal right with the knowledge that such right was non-existent.

(Doc. 49 ¶74).

These allegations, when taken as true, permit the Court to reasonably infer that PNC gained

actual knowledge of the purported illegitimacy of the debt or that it was asserting the existence of

some other legal right when it knew that such right was non-existent. See Bank of Am. v. Zaskey,

No. 9:15-cv-81325-ROSENBERG/HOPKINS, 2016 WL 2897410, at *13 (S.D. Fla. May 18,

2016) (holding that the counter-plaintiffs sufficiently alleged a § 559.72(9) claim where they

alleged that Bank of America had actual knowledge of the debt’s invalidity because they alleged

that they had advised Bank of America’s representatives that the short sale had closed and the debt

was thus illegitimate); Williams, 88 F. Supp. 3d at 1347 (holding that the allegations permitted the

Court to reasonably infer that the defendant had gained actual knowledge that the plaintiff was not

the owner of the debt where parties informed or attempted to inform the defendant that the plaintiff

was not the owner of the debt several times). Whether Plaintiffs will be able to prove actual

knowledge following discovery remains to be seen, but Plaintiffs sufficiently allege PNC’s actual

knowledge.

IV. CONCLUSION

The Court will dismiss Plaintiffs’ FDCPA claim without prejudice and grant Plaintiffs

leave to file a second amended complaint. Because Plaintiffs will be granted leave to file another

complaint, the Court will deny without prejudice PNC’s request for the Court to strike Plaintiffs’

jury demand in the Amended Complaint.

Accordingly, it is ORDERED:

1. Defendant James E. Albertelli, P.A.’s Motion to Dismiss Amended Complaint, (Doc. 57),

is GRANTED to the extent that the Court dismisses Count II of Plaintiffs’ Amended

Complaint.

2. Count II of Plaintiffs’ Amended Complaint, (Doc. 49), is DISMISSED WITHOUT

PREJUDICE.

3. Defendant PNC Bank, N.A.’s Motion to Dismiss Amended Complaint with Prejudice and

to Strike Demand for Jury Trial, (Doc. 70), is DENIED to the extent that the Court denies

the request to dismiss the Amended Complaint with prejudice and denies without prejudice

the alternative request to strike Plaintiffs’ jury demand.

4. Plaintiffs are granted leave to file a second amended complaint within FOURTEEN (14)

DAYS of the date of this Order, which corrects the deficiencies discussed herein. Failure

to file a second amended complaint within the time permitted may result in the Court

declining to exercise supplemental jurisdiction over this action and remanding the action

to state court by separate order without further notice.

DONE AND ORDERED in Tampa, Florida on February 4, 2020.

OC Ae Mies: c Aw Wo Aha, pl ped 0 ~

Charlene Edwards Honeywell

United States District Judge

Copies to:

Counsel of Record and Unrepresented Parties, if any

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