The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SANDRA K. DRESSLER,
Plaintiff,
v. Case No: 2:18-cv-311-JES-MRM
FLORIDA DEPARTMENT OF
EDUCATION, EDUCATION CREDIT
MANAGEMENT CORPORATION,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of defendant
Education Credit Management Corporation’s Dispositive Motion for
Judgment on the Pleadings (Doc. #141) filed on February 11, 2021.
Plaintiff filed an Opposition to Defendant ECMC's Rule 12(c) Motion
for Judgment on the Pleadings (Doc. #143) on February 19, 2021.
Also before the Court is defendant Florida Department of
Education’s Dispositive Motion for Judgment on the Pleadings (Doc.
#151) filed on March 16, 2021, and plaintiff’s Opposition (Doc.
#156) filed on March 22, 2021. Both defendants assert that various
affirmative defenses require judgment in their favor.
I. STANDARD OF REVIEW
“After the pleadings are closed--but early enough not to delay
trial--a party may move for judgment on the pleadings.” Fed. R.
Civ. P. 12(c). “Judgment on the pleadings is proper when no issues
of material fact exist, and the moving party is entitled to
judgment as a matter of law based on the substance of the pleadings
and any judicially noticed facts. [ ] We accept all the facts in
the complaint as true and view them in the light most favorable to
the nonmoving party.” Interline Brands, Inc. v. Chartis Specialty
Ins. Co., 749 F.3d 962, 965 (11th Cir. 2014) (internal citation
omitted). See also Bankers Ins. Co. v. Fla. Residential Prop. &
Cas. Joint Underwriting Ass'n, 137 F.3d 1293, 1295 (11th Cir. 1998)
(same). The pleadings considered by the court on a motion for
judgment on the pleadings include the complaint, answer, and
exhibits thereto. Grossman v. NationsBank, N.A., 225 F.3d 1228,
1231 (11th Cir. 2000).
II. THIRD AMENDED COMPLAINT
The Third Amended Complaint is the operative pleading and
alleges violations of the Fair Credit Reporting Act (“FCRA”), Fair
Debt Collection Practices Act (“FDCPA”), and Telephone Consumer
Protection Act (“TCPA”). The Florida Department of Education
(Florida DOE) and the Education Credit Management Corporation
(ECM) are the two remaining defendants, and Counts 2, 3, 4, 7, 8,
and 9 are the remaining claims. As the Eleventh Circuit previously
summarized:
The complaint alleges that in July and August,
2017, Dressler sent the U.S. DOE, the Florida
DOE, Navient Corporation, Equifax, and
Education Credit Management each a notice of
dispute demanding validation of alleged debts.
On February 28, 2018, after receiving a “Tax
Delinquent Notice” from Pioneer, Dressler sent
a notice of dispute demanding validation of
her alleged debt to the Internal Revenue
Service (“IRS”). She alleges that these
defendants did not respond to her letters
disputing the alleged debt and failed to
provide notice of the dispute to credit
reporting agencies. Dressler also alleges
that, despite not being authorized to do so,
Navient Corporation, the Florida DOE, and
Education Credit Management called her
cellular phone approximately 25 times between
August 10 and September 12, 2017, using an
automatic telephone dialing system and leaving
recorded messages.
The third amended complaint alleges ten causes
of action.[] Count 2 alleges that the U.S.
DOE, Florida DOE, DeVos, Navient Corporation,
Pioneer, and Education Credit Management
violated the FCRA, 15 U.S.C. § 1681s-2(b), by
failing to conduct a meaningful investigation
of Dressler’s disputed debts. Count 3 alleges
that Pioneer, Education Credit Management, and
Navient Corporation violated the FDCPA, 15
U.S.C. § 1692e(8), by failing to communicate
to credit reporting agencies that Dressler’s
debts were disputed. Count 4 alleges that
Navient Corporation, the Florida DOE, and
Education Credit Management violated the
FDCPA, 15 U.S.C. § 1692d(5), by calling
Dressler’s telephone more than 25 times with
the intent to annoy, harass, or abuse her. .
. . Count 7 alleges that Navient Corporation,
the Florida DOE, and Education Credit
Management violated the TCPA, 47 U.S.C. §
227(b)(3), by calling Dressler on her cellular
phone without her permission. Count 8 alleges
that Navient Corporation, the Florida DOE, and
Education Credit Management violated the TCPA,
47 U.S.C. § 227(b)(1)(A), by using an
automated telephone dialing system to call
Dressler. Count 9 alleges that the U.S. DOE,
DeVos, and the Florida DOE fraudulently
attempted to collect debts for which they were
not creditors.
Dressler v. Equifax, Inc., 805 F. App'x 968, 970–71 (11th Cir.
2020) (internal footnotes omitted). ECM raises 23 affirmative
defenses, and Florida DOE raises 16 affirmative defenses.
III. ECM MOTION FOR JUDGMENT ON PLEADINGS
ECM seeks a judgment on the pleadings based on the following
affirmative defenses: (1) The Third Amended Complaint fails to
state a claim (First); (2) The FDCPA does not apply to ECM
(Fourth); (3) ECM is a student loan guaranty agency with a
fiduciary duty to the United States Department of Education and
therefore ECM is not subject to the FDCPA (Fifth); (4) ECM is not
a “debt collector” within the meaning of the FDCPA (Sixth); (5)
ECM is a student loan guaranty agency with a fiduciary duty to the
United States Department of Education and any calls made for
collection are exempt from the TCPA (Seventh); and (6) Plaintiff’s
claims are barred to the extent that no private cause of action
exists under the FCRA (Eighth).
A. Count 2 (First and Eighth Affirmative Defenses)
In Count 2, plaintiff alleges that defendants failed to
conduct a meaningful investigation of an alleged debt when
requested to do so by a consumer. (Doc. #88, ¶ 48.) ECM argues
that plaintiff fails to state claim because no factual allegations
are presented to demonstrate that the information was inaccurate
or incomplete, or that a reasonable investigation would have
uncovered the inaccuracy or incomplete information. Defendant
argues that plaintiff’s own exhibits contradict and refute her
FCRA claim. (Doc. #141, pp. 8-12.)
Taking the allegations as true, ECM is alleged to be a
furnisher of information to consumer reporting agencies. (Doc.
#88, ¶ 7.) Defendant allegedly reported derogatory and inaccurate
information, plaintiff has disputed the accuracy of the
information reported by defendant, defendant has not properly
responded by providing evidence of the alleged debt, and defendant
has not provided notice of the disputed matter to the credit
reporting agencies. (Id., ¶¶ 20-23.) Plaintiff alleges that ECM
failed to report the results of their investigation findings to
the consumer reporting agencies that the information was
incomplete or inaccurate. (Id., ¶¶ 32-33.) Plaintiff alleges
that defendants violated the statute by not conducting a meaningful
investigation, or any investigation at all. (Id., ¶ 56.)
By letter dated August 28, 2017, plaintiff wrote to Equifax
information Services LLC requesting that the “derogatory status”
on her credit report be corrected. (Doc. #92-2, Exh. B, p. 7.)
By response dated September 21, 2017, Equifax reported the results
of her dispute and the results of the reinvestigation as to ECM as
follows: “This creditor has verified to OUR company that the
current status is being reported correctly. This creditor has
verified to OUR company that the prior paying history is being
reported correctly.” (Doc. #92-7, Exh. G, p. 4.)
The purpose of the FCRA is “to require that consumer reporting
agencies adopt reasonable procedures for meeting the needs of
commerce for consumer credit, personnel, insurance, and other
information in a manner which is fair and equitable to the
consumer, with regard to the confidentiality, accuracy, relevancy,
and proper utilization of such information. . . .” 15 U.S.C. §
1681(b). Although the FCRA explicitly bars private suits for
violations of the provision that prohibits furnishers of credit
information from providing false information, the provision
requiring “furnishers of credit information to investigate the
accuracy of information upon receiving notice of a dispute” can be
enforced through a private right of action, “if the furnisher
received notice of the consumer's dispute from a consumer reporting
agency.” Peart v. Shippie, 345 F. App'x 384, 386 (11th Cir. 2009)
(citation omitted). There must be a willful or negligent
violation. Campbell v. Equifax Info. Servs., LLC, No. 4:18-CV-
53, 2019 WL 1332375, at *4 (S.D. Ga. Mar. 25, 2019).
To establish a prima facie violation of the
FCRA, a consumer must present evidence tending
to show that a credit reporting agency
prepared a report containing “inaccurate”
information. Cahlin v. General Motors
Acceptance Corp., 936 F.2d 1151, 1156 (11th
Cir. 1991). If the plaintiff fails to satisfy
this initial burden, he “as a matter of law,
has not established a violation” of the FRCA.
Id.
Batterman v. BR Carroll Glenridge, LLC, 829 F. App'x 478, 481 (11th
1
Cir. 2020). “A person shall not furnish any information relating
to a consumer to any consumer reporting agency if the person knows
or has reasonable cause to believe that the information is
inaccurate.” 15 U.S.C. § 1681s-2(a)(1)(A). The duties of
“furnishers of information upon notice of dispute” include
investigation of disputed information and to report the results of
the investigation to the consumer reporting agency. 15 U.S.C. §
1681s-2(b)(1).
“When a furnisher reports that disputed information has been
verified, the question of whether the furnisher behaved reasonably
will turn on whether the furnisher acquired sufficient evidence to
support the conclusion that the information was true. This is a
factual question, and it will normally be reserved for trial.”
Hinkle v. Midland Credit Mgmt., Inc., 827 F.3d 1295, 1303 (11th
Cir. 2016).
1
“The term ‘person’ means any individual, partnership,
corporation, trust, estate, cooperative, association, government
or governmental subdivision or agency, or other entity.” 15 U.S.C.
§ 1681a(b).
In this case, plaintiff met the initial burden to assert that
the information was inaccurate. As the Court has no information
as to what was done to verify the accuracy of the information, the
motion must be denied because the allegations are sufficient to
state a claim. See Hernandez v. Equifax Info. Servs., LLC, No.
1:19-CV-01366-AT-JCF, 2019 WL 11343464, at *9 (N.D. Ga. Oct. 11,
2019), report and recommendation adopted, No. 1:19-CV-1366-AT,
2019 WL 11343555 (N.D. Ga. Nov. 20, 2019) (courts disagree as to
what, if any, specific facts are required).
B. Counts 3 and 4 (First, Fourth, Fifth, and Sixth Affirmative
Defenses)
In Count 3, plaintiff alleges that defendant failed to
validate the alleged debt, and that ECM failed to communicate that
a disputed debt was disputed by not reporting it to the credit
reporting agencies. Plaintiff disputes the accuracy of the debt
as valid, free from any claims and defects, whether the alleged
account was transferred, and that the original lender provided
value by sourcing the funds from creditor’s account. (Doc. #88,
p. 18.) In Count 4, plaintiff alleges that ECM engaged in a
pattern of conduct designed to harass and abuse plaintiff by
causing her phone to ring excessively. (Id., p. 19.) ECM argues
that it is not subject to the FDCPA, which only applies to debt
collectors, because it is a “guaranty agency”.
A “debt collector” who fails to comply with the FDCPA, is
liable for any actual damages sustained, and such additional
damages the Court may allow, not exceeding $1,000. 15 U.S.C. §
1692k(a). Defendant specifically disputes being a “debt
2
collector” based on the attached Promissory Notes reflecting a
student loan under the Federal Family Education Loan Program
(FFELP) subject to the Higher Education Act of 1965 (HEA). (Doc.
#141, p. 13; Doc. #141-1, Exh 1.) No information is provided in
the box: “Guarantor, Program, or Lender Identification.” The
lender is identified as EDAMERICA on one Note (2007) and 5/3 Bank
on the other Note (2008). On November 30, 2012, a Stamp indicates
“For value received, we assign and transfer to Wells Fargo ELT
Educational SVCS.A. all right tile and interest in and to the
within note, with out recourse, and we further hereby disclaim all
warranties expressed or implied. Educational Credit Management
2
The Promissory Notes are referenced in the Third Amended
Complaint (Doc. #88, p. 8), and therefore may be considered here.
“[T]he 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. In this context, “undisputed” means that the
authenticity of the document is not challenged.” Day v. Taylor,
400 F.3d 1272, 1276 (11th Cir. 2005) (citing Horsley v. Feldt, 304
F.3d 1125, 1134 (11th Cir. 2002)). In this case, the authenticity
is not challenged.
Corporation.” (Doc. #141-1, p. 18.) Dated November 2013, a Stamp
indicates “Authority Claims and Cures Section Georgia Student
Finance Authority.” (Id., p. 17.)
“Because a defendant's status as a “debt collector” is an
element of a plaintiff's claim under the Act, it was [plaintiff’s]
burden to allege facts plausibly establishing that the Agency
qualifies as a debt collector.” Darrisaw v. Pennsylvania Higher
Educ. Assistance Agency, 949 F.3d 1302, 1308 (11th Cir. 2020)
(citing Reese v. Ellis, Painter, Ratterree & Adams LLP, 678 F.3d
1211, 1216, 1218 (11th Cir. 2012)).
The term “debt collector” means any person who
uses any instrumentality of interstate
commerce or the mails in any business the
principal purpose of which is the collection
of any debts, or who regularly collects or
attempts to collect, directly or indirectly,
debts owed or due or asserted to be owed or
due another. Notwithstanding the exclusion
provided by clause (F) of the last sentence of
this paragraph, the term includes any creditor
who, in the process of collecting his own
debts, uses any name other than his own which
would indicate that a third person is
collecting or attempting to collect such
debts. For the purpose of section 1692f(6) of
this title, such term also includes any person
who uses any instrumentality of interstate
commerce or the mails in any business the
principal purpose of which is the enforcement
of security interests. The term does not
include--
(A) any officer or employee of a creditor
while, in the name of the creditor, collecting
debts for such creditor;
(B) any person while acting as a debt
collector for another person, both of whom are
related by common ownership or affiliated by
corporate control, if the person acting as a
debt collector does so only for persons to
whom it is so related or affiliated and if the
principal business of such person is not the
collection of debts;
(C) any officer or employee of the United
States or any State to the extent that
collecting or attempting to collect any debt
is in the performance of his official duties;
(D) any person while serving or attempting to
serve legal process on any other person in
connection with the judicial enforcement of
any debt;
(E) any nonprofit organization which, at the
request of consumers, performs bona fide
consumer credit counseling and assists
consumers in the liquidation of their debts by
receiving payments from such consumers and
distributing such amounts to creditors; and
(F) any person collecting or attempting to
collect any debt owed or due or asserted to be
owed or due another to the extent such
activity (i) is incidental to a bona fide
fiduciary obligation or a bona fide escrow
arrangement; (ii) concerns a debt which was
originated by such person; (iii) concerns a
debt which was not in default at the time it
was obtained by such person; or (iv) concerns
a debt obtained by such person as a secured
party in a commercial credit transaction
involving the creditor.
15 U.S.C. § 1692a(6). “The HEA authorizes the Secretary of
Education to promulgate regulations to carry out the purposes of
these programs, and these regulations apply to third-party debt
collectors . . . that attempt to collect loans on behalf of lenders
and guaranty agencies.” Cliff v. Payco Gen. Am. Credits, Inc.,
363 F.3d 1113, 1122 (11th Cir. 2004). “Thus, the “specific
requirements of HEA regulations take preference over any general
inconsistencies with the FDCPA.” Bennett v. Premiere Credit of N.
Am., LLC, No. 4:11-CV-124, 2012 WL 1605108, at *3 (S.D. Ga. May 8,
2012) (quoting Pelfrey v. Educ. Credit Mgmt. Corp., 71 F. Supp. 2d
1161, 1180 (N.D. Ala. 1999), aff'd, 504 F. App'x 872 (11th Cir.
2013). A guaranty agency is a “State or private nonprofit
organization that has an agreement with the Secretary under which
it will administer a loan guarantee program under the Act.” 34
C.F.R. § 682.200.
Defendant ECM has been found to be a guaranty agency by the
Eleventh Circuit, and numerous sister circuits. Bennett v.
Premiere Credit of N. Am., LLC, 504 F. App'x 872, 877 (11th Cir.
2013).
3
In its role as a FFELP guaranty agency,
Defendant ECMC is authorized, in fact
required, to exercise due diligence in seeking
to collect from a borrower on a defaulted
student loan utilizing the prescribed means
and is likewise required to report a defaulted
student loan to CRAs. See 34 C.F.R. §§
682.410(b)(6)(ii)–(vii); and see Pelfrey [v.
Educ. Credit Mgmt. Corp., 71 F. Supp. 2d 1161,
1168–80 (N.D. Ala. 1999), aff’d, Pelfrey v.
3
The collection of plaintiff’s student loan debt is mandated
by the Federal Family Education Loan Program (FFELP), established
with the Higher Education Act of 1965 (HEA). Fisher, 2017 WL
3276395, at *5.
Educ. Credit Mgmt. Corp., 208 F.3d 945 (11th
Cir. 2000)]. A guaranty agency's sole concern
is the defaulted student loan that it is
tasked with recovering on behalf of the
Department of Education and is not tasked with
analyzing a debtor's credit worthiness or
other CRA functions.
Fisher v. Educ. Credit Mgmt. Corp., LLC, No. 1:16-CV-2724-TWT-JFK,
2017 WL 3276395, at *8 (N.D. Ga. July 5, 2017), report and
recommendation adopted, No. 1:16-CV-2724-TWT, 2017 WL 3269195
(N.D. Ga. Aug. 1, 2017). Case law establishes that ECM acts as a
guaranty agency and therefore this brings it outside the definition
of a debt collector for purposes of Counts 3 and 4 under the Fair
Debt Collection Practices Act (FDCPA). The motion will be granted
as to these counts.
C. Counts 7 and 8 (First and Seventh Affirmative Defenses)
Under Count 7, plaintiff alleges a violation of the Telephone
Consumer Protection Act (TCPA), which prohibits robocalls to cell
phones. Plaintiff alleges that she never gave ECM permission to
call her cellular telephone and the calls were not emergency in
nature. Plaintiff alleges that there is no established business
relationship with ECM. (Doc. #88, p. 21.) Under Count 8,
plaintiff alleges a willful or knowing non-compliance with the
TCPA by use of an automatic telephone dialing system to call her
cellular telephone. (Id.)
A 2015 amendment to the TCPA allowed “robocalls” made to
collect debts owed to or guaranteed by the federal government,
including for student loans. As noted by ECM, last year this
exception was determined to be unconstitutional and was severed
from the remainder of the statute. Barr v. Am. Ass'n of Pol.
Consultants, Inc, 140 S. Ct. 2335, 2353–54 (2020). ECM cites to
a footnote that provides that “no one should be penalized or held
liable for making robocalls to collect government debt after the
effective date of the 2015 government-debt exception and before
the entry of final judgment by the District Court on remand in
this case, or such date that the lower courts determine is
appropriate.” Id. at 2355 n.12. “In response, Justice Gorsuch
argued that shielding ‘only government-debt collection callers
from past liability under an admittedly unconstitutional law would
wind up endorsing the very same kind of content discrimination we
say we are seeking to eliminate.’ Id. at 2366 (Gorsuch, J.,
concurring in part and dissenting in part).” Moody v. Synchrony
Bank, No. 5:20-CV-61 (MTT), 2021 WL 1153036, at *5 (M.D. Ga. Mar.
26, 2021). As to non-governmental debt collectors, most courts
have determined that the Court possesses subject matter
jurisdiction over the claims between 2015, when the amendment was
added, and July 6, 2020, when the amendment was severed. Boisvert
v. Carnival Corp., No. 8:20-CV-2076-30SPF, 2021 WL 1329079, at *2
(M.D. Fla. Mar. 12, 2021) (collecting cases).
Although the retroactive effect of the severance of the 2015
Amendment is still an undecided issue with regard to non-government
debt, there is currently no question as to government debt, and
the loans were Federal Stafford Loans, 20 U.S.C. § 1071(c), being
collected for the Department of Education. The motion will be
granted as to the claims under the TCPA because the calls at issue
fall within the applicable time period before Barr and are
government debt in the form of student loans. See Doc. #88, ¶¶
26-28 (“From at least August 10, 2017 through at least September
12, 2017, Defendants” called plaintiff’s telephone.)
V. FLORIDA DOE MOTION FOR JUDGMENT ON PLEADINGS
In the Florida DOE’s Defenses (Doc. #122), the First
Affirmative Defense is statutory duty and preemption with regard
to the FCRA (First); Florida DOE used reasonable procedures to
assure maximum accuracy in investigating the dispute alleged by
plaintiff (Fourth); the failure to state a claim (Fifth); failure
to state a claim for fraud (Sixth); frivolous claims to circumvent
student loan obligations (Seventh); exemption under the TCPA
(Eighth). (Doc. #122, pp. 10-12.) The Court will address Florida
DOE’s motion asserting these defenses.
A. Count 2 (Fifth Affirmative Defense)
Florida DOE argues that the “mere fact that Plaintiff is
unhappy about the results of defendant ECMC’s investigation is not
sufficient to support a claim against ECMC under the FCRA.” (Doc.
#151, p. 9.) Florida DOE argues that plaintiff omitted the
required factual allegations to state a claim under the FCRA, and
without the supporting allegations, there is no violation of the
FCRA. (Id., p. 9.) The Court agrees. Unlike the claim against
ECM, there are no facts alleged in the Third Amended Complaint or
exhibits to reflect a specific dispute “furnished” to a credit
reporting agency or ensuing investigation as to Florida DOE. (Id.,
p. 10.) The motion will be granted as to Count 2.
B. Count 4 (First, Second, Fifth Affirmative Defenses)
In Count 4, plaintiff alleges that Florida DOE engaged in a
pattern of conduct designed to harass and abuse plaintiff in
violation of the FDCPA by engaging in repeated calls to plaintiff’s
phone in violation of 15 U.S.C. § 1692d(5). (Doc. #88, p. 19.)
Defendant argues that it is a guaranty agency, and not a debt
collector. Defendant states that it is collecting its own debt as
the current holder of the obligation, and therefore there is no
genuine issue of fact that it “is incidental to a bona fide
fiduciary obligation or a bona fide escrow arrangement” under 15
U.S.C. § 1692a(6)(F). (Doc. #151, p. 14.) Plaintiff alleges that
Florida DOE is an agency of the State of Florida. (Doc. #88, p.
4.) Defendant admits that it is a Department within the executive
branch of Florida’s state government and may be referred to as an
agency of the State of Florida. (Doc. #122, p. 3.)
4
“Guaranty agencies are either states or nonprofit
organizations that agree with the Secretary to administer a loan-
guarantee program under the Higher Education Act.” Darrisaw v.
Pennsylvania Higher Educ. Assistance Agency, 949 F.3d 1302, 1305
(11th Cir. 2020). The term “debt collector” does not include “any
officer or employee of the United States or any State to the extent
that collecting or attempting to collect any debt is in the
performance of his official duties”, and it does not include any
person collecting a debt incidental to a “bona fide fiduciary
obligation”. 15 U.S.C. § 1692a(6)(C) & (F). The Court notes that
the State of Florida, Department of Education has been found to be
a guaranty agency. United States v. Hernandez, No. 11-23355-CIV,
2012 WL 668378, at *2 (S.D. Fla. Feb. 29, 2012). “HEA regulations
4
In support, Florida DOE argues that ECM has been held to be
a guaranty agency, and that Florida DOE does not collect debts on
behalf of third parties. (Doc. #151, pp. 12-13, 14.) The listed
cases supporting a fiduciary relationship only pertain to ECM and
not specifically Florida DOE. (Id., p. 15.)
have expressly characterized the relationship between a guaranty
agency and the DOE as a fiduciary relationship.” Bennett v.
Premiere Credit of N. Am., LLC, 504 F. App'x 872, 876 (11th Cir.
2013).
The Court finds that Florida DOE is a government agency
falling outside the definition of a “debt collector” in Section
1692d. The motion will be granted.
C. Judicial Notice
Florida DOE has filed a Request for Judicial Notice (Doc.
#157) requesting that the Court take notice of the docket sheet
and filings made in plaintiff’s bankruptcy filing. Judicially
noticed facts may be considered in conjunction with a motion for
judgment on the pleadings. Horsley v. Rivera, 292 F.3d 695, 700
(11th Cir. 2002). “The court may judicially notice a fact that is
not subject to reasonable dispute because it: (1) is generally
known within the trial court's territorial jurisdiction; or (2)
can be accurately and readily determined from sources whose
accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
“The Eleventh Circuit has cautioned that judicial notice should be
employed sparingly because it ‘bypasses the safeguards which are
involved with the usual process of proving facts by competent
evidence.’” In re Cole v. Patton, No. 6:19-CV-699-ORL-40, 2019 WL
3413525, at *1 (M.D. Fla. July 29, 2019) (quoting Shahar v. Bowers,
120 F.3d 211, 214 (11th Cir. 1997)).
Attached is an Assignment of Claim (Doc. #157-4, p. 1) dated
January 23, 2009, from Sallie Mae Inc. as the authorized agent of
Fifth Third to Florida Bureau of Student Financial Assistance at
the Florida Department of Education. Also attached is a Transfer
of Claim Other Than for Security from Financial Services for
America to Florida Department of Education that is not signed, and
one from Fifth Third Bank to Florida Department of Education signed
April 23, 2009. (Id., pp. 2-3, 18.) Although the documents may
have been filed in Bankruptcy Court, the documents are not such
that the Court could readily determine their source, or accuracy.
The motion will be denied.
D. Eleventh Amendment Immunity (Third Affirmative Defense)
Florida DOE argues that Eleventh Amendment immunity bars
recovery against the State of Florida’s Department of Education
under the FDCPA or the FCRA. Florida DOE relies on a case stemming
from the Central District of Illinois to support this position,
Sorrell v. Illinois Student Assistance Comm’n, 314 F. Supp. 2d 813
(C.D. Ill. 2004). (Doc. #151, p. 20.)
As noted, Florida DOE is an agency of the State of Florida
and this is undisputed.
The Eleventh Amendment protects a State from
being sued in federal court without the
State's consent. As a result, parties with
claims against a non-consenting State must
resort to the State's own courts. The
Eleventh Amendment is “a recognition that
states, though part of a union, retain
attributes of sovereignty, including immunity
from being compelled to appear in the courts
of another sovereign against their will.”
Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003) (quoting
McClendon v. Georgia Dep't of Cmty. Health, 261 F.3d 1252, 1256
(11th Cir. 2001)). As Florida DOE is a guaranty agency with a
fiduciary duty to collect on the student loan and exempt, the Court
need not reach the issue of whether Eleventh Amendment immunity
applies.
E. Counts 7 and 8 (Fifth, Eighth Affirmative Defenses)
Both Counts 7 and 8 are brought under the Telephone Consumer
Protection Act. Plaintiff alleges that she never gave permission
to call her cellular telephone, and that Florida DOE committed
more than 25 separate violations. (Doc. #88, pp. 20-21.) Florida
DOE argues that as a guaranty agency it has a fiduciary
relationship with the Department of Education, and “[a]s such, any
calls placed by [Florida DOE] to the Plaintiff were to collect
debts owed to or guaranteed by the government, and therefore, those
calls are exempt from the TCPA.” (Doc. #151, p. 18.) However,
Florida DOE relies on evidence presented by ECM, without anything
to support Florida DOE’s role as also exempt.
Assuming that Florida DOE is collecting a governmental debt
based on its status as a government agency, Barr would prevent
plaintiff with proceeding with the case. However, without any
evidence that Florida DOE was collecting debts owed to or
guaranteed by the government, the motion cannot be granted.
F. Count 9 (Fifth and Sixth Affirmative Defenses)
Plaintiff alleges that to be a creditor, one must be a holder
in due course, and it is the value of the Promissory Notes that
were used by the Florida DOE to fund the loans. Plaintiff argues
that she is the creditor since she is the one that put up the
value. Plaintiff argues there was a breach of an alleged contract
by the failure to disclose the fact that it would not use its own
money. Plaintiff states that this is fraud. (Doc. #88, pp. 21-
22.) All allegations are denied. (Doc. #122, p. 9.) Florida DOE
argues that Count 9 fails because it alleges fraud and fails to
comply with Rule 9(b) requiring specificity.
“The elements of a breach of contract action are: (1) a valid
contract; (2) a material breach; and (3) damages.” People's Tr.
Ins. Co. v. Valentin, 305 So. 3d 324, 326 (Fla. 3d DCA 2020). In
a light most favorable to plaintiff, she alleges a breach of the
Promissory Notes by Florida DOE’s failing to disclose the fact
that it would not use its own money to fund the loans. Plaintiff
alleges that the breach “constitutes fraud” although it is not
clearly a claim of fraud.
If a fraud is perpetrated which induces
someone to enter into a contract, there is a
cause of action for fraud and the remedies
attendant to that particular tort are
available. If there is no fraud inducing
someone to enter into a contract, but the
contract is breached, the cause of action
sounds in contract and contract remedies are
available.
La Pesca Grande Charters, Inc. v. Moran, 704 So. 2d 710, 712 (Fla.
5th DCA 1998). To the extent that plaintiff intended Count 9 to
be a claim for fraud, outside of the contract, this requires
separate damages distinguishable from a breach of contract. Island
Travel & Tours, Co. v. MYR Indep., Inc., 300 So. 3d 1236, 1240
n.7(Fla. 3d DCA 2020)
In any event, plaintiff does not allege any damages as part
of the claim or stemming from the alleged breach or alleged fraud
in the Count or in the Prayer for Damages (Doc. #88, ¶¶ 74-76, p.
26.). Therefore, she has failed to state a cause of action in
Count 9.
Accordingly, it is now
ORDERED:
1. The Dispositive Motion for Judgment on the Pleadings By
Defendant, Education Credit Management Corporation (Doc.
#141) is GRANTED as to Counts 3 and 4, and Counts 7 and
8, and DENIED as to Count 2.
2. The Dispositive Motion for Judgment on the Pleadings By
Defendant, Florida Department of Education (Doc. #151)
is GRANTED as to Counts 2, 4, and 9, and DENIED as to
Counts 7 and 8.
3. Florida DOE’s Request for Judicial Notice (Doc. #157) is
DENIED.
DONE AND ORDERED at Fort Myers, Florida, this 22nd day of
July 2021.
& AKL:
JGHH E. STEELE
Sq IGOR UNITED STATES DISTRICT JUDGE
Copies:
Plaintiff
Counsel of record