ALI v. LH Alliance Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 19-cv-61387-BLOOM/Valle

SAFRAH ALI,

Plaintiff,

v.

LH ALLIANCE INC., a Florida

corporation doing business as

Alliance Property Systems and

VILLAGE SQUARE CONDOMINIUM

ASSOCIATIONS, INC.,

Defendants.

_________________________________/

OMNIBUS ORDER ON MOTIONS TO DISMISS

THIS CAUSE is before the Court upon two Motions to Dismiss filed by Defendants

Village Square Condominium Association, Inc. (“Village Square”), ECF No. [7], and LH Alliance,

Inc. (“LH”), ECF No. [9] (together, the “Motions”). The Court has considered the Motions, all

opposing and supporting submissions, the record in this case and the applicable law, and is

otherwise fully advised. For the reasons explained below, the Motions are granted in part.

I. BACKGROUND

This case arises as a result of a disagreement regarding the amount due following a special

assessment. Plaintiff Safrah Ali (“Plaintiff” or “Ali”) was the owner of a one-bedroom

condominium unit that formed part of Village Square. ECF No. [1] ¶ 19. As a member of the

homeowner’s association, Ali was required to pay monthly maintenance charges to Village Square

and along with other members, was responsible for payment of any special assessments validly

enacted by the homeowners’ association board and/or members. Id. In 2017, the owners were

subject to a special assessment for various projects to improve the property, according to which

one-bedroom unit owners would owe $12,229.82. Id. ¶ 21; ECF No. [1-1]. Ali was given the option

to pay the special assessment in monthly installments, with payments to begin on January 1, 2018.

ECF No. [1] ¶ 21. Ali alleges that she began to make monthly payments on the special assessment

around September, 2017, before the first payment due date. Id.

On or about December 12, 2018, Ali sold her condominium unit to a third party purchaser,

and the amount of the special assessment payoff total became a point of contention between Ali

and Village Square and LH (together, “Defendants”). Id. ¶ 22. An estoppel certificate letter

delivered to the closing agent at the time of sale of Ali’s unit indicates that Ali owed $16,436.50

for the special assessment, which Ali contends inflates and contradicts the previous amount of

$12,229.82. Id. ¶¶ 23-24. As such, Ali maintains that Defendants have wrongfully refused to

refund the amounts they collected at the closing. Id. ¶ 25.

As a result, Ali asserts claims for violations of the Fair Debt Collection Practices Act

(“FDCPA”), 15 U.S.C. §§ 1692, et seq., the Florida Consumer Collection Practices Act

(“FCCPA”), Fla. Stat. §§ 559.55-559.785, against both Defendants (Counts 1 and 2), and for

breach of contract against Village Square (Count 3). Defendants now seek dismissal with prejudice

of Ali’s claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

II. LEGAL STANDARD

Rule 8 of the Federal Rules requires that a pleading contain “a short and plain statement of

the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Although a

complaint “does not need detailed factual allegations,” it must provide “more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007); see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(explaining that Rule 8(a)(2)’s pleading standard “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation”). In the same vein, a complaint may not rest on

“‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 557 (alteration in original)). “Factual allegations must be enough to raise a

right to relief above the speculative level.” Twombly, 550 U.S. at 555. These elements are required

to survive a motion brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure, which

requests dismissal for failure to state a claim upon which relief can be granted.

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the

plaintiff’s allegations as true and evaluate all plausible inferences derived from those facts in favor

of the plaintiff. Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304

F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F.

Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and

courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”

Twombly, 550 U.S. at 555; see Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty. Sheriff’s Office,

449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, “courts may infer from the factual allegations in

the complaint ‘obvious alternative explanations,’ which suggest lawful conduct rather than the

unlawful conduct the plaintiff would ask the court to infer.” Am. Dental Ass’n v. Cigna Corp., 605

F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682). A court considering a Rule

12(b) motion is generally limited to the facts contained in the complaint and attached exhibits,

including documents referred to in the complaint that are central to the claim. Wilchombe v. TeeVee

Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009); see also Maxcess, Inc. v. Lucent Techs., Inc., 433

F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside the four corners of the complaint may

still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity.”)

(citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)).

III. DISCUSSION

A. Village Square’s Motion to Dismiss

Village Square argues that Ali’s claims should be dismissed because Village Square does

not meet the statutory definition of a “debt collector” under the FDCPA or FCCPA, Ali fails to

specify which subsection(s) of the FDCPA or FCCPA Village Square allegedly violated, Ali fails

to allege that Village Square knowingly collected an incorrect debt in order to state a FCCPA

claim, and the exhibits attached to the Complaint, ECF No. [1], expressly contradict the breach of

contract claim.

At the outset, the Court notes that despite granting Ali’s request for an extension of time to

respond to Village Square’s Motion, see ECF No. [14], the Response, ECF No. [17], was filed

eight days late without explanation.1 In addition, Ali responds in substance to part of Village

Square’s first argument only, and thus effectively concedes that her other claims are subject to

dismissal. See Brady v. Medtronic, Inc. No. 13-CV-62199-RNS, 2014 WL 1377830, at *6 (S.D.

Fla. Apr. 8, 2014). “Generally, a litigant who fails to press a point by supporting it with pertinent

authority, or by showing why it is sound despite a lack of supporting authority or in the face of

contrary authority, forfeits the point. The court will not do his research for him.” Melford v. Kahane

& Assocs., 371 F. Supp. 3d 1116, 1126 n.4 (S.D. Fla. 2019) (internal quotations and citation

omitted). Nevertheless, the Court considers Village Square’s arguments in turn.

i. Village Square is not a “debt collector” subject to the FDCPA

Village Square argues that Ali fails to state a claim under the FDCPA because, as a

condominium association, it was collecting special assessment fees incidental to its fiduciary

duties to the property owners. Since Village Square was attempting to collect a debt owed to it

1 Pursuant to Local Rule 7.1(c), the failure to file a timely response to a motion may be deemed sufficient

directly, it is a creditor rather than a debt collector. Therefore, Village Square argues that it falls

within one of the statutory exceptions to the definition of “debt collector” in the FDCPA. In

response, Ali appears to concede that there was a fiduciary relationship between her and Village

Square, but contends that the question remains as to whether Village Square’s alleged falsification

of the amount owed renders the relationship not bona fide under the statute. See ECF No. [17]

¶ 27. Upon review, the Court agrees that Village Square is not a “debt collector” subject to the

FDCPA.

The FDCPA 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 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.” 15 U.S.C. § 1692a(6). However, this Section also

provides, in relevant part, that the term “debt collector” does not include “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] (ii) concerns a debt which

originated by such person . . . .” 15 U.S.C. § 1692a(6)(F).

Here, the Court need not consider in depth whether Village Square’s alleged actions affect

a fiduciary relationship because the allegations in the Complaint indicate that it was Village

Square’s board and/or members that approved the special assessment, that the assessment was

payable to it, and therefore, that Village Square collected the allegedly inflated amount on a debt

owed to it directly. Therefore, regardless of whether there was a bona fide fiduciary relationship

between Village Square and Ali, Village Square is not a debt collector subject to the FDCPA

because it is the originator of the debt and the debt is not owed or asserted to be owed to another.

Sanz v. Fernandez, 633 F. Supp. 2d 1356, 1361 (S.D. Fla. 2009) (“The consumer’s creditors, the

originators of the debt, are not considered debt collectors under the FDCPA.”); see also Padilla v.

Atl. Springs Condo. Assoc., Inc., No. 15-61177-CIV-MARTINEZ/GOODMAN, 2015 WL

12828117, at *5 (S.D. Fla. Dec. 18, 2015) (finding that “[a]ny debt collection action taken by a

creditor on the debt owed to them does not fall within the debt collector definition of the FDCPA

and FCCPA.”), report and recommendations adopted by Padilla v. Ritter, Zaretsky, Lieber &

Jamie, LLP, 2016 WL 7187855, at *1 (S.D. Fla. Jan. 6, 2016).

As a result, Ali fails to state a claim against Village Square for violations of the FDCPA,

and Count 1 is due to be dismissed with prejudice.

ii. The Complaint fails to state a claim under the FCCPA

Village Square maintains further that Ali’s FCCPA claim should also be dismissed because

it is not a debt collector under the FCCPA, Ali fails to identify which section of the FCCPA Village

Square allegedly violated, and Ali fails to allege that Village Square had knowledge or the intent

to collect the purportedly incorrect special assessment.

The FCCPA, Florida’s equivalent to the federal FDCPA, requires substantially the same

elements in order to state a claim for relief. Ziemniak v. Goede & Adamczyk, PLLC, No. 11-62286-

CIV, 2012 WL 5868385, at *2 (S.D. Fla. Nov. 19, 2012) (“The FCCPA has parallel requirements

[to the FDCPA] to state a claim.”) (citation omitted). Notwithstanding the similarity, the elements

are distinguishable in certain respects. “The elements necessary to plead a claim under the FCCPA

are similar but distinguishable from the elements of establishing a claim under the FDCPA. The

first prong is substantially identical to the FDCPA, as the FCCPA only applies to consumer debt.”

Deutsche Bank Nat. Tr. Co. v. Foxx, 971 F. Supp. 2d 1106, 1114 (M.D. Fla. 2013) (citing Fla. Stat.

§ 559.55(1)). “The second prong differs from the FDCPA in that the FCCPA prohibits acts of

‘persons’ and, accordingly, is not limited to ‘debt collectors.’” Id. (citing Bacelli v. MFP, Inc., et

al., 729 F. Supp. 2d 1328 (M.D. Fla. 2010)); see also Bentley v. Bank of Am., N.A., 773 F. Supp.

2d 1367, 1372 (S.D. Fla. 2011) (“[T]he FCCPA is not restricted to debt collectors, as Fla. Stat.

§ 559.72(7) specifically provides that ‘in collecting consumer debts, no person shall . . .’ engage

in the prohibited collection practices delineated in the statute.”) (citing Schauer v. Gen. Motors

Acceptance Corp., 819 So. 2d 809, 812 (Fla. 4th DCA 2002)) (emphasis in original). “The third

prong requires an act or omission prohibited by the FCCPA.” Foxx, 971 F. Supp. 2d at 1114.

Because the FCCPA prohibits the acts of persons, and is not limited to debt collectors,

Village Square’s first argument fails. Nevertheless, Ali’s FCCPA claim is insufficiently pleaded

because she has not alleged facts to plausibly state that Village Square engaged in any acts or

omissions prohibited by the FCCPA sufficient to satisfy the third prong. See Locke v. Wells Fargo

Home Mortg., No. 10-60286-Civ, 2010 WL 4941456, at *2 (S.D. Fla. Nov. 30, 2010) (“The

Plaintiff’s claim merely tracks the language of section 559.72(7) and such conclusory allegations

will not prevent dismissal.”). Accordingly, Count 2 of the Complaint is due to be dismissed.

iii. The Complaint fails to state a claim for breach of contract

Village Square argues that Ali fails to state a claim for breach of contract because the

exhibits attached to her Complaint contradict any such claim. Attached to the Complaint are the

2017 special assessment and a notice listing the applicable maintenance fees and special

assessment payments effective January 1, 2018, ECF No. [1-1], a HUD-1 Settlement Statement,

ECF No. [1-2], and an email chain containing a payoff amount and estoppel certificate, ECF No.

[1-3]. Ali alleges that Village Square breached the special assessment. However, the Court need

not consider whether the exhibits contradict the allegations because Ali has not alleged sufficient

facts to give rise to a plausible claim based on this theory.

Under Florida law, the elements of breach of contract are: (1) the existence of a contract,

(2) a breach thereof, and (3) damages flowing from the breach. Knowles v. C.I.T. Corp., 346 So.

2d 1042, 1043 (Fla. 1st DCA 1977). The Complaint is devoid of any factual allegations regarding

the existence of a contract, though it appears that Ali contends that the special assessment and

notice, ECF No. [1-1], constitute a contract binding Village Square. As currently pleaded,

however, the Complaint fails to state a claim. Accordingly, Count 3 is due to be dismissed.

B. LH’s Motion to Dismiss

In its Motion, LH similarly seeks dismissal of Ali’s FDCPA and FCCPA claims, arguing

that LH is not a debt collector subject to the FDCPA, Ali fails to allege which provision of the

FCCPA LH allegedly violated, the exhibits contradict the allegations in the Complaint, and Ali

fails to properly plead separate causes of action against the separate Defendants. Ali filed an

untimely Response, ECF No. [16] (“Response”), in which she responds in substance to only parts

of LH’s arguments. Nevertheless, the Court considers each argument in turn.

i. LH is not a “debt collector” subject to the FDCPA

Like Village Square, LH argues it is not a debt collector under the FDCPA because Ali

affirmatively alleges that LH was an agent of Village Square and retained to manage, maintain,

and service Ali’s account with Village Square. See ECF No. [1] ¶ 3. Therefore, LH contends that

it is exempted under the fiduciary obligation exception, as its acts were incidental to a bona fide

fiduciary obligation, and not for debt collection purposes. In her Response, Ali contends that LH’s

argument is premature; however, upon review, her own affirmative allegations remove LH from

the reach of the FDCPA.

First, creditors or assignees are not considered debt collectors under the FDCPA, so long

as the debt was not in default at the time it was assigned. See Bentley v. Bank of Am., N.A., 773 F.

Supp. 2d 1367, 1371 (S.D. Fla. 2011) (“[U]nder the FDCPA, consumer’s creditors, a mortgage

servicing company, or an assignee of a debt are not considered ‘debt collectors,’ as long as the

debt was not in default at the time it was assigned.”) (citing Reese v. JPMorgan Chase & Co., 686

F. Supp. 2d 1291, 1308 (S.D. Fla 2009)). In this case, Ali does not allege that the debt was in

default—and in fact, the allegations demonstrate the contrary. Ali alleges in the Complaint that the

payment term for the 2017 special assessment ran from October 15, 2017 through September 15,

2033. See ECF No. [1] ¶ 21. Moreover, Ali alleges that LH was retained by Village Square

specifically to manage, maintain, and otherwise service her homeowner’s association account.

ECF No. [1] ¶ 3. As such, the allegations in the Complaint demonstrate that LH was servicing the

alleged debt before it was in default. As such, LH is not a debt collector under the FDCPA.

Williams v. Edelman, 408 F. Supp. 2d 1261, 1265-66 (S.D. Fla. 2005); see also Reynolds v. Gables

Residential Servs., Inc., 428 F. Supp. 2d 1260, 1264 (M.D. Fla. 2006) (dismissing FDCPA claim

finding that property manager was not a debt collector because payments due were payable to

defendant as property manager and not debt collector). As a result, Ali cannot state a claim against

LH for violation of the FDCPA.

ii. The Complaint fails to state a claim under the FCCPA against LH

LH argues that Ali fails to state a claim under the FCCPA because she does not allege that

LH had any knowledge or intent to collect the allegedly incorrect special assessment. Upon review,

the Court finds that Ali fails to state a claim against LH for the same reasons its claim against

Village Square fails. Therefore, Count 2 is due to be dismissed as to LH.

iii. LH’s remaining arguments

Because the Court finds that the claims against LH should be dismissed upon the grounds

already stated, the Court does not consider LH’s remaining arguments for dismissal, except to note

that the Court agrees that the Complaint does not comply with applicable pleading standards. Rule

8(a)(2) of the Federal Rules of Civil Procedure requires that a pleading contain a “short and plain

statement of the claim” that shows that the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2). The

failure to identify claims with sufficient clarity to enable the defendant to frame a responsive

pleading constitutes a “shotgun pleading” that violates Rule 8(a)(2). Byrne v. Nezhat, 261 F.3d

1075, 1129-30 (11th Cir. 2001). Shotgun pleadings fail to make the connection between “the

Case No. 19-cv-61387-BLOOM/Valle

substantive count and the factual predicates . . . [such that] courts cannot perform their gatekeeping

function with regard to the averments of [the claim].” Wagner v. First Horizon Pharm. Corp., 464

F.3d 1273, 1279-80 (11th Cir. 2006). Although not the quintessential form, the Complaint is

nevertheless a shotgun pleading in that it “assert[s] multiple claims against multiple defendants

without specifying which of the defendants are responsible for which acts or omissions... .”

Weiland v. Palm Beach Cty. Sheriff's Office, 792 F.3d 1313, 1321-23 (11th Cir. 2015).

IV. CONCLUSION

For the foregoing reasons, it is ORDERED AND ADJUDGED that the Motions, ECF

Nos. [7], [9], are GRANTED IN PART AND DENIED IN PART. Count 1 is dismissed with

prejudice. Counts 2 and 3 are dismissed without prejudice. Plaintiff may file an amended

complaint, on or before August 30, 2019.

DONE AND ORDERED in Chambers at Miami, Florida, on August 23, 2019.

UNITED STATES DISTRICT JUDGE

Copies to:

Counsel of Record

10