The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 19-CV-80651-ROSENBERG/REINHART
TREVOR PIESTER & LESLIE
PIESTER,
Plaintiffs,
v.
FRANKLIN AMERICAN
MORTGAGE COMPANY,
Defendant.
_____________________________/
ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
This cause is before the Court on Defendant’s Motion to Dismiss [DE 21]. Plaintiffs
filed a Response. Defendant did not file a Reply. For the reasons set forth below, the Motion is
granted.
I. FACTUAL ALLEGATIONS
Plaintiffs executed and delivered a mortgage to Defendant to secure a debt. DE 1 at 1-2.
In the summer of 2018, Plaintiffs allege that Defendant communicated with them (both by mail
and by phone) in an effort to collect upon Plaintiffs’ debt. Id. Plaintiffs filed this suit, alleging
in Count I and Count II that Defendant’s mail correspondence was illegal debt collection activity
and alleging in Count III and Count IV that Defendant’s phone conversations were illegal debt
collection activity. Defendant answered by filing the Motion to Dismiss before the Court,
arguing that Plaintiffs’ operative First Amended Complaint should be dismissed.
II. STANDARD OF REVIEW
When deciding a motion to dismiss, this Court must accept all factual allegations in a
complaint as true and take them in the light most favorable to the plaintiff; however, a plaintiff is
still obligated to provide grounds of his or her entitlement to relief which requires more than
labels, conclusions and a formulaic recitation of the elements of a cause of action. Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 561-563 (2007). The facts as pled must state a claim for relief
that is plausible on the face of the pleading. Ashcroft v. Iqbal, 556 U.S. 662, 678-69 (2009).
III. ANALYSIS
Each of Plaintiffs’ claims under the Fair Debt Collection Practices Act (“FDCPA”)
(Count I and Count III) and under the Florida Consumer Collections Practices Act (Count II and
Count IV) require that Defendant engaged in debt collection activity. See 15 U.S.C. § 1962e;
Fla. Stat. § 559.77(5). Defendant argues in its Motion that it did not engage in debt collection
activity as a matter of law. To analyze Defendant’s Motion, the Court first examines Plaintiffs’
correspondence-based claims (Count I and Count II) and then turns to Plaintiffs’ phone-based
claims (Count III and Count IV).
Count I and Count II.
Plaintiffs’ correspondence-based claims are premised upon loan statements Plaintiffs
received in the mail from Defendant. Plaintiffs attached those statements to their Amended
Complaint, alleging that the amounts on the statements were false and/or deceptive. The
statements all follow the same format, and a sample statement appears below:
2
fh Franklin American EO TT ieee Sistoment ate: iar
2a 5
ORTGAGE STATEMENT ENCLOSED Account Number; OONTIIRdS
Payment Due Date □□□
Amount Due 53,643.13
A ed ale SS bee veo net be
© GATESLE ODIMOLSIOS OFLLST O4SS570 FF AFOWZS =F WAG Po i Contact We
‘este peers” | Customer Service Pay By Plone: 077-885-1073
53 2 nit
137 KENSINGTON Wait Wicbadlo: hemchcenie keen coe
ROYAL PALM BEACH FL 14-4215 E-mall: □□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□□
“hatlhed Willian Requests. nolilleatiang et eer, a
Uedagope [Ape font agp Legg ftvaiyey| □□□ □□□ gfesetfly ete for information conperniag yo lean maudl bes
Mirected be PO Boe T7429 Eoring Md 0628
| hecaumt information Explanation of Amount Que
+ sR fata) ale Pratt Paanced Daley: You rrp cad Bes WS, Departs of diozeng
Progeny Address 127 KENSINGTON Wey vi Linwun flewckooesan PU) at EDD Tar ge
ACYAL Path SEACH, FL 4 i415 □□□□□□□□□□□□□□□□□□□□□□□ SOMO IT for) bu of eRe ie BUMAEIOS Oe Cour
□□□ aoe, a poe
Oulslanding Principal 8294,500.70 Principal S368 0
Oeterred Principal S000 inlorest S810 i
Fooow Balance -3G7_16 j Excry lor Taxes and Insurance) 5473.08
Maburity Deter October apag | | ther 5.00
Iniorest ale 2 Current Pay erenk Chae 4st SUaTd
repayment Panalty : HOME Total Pees Gheged Sinne Last Staiement SLO}
aocbaemem Panmiy OE Chron Aang und 51,971.35
ho Toda! funount Diep 5a/003.19
a superna
fama Transactlon Activity (1202078 te 1207/2078)
ier: | Baie Deseriniatn Charges ‘Ay ners
ome | LEUNG TEAS UST TRAM, Si
— |
Se
ir
SS
Fast Payments Breakdavm anand STS Seen □□□ re el ee □□ RN ENT TT
Pail Sines Last Bintemnent Paid Yoor bo Date
Pringpal 3368.63 Sa, 30152
wilereal SH52.29 SLOT. 10
Fanti (Taade and Insurance| S070 $5,500.82
; Other S000 S00
Fons 50,00 Samah
‘Unappied Funds S000 5000
Total SLar.78 BD 91275
ee — Eee
□ IMPORTANT MESSAGES
| Visi our website tor impovtant loan inicemalion, Tired af writing chacks and paying poslage? We afer a convenient systern thal
| ausomalically debits your payimen! e@eh manth from your checking of savings account. To lake advantage of ihis FREE server,
weil Our website Bhd Complete he Aulomaic Payment (ACH) Aulhorizaiion of coctacl Gusbomer Service.
=
See Reverse Side For Additioned important infermetion Picase: mlum this porien wih your payment
Trevor Pigeber inks Cnecks Papakea To: FF
Ledie Piesige Ghinck thas boars! cece i i;
1357 Kensiregion Way perusnsl eesti tose és Franklin American
Payal Palm Baach FL 39404-4405 upela bed on this reece! Bo FPORTGAGE COMPFANT
payrraet! roupo:
Payreerd Due Bac: Brig Aceguré Numb tr Amount
Curent Payment: BLL Fa DOB Tia £5 Enclosed 8
Fast Dus Amount: SLAP td
Lanai Lolo Chiag es: $2595.65
fim Fees: Sh.00 □□ Pp
TOTAL AMOUNT DUE: S3,845,13 Pharse ano! Rayac arty cavenT OC ESSING CENTER
eer SA 00.08 “ ee te arbine NEWARK, MJ Ov 101-4733
Late ha 5 me
eatmonsPiecpal = Eo a og otf gE
fidibonal Escrow 5
Oho Fees §
| Titel Amand pure 5 .
“Bins Mower? ake: ke PG Wich J]
DE 19-1 at 2.
Defendant argues that the statements were merely informational—they were not intended
to collect a debt—and Defendant argues that it was required to send the statements pursuant to
the Truth in Lending Act (“TILA”). For support, Defendant cites to a plethora of authority for
the proposition that if a loan statement is sent pursuant to TILA, that statement does not qualify
as debt collection activity, provided the statement does not stray from the specific requirements
of the TILA statute. E.g., Green v. Specialized Loan Serv. LLC, 766 F. App’x 777, 784-85 (11th
Cir. 2019).
In Response, Plaintiffs do not argue that, in the general sense, a TILA-generated loan
statement is debt collection activity. Instead, Plaintiffs argue that a TILA-generated loan
statement can be both informational and debt-collection activity—a proposition supported in the
law. E.g., Pinson v. Albertelli Law LLC, F. App’x 551, 553 (11th Cir. 2015) (“A communication
can have more than one purpose, for example, providing information to a debtor as well [as]
collecting a debt.”). Plaintiffs point to three components of the statements in this case that they
argue qualify as debt collection: (1) the statements contain an amount due and payment due date,
(2) the statements contain a payment coupon, and (3) the statements warn the Plaintiffs what may
occur if payment was not made. DE 22 at 4.
Other plaintiffs have made similar arguments in this District and in this Circuit. For
example, in Brown v. Select Portfolio Servicing, Inc., No. 16-CV-62999, 2017 WL 115723 (S.D.
Fla. Mar. 24, 2017), the district court considered a loan statement similar to the loan statement in
the instant case. In Brown, the loan statement appeared as follows:
4
P 1 ofa
(Customer Senace: (800) 258-8602 -
Monday - Thursday S00AM - 11:000M€ ET
—— Friday 004M - 00PM ET Account Number a
‘Saturday S00AM - 200PM ET | Property Autcrass TOOT Ey 1TH &
TT MIRAMAR FL 32025
Loan Due Dale OTV2008 *
uae Payment Que Date PvOV2018
EXHIBIT A Amount Due S207 802,15
¥ payment le monleed ser □□□ GEOTE, STE 4 date tee wal ie charge!
Rosslyn Brown
earn ies [Expansion otameuntDw
Miramar, FL 33025-1753 of ar
Principal 1.1?
□□ □□□ □□□ eg ag edge Reel a eg Interest $901.14
Escrow (Tames and Insurance) $io244
(Regular Monthly Payment iTS
[Account information
_ Unpaid Laie Charges 00
interest Bearing Pringpal bb 2863 (Other Changes and Foes 4,186.90
Deferred Principal $0.00 Charges / Fees this Pernod 00
‘Gutstanding Principal ' 266 266.99 Past Due Payments) 627.80
Interest Fiate (Fixed) 6.000% Unapplied Payrnent{s) $1.00
npaymend Penalb No
Total Amount Due ‘$207,082.15
Transaction Activity (14/13/2015 to 12/15/2015)
"al Denier Sit Baal lata ol
Paid Last Paid ¥ ‘fou are late on your mortgage payments. Failure to bring your
ear joan current mary result in fees and foredosure five koe ol er
Month To Date form.
mest [3000 [sno] | Aga Dectibr #5, you are 2723 see setnguenton your
mortgage Ioan.
[escrow (Taxes and simanca) | $0.00 | $0.00 | |-"Payrart sum 2015 paymnt at 52,1875
* Payrent dus 11/2015 Unpaid payment of £2,104.75.
| Fees □□□ Omer Chames 0 so00 | 80.00 | |. ijmant due Unpaid payment of $2194.75
[ ansiPares Unarsec) | : Fear in al ad ern 4
Partial (Unapete TE □□ ee et emer
Proms E8000 | sm | | Pays onan: spd payment arta:
| Total Unapelied Balance [BOD
Jom Una = ‘Total: $207,802.15 due. You must pay this. amount to bring
lighted ep your loan current.
SPS compitted the first notice or filing required
“This amount is not a payolf quote. Hf you want payod quota, please seo fi i = oo or rete
instructions on reverse side. □
Hg Cees eet comavesl after ies shatoreend dete heed □□□ Wb if You Are E ing Fi 4 Difficulty: Sex the back for
on your nenct stubeenearat information about mortgage counseling of assistance. Also, there
This is an atiemert to codlect a debt Al information obtained will be used for area number of options availabie to assist customers who are
that purpose. experiencing difficutty with their payments. Piease conteot us
We have paid Taxes and! or Insurance on your behall and you ame immediately to discuss Tese options, armange a reinstatement or
responsitie to reimburse us for these amounts plus interes? which may be adcrnss any questions regarding the statement at (8H) 14-8032.
(billed at the note mie.
if there is a balance under Expenses Paid by Servicer, itmeans we have
paid certain expenses on your behalf due to fe delinquent
Status of your account ‘You are responsible to reimourse us for these
amounts plus intern which may Ge billed at ie mote rain.
Piao detach bottom portion and return with your payment Allow 7 - 10 days for postal delivery. Posse do nol sand cash.
MONTHLY PAYMENT COUPON
| AmountDue ——eesereeorrrvr
Beret a esa fuoonvromen fd
VOS07 Sw 18th St
neattinte a fsaoaemes
Omereiane peat atten
‘575.17 late feo will be charged after D160
finorocs Be
one fd
SELECT PORTFOLIO SERVICING, INC.
so65 Sa
SALT LAKE CITY UT 84165-0450
ee □□ LPAf Ln] a [Lernag Mfg fey flee] Le ef plo] gee
[ ] Change of address or telephone? Hf so, check here
and node changes on back
The Brown loan statement therefore: (1) showed an amount due with a payment due date, (2)
contained a payment coupon, and (3) notified the plaintiff what could happen if the plaintiff did
not pay. The Brown court found that the statement did not qualify as debt collection activity and
was instead merely information that the sender was permitted to transmit pursuant to TILA. The
Brown court’s decision was based in part upon direct guidance from the Consumer Financial
Protection Bureau. Brown, 2017 WL at *2-3. Other district courts have reached the same
conclusion. E.g., Jones v. Select Portfolio Serv., Inc., No. 18-CV-20289, 2018 WL 2316636
(S.D. Fla. May 2, 2018). Florida state courts are in accord. See Vaneck v. DiscoverFinancial
Servs., LLC, No. COCE14023621, 2015 WL 6775633 (Fla. 17th Cir. Ct. 2015). The Eleventh
Circuit, in an unpublished decision, has reached the same conclusion as well. Green, 766 F.
App’x 777 at 784-85. A loan statement that the Eleventh Circuit has held was not debt collection
activity consisted of the following:
6
Mortgage Statement
Statement Date: 011 B17
* DVOS4S3 OOOOS7209 FSPS1 OFLbASSs Sera ic
PAUL A GREEN amen Due
SHUSTER & SABEN LLC Total Amount Due? — $178,567.78
1413 5 PATRICK OR STE? oe ——
SATELLITE BEACH FL 32937-4374
I [lls i'l ili vill] yal Ufava] yyy! |i! | lly hy "I pel
Proporty Addiness:
501 EDGEWOOD DA
MELBOURNE FL 32904
Culstancing Princip S176 44647 Principal 5316.49
Esorw Balance $-86,404.08 Infereat $003.15
Partial Payment (Suspense 50.00 Escrow (ler Taes and Insurance) $1245.69
Deferred Principal: $0.00 Optional Product 0.00
Deferred interest: $0.00 Roqular Monthly Paymeant $2,465.23
Other Deferred Amauriis: $0.00 Total Now Foos Charged $11.35
Interest Rabe (Until G404/2017) 6.850% Past Que Amounts $176,091.20
Prapayment Ponalt No Partial Payment (Suepense}* $0.00
TOTAL AMOUNT DUE # $176,567.78
| Trarisoction Activity (12/208 to O1IBT] ss a eee ad See ah, ee ee
Escrow (for | Optional Foes! Partial
Description Taxes and | Product | Charges | Payment
= insurance Ss poms}
Sag ie | | Secreta tetnomeeninsayicai
ae Month Date Department of Housing and Urban Development (HUD) fora fet of
—— [Primmpal || homeownership counselors or counseling organizations in your area, cal
[interest | 8827 or go to Ale hd poviot fiona beg iaivhoshcs. cin
| Escrw {Taxes and inaience) |B
□□□□□□□□□□□□□□□□□□□□□ Product | Suoe [0.00 | ou are fate on your mortgage payments. Failure to bring your lean
| Parle! Payment (Suspense; |S BOO || currant may result in foes and foroclosure - the lass of your home. As of
[rote RE] □ nuery 18, 2017 you are 2383 days delinquent on your mortgage kan
‘Four loan is in foreclosure, ihe fret notice or first bagel Ming has bean
ae) | COMPIHES ON our loon
ee ee
You bre currentiy due for the 07/00/10 payment, Recent Agcourt History
*Parilal Payments: Any partal payments thal you make ae ned applied to your » Past due amount as of OB01/16: $130,447.75
— ee in a Sierra If you ay ie mene te Payment due 0901/96; Amount Due $2,455,235
partel payment, tna funda will inen Ge apolled to your morgage, However, « Payment due 101/18: Amount Due $2,465.23
foan ip in foreeioaure, unless funds een roseivod purmuant to an agreed upon joes
mifgation program, arty additianal func receved will be returned fo you. « Payment due 11/01/16: Amount Due $2,465.24
‘ * Payment due 12/01/16; Amount Due $2465.23
Amount to being Joan current Pease note, your aocounl is pan ue, Inis . Payment due 0101/17: Amount Due $2,465.29
amnurd may not inciueis all Ines or other senminia neceneeey bn fully eairsttabe yeeit = 88/04/47: Current Payment Due 53,405.25
a ae ie anes a * Total Unpald Foos, Charges, and Uncollectod Escraw Amaunt:
2d 028.65
= Total $178,567.78 din, You must pay this amount to bring your
loan current.*
PLEASE SEE REVERSE SIDE FOR IMPORTANT INFORMATION AND DISCLOSURES.
MONTHLY PAYMENT NOTICE
SPECIALIZED LOAN SERVICING LLC
POBOX sse00T Cheek If your address has changed and fil out farm aoe oR
UTTLETON, CO 80162-4007 C] an ravarse side, signature raquired. wt Pl.
Flasse contact SLS at 1-200-206-6059 for a full reinetatament quote.
SPECIALIZED LOAN SERVICING LLC
PO BOX §36M7
LITTLETON CO #071 63-8007
evga gegde peg edanaa det yegg eng tA
This loan statement (1) contained an amount for an overdue payment with a payment due date,
(2) arguably contained a payment coupon,’ and (3) informed the recipient of what could happen
if the recipient did not pay. And pursuant to Consumer Financial Protection Bureau TILA
guidance, a loan statement may contain all of the above-listed information and a payment
coupon as well. The sample, generic form for periodic loan statements published by the Bureau
appears as follows:
H-30(B) Sample Form of Periodic Statement with Delinquency Box
Springside Mortgage Mortgage Statement
‘Customer Service: 1-800-555-1234 Statement Date; 3/20/2012
www. springsidemortgage.com
Account Number 1234567
Jordan and Dana Smith Payment Due Date a/1f2012
Mempnie TH 38103 Amount Due $4,339.13
Hfeayment és received after 4/15/22, $260 late fee wil be cbarged,
‘Account information Explanation of Amount Due
| ares nt cher □□□ on
| Prepayment Penalty Yes Escrow (Tawes and insurance} $235.18
a Regular Monthly Paymont $1,668.71
Total Fees and Charges $410.00
Overdue Payment seas
Tatal Amount Due $4,339.13
Transaction Activity (2/20 to 3/19) 5 i oe
| MiyV12 Partial Payment Recelved™ $1,000.00
| 3/16/12 Late Fee (charged because full payment not received by 3/15/2012) $160.00
L 3/19/12 Property Inspection Fee $250.00
| Past Payments Breakdown eae “"Delinquency Notice"* i
| Paid Last Paid Year ‘You are late on your mortgage payments, Failure to bring,
Mouth ‘to Date. your loan current may result in fees and forecicaure=the loas
| Principal $0.00 $383.31 of your hame. As of March 20, you are 49 days delinquent on
Interest $9.00 $1,051.22 (your mortgage loan.
| Escrow (Taxes and Insurance} $0.00 $235.18 Recent Account History
| Fees $0.00 $410.00 = Payment due 12/1/11; Fully gald on time
| Partial Payment (Unapplied)* $1,000.00 $1,490.00 : pment = wi me asco n
Liat ~ Snmens _ $2808.74 * Payment due 3/1/1. 2: unpeld balance of $2,079. 71
* Current payment due 4/1/12: $1,669.71
Important Messages © Totak $4,339.13 dus. You mutt pay this amount to bring
| “Partial Payments: Ary partial payrnents that you make are your loan current,
| Rokspplied eo your meregage, but iretead ase hele Ina If You Are Experiencing Financial Difficulty: See back for
| separate suspense account. If you pay the balance of a partial normation about mortgage counseling o* satistanca.
| Payment, the funds will then be applied to your mortgage
Springside Mortgage
oo. fo 11111 aoe ed after ssh
Los Angeles, CA 90020 Additional Escrow $s
Total Amount Enclosed = §
Make check payable te Springside Martgage.
1234567 34571892 342359127 DN
' The front and back page of the statement contain: (1) a monthly payment notice, (2) boxes the recipient can check,
(3) a return-address formatted in such a way as to permit easy return via mail, (4) instructions for payment, including
payment by check, and (5) alternative payment options.
Appendix A to Part 1026—Closed-End Model Form and Clauses, Model Form H-30(b) (circular
emphasis added).
In Response, Plaintiffs rely upon a single citation to a case that found that the inclusion of
a payment coupon qualifies as debt collection activity: Jackson v. Carrington Mortgage Services,
LLC, No. 17-CV-60516, 2017 WL 4347382 (S.D. Fla. Sept. 9, 2017). However, Jackson found
that the inclusion of a payment coupon was debt collection activity because a payment coupon
was an addition to the Bureau’s model form but, as set forth above, the model form includes a
payment coupon. Id. at *3.
In summary, the Court finds cases such as Brown, Green, and Jones persuasive and
analogous to the instant case—Defendant’s loan statements did not qualify as debt collection
activity because they were “garden variety” TILA loan statements. See Green, 766 F. App’x at
785. As further amendment would be futile, Plaintiffs’ claims premised upon the mortgage
statements (Count I and Count II) are DISMISSED WITH PREJUDICE.
Count III and Count IV.
Plaintiffs third and fourth counts allege that telephone conversations between Defendant
and Plaintiffs contained deceptive debt collection activity. Plaintiffs’ Amended Complaint
contains no factual allegations supporting these counts; instead, Plaintiffs rely upon
communications “which will be obtained through discovery.” DE 19 at 7. It is well settled that
in determining a motion to dismiss, a court should not assume that the plaintiff can prove facts
that were not alleged. Quality Foods de Centro Am., S.A. v. Latin AM. Agribusiness Dev. Corp.,
S.A., 711 F.2d 989, 995 (11th Cir. 1983). In Response, Plaintiffs are silent—Plaintiffs make no
9
argument to defendant Count III and Count IV. Those counts are therefore DISMISSED
WITHOUT PREJUDICE WITH LEAVE TO AMEND.
IV. CONCLUSION
For the foregoing reasons, it is ORDERED AND ADJUDGED that Defendant’s Motion
to Dismiss [DE 21] is GRANTED insofar as Count I and Count II are DISMISSED WITH
PREJUDICE and Count IJ and Count IV are DISMISSED WITHOUT PREJUDICE.
Plaintiffs may file a second amended complaint by October 9, 2019. Because the amended
pleadings deadline expired in this case on July 30, 2019, Plaintiffs’ amended complaint may not
bring any new claims that were not brought in Plaintiffs’ Amended Complaint. In the event
Plaintiffs do not file an amended complaint, the Court will close this case.
DONE and ORDERED in Chambers, West Palm Beach, Florida, this 4th day of
October, 2019.
ty).
| ) A. \ Her sory.
ROBIN L. ROSENBERG {i}
Copies furnished to Counsel of Record UNITED STATES DISTRICT JUDGH
10