H/T Nye Lavalle
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ELIZABETH H. COURSEN,
JP MORGAN CHASE & CO., et al.,
FNIS also challenges Plaintiff’s claim against it for violation of the Florida
Deceptive and Unfair Trade Practices Act (“FDUTPA”), Fla. Stat. § 501.204(1)(2001),
for failure to state a claim upon which relief may be granted. FDUTPA’s purpose is to
protect the consuming public and legitimate business enterprises from unlawful and
deceptive acts. Fla. Stat. § 501.202(2). A claim for damages under FDUTPA has three
elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.
Virgilio v. Ryland Group, Inc., 680 F.3d 1329, 1338 n.25 (11th Cir. 2012) (quoting
Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. Dist. Ct. App. 2006)). A practice is
unfair under FDUTPA if it “offends established public policy” or is “immoral, unethical,
oppressive, unscrupulous, or substantially injurious to consumers. PNR, Inc. v. Beacon
Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003). Here, Plaintiff alleges that
Defendants, including FNIS, violated FDUTPA by using fake identities and manufactured
documents to deprive her of her homestead through foreclosure of a debt that was not in
default3 prior to inception of the foreclosure cases. (Dkt. 2, ¶¶ 16-19.) The First
Amended Complaint alleges that FNIS’s business of preparing forged documents using
fictitious identities was an unfair and deceptive practice. (Id.) Plaintiff identifies FNIS
and the other LPS Defendants as being directly or vicariously liable for the alleged
fraudulent acts that caused her to lose her homestead. (Id. at ¶¶ 11-42.) Plaintiff’s
allegations are sufficient to withstand a Rule 12(b)(6) dismissal motion. She must be
afforded the opportunity to prove the allegations through the discovery process.
FNIS further argues that Plaintiff fails to state a clam under the Fair Debt
Collection Practices Act (“FDCPA”) because FNIS was neither owed any part of the loan
debt nor did it attempt to collect any money from Plaintiff on the loan in question.
Notwithstanding, 15 U.S.C. §1692(a)(6) defines the term “debt collector” to include any
person who uses an instrumentality of interstate commerce or the mails in any business
the principal purpose of which is the enforcement of security interests. The Eleventh
Circuit has recently clarified that mortgage foreclosure can be debt collection under the
FDCPA. Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir.
2012); Birster v. Am. Home Mortg. Servicing, Inc., 2012 WL 2913786 (11th Cir. Jul. 18,
2012). Plaintiff alleges that FNIS and its alter egos, the LPS Defendants, fabricated
documents in furtherance of a conspiracy to unlawfully divest Plaintiff of her homestead.
(Dkt. 2, ¶¶16, 18(a), 18(d)(1, 4-7), footnote 3.) She alleges that Goebel oversees a section
of individuals who produce thousands of sworn affidavits a day for filing in state and
federal litigation brought by FNF clients and several boilerplate documents used in the
foreclosure of Plaintiff’s home. (Id. at ¶ 16.) Furthermore, under 15 U.S.C. § 1692f, “[a]
debt collector may not use unfair or unconscionable means to collect or attempt to collect
any debt. Subparagraph (6) of that section specifically prohibits taking or threatening to
take any nonjudicial action to effect dispossession or disablement of property if there is
no present right to possession of the property claimed as collateral through an enforceable
security interest. Consequently, this Court must find that Plaintiff’s allegations present a
question of fact as to whether FNIS’s activities violated the FDCPA, and she must be
allowed the opportunity to establish those facts through the course of discovery.
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