Light v. Seterus, Inc.
Light v. Seterus, Inc.
Opinion of the Court
THIS CAUSE is before the Court on Defendant Seterus, Inc.'s Motion to Dismiss Count II of Plaintiff's Complaint [DE 7] ("Motion"). The Court has considered the Motion, Plaintiff's Response [DE 9], Defendant's Reply [DE 10], and the record in this case, and is otherwise advised in the premises.
I. Background
On August 3, 2018, Plaintiff Gregory Light filed this action in state court on behalf of his client, Conrad Anthony McPherson, against Seturus, Inc., for violations of the Telephone Consumer Protection Act,
Plaintiff alleges that Seterus tried to collect on a debt arising from McPherson's mortgage on a home in Boca Raton, Florida. DE 1-1 at 6. To collect on the debt, Seterus made frequent calls to Plaintiff on behalf of the Federal National Mortgage Association ("Fannie Mae"), which had initiated a foreclosure proceeding on McPherson's home. Plaintiff represents McPherson in that proceeding. DE 7 at 4.
Specifically, Plaintiff alleges that Seterus used an automated dialing system to place numerous calls to his cellphone and work phone, beginning around July 2017. DE 1-1, ¶ 52. The stated purpose of these calls was to learn what McPherson intended to do with his mortgaged property and whether the property had been affected by Hurricane Irma.
II. Legal Standard
Under Federal Rule of Civil Procedure 12(b)(6), a court shall grant a motion to dismiss where, based upon a dispositive issue of law, the factual allegations of the complaint cannot support the asserted cause of action. Glover v. Liggett Grp., Inc.,
Nonetheless, a complaint must be liberally construed, assuming the facts alleged therein as true and drawing all reasonable inferences from those facts in the plaintiff's favor. Twombly,
III. Discussion
Defendant has moved to dismiss only Count II of the Complaint-the FDCPA claim. Defendant argues that this claim should be dismissed for two reasons: (1) the Complaint fails to allege that Defendant is a "debt collector," and (2) Plaintiff has not sufficiently alleged that Defendant made the calls with the intent to "annoy, abuse or harass." DE 7. The Court notes that Plaintiff, as McPherson's attorney, has standing to bring suit under the FDCPA even though he is not the borrower. See Miljkovic v. Shafritz & Dinkin, P.A.,
A. Whether Defendant is a "Debt Collector" Under the FDCPA
The FDCPA defines "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). The FDCPA excludes from this definition any person attempting to collect a debt which:
(ii) 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.
§§ 1692a(6)(F)(ii)-(iv). In other words, "a debt collector does not include the consumer's creditors, a mortgage servicing company, or an assignee of a debt, as long as the debt was not in default at the time it was assigned." Deutsche Bank Nat'l Trust Co. v. Foxx,
Defendant claims that Plaintiff has made only "conclusory allegations" that Seterus is a "debt collector." DE 7 at 6. But the Complaint specifically alleges that "Seterus was hired to collect the disputed debt by the Federal National Mortgage Association," and "the primary function of Seterus's business is to collect payments due to others." DE 1-1, ¶¶ 12, 13. These allegations are more than "conclusory"; they are facts that, if taken as true, demonstrate that Defendant "regularly collects or attempts to collect ... debts owed or due or asserted to be owed or due another." 15 U.S.C. § 1692a(6).
Defendant cites several cases to support its argument. But none of these cases concern "conclusory" allegations; in each case, the FDCPA claims were dismissed because the alleged debt collector fell under one of the statutory exemptions. In Reese v. JPMorgan Chase & Co.,
Defendant next argues that the Complaint should be dismissed because Plaintiff fails to allege that the debt was in default at the time Defendant was hired to collect it. DE 10 at 2. As noted above, the FDCPA exempts from the term "debt collector" any entity attempting to collect a debt "which was not in default at the time it was obtained by such person." § 1692(a)(6)(F)(iii). Defendant asserts that "the Complaint contains no allegations regarding the status of the debt when it was obtained." DE 10 at 2.
But to survive a motion to dismiss, Plaintiff is not required to demonstrate that Defendant does not fall under any of the statutory exemptions. Plaintiff need only plead that Defendant fits within the definition of "debt collector" as found in section 1692a(6). As the Eleventh Circuit stated, "[s]ection 1692a(6) clearly, plainly, and directly states that a person who is engaged in any business the principal purpose of which is debt collection or a person who regularly collects or attempts to collect debts owed or due another qualifies as a 'debt collector.' " Davidson v. Capital One Bank (USA), N.A.,
B. Whether Defendant Intended to "Annoy, Abuse, or Harass"
Defendant next contends that Plaintiff fails to allege that Seterus made the calls "with the intent to annoy, abuse or harass." The FDCPA prohibits a debt collector from engaging in "any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt." 15 U.S.C. § 1692d. This includes "causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number." § 1692d(5). The "consumer protective purposes of the FDCPA" require courts to consider claims under section 1692d"from the perspective of a consumer whose circumstances makes him relatively more susceptible to harassment, oppression, or abuse." Jeter v. Credit Bureau, Inc.,
As an initial matter, Defendant contends that the "actual purpose of the calls" was not to collect a debt but to "ascertain what Mr. McPherson intended to do with his mortgaged property and whether the property had been affected by Hurricane Irma." DE 7 at 7. Plaintiff alleges, however, that these calls were made "with the aim of pressuring Conrad Anthony McPherson into paying the Debt." DE 1-1, ¶ 23. Plaintiff states that Defendant called "incessantly," even after Plaintiff put in a formal request for Defendant to stop, and repeatedly asked the same questions that Plaintiff had already answered. DE 1-1, ¶¶ 56-57. On these facts, it is more *1215than plausible that Defendant's calls were to pressure McPherson into paying a debt, and not to inquire about the condition of a property.
Nevertheless, Defendant insists that these calls were not made with the intent to "annoy, abuse or harass." Defendant offers several arguments to support this claim, none of which are availing.
First, Defendant contends that merely asking the same questions Plaintiff had already answered does not demonstrate an intent to annoy or harass. DE 7 at 2. Taken in isolation, this fact might not be enough to evince an intent to annoy or harass. But harassment under the FDCPA involves a pattern of conduct, not isolated acts. See Beeders v. Gulf Coast Collection Bureau,
Second, Defendant contends that "Plaintiff bases his FDCPA claim on the allegation that Seterus called him and his law firm six times." DE 7 at 2. This is plainly false. Plaintiff alleges that "Seterus called Plaintiff a multitude of times in a campaign designed to apply maximum psychological stress," DE 1-1, ¶ 23, including "up to five times per day." Id., ¶ 57. The "six calls" Defendant references are merely listed as examples in the Complaint to illustrate the frequency with which Defendant called. In fact, Plaintiff explicitly states, "a sampling of Seterus's campaign include, but are not limited to, calls placed on [six dates in April 2018]." Id., ¶ 23. Plaintiff has sufficiently alleged a pattern and frequency of calls from which a jury could easily infer an intent to harass.
Third, Defendant contends that the FDCPA does not expressly prohibit using an automatic dialer (as opposed to the TCPA). But Plaintiff does not suggest that the use of an automatic dialer itself violates the FDCPA. Plaintiff simply emphasizes the use of an automatic dialer as part of a pattern of annoying and harassing behavior. Plaintiff states that, "upon answering any of these calls, Plaintiff would be greeted by an automated, machine-operated voice message or a noticeable period of 'dead air' while the caller's auto-dialing system attempted to connect the Plaintiff to a live telephone employee." DE 1-1, ¶ 20. This allegation merely helps to illustrate the harassing nature of the calls.
Defendant insists, however, that the use of an automatic dialer "is not a relevant factor" under 1692d, citing Mesa v. Pennsylvania Higher Educ. Assistance, No. 16-24577-CIV,
Fourth, Defendant argues that Plaintiff never asked Defendant to stop calling him, only to "stop contacting him using an automated dialing system." DE 7 at 7-8. But under the FDCPA, it is not necessary for individuals to request that debt collectors stop calling them before the calls can constitute harassment. A completely *1216separate section of the FDCPA prohibits a debt collector from continuing to contact a consumer after the consumer has asked the debt collector to stop. 15 U.S.C. § 1692c(c). Courts have held that continuing to contact a consumer after the consumer has requested the debt collector stop can constitute harassment. See, e.g. Dunning v. Portfolio Recovery Assocs., LLC,
Finally, Defendant argues that the facts of this case are analogous to Rhinehart v. Diversified Cent., Inc., No. 4:17-CV-624-VEH,
In sum, Plaintiff's has sufficiently alleged an intent to "harass, abuse, or annoy." To survive a motion to dismiss, Plaintiff does not need to prove Defendant's true intent behind the calls. Jeter,
ORDERED AND ADJUDGED that Defendant's Motion to Dismiss Count II of Plaintiff's Complaint [DE 7] is DENIED .
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this 4th day December, 2018.
Reference
- Full Case Name
- Gregory LIGHT v. SETERUS, INC.
- Cited By
- 2 cases
- Status
- Published