Filed: Feb. 11, 2020
Latest Update: Mar. 03, 2020
Summary: Case: 19-13734 Date Filed: 02/11/2020 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-13734 Non-Argument Calendar _ D.C. Docket No. 8:19-cv-01034-WFJ-CPT ROSEMARY ARBUCKLE ANDERMAN, CAROLYN ARBUCKLE PLATT, MARILYN ARBUCKLE SCHEIDT, Plaintiffs - Appellants, versus JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, PHELAN HALLINAN DIAMOND & JONES, PLLC, Defendants - Appellees. _ Appeal from the United States District Court for the Middle District of
Summary: Case: 19-13734 Date Filed: 02/11/2020 Page: 1 of 10 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-13734 Non-Argument Calendar _ D.C. Docket No. 8:19-cv-01034-WFJ-CPT ROSEMARY ARBUCKLE ANDERMAN, CAROLYN ARBUCKLE PLATT, MARILYN ARBUCKLE SCHEIDT, Plaintiffs - Appellants, versus JP MORGAN CHASE BANK, NATIONAL ASSOCIATION, PHELAN HALLINAN DIAMOND & JONES, PLLC, Defendants - Appellees. _ Appeal from the United States District Court for the Middle District of F..
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Case: 19-13734 Date Filed: 02/11/2020 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13734
Non-Argument Calendar
________________________
D.C. Docket No. 8:19-cv-01034-WFJ-CPT
ROSEMARY ARBUCKLE ANDERMAN,
CAROLYN ARBUCKLE PLATT,
MARILYN ARBUCKLE SCHEIDT,
Plaintiffs - Appellants,
versus
JP MORGAN CHASE BANK, NATIONAL ASSOCIATION,
PHELAN HALLINAN DIAMOND & JONES, PLLC,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 11, 2020)
Before NEWSOM, GRANT, and LUCK, Circuit Judges.
PER CURIAM:
Case: 19-13734 Date Filed: 02/11/2020 Page: 2 of 10
Plaintiffs—Rosemary Arbuckle Anderman, Carolyn Arbuckle Platt, and
Marilyn Arbuckle Scheidt—appeal the dismissal of their complaint, filed on behalf
of themselves and a putative class. The plaintiffs alleged that JP Morgan Chase
Bank and its law firm, Phelan Hallinan Diamond & Jones, PLLC, violated the Fair
Debt Collection Practices Act by naming them in a state-court foreclosure action
relating to their deceased brother’s home. The district court dismissed the
plaintiffs’ complaint, deciding that Chase was not a “debt collector” within the
meaning of the FDCPA and that the conduct alleged in the complaint was not
actionable under the FDCPA. We agree with the district court and affirm.
I
The parties are familiar with the facts, so we state them only briefly here.
The plaintiffs are the sisters and heirs of Clinton Arbuckle, who passed away in
2012 while in default on his mortgage. The promissory note and the mortgage
both identify Chase as the lender and Clinton Arbuckle as the borrower. Chase
foreclosed on the mortgage and, in an amended state-court complaint (filed by its
lawyers at Phelan), stated that the full amount was payable. All of the plaintiffs
here—Anderman, Platt, and Scheidt—were listed as foreclosure defendants.
Chase’s complaint alleged that each of the plaintiffs “may have or claim an interest
in the property that is subject to this foreclosure action by virtue of being a possible
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heir” of Clinton Arbuckle and that any such interest “is subordinate in time and
inferior in right” to Chase’s.
As relevant to the plaintiffs’ claims, the foreclosure complaint requested that
the state court enter a judgment foreclosing the mortgage and “retaining
jurisdiction . . . to make any and all further orders and judgments as may be
necessary and proper, including . . . the entry of a deficiency judgment if the
proceeds of the sale are insufficient.” The defendants also served Scheidt and
Anderman a summons, which stated: “If you do not file your response on time,
you may lose the case, and your wages, money, and property may thereafter be
taken without further warning from the court.”
The plaintiffs filed a federal class-action complaint against Chase and
Phelan, alleging that the summons and state-court complaint violated the Fair Debt
Collection Practices Act. The district court dismissed the plaintiffs’ complaint.
This is their appeal.
II
“We review de novo a district court’s interpretation of a statute.” Davidson
v. Capital One Bank (USA), N.A.,
797 F.3d 1309, 1312 (11th Cir. 2015). We also
review de novo a district court’s dismissal under Federal Rule of Civil Procedure
12(b)(6), “accepting the allegations in the complaint as true and construing them in
the light most favorable to the plaintiff.” Reese v. Ellis, Painter, Ratterree &
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Adams, LLP,
678 F.3d 1211, 1215 (11th Cir. 2012) (quotation omitted). “To
survive a motion to dismiss, a complaint must ‘state a claim to relief that is
plausible on its face,’ meaning it must contain ‘factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.’”
Davidson, 797 F.3d at 1312 (quoting Ashcroft v. Iqbal,
556 U.S. 662,
678 (2009)). It cannot simply provide “a formulaic recitation of the elements of a
cause of action.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007).1
III
The plaintiffs’ claims arise under the Fair Debt Collection Practices Act, 15
U.S.C. §§ 1692–1692p, which “was passed ‘to eliminate abusive debt collection
practices,’ to ensure that ‘debt collectors who refrain from using abusive debt
collection practices are not competitively disadvantaged,’ and to promote
consistent state action in protecting consumers against debt collection abuses.”
Davidson, 797 F.3d at 1312–13 (quoting 15 U.S.C. § 1692(e)). In their complaint,
the plaintiffs allege violations of § 1692e, which prohibits a “debt collector” from
using “any false, deceptive, or misleading representation or means in connection
with the collection of any debt.” They also claim that the defendants violated
§ 1692f, which prohibits a “debt collector” from using “unfair or unconscionable
1
To the extent that documents are attached to the complaint, “we treat them as part of the
complaint for Rule 12(b)(6) purposes.”
Reese, 678 F.3d at 1215–16.
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means to collect or attempt to collect any debt.” To state a claim under the
FDCPA then, “a plaintiff must allege, among other things (1) that the defendant is
a ‘debt collector’ and (2) that the challenged conduct is related to debt collection.”
Reese, 678 F.3d at 1216.2
A
The first issue is whether the plaintiffs have sufficiently alleged that Chase
and Phelan are “debt collector[s]” under the FDCPA. The district court held that
because Chase originated the debt at issue and sought to collect it on its own
behalf, it was not a “debt collector.” The court did not make a determination as to
whether Phelan was a “debt collector,” instead deciding that because the alleged
conduct did not violate the FDCPA, the complaint did not state a claim against
either Chase or Phelan.
For the plaintiffs to survive the motions to dismiss, they “must plead ‘factual
content that allows the court to draw the reasonable inference that’ [Chase and
Phelan are] ‘debt collector[s]’ under the FDCPA and therefore liable for the
misconduct alleged.”
Davidson, 797 F.3d at 1313 (quoting
Iqbal, 556 U.S. at 678).
The FDCPA defines a “debt collector,” in relevant part, as “any person” (1) “who
uses any instrumentality of interstate commerce or the mails in any business the
2
Reese arose in the context of §
1692e. 678 F.3d at 1216. But because both § 1692e and
§ 1692f use the term “debt collector” and refer to debt collection, we utilize the same inquiry.
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principal purpose of which is the collection of any debts,” or (2) “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); see also
Reese, 678 F.3d at
1218 (stating that a party can be a “debt collector” in these two ways).
First, we consider Chase. The plaintiffs’ complaint states that Chase meets
the first definition of “debt collector” because “the principal purpose of its business
is to collect on defaulted debts and because it regularly collects or attempts to
collect, directly or indirectly, debts owed or due or asserted to be owed or due
another.” When compared with the FDCPA’s definition of “debt collector,” it
appears that the plaintiffs simply restated the definition in their complaint, without
alleging any factual support. While their complaint “does not need detailed factual
allegations,” the plaintiffs must come forward with “more than labels and
conclusions.”
Twombly, 550 U.S. at 555. They have not.
Plaintiffs’ next assertion—that Chase collects debts “owed or due another”
and is therefore a “debt collector” under the second definition in the FDCPA—is
contradicted by the facts alleged in the complaint. The use of the word “another”
in the statute indicates “that a person must regularly collect or attempt to collect
debts for others in order to qualify as a ‘debt collector’ under the second definition
of the term.”
Id. at 1315–16. But the complaint and attached documents confirm
that Chase was seeking to foreclose on a mortgage that it, itself, originated. The
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plaintiffs’ complaint states that “Mr. Arbuckle executed a promissory note and a
mortgage securing payment of the note,” and the promissory note attached to the
complaint—which we may consider here, see
Reese, 678 F.3d at 1215–16—shows
Chase as the “Lender” and Clinton Arbuckle as the “Borrower.” In attempting to
foreclose on Clinton Arbuckle’s mortgage, Chase was acting on its own behalf and
cannot be considered as attempting to collect debts “owed or due another.” Chase
is the originating lender and is therefore exempt from the FDCPA’s definition of
“debt collector.” See § 1692a(6)(F)(ii) (“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 . . . concerns a debt
which was originated by such person.”).
As to defendant Phelan, the complaint recites verbatim the same conclusory
allegations that it does against Chase in arguing that Phelan is a “debt collector”
and subject to the FDCPA. Although the district court did not specifically decide
whether Phelan could be considered a “debt collector,” we conclude that the
plaintiffs’ complaint fails to allege that Phelan is a “debt collector.” The plaintiffs
were required, but failed, to properly plead sufficient factual content showing that
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either Phelan’s “principal purpose” is debt collection or that Phelan “regularly
collects” debt that is “owed or due another.” See 15 U.S.C. § 1692a(6).3
B
But even if Chase and Phelan could be considered “debt collector[s]” under
the FDCPA, the plaintiffs have not sufficiently pleaded that the state-court
foreclosure complaint and summons “are an attempt to collect a ‘debt’ within the
meaning of the FDCPA.”4
Reese, 678 F.3d at 1216. We have acknowledged that
residential mortgage obligations qualify as “debt” for FDCPA purposes,
id. at
1216–17 (stating that a “promissory note is a ‘debt’ within the plain language of
§ 1692a(5)”), and that the FDCPA applies to documents filed in litigation,
Miljkovic v. Shafritz & Dinkin, P.A.,
791 F.3d 1291, 1295 (11th Cir. 2015)
(“Absent a statutory exception . . . documents filed in court in the course of judicial
3
The plaintiffs also assert that Chase and Phelan are debt collectors because “an entity
attempting to collect on a consumer debt must be either a creditor or a debt collector,” and
because Chase and Phelan aren’t creditors as to the plaintiffs they “necessarily must be . . . debt
collector[s].” Although it is true that “creditors typically are not subject to the FDCPA,”
Davidson, 797 F.3d at 1313, the fact that an entity is not a creditor does not make it a “debt
collector” for FDCPA purposes. In Davidson, we held that just because a person is not excluded
from the definition of “debt collector,” “the person may be a debt collector, but the person is not
undoubtedly a debt collector; one of two statutory standards [under § 1692a(6)] still must be
met.”
Davidson, 797 F.3d at 1315. As explained above, the plaintiffs have not alleged facts that
Chase and Phelan fall within the statutory definition.
4
It is not clear whether all three plaintiffs received both the complaint and the summons. The
complaint does not allege that Chase served Platt the summons, although it does allege that all
three plaintiffs were served a copy of the complaint. We will assume, without deciding, that all
three plaintiffs received both the complaint and summons for the purposes of addressing (and
rejecting) the plaintiffs’ argument that the complaint and summons, when taken together,
violated the FDCPA.
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proceedings to collect on a debt . . . are subject to the FDCPA.”). To determine
whether a communication is an attempt to collect debt, we examine its language.
Caceres v. McCalla Raymer, L.L.C.,
755 F.3d 1299, 1302 (11th Cir. 2014). In
Reese v. Ellis, Painter, Ratterree & Adams, for example, we held that the letter at
issue constituted an attempt to collect a debt because, in the letter, the lender’s law
firm demanded full and immediate payment, threatened attorneys’ fees unless the
borrowers paid, and outright stated that the law firm was “acting as a debt collector
attempting to collect a
debt.” 678 F.3d at 1217 (emphasis omitted).
The state-court foreclosure complaint and the summons were not attempts to
collect debt from the plaintiffs. First, the foreclosure complaint did not seek a
“deficiency” against the plaintiffs, as they allege. The plaintiffs point to the clause
(quoted in relevant part above) that requested that the state court retain jurisdiction
over the matter to enter other orders, including, if necessary, a deficiency
judgment. This does not constitute an implicit or explicit demand for any payment
from the plaintiffs. While the foreclosure complaint elsewhere states that the “full
amount payable under the Note and Mortgage [was] due and payable,” the
plaintiffs acknowledge in their FDCPA complaint that it was Clinton Arbuckle—
not them—who signed and executed the promissory note and mortgage. If the
foreclosure complaint demanded payment at all, it was not from the plaintiffs. The
foreclosure complaint identified the plaintiffs as persons who “may have or claim
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an interest in the property that is subject to this foreclosure action,” not as persons
against whom the bank was seeking a deficiency judgment.
The plaintiffs also point to a summons they received (quoted in relevant part
above) that stated that the plaintiffs must respond to Chase’s foreclosure complaint
or risk adverse action. The language that the plaintiffs take issue with is form
language provided by the Florida Rules of Civil Procedure. See Fla. R. Civ. P.
Form 1.902. Like the foreclosure complaint, the summons does not constitute an
implicit or explicit demand for the plaintiffs to pay any debt. It refers generally to
consequences that may result from failing to respond to a complaint; and the
foreclosure complaint at issue here simply joined the plaintiffs in the foreclosure
action because they may have an interest in Clinton Arbuckle’s property—not
because they owed any payment.
* * *
In conclusion, the plaintiffs have failed to properly plead that Chase and
Phelan are debt collectors under the FDCPA and that the conduct alleged was
related to debt collection. See
Reese, 678 F.3d at 1216. The district court therefore
did not err in dismissing their complaint.
AFFIRMED.
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