Summary
finding an allegation that the defendant failed to comply with § 559.715 does not establish a claim under the FCCPA
Summary of this case from Wright v. Dyck-O'neal, Inc.Opinion
No. 07-13911.
July 11, 2008.
April Charney, Jax Area Legal Aid, Jacksonville, FL, Craig Evan Rothburd, Craig E. Rothburd, P.A., Tampa, FL, for Plaintiffs-Appellants.
Robert M. Brochin, Morgan, Lewis Bockuis, Miami, FL, for Defendant-Appellee.
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 06-00374-CV-J-32-HTS.
Saraley Inez Meismer, Andrew Turner, Rico Taylor, and Frances Pullins, debtors who defaulted on their mortgage debts, appeal the dismissal of their putative class action for failure to state a claim. The debtors argue that Mortgage Electronic Registration Systems, Inc., violated the Florida Consumer Collection Practices Act, Fla. Stat. §§ 559.55-559.785, and the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. §§ 501.201-501.23. The debtors complain that Mortgage Systems sent them deceptive notices, which described Mortgage Systems as a "creditor," and Mortgage Systems filed foreclosure actions against the debtors' property without legal authority. We affirm.
We review de novo the dismissal of a complaint for failure to state a claim. Fin. Sec. Assurance, Inc. v. Stephens, Inc., 500 F.3d 1276, 1282 (11th Cir. 2007) (citing Roberts v. Fla, Power Light Co., 146 F.3d 1305, 1307 (11th Cir. 1998)). We accept the allegations in the complaint as true and construe them in the light most favorable to the plaintiff. Id.
The debtors argue that Mortgage Systems sent them deceptive notices that violated section 559.72(9) of the Collection Act. The debtors argue that the notice misidentified Mortgage Systems as their "creditor." The debtors also contend that the district court should have applied the least-sophisticated-debtor standard to determine whether these notices were misleading. These arguments fail.
Under the mortgage contracts, Mortgage Systems has the legal right to foreclose on the debtors' property. Mortgage Systems is the mortgagee. The notices sent to the debtors restated information from the mortgage contracts and were not likely to mislead even the least-sophisticated debtor. See Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1175-76 (11th Cir. 1985).
The debtors also argue that Mortgage Systems violated the Collection Act when it filed foreclosure actions against them, but this argument also fails. Even if it engaged in "debt collection activities" under the Collection Act, Mortgage Systems did not violate section 559.72(9), because Mortgage Systems has the authority to file foreclosure actions. Mortgage Elec. Registration Sys., Inc. v. Revoredo, 955 So.2d 33, 34 (Fla.Dist.Ct.App. 2007); Mortgage Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153-54 (Fla.Dist.Ct.App. 2007). Florida law also provides post-litigation immunity for any foreclosure action filed by Mortgage Systems. Echevarria, McCalla, Raymer, Barrett Frappier v. Cole, 950 So.2d 380, 384 (Fla. 2007).
The dismissal of the debtors' complaint is