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Imputation of Implied Actual Notice: the fact
that an unrelated purchaser of property was aware that seller was
being sued on an unsecured indebtedness did not create a legal duty
on the part of purchaser to assure that specific unsecured
creditors were paid.
Villamizar v. Luna Capital Partners, LLC, No. 3D18-112 (Fla. 3d
DCA Oct. 24, 2018) (affirmed)
Financial Services Update
FDCPA / Dismissal: dismissing FDCPA claims
based on state court action as untimely under §1692k(d)
because general course of litigation did not give rise to
continuing violations, and dismissing remainder FDCPA claims under
§1692e after applying heightened pleading standard under Rule
9(b)–Melford v. Kahane &
Assocs., No. 18-cv-60881 (S.D. Fla. Oct. 17, 2018)
FDCPA & FCCPA / Mortgage Statements, Mortgage
Assistance Letter, & Escrow Letter: mortgage
statements were not debt collection communications under either
statute, where they were "substantially in compliance with
TILA", and did "not materially deviate in substance from
the Regulation X model form"; mortgage assistance letter
providing information regarding foreclosure alternatives was not
debt collection; but escrow letter including language regarding
attempt to collect a debt was debt collection, and failure to
comply with notice and cure provisions of mortgage was not proper
basis for dismissal of FDCPA and FCCPA claims – Mills v. Select
Portfolio Servicing, Inc., No. 18-CV-61012, 2018 WL 5113001, at
*1 (S.D. Fla. Oct. 19, 2018) (granting in part and denying in part
motion to dismiss FDCPA and FCCPA claims)
TCPA & FCCPA / ATDS Allegations: holding
"[s]ince the statutory definition of an ATDS (as opposed to
the FCC's interpretation of an ATDS) was not questioned in ACA
Int'l, the FCC's guidance does not alter the statutory
definition of an ATDS." Therefore, Plaintiff's allegations
Defendant called her using an ATDS as defined in the statute, i.e.,
"the capacity to store or produce telephone numbers to be
called using a random or sequential number generator (including but
not limited to predictive dialer) or an artificial or prerecorded
voice", were sufficient at the motion to dismiss stage. FCCPA
claims plausibly alleged frequency of calls for harassment element
of 559.72(7); statute of limitations did not provide basis for
dismissal where some of the alleged conduct fell within the
limitations period – Whitehead v. Ocwen
Loan Servicing, LLC, No. 2:18-CV-470-FTM-99MRM, 2018 WL
5279155, at *5 (M.D. Fla. Oct. 24, 2018) (denying motion to dismiss
TCPA and FCCPA claims.
FDCPA Disclosure Requirement / Formal
Pleading: Debt-collector who obtained judgment against
plaintiff, and subsequently mailed discovery interrogatories in aid
of execution, followed by Motion for Contempt when plaintiff failed
to respond, was not liable for FDCPA violations under 15 USC
1692e(11) for failure to include disclosures. The Court observed
that "[a]lthough § 1692e(11) provides a right to receive
certain disclosures, the same subsection specifies that the
disclosure requirement 'shall not apply to a formal pleading
made in connection with a legal action.' ... [W]hile a
violation of the FDCPA's disclosure requirement can confer
standing, there can be no violation—and thus no
injury—if the document at issue falls under this
exception." Noting that the Eleventh Circuit has not yet
defined what constitutes a formal pleading, the Southern District
of Florida held, in accordance with several other courts finding a
variety of litigation-related pleadings to meet the exception, and
in accordance with principles of logic, that the interrogatories
and motion to compel were "formal pleadings" and
therefore the exception applied – D'Altilio v. Noam
J. Cohen, P.A., No. 1:18-CV-21394, 2018 WL 5263972, at *2 (S.D.
Fla. Oct. 23, 2018).
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