Antitrust Law Daily Wrap Up, CONSUMER PROTECTION—M.D. Fla.: Homeowner’s TCPA claims against mortgage loan servicer could proceed, (Dec 10, 2013)

By Linda O’Brien, J.D., LL.M.

A homeowner’s claims against a mortgage loan servicer for violations of the Florida Consumer Collection Practices Act (FCCPA) and the Telephone Consumer Protection Act (TCPA) could proceed, the federal district court in Orlando, Florida has ruled (Conklin v. Wells Fargo Bank, N.A., December 8, 2013, Dalton, R.). Thus, the mortgage loan servicer’s motion to dismiss the complaint was denied.

Andrew Conklin was a homeowner who had his mortgage loan serviced through Wells Fargo Bank, N.A. In 2010, Wells Fargo brought an action against Andrew to foreclose on his home. Subsequently, Andrew filed suit action against Wells Fargo, claiming violations of the FCCPA and the TCPA. Specifically, Andrew alleged that Wells Fargo continued to communicate with him directly with telephone calls to his cell phone about the foreclosure after he was represented by counsel. Wells Fargo moved to dismiss the complaint for failure to state a claim under either the FCCPA or TCPA.

The FCCPA provides that, in collecting consumer debts, no person shall communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to the debt. Wells Fargo argued that its enforcement of a security instrument did not amount to debt collection; Andrew did not allege that Wells Fargo was attempting to collect a debt; and Andrew did not allege that Wells Fargo communicated with him within the meaning of the Act.

Although a mortgage foreclosure action itself did not qualify as debt collection, the court found that Wells Fargo’s communications to Conklin were outside of the foreclosure action and attempted to collect a debt. Therefore, the defendant’s actions were the specific type of activity that the FCCPA was designed to prevent.

The TCPA prohibits the use of a telephone to make automatic dialed telephone solicitations to another telephone without the recipient’s prior consent. Conklin sufficiently pleaded that he did not give consent or alternatively revoked consent to receive the communications from Wells Fargo, accordingly to the court. Thus, Wells Fargo’s motion to dismiss was denied.

The case is No. 6:13-cv-1246-Orl-37KRS.

Attorneys: Richard S. Shuster (Shuster & Saben, LLC) for Andrew Conklin. Aaron S. Weiss (Carlton Fields, PA) for Wells Fargo Bank, NA.

Companies: Wells Fargo Bank, N.A.

Cases: ConsumerProtection Privacy FloridaNews