Paul A. Green v. Specialized Loan Servicing LLC ( 2019 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-15681
Non-Argument Calendar
________________________
D.C. Docket No. 6:16-cv-01298-RBD-KRS
PAUL A. GREEN,
Plaintiff - Appellant,
versus
SPECIALIZED LOAN SERVICING LLC,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 11, 2019)
Before WILLIAM PRYOR, BRANCH, and ANDERSON, Circuit Judges.
PER CURIAM:
Paul Green brought this action under the Fair Debt Collections Practices Act
(“FDCPA”), arguing that Specialized Loan Servicing LLC (“SLS”) violated the
FDCPA because it attempted to collect mortgage debt beyond the five-year statute
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of limitations. Green stopped paying his mortgage in 2008 and has not made
payments since then. Based on a default in 2008, in 2009 the lender accelerated the
debt and filed a foreclosure action against Green, which was dismissed in 2011. In
2015, after Green’s continued failure to make payments on the mortgage, the
lender again accelerated the debt and filed another foreclosure action based on a
second default. Green alleges that by seeking the full amount of debt, including the
amount of payments that came due more than five years earlier, SLS engaged in
unlawful debt collection of time-barred debts.
The case presents three primary issues, all in the context of potential FDCPA
violations: (1) whether the 2015 Foreclosure Complaint filed by SLS constituted
unlawful debt collection of time-barred amounts; (2) whether the 2017 Mortgage
Statement sent to Green by SLS constituted unlawful attempted debt collection of
time-barred payments; and (3) whether the district court erred by not addressing
whether SLS had attempted unlawful debt collection of attorney’s fees. For the
following reasons, we affirm.
I. BACKGROUND
Paul Green executed a Note and Mortgage for approximately $180,000 at an
adjustable rate in September 2006. Deutsche Bank was the lender, and SLS was the
servicer of the mortgage. The Note provided that failure to pay the full amount of
each monthly payment would constitute a default under the Note. In the event of a
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default, the Note allowed the note holder to, at its discretion, give Green notice of
acceleration, such that all sums secured by the mortgage would come due if the
overdue amount was not paid by a certain date.
In 2008, Green stopped making payments on the loan even though he still
owed $176,448.41, and did not resume making payments. In February 2009,
Deutsche Bank filed a foreclosure action against Green based on a default in 2008.
According to Green, the case was eventually involuntarily dismissed in 2011 for
“Plaintiff’s failure to file an amended complaint by the deadline set by the court.”1
In April of 2015, SLS sent Green a notice of default (“2015 Notice of
Default”) based on his missed payment of July 1, 2010, and subsequent payments.
The Notice of Default also warned Green that continued failure to pay “may result
in acceleration of the entire balance outstanding.” As Green continued to be
delinquent in his payments, Deutsche Bank (through its loan servicer, SLS) then
filed another foreclosure suit against Green on June 30, 2015 (“2015 Foreclosure
Complaint”), alleging that he defaulted by failing make the payment that was due
July 1, 2010, and all subsequent payments, and that SLS was accelerating the note,
1
Although Green does not raise this issue, we note that under Florida law the dismissal of the
2009 foreclosure did not prevent SLS from accelerating the loan a second time. “When a
mortgage foreclosure action is involuntarily dismissed . . . , either with or without prejudice, the
effect of the involuntary dismissal is revocation of the acceleration, which then reinstates the
mortgagor’s right to continue to make payments on the note and the right of the mortgagee, to
seek acceleration and foreclosure based on the mortgagor’s subsequent defaults.” Bartram v.
U.S. Bank Nat’l Ass’n, 211 So. 3d 1009, 1012 (Fla. 2016).
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meaning Green then owed the full remaining balance due to SLS. The foreclosure
complaint asked the court to “ascertain the amount due to Plaintiff for principal
and interest on the Mortgage and Note and for late charges, abstracting, taxes,
expenses, and costs, including attorney’s fees, plus interest thereon.”
Green initially filed his Complaint against SLS in state court in Brevard
County, Florida, on June 6, 2016. SLS then filed a notice of removal in July of
2016, and the district court stayed the case until the foreclosure case2 against Green
was dismissed in February 2017.3 SLS then moved to dismiss Green’s Complaint,
and Green filed an Amended Complaint.
Green’s Amended Complaint alleged that SLS violated the FDCPA by
trying to collect the debt owed under the mortgage even though some of the
amount owed was supposedly barred from recovery under Florida’s applicable
five-year statute of limitations.
SLS moved to dismiss for failure to state a claim, arguing that the Amended
Complaint failed as a matter of law. The district court agreed. In particular, the
court cited to Garrison in holding that Green’s argument regarding the Florida
2
For the remainder of this opinion, we use the term “Foreclosure Complaint” to refer to the
foreclosure case against Green that was filed in 2015, unless we specify the 2009 foreclosure
case.
3
The state court dismissed the 2015 foreclosure case because it was based on a default date of
July 2010, which was prior to the dismissal of the 2009 foreclosure action in 2011. That decision
by the state court was not based on a statute of limitations question, and is not at issue in this
case.
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statute of limitations for debt collection is “a matter to be raised as a defense in a
foreclosure case—not as an affirmative claim under an FDCPA claim related to a
mortgage.” Garrison v. Caliber Home Loans, Inc., 233 F. Supp. 3d 1282, 1293–94
(M.D. Fla. 2017). The court also found that none of the requested payment amount
was time-barred. Green appealed.
II. LEGAL STANDARD
This Court reviews de novo the decision of a district court to grant a motion
for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Cinotto
v. Delta Air Lines Inc., 674 F.3d 1285, 1291 (11th Cir. 2012). “To survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007) (quotations omitted)). This standard is met “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
III. DISCUSSION
The FDCPA prohibits certain debt collection methods, particularly “false,
deceptive, or misleading representation or means in connection with the collection
of any debt” and “unfair or unconscionable means” of debt collection. 15 U.S.C. §
1692e–f. “The inquiry is not whether the particular plaintiff-consumer was
deceived or misled; instead, the question is whether the ‘least sophisticated
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consumer’ would have been deceived by the debt collector’s conduct.” Crawford v.
LVNV Funding, LLC, 758 F.3d 1254, 1258 (11th Cir. 2014) (quotations omitted);
see also LeBlanc, 601 F.3d at 1194 (quoting Clomon v. Jackson, 988 F.2d 1314,
1319 (2d Cir. 1993)) (“‘The least sophisticated consumer’ can be presumed to
possess a rudimentary amount of information about the world and a willingness to
read a collection notice with some care.”). The FDCPA subjects violators to civil
liability. 15 U.S.C. § 1692k(a) (establishing liability to the affected consumer,
consisting of actual damages, additional damages, and costs, including attorney’s
fees); see also Clomon, 988 F.2d at 1321–22 .
To overcome a motion to dismiss a FDCPA claim, 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 v. Ellis, Painter, Ratterree
& Adams, LLP, 678 F.3d 1211, 1216 (11th Cir. 2012). Threatening and initiating
litigation to collect time-barred debt can result in a violation. Crawford, 758 F.3d
at 1259 (“[W]e must examine whether [the debt collector’s] conduct—filing and
trying to enforce in court a claim known to be time-barred—would be unfair,
unconscionable, deceiving, or misleading towards the least-sophisticated
consumer.”).
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A. Statute of Limitations for Amount Owed
Green alleges that SLS violated the FDCPA by pursuing the 2015
foreclosure action and attempting to collect time-barred debt.4 The district court
dismissed his claim “because the [Florida statute of limitations] does not reduce
the amount that a mortgagee can recover in a foreclosure action that is brought
within five years of the accrual date of the action.” Green v. Specialized Loan
Servicing LLC, 280 F. Supp. 3d 1349, 1356 (M.D. Fla. 2017). The primary issue in
this appeal—a timely foreclosure action based on a default within the prior five
years and filed after an acceleration clause is invoked—is whether a party can seek
the amounts of installment payments due prior to five years before the action.
Compared to other debt, mortgage debt is “unique” in its nature, due to the
“continuing obligations of the parties in that relationship.” See Singleton v.
Greymar Assocs., 882 So. 2d 1004, 1007 (Fla. 2004). “When the promissory note
secured by the mortgage contains an optional acceleration clause [i.e., the entire
4
Green premised his claims on Fla. Stat. § 95.11(2)(b) and (c), which provides as follows:
95.11. Limitations other than for the recovery of real property
Actions other than for recovery of real property shall be commenced as follows:
...
(2) Within five years.--
...
(b) A legal or equitable action on a contract, obligation, or liability founded
on a written instrument, . . . .
(c) An action to foreclose a mortgage.
Fla. Stat. § 95.11 (2013).
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amount of the loan comes due upon default], the foreclosure cause of action
accrues, and the statute of limitations begins to run, on the date the acceleration
clause is invoked or the stated date of maturity, whichever is earlier.” Smith v.
F.D.I.C., 61 F.3d 1552, 1561 (11th Cir. 1995); see also Kipnis v. Bayerische Hypo-
Und Vereinsbank, AG, 202 So. 3d 859, 861 (Fla.), opinion after certified question
answered, 844 F.3d 944 (11th Cir. 2016) (noting that the “statute of limitations
runs from the time the cause of action accrues”). The Note contains just such an
acceleration clause, and SLS gave Green notice of intent to accelerate the full
amount of the note on April 8, 2015, and declared it accelerated in its foreclosure
complaint of June 30, 2015.
The Florida Supreme Court has held that “if the mortgagee’s foreclosure
action is unsuccessful for whatever reason, the mortgagee still has the right to file
subsequent foreclosure actions—and to seek acceleration of the entire debt—so
long as they are based on separate defaults.” Bartram v. U.S. Bank Nat’l Ass’n,
211 So. 3d 1009, 1020 (Fla. 2016) (quoting Dorta v. Wilmington Tr. Nat. Ass’n,
No. 5:13-cv-185-Oc-10PRL, 2014 WL 1152917, at *6 (M.D. Fla. Mar. 24, 2014),
aff’d sub nom. Dorta v. Citibank Nat’l Assoc. for Lehman Bros.-BNC Mortg. Loan
Tr. 2007-3, 707 F. App’x 660 (11th Cir. 2017)). “[E]ach subsequent default
accruing after the dismissal of an earlier foreclosure action creates a new cause of
action.” Id. “Therefore, with each subsequent default, the statute of limitations runs
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from the date of each new default providing the mortgagee the right, but not the
obligation, to accelerate all sums then due under the note and mortgage.” Id. at
1019 (emphasis added).
Ultimately, the operative principle is simple:
[T]he typical lender files suit seeking acceleration of its debt such that
the entire sum owing, including principal, interest, advances, costs, and
fees, will be included in the judgment. That entire debt . . . is sought to
be liquidated in the foreclosure action. When a lender seeks judgment
on an accelerated debt, it makes no sense to suggest that any component
of that accelerated obligation should be excluded from the judgment
because it “came due” more than five years prior. It did not come due
more than five years prior. It came due upon acceleration. It is all due
presently, both what was to be paid on prior installment dates and what
would otherwise be due on future installment dates. The installment
dates no longer matter for purposes of the accelerated debt; it is all one
debt.
In re BCML Holding LLC, No. 18-11600-EPK, 2018 WL 2386814, at *2 (Bankr.
S.D. Fla. May 24, 2018). The facts of this case are consistent with the opinion of In
re BCML, and we agree with its holding.
Accordingly, the debt payment sought by SLS in the Foreclosure Complaint
was not time-barred as a matter of law. In compliance with the mortgage and note,
based on a July 1, 2010 default by Green, SLS accelerated the debt on June 30,
2015, and the entire outstanding amount of the loan “came due” on that date. It was
only then that the statute of limitations period began to run for the full accelerated
amount due. Thus, the foreclosure action in June 2015 was timely, and SLS did not
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improperly seek any payment on the note by filing that action.5 The district court
correctly determined that Florida’s statute of limitations “does not reduce the
amount that a mortgagee can recover” in this situation. Id. at *2–3.
Green cites several cases involving simple installment debt, but those cases
are inapposite because they do not address the unique nature of mortgage debt.6
Green cites to language in Bartram contemplating whether the ability of the lender
to collect prior missed payments depends on if a prior foreclosure action is
dismissed with or without prejudice. But the very same language reiterates that
“each subsequent default accruing after the dismissal of an earlier foreclosure
action creates a new cause of action, regardless of whether that dismissal was
entered with or without prejudice,” and says nothing that implies the mortgagee
5
Some district courts have held that the statute of limitations can only be the basis for an
affirmative defense in a foreclosure action, and not the basis for an FDCPA cause of action. See
Garrison, 233 F. Supp. 3d at 1293–94; Blake v. Select Portfolio Servicing, Inc., No. 6:17-cv-
1523-Orl-31TBS, 2018 WL 467392, at *3 (M.D. Fla. Jan. 18, 2018). This Court, however, does
not need to reach that issue here.
6
Isaacs v. Deutsch, 80 So. 2d 657 (Fla. 1955), concerned the application of the statute of
limitations to child support payments. In Access Ins. Planners, Inc. v. Gee, 175 So. 3d 921 (Fla.
4th DCA 2015), a Florida appellate court applied a statute of limitations to a breach of contract
claim arising out of unpaid installment payments in a commission contract dispute. Similarly,
Bishop v. Fla. Div. of Ret., 413 So. 2d 776 (Fla. 1st DCA 1982), involved a dispute about
retirement installment payments pursuant to a contract. None of these cases cited by Green deal
with the unique issues presented by a mortgage debt.
Green also cites Cent. Home Tr. Co. of Elizabeth v. Lippincott, 392 So. 2d 931 (Fla. 5th DCA
1980), which involved a mortgage, but in which there was “no basis to conclude” that the loan
was accelerated. Id. at 933. Likewise, in Greene v. Bursey, 733 So. 2d 1111 (Fla. 4th DCA
1999), the lender did not exercise its right to accelerate the debt. Id. at 1115. Despite the
similarity in party names, Greene is factually (and orthographically) distinct from Green.
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cannot then accelerate the entire amount of the mortgage. Bartram, 211 So. 3d at
1020; accord Bank of Am., N.A. v. Graybush, 253 So. 3d 1188, 1193 (Fla. 4th
DCA 2018), review denied, No. SC18-1564, 2019 WL 988639 (Fla. Mar. 1, 2019);
Gonzalez v. Fed. Nat’l Mortg. Ass’n, No. 3D17-1246, 2018 WL 3636467, at *3
(Fla. 3rd DCA Aug. 1, 2018).
Green also points to two opinions decided after Bartram. In U.S. Bank, N.A.
v. Diamond, 228 So. 3d 177 (Fla. 5th DCA 2017), receded from by Grant v.
Citizens Bank, N.A., No. 5D17-726, 2018 WL 6816805, at *1 n.1 (Fla. 5th DCA
Dec. 26, 2018) (en banc), the court remanded the case for recalculation of the
amount owed, and instructed the lower court to exclude the payments that were
due longer than five years prior. Id. at 179. Similarly, Green points to Velden v.
Nationstar Mortgage, LLC, 234 So. 3d 850 (Fla. 5th DCA 2018), receded from by
Grant, 2018 WL 6816805, at *1, in which the court remanded the case, instructing
the trial court to “exclude any defaults that occurred more than five years prior to
the filing date of the current suit.” Id. at 851 (quoting Diamond, 228 So. 3d at 179).
According to Green, both decisions dictate that the amount of payments due more
than five years before the current suit was filed are nonrecoverable.
Recently, however, Florida’s Fifth District Court of Appeals has explicitly
receded from its earlier opinions in Diamond and Velden. In Grant v. Citizens
Bank, N.A., No. 5D17-726, 2018 WL 6816805, at *1 & n.1 (Fla. 5th DCA Dec. 26,
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2018) (en banc), the court adopted the position of a concurring opinion from the
Florida Supreme Court in Bollettieri Resort Villas Condominium Ass’n v. Bank of
New York Mellon, 228 So. 3d 72, 73 (Fla. 2017) (Lawson, J., concurring).
Specifically, the court in Grant held that “when the right to accelerate the debt for
non-payment is optional with the holder of the note, the statute of limitations does
not run until the note is due unless the lender or holder accelerates and declares the
full balance due earlier.” Grant, 2018 WL 6816805, at *1. Contrary to the
implications of Velden, delay in accelerating a debt does “not constitute a waiver
or defense against future collection of all sums due and owing under the note,”
including the amounts of payments due more than five years prior. Id. at *2. In
sum, Green may no longer rely on Diamond and Velden.
B. Mortgage Statements as “Debt Collection”
Separate from his arguments about the statute of limitations issue related to
the Foreclosure Complaint, Green also alleges that the monthly mortgage
statements sent by SLS demanded a payment amount that falsely included time-
barred payments from more than five years prior, in violation of the FDCPA. In
particular, Green points to the “important messages” section of the January 18,
2017 Mortgage Statement which states, “You are currently due for the 7/01/2010
payment” and shows a total amount due that includes time-barred payments. SLS,
in response, argues that the mortgage statement SLS sent Green are not “debt
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collection.” The district court examined that language and determined that “the
2017 Statement does not add impermissible demands for payment not called for in
a regular [Truth in Lending Act (“TILA”)] Statement.” Green, 280 F. Supp. 3d at
1355.
We must determine whether the January 18, 2017 mortgage statement is an
unlawful debt collection communication. 15 U.S.C.A. § 1692e (“A debt collector
may not use any false, deceptive, or misleading representation or means in
connection with the collection of any debt.”). TILA requires lenders to send
mortgage statements that contain certain information, 7 “for each billing cycle at the
end of which there is an outstanding balance in that account or with respect to
which a finance charge is imposed.” 15 U.S.C. § 1637(b); 12 C.F.R. § 1026.41.
We find nothing in the language in question from the Mortgage Statement,
beyond what is required by TILA, which rises to the level of being unlawful debt
collection language. Green argues that SLS should have reduced the total amount
due shown on the statement, because it “cannot be helpful information” to include
the amounts of payments due beyond five years prior. But the TILA regulations in
fact require that the statement include delinquency information, including the
“length of the consumer’s delinquency.” 12 C.F.R. § 1026.41(d)(8). And under
7
12 C.F.R. § 1026.41(d) lists numerous requirements for the layout and content of a periodic
mortgage statement, grouped into sections including “Amount due,” “Explanation of amount
due,” “Past Payment Breakdown,” “Transaction activity,” and “Delinquency information.”
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Florida law, a lien remains on a property throughout the term of the mortgage
irrespective of any statute of limitations. Countrywide Home Loans, Inc. v.
Burnette, 177 So. 3d 1032, 1034 (Fla. 1st DCA 2015) (“Even if the statute of
limitations has run on an action to enforce a promissory note and foreclose on a
mortgage, the lien against the property remains valid until five years after the
maturity date of the debt secured by the mortgage.”). Notifying a consumer of the
amount needed to satisfy the mortgage loan can serve useful purposes, particularly
here, where the January 2017 statement was issued after the note had been
accelerated in 2015, and before the foreclosure case was dismissed in February
2017. Thus, the district court did not err in finding that the content of the mortgage
statement does not rise above the “garden variety” type of statement required by
TILA, even for the “least sophisticated consumer.” Green, 280 F. Supp. 3d at
1355.
Green cites Kelliher v. Target Nat’l Bank, 826 F. Supp. 2d 1324, 1328–29
(M.D. Fla. 2011), which found that a series of monthly statements that used
increasingly strong language constituted debt collection under Florida’s version of
the FDCPA. Kelliher stands for the unremarkable principle that a monthly
statement that is in conformity with TILA may nevertheless include additional
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language that constitutes debt collection. 8 826 F. Supp. 2d at 1329; see also
Caceres v. McCalla Raymer, LLC, 755 F.3d 1299, 1302 (11th Cir. 2014); Reese v.
Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211, 1217 (11th Cir. 2012)
(“The fact that the letter and documents relate to the enforcement of a security
interest does not prevent them from also relating to the collection of a debt within
the meaning of § 1692e.”). The facts of Kelliher, however, are distinguishable
from the case here. The language Green cites from his one Mortgage Statement
lacks the strong demands for payment used by debt collectors in cases like
Kelliher.
C. Attorney’s Fees
Green alleges that any attempt to collect attorney’s fees from the 2009
foreclosure action would be a violation of the FDCPA as a “threat to take any
action that cannot legally be taken or that is not intended to be taken.” 15 U.S.C.
§ 1692e(5).
In the district court, Green’s Amended Complaint alleged that the Notice of
Default sent in April 2015 is in violation of the FDCPA for attempting to collect
attorney’s fees from the 2009 action—fees Green argues SLS is not entitled to
8
In Kelliher, the language in the series of statements progressed from “Please Contact Us About
Your Past Due Account” to “stronger language: ‘Account Seriously Past Due . . .’” and then to
statements such as “If we don’t set up payment arrangements . . . soon, we’ll charge off your
account and report it to the credit bureaus as bad debt.” Kelliher, 826 F. Supp. 2d at 1328 (M.D.
Fla. 2011).
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because it did not prevail. As the district court correctly calculated, Green did not
file his state court action until June 6, 2016, so his claims based on the Notice of
Default are barred by the FDCPA’s one-year statute of limitations. See 15 U.S.C.
§ 1692k(d).
Faced with that statutory bar to his claim, on appeal Green has changed his
argument, and insists that SLS improperly tried to collect attorney’s fees, in
violation of the FDCPA, through documents that were delivered to him within the
Act’s statute of limitations: (1) the June 30, 2015 Foreclosure Complaint and
(2) the Mortgage Statement dated January 18, 2017.
With respect to the 2015 Foreclosure Complaint, Green’s Amended
Complaint alleges that he sustained damages for being “sued for sums he did not
owe,” including “attorney’s fees, . . . for which SLS had no legal right to collect.”
Even if we generously construe this language to be an allegation that the 2015
Foreclosure Complaint sought attorney’s fees for both the 2015 and 2009
foreclosure actions, it fails to state a claim.
According to the FDCPA, a “debt” is “any obligation or alleged obligation
of a consumer to pay money arising out of a transaction in which the money,
property, insurance, or services which are the subject of the transaction are
primarily for personal, family, or household purposes, whether or not such
obligation has been reduced to judgment.” 15 U.S.C. § 1692a(5). Even if the
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undetermined and unspecified attorney’s fees in the 2015 Foreclosure Complaint
count as “debt,” it is implausible to characterize that complaint as a “threat to take
any action that cannot legally be taken or that is not intended to be taken.” 15
U.S.C. § 1692e(5). The 2015 Foreclosure Complaint simply requests that the court
determine attorney’s fees—a request that would not count as debt collection
activity since the legal basis and amount of fees awarded, if any, was indeterminate
at that stage in the proceedings. The Foreclosure Complaint asks the court to
determine the legal amount owed, if any; this request is not a communication to
Green for direct payment of a debt. See, e.g., Reese, 678 F.3d at 1216 (finding a
letter was “an attempt to collect a ‘debt’ within the meaning of the FDCPA,”
because it included language that demanded “full and immediate payment” of
specific amounts due). Moreover, Green never explains how court-determined
attorney’s fees requested by a 2015 foreclosure action would somehow improperly
include amounts from the earlier 2009 foreclosure action. The 2015 Foreclosure
Complaint simply does not mention attorney’s fees from 2009 in any way.
The cases cited by Green do not suggest that a foreclosure complaint
constitutes a “demand for payment” by requesting undetermined and unspecified
attorney’s fees from the court. See Freire v. Aldridge Connors, LLP, 994 F. Supp.
2d 1284, 1287–88 (S.D. Fla. 2014) (finding that a foreclosure complaint that
requested enforcement of a promissory note that sought a specific amount was debt
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collection activity); McFadden v. U.S. Bank N.A., No. 8:14-cv-2068-T-35MAP,
2015 WL 10352994, at *2–3 (M.D. Fla. Oct. 7, 2015) (same).
Regarding the 2017 Mortgage Statement, Green argues that an amount of
fees shown in a line item in the statement indicates that SLS might have been
attempting to obtain attorney’s fees from the 2009 foreclosure action. In his view,
the district court’s failure to address this fact is reversible error. But Green made
no claim in his Amended Complaint that the Mortgage Statement improperly tried
to collect attorney’s fees. The district court did not err by failing to address that
argument in its order on the motion to dismiss because there was simply no such
allegation in Green’s Amended Complaint for the court to dismiss or sustain. Even
if we look to the substance of Green’s argument, he offers no explanation as to
why he believes the “total unpaid fees” recited in the Mortgage Statement include
attorney’s fees from the 2009 foreclosure action, and once again we find nothing in
that Mortgage Statement that rises to the level of debt collection beyond a standard
mortgage statement. See, e.g., Kelliher, 826 F. Supp. 2d at 1328.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
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