Responding to a first impression question for the court, the Eleventh Circuit wished to Daniels v. Select Portfolio Servicing, Inc., U.S. Application 2022. LEXIS 14013 (11th Cir. May 24, 2022), that a mortgage statement submitted to a borrower may, in certain circumstances, constitute a communication in connection with a debt subject to the Fair Debt Collection Practices Act, 15 USC § §1692 and following.and Florida’s Consumer Collection Practices Act. The court quashed an order dismissing the borrower’s claim, finding that compliance with the Truth in Lending Act and its implementing regulations did not absolve the mortgagee of liability under the two truth in lending statutes. Recovery.
Judge Bert Jordan’s opinion for the court reviewed in detail the plaintiff’s checkered history with her mortgage lenders. After falling behind on her payments, she entered into a loan modification agreement with her original lender, who then assigned the note to another lender who, in turn, allegedly refused to honor the agreement. The second lender filed a foreclosure action in Florida state court but, according to the complaint, the state court enforced the loan modification agreement and sanctioned the lender. Along the way, Select Portfolio became the loan manager. Select Portfolio began sending the applicant monthly mortgage statements that included wording affirming overdue amounts, late fees, etc., along with FDCPA warnings on at least one of those statements that they were an attempt to collect a debt. According to the plaintiff, the statements were inaccurate as to the amounts owed in several respects, which prompted the plaintiff to bring the action leading to this appeal.
The court found that claims can be made under the FDCPA and the Florida CCPA when a monthly mortgage statement includes debt collection language that is not required by TILA or its regulations and the context suggests that these are attempts to collect or induce payment on a debt. The court disagreed with two unpublished district court opinions to the contrary. The court also singled out an interpretation bulletin from the Consumer Financial Protection Bureau and its own unpublished decision in Green c. LLC Specialty Loan Service766 F. App’x 777 (11th Cir. 2019), the latter on the grounds that the declaration of mortgage in Green did not include the FDCPA debt collection language.
Judge Barbara Lagoa dissented at length, noting, among other things, that the decision creates a split in the circuit, a point disputed by the majority opinion.