Hasbun v. Recontrust Co., N.A.

Summarized by B. Chandler , Louisiana State University Paul M. Hebert Law Center
13 years 2 weeks ago

Citation:

Case No. 11-15214 (11th Cir. February 13, 2013)

Tag(s):

Ruling:

The Eleventh Circuit AFFIRMED the order of the United States District Court for the Southern District of Florida dismissing the case of Eugenia Hasbun (“Plaintiff”) with prejudice. Specifically, the Eleventh Circuit held that the District Court did not err in twice dismissing Plaintiff’s complaint against Reconstruct Company (“Defendant”) for failing to state a claim and subsequently dismissing Plaintiff’s case with prejudice. In reaching this conclusion, the court found that the District Court properly dismissed Plaintiff’s second amended complaint for two reasons. First, Defendant, as fiduciary of the creditor to whom the subject debt was owed, was not a debt collector under the Fair Debt Collections Practice Act (“FDCPA”), the act upon which Plaintiff’s claims were based. And second, Defendant had explicitly informed Plaintiff -- who had previously received a Chapter 7 bankruptcy discharge -- that Defendant was not demanding payment of a debt; instead, it was notifying her that the collateral property was being foreclosed. For these two reasons, Plaintiff had not asserted a claim under the FDCPA.

Procedural context:

Plaintiff brought a lawsuit seeking damages against Defendant for its alleged violation of the FDCPA. 15 U.S.C. § § 1692(e), 1692(f)(1). Defendant moved to dismiss the complaint for failure to state a claim. The District Court granted its motion. After Plaintiff’s first and second amended complaints failed to state a claim, the District Court dismissed Plaintiff’s case with prejudice. Plaintiff appealed the dismissal.

Facts:

In May 2007, Eugenia Hasbun executed a promissory note for $52,100 and deed of trust in favor of Bank of America for the purchase of a vacant lot (“property”) in Smithville, Tennessee. She defaulted in her payments, declared bankruptcy, and after receiving a Chapter 7 bankruptcy discharge in November 2009, Bank of America appointed Defendant as substitute trustee. Defendant subsequently sent to Plaintiff a foreclosure letter which notified her that her promissory note was in default and that Defendant had been asked to institute foreclosure proceedings against the collateral property (“Foreclosure Letter”). The Foreclosure Letter also expressly stated that the notice was not intended as a demand for the balance due on the promissory note. Based on the Foreclosure Letter, Plaintiff brought a lawsuit seeking damages against Defendant for its alleged violation of the FDCPA. 15 U.S.C. § § 1692(e), 1692(f)(1). Defendant moved to dismiss the complaint for failure to state a claim. The District Court granted its motion. After her first and second amended complaints failed to state a claim, the District Court dismissed Plaintiff’s case with prejudice. Plaintiff appealed the dismissal.

Judge(s):

TJOFLAT, MARTIN and FAY

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