UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 20-21837-CIV-ALTONAGA/Goodman

DONNA ALVAREZ,

Plaintiff,

v.

LOANCARE LLC,

Defendant.

__________________ /

ORDER

THIS CAUSE came before the Court at an August 11, 2020 Hearing [ECF No. 30] on 

Defendant, LoanCare LLC’s Dispositive Motion to Dismiss Plaintiff’s Complaint [ECF No. 7], 

filed on May 27, 2020. The Court has considered Plaintiff, Donna Alvarez’s Complaint [ECF 

No. 1]; the Motion; Alvarez’s Response [ECF No. 17]; LoanCare’s Reply [ECF No. 18]; Notices 

of Supplemental Authority [ECF Nos. 21, 22]; the record; and applicable law. 

I. BACKGROUND

Alvarez brings this putative class action challenging the collection of processing fees by 

LoanCare, a mortgage servicer. (See generally Compl.). Alvarez owns a home subject to a 

mortgage serviced by LoanCare. (See id. ¶¶ 5, 13–14). LoanCare charged Alvarez processing 

fees for making mortgage payments online or by phone. (See id. ¶ 15). Alvarez alleges LoanCare’s 

processing fees are not authorized by the mortgage or by applicable law. (See id. ¶¶ 14, 16).

On May 1, 2020, Alvarez filed her Complaint asserting four claims: Violations of the 

Florida Consumer Collection Practices Act, section 559.55 et seq., Florida Statutes (“FCCPA”)

(Count I) (see id. ¶¶ 31–39); Violations of the Florida Deceptive and Unfair Trade Practices Act, 

section 501.201 et seq., Florida Statutes (“FDUTPA”) (Count II) (see id. ¶¶ 40–49); Breach of 

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Contract (Count III) (see id. ¶¶ 50–54); and Unjust Enrichment (Count IV) (see id. ¶¶ 55–60).

LoanCare moved to dismiss all counts, arguing Alvarez’s claims are moot, Alvarez failed

to comply with the mortgage’s notice and cure provision, and Alvarez fails to state claims upon 

which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). (See generally Mot.). 

Alvarez opposed the Motion, requesting oral argument. (See Resp. 14). At the August 11, 2020

Hearing, the Court dismissed Count III (breach of contract) and Count IV (unjust enrichment) with 

leave for Alvarez to amend and address the deficiencies identified by LoanCare, including the 

mootness issue. The Court now addresses whether Alvarez states claims for which relief can be 

granted in Count I (FCCPA) and Count II (FDUTPA). 

II. LEGAL STANDARD

“To survive a motion to dismiss [under Rule 12(b)(6)], 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) (alteration added) (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 570 (2007)). The pleading standard “does not require ‘detailed factual allegations,’ 

but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.

(alteration added) (quoting Twombly, 550 U.S. at 555). Pleadings must contain “more than labels 

and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 

Twombly, 550 U.S. at 555 (citation omitted). Indeed, “only a complaint that states a plausible 

claim for relief survives a motion to dismiss.” Iqbal, 556 U.S. at 679 (citing Twombly, 550 U.S. 

at 556). 

To meet this “plausibility standard,” a plaintiff must “plead[ ] factual content that allows 

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 

Id. at 678 (alteration added) (citing Twombly, 550 U.S. at 556). “The mere possibility the 

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defendant acted unlawfully is insufficient to survive a motion to dismiss.” Sinaltrainal v. CocaCola Co., 578 F.3d 1252, 1261 (11th Cir. 2009) (citation omitted), abrogated on other grounds by 

Mohamad v. Palestinian Auth., 566 U.S. 449 (2012).

When reviewing a motion to dismiss, a court must construe the complaint in the light most 

favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross 

& Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997) (citation omitted). 

III. DISCUSSION

A. Count I: FCCPA

At the Hearing, Alvarez clarified she is only bringing a claim in Count I under the second 

clause of section 559.72(9), Florida Statutes, which states: “In collecting consumer debts, no 

person shall . . . assert the existence of some [] legal right when such person knows that the right 

does not exist.” Id. (alterations added). LoanCare argues Alvarez fails to state a claim for which 

relief can be granted because (1) the FCCPA’s prohibited practices do not apply to mortgage loan

servicers in the circumstances of the present action; and (2) Alvarez fails to adequately plead 

LoanCare asserted a legal right it knew did not exist. (See Mot. 5–15).1

 Neither argument is 

persuasive. 

1. The FCCPA Prohibits Practices of All Persons Collecting Consumer Debts.

LoanCare contends the FCCPA exempts loan servicers like LoanCare from the act’s 

prohibitions. (See Mot. 7). LoanCare points to similarities in the federal Fair Debt Collection 

Practices Act (“FDCPA”) and the FCCPA, both of which exclude from the definition of “debt 

collector” persons collecting debts which were “not in default at the time it was obtained by such 

person.” (Id. (quotation marks and bold omitted; quoting Fla. Stat. § 559.55(7)(f); 15 U.S.C. 

1 The Court relies on LoanCare’s bottom-of-page pagination in referencing LoanCare’s Motion and Reply. 

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§ 1692a(6)(F)(iii))). According to LoanCare, this “loan servicer exemption” requires dismissal of 

the FCCPA claim because Alvarez does not allege that her loan was in default when it was obtained 

by LoanCare. (See id. 7–9 (citing cases)). 

Alvarez insists the FCCPA’s prohibitions apply to all “persons” and is not restricted to 

statutorily defined debt collectors. (See Resp. 6–7 (citing Gann v. BAC Home Loans Servicing LP, 

145 So. 3d 906 (Fla. 2d DCA 2014); Morgan v. Wilkins, 74 So. 3d 179 (Fla. 1st DCA 2011); and

Schauer v. Gen. Motors Acceptance Corp., 819 So. 2d 809 (Fla. 4th DCA 2002))). LoanCare, 

detailing the FCCPA’s legislative history and comparing it to that of the FDCPA, argues applying 

the FCCPA’s proscriptions to any person renders meaningless the FCCPA’s debt collector 

definition and its “loan servicer exemption.” (See Mot. 9–15; Reply 5–6). 

The Eleventh Circuit squarely addressed this issue in Agrelo v. Affinity Management 

Services, LLC. See 841 F.3d 944, 952–53 (11th Cir. 2016). In Agrelo, the district court, 

analogizing to authority applying the FDCPA, determined the defendant was not liable under the 

FCCPA because the defendant did not meet the FCCPA’s definition of debt collector. See Agrelo 

v. Meloni Law Firm, No. 14-21192-Civ, 2015 WL 10791989, at *4–5 (S.D. Fla. Jan. 30, 2015)

(citing Madura v. Lakebridge Condo. Ass’n Inc., 382 F. App’x 862, 864 (11th Cir. 2010)), rev’d 

in part, vacated in part sub nom. Agrelo, 841 F.3d 944. The Eleventh Circuit reversed: 

[T]he district court erroneously held that because [the defendant] was not a “debt 

collector” under the FCCPA, it could not be liable for violating the statute. 

Although the FCCPA is modeled after the FDCPA, the two statutes are not identical 

in all respects. Unlike the FDCPA, the FCCPA’s proscriptions are “not limited to 

debt collectors.” [The defendant] is not exempt from the FCCPA simply because 

it is not a statutorily defined debt collector.

Agrelo, 841 F.3d at 952–53 (alterations added; quoting Schauer, 819 So. 2d at 812 n.1). 

The Eleventh Circuit’s decision in Agrelo is controlling: the FCCPA’s proscriptions apply

to any “person,” even those that are not “debt collectors” under the statute. Fla. Stat. § 559.72; see 

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also Agrelo, 841 F.3d at 952–53. The Court now considers LoanCare’s second basis for seeking 

dismissal of Count I, whether Alvarez otherwise states an FCCPA claim. 

2. Alvarez Plausibly Pleads LoanCare Violated the FCCPA.

In Count I, Alvarez alleges LoanCare asserted a legal right that it knew did not exist, 

thereby violating section 559.72(9), Florida Statutes. (See Compl. ¶¶ 35, 37–38). Tersely, Alvarez 

alleges: (1) LoanCare collected processing fees for making payments online or by phone (see id.

¶ 15); (2) LoanCare had no legal right to collect these processing fees because they were not 

authorized by the mortgage or by law (see id. ¶¶ 14, 37); and (3) LoanCare knew it had no legal 

right to collect the processing fees because it had the mortgages in its control, and the mortgages 

do not authorize the fees (see id. ¶¶ 37–38). LoanCare argues that with these sparse allegations, 

Alvarez fails to state “any assertions by LoanCare at all, let alone the assertion of a legal right that 

LoanCare knew did not exist.” (Mot. 7). 

As an initial matter, the Court finds Alvarez sufficiently alleges LoanCare’s assertion of a 

legal right. Alvarez’s pleading burden is met if she pleads facts allowing the Court to “draw the 

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 

at 678 (citation omitted). The Court must also construe Alvarez’s allegations in the light most 

favorable to her. See Brooks, 116 F.3d at 1369 (citation omitted). By charging processing fees, 

the Court infers LoanCare’s assertion of the right to charge those fees. 

Regarding the adequacy of Alvarez’s allegation that LoanCare knew the right to charge 

those fees did not exist, Garay v. Select Portfolio Servicing, Inc. is instructive. See generally No. 

19-cv-23323, R. & R. on Def.’s Mot. to Dismiss [ECF No. 52] (S.D. Fla. Aug. 6, 2020). In Garay, 

the court analyzed a virtually identical complaint regarding unauthorized fees and arguments

relating to the sparseness of the allegations. See id. at *12 (“[The defendant] argues that [the 

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plaintiff’s] FCCPA claim should be dismissed because the allegations [] [the defendant] had actual 

knowledge of any unlawful conduct are conclusory and implausible.” (alterations added)). As in

the present case, the plaintiff alleged the defendant had knowledge of its unlawful conduct because 

the defendant had in its possession the mortgage, which did not permit charging the allegedly 

unlawful fees. See id. at *13. The magistrate judge examined the mortgage at issue — nearly 

identical to Alvarez’s mortgage — and determined it was both plausible the fees were unlawful 

and that the defendant’s possession of the mortgage showed it had knowledge the fees were 

unlawful. See id. at *18 (“In arguing [] [the defendant] knowingly charged improper processing 

fees, [the plaintiff] establishes a plausible allegation which is supported with the circumstantial 

evidence [the defendant] had actual knowledge of the violation by having the mortgage in [its] 

‘possession, custody or control’” (alterations added)); see also Blake v. Seterus, Inc., No. 16-

21225-Civ, 2017 WL 543223, at *3 (S.D. Fla. Feb. 9, 2017) (pleading circumstantial facts 

demonstrating actual knowledge of an FCCPA violation is sufficient). 

The Court applies the reasoning in Garay to the present case and concludes Alvarez 

adequately pleads an FCCPA claim in Count I. 

B. Count II: FDUTPA

In Count II, Alvarez succinctly states LoanCare “violated the FDUTPA by engaging in the 

unfair and deceptive practices as described [in the Complaint.]” (Compl. ¶ 45 (alteration added)). 

Reading the Complaint in the light most favorable to Alvarez, as the Court must do, the alleged 

unfair and deceptive practices are LoanCare’s charging processing fees it knew it did not have a 

right to charge; and “secretly retaining money from every ‘processing fee’ [LoanCare] charges 

consumers” instead of passing the entire fee to a third-party payment processor. (Compl. ¶ 49 

(alteration added); see also ¶¶ 14–16, 18, 46).

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The FDUTPA provides a cause of action for “[u]nfair methods of competition, 

unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any 

trade or commerce[.]” Fla. Stat. § 501.204(1) (alterations added). FDUTPA claims may be 

premised on per se violations or traditional violations. See Blair v. Wachovia Mortg. Corp., 11-

cv-566, 2012 WL 868878, at *3 (M.D. Fla. Mar. 14, 2012). “[A] per se violation of [the] FDUTPA 

stems from the transgression of any law, statute, rule, regulation, or ordinance which proscribes 

unfair methods of competition or unfair, deceptive, or unconscionable acts or practices.” Id.

(alterations adopted; other alterations added; quotation marks and citations omitted). A traditional 

violation is a deceptive act or unfair practice, separate from a predicate statutory violation. See id. 

Under the FDUTPA, a deceptive act or unfair practice is “one that offends established public policy 

and one that is immoral, unethical, oppressive, unscrupulous or substantially injurious to 

consumers[;]” or a “representation, omission, or practice that is likely to mislead the consumer 

acting reasonably in the circumstances, to the consumer’s detriment.” PNR, Inc. v. Beacon Prop. 

Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003) (quotation marks and citations omitted). 

LoanCare argues Alvarez fails to state a FDUTPA claim because (1) none of the alleged 

misconduct occurred “in the conduct of any trade or commerce”; (2) the “bare bone, conclusory” 

allegations fail to meet federal pleading standards generally or the heightened pleading standards 

for fraud under Federal Rule of Civil Procedure 9(b); and (3) to the extent Alvarez alleges a per se

violation based on the FCCPA, such an allegation fails to state a claim because Alvarez does not 

adequately plead an FCCPA claim and the FCCPA is not a valid FDUTPA predicate. (Mot. 15–

18 (quoting Fla. Stat. § 501.204(1); see also Reply 6–9). The Court addresses each argument in 

turn.

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1. Charging fees for processing payments by phone or online is trade or commerce 

under the FDUTPA. 

FDUTPA violations are limited to conduct occurring in trade or commerce. See Fla. Stat. 

§ 501.204. “‘Trade or commerce’ means the advertising, soliciting, providing, offering, or 

distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether 

tangible or intangible, or any other article, commodity, or thing of value, wherever situated.” Id.

§ 501.203(8). 

Most courts discussing the issue have held that, generally, loan or mortgage servicing and 

debt collection are not trade or commerce under the FDUTPA. See Cornette v. I.C. Sys., Inc., 280 

F. Supp. 3d 1362, 1373 (S.D. Fla. 2017) (collecting cases). However, billing for services separate

from loan servicing does meet the FDUTPA’s trade or commerce definition. See Alhassid v. Bank 

of Am., N.A., 60 F. Supp. 3d 1302, 1324 (S.D. Fla. 2014) (finding a mortgage servicer’s billing of 

property inspections and property appraisals a “separate offer or provision of services within the 

meaning of [the] FDUTPA” (alteration added)); Martorella v. Deutsche Bank Nat’l Tr. Co., 

931 F. Supp. 2d 1218, 1224 (S.D. Fla. 2013) (determining mortgage servicer’s provision of 

property insurance meets the FDUTPA’s trade or commerce definition).

Alvarez alleges she was charged processing fees for making a mortgage payment to 

LoanCare over the phone or online. (See Compl. ¶ 15). This “point-of-sale fee for a requestedand-performed service[,]” “an optional service that the borrower chose for her convenience[,]” is 

a service separate from loan servicing itself. (Reply 1 (alterations adopted or added; quoting 

Waddell v. U.S. Bank Nat’l Ass’n, 395 F. Supp. 3d 676, 684 (E.D.N.C. 2019))). Because the 

alleged service — processing payments over the phone or online — is separate from loan servicing, 

charging processing fees for that service qualifies as conduct in trade or commerce under the 

FDUTPA. See Alhassid, 60 F. Supp. 3d at 1324.

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2. Alvarez’s Allegations Meet Her Pleading Burden.

To survive a motion to dismiss, a plaintiff bringing a FDUTPA claim is “required to allege 

only a short and plain statement sufficient to put [the defendant] on fair notice of its cause of 

action.” Sundance Apartments I, Inc. v. Gen. Elec. Capital Corp., 581 F. Supp. 2d 1215, 1221 

(S.D. Fla. 2008) (alteration added; citing Twombly, 550 U.S. at 555). “Often, claims under the 

FDUTPA are not premised on allegations of fraud, and thus need not be stated with the 

particularity required by Rule 9(b) of the Federal Rules of Civil Procedure.” Runton v. Brookdale 

Senior Living, Inc., No. 17-60664-Civ, 2017 WL 7311877, at *2 (S.D. Fla. July 10, 2017) 

(quotation marks and citations omitted). 

Alvarez alleges LoanCare is charging unauthorized and unlawful processing fees and 

deceptively retaining portions of those fees as profit instead of passing through the entire amounts 

to third-party payment processors. (See Compl. ¶¶ 14–16, 18, 46, 49). These short and plain 

statements suffice to give notice of the cause of action. See Sundance Apartments, 581 F. Supp. 2d 

at 1221. Furthermore, Alvarez’s claims do not sound in fraud — she alleges unfair or deceptive 

practices by LoanCare, but the deception is more in the nature of non-disclosure or concealment 

of misconduct, as opposed to misrepresentations relied upon by Alvarez to her detriment. 

Particularity is thus not an issue here. In other words, “because a FDUTPA claim, which 

proscribes conduct outside the reach of traditional common law torts like fraud, is not subject to 

the heightened pleading standard of Rule 9(b), it cannot serve as a basis for granting [LoanCare’s] 

current Motion.” Eli Lilly & Co. v. Tyco Integrated Sec., LLC., No. 13-80371-Civ, 

2015 WL 11251732, at * 3–4 (S.D. Fla. Feb. 10, 2015) (alteration added; quotation marks and 

citation omitted; collecting cases).

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3. Alvarez States a per se FDUTPA Violation.

LoanCare contends Alvarez cannot rely on allegations of violating the FCCPA as a 

predicate for a per se FDUTPA violation for two reasons. First, the FCCPA violation in Count I 

fails as a matter of law; and second, violating the FCCPA is not a valid FDUTPA predicate. (See

Mot. 16–17; Reply 7). As already stated, Alvarez does state an FCCPA violation in Count I, so 

Alvarez’s first argument fails. 

A per se FDUTPA violation may be implied by a statute if it proscribes “unconscionable, 

deceptive, or unfair acts or practices[.]” State Farm Mut. Auto. Ins. v. Performance Orthapaedics 

& Neurosurgery, LLC, 315 F. Supp. 3d 1291, 1306 (S.D. Fla. 2018) (alteration added; quotation 

marks and citation omitted)). Whether a statute is a valid FDUTPA predicate, then, depends on 

the specific conduct prohibited by the statute. 

Alvarez’s FCCPA claim is premised on the second clause of section 559.72(9), Florida 

Statutes: “In collecting consumer debts, no person shall . . . assert the existence of some [] legal 

right when such person knows that the right does not exist.” Id. (alterations added). Knowingly 

asserting a non-existent legal right in the course of debt collection is “unconscionable, deceptive, 

[and] unfair[;]” a statute prohibiting this conduct is thus a valid FDUTPA predicate. State Farm 

Mut. Auto. Ins., 315 F. Supp. 3d at 1306 (alterations added); see also Jones v. TT of Longwood, 

Inc., No. 606cv-651, 2006 WL 2789140, at *6 (M.D. Fla. Sept. 26, 2006) (asserting a legal right 

that does not exist during the course of debt collection under the FCCPA would be a valid 

FDUTPA predicate). 

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In short, Count II survives LoanCare’s Motion; Alvarez adequately pleads both a 

traditional violation and a per se violation, alleging misconduct in trade or commerce.2

IV. CONCLUSION

For the foregoing reasons, and for the reasons stated at the August 11, 2020 Hearing, it is

ORDERED and ADJUDGED that Defendant, LoanCare LLC’s Dispositive Motion to Dismiss 

Plaintiff’s Complaint [ECF No. 7] is GRANTED in part and DENIED in part, as follows: 

1. The Motion is DENIED as to Counts I and II.

2. The Motion is GRANTED as to Counts III and IV, which are DISMISSED 

without prejudice. Plaintiff, Donna Alvarez, is granted leave to amend to address 

the pleading deficiencies identified by LoanCare, including the issue of mootness. 

3. Alvarez’s amended complaint, or her notice of intent to proceed with Counts I 

and II in the Complaint [ECF No. 1], shall be filed by September 4, 2020. 

4. LoanCare’s response shall be filed within 14 days after Alvarez files her amended 

complaint or notice.

DONE AND ORDERED in Miami, Florida, this 28th day of August, 2020.

CECILIA M. ALTONAGA

UNITED STATES DISTRICT JUDGE

cc: counsel of record

2 LoanCare describes being surprised by Alvarez’s allegations, specifically because LoanCare states it does 

not rely on third-party payment processors — so there can be no merit to accusations LoanCare is 

deceptively retaining processing fees instead of paying the fees to (non-existent) payment processors. (See

Mot. 16). This is an issue of fact that the Court does not consider on a motion to dismiss. 

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