UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

ISHANNA IBLE,

Plaintiff,

vs.

WELLS FARGO BANK, 

NATIONAL ASSOCIATION, AS 

TRUSTEE FOR CITIGROUP 

MORTGAGE LOAN TRUST, 

SERIES 2004-OPT1, ASSET 

BACKED PASS-THROUGH 

CERTIFICATES, SERIES 2004-

OPT1, WAKULLA COUNTY 

CIRCUIT COURT, and STATE OF 

FLORIDA,

Defendants. /

Case No. 4:21-cv-00025-MW-MAF

DEFENDANT WELLS FARGO BANK, NATIONAL ASSOCIATION, AS 

TRUSTEE’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT

Defendant WELLS FARGO BANK, NATIONAL ASSOCIATION, AS 

TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, SERIES 2004-OPT1, 

ASSET BACKED PASS-THROUGH CERTIFICATES, SERIES 2004-OPT1 (the 

“Trustee”), by and through its undersigned counsel and pursuant to Fed. R. Civ. P. 

12(b)(6), hereby files this Motion to Dismiss the Complaint (“Complaint”) filed by 

Plaintiff ISHANNA IBLE (“Plaintiff”), and states as follows:

INTRODUCTION

As Plaintiff readily admits, this action arises out of a state court foreclosure 

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action filed in April 2016 in the Circuit Court in and for Wakulla County. After 

Plaintiff commenced an appeal of the August 1, 2018 final judgment of foreclosure, 

she filed a purported counterclaim against the Trustee in the state court foreclosure 

action. Only after the state court declined to hear Plaintiff’s counterclaim and the 

appellate court affirmed the final judgment of foreclosure did Plaintiff file the instant 

action. As set forth below, however, Plaintiff’s Complaint is barred under various 

legal doctrines, does not comply with applicable pleading standards, and fails to state 

a claim for which relief may be granted. 

PROCEDURAL BACKGROUND

On or about April 1, 2016, the Trustee instituted an action seeking to foreclose 

a mortgage executed by the now-deceased Deanna Ible for failure to make payment 

on a note in an action styled: Wells Fargo Bank, National Association, as Trustee 

for Citigroup Mortgage Loan Trust, Series 2004-OPT1, Asset Backed Pass-Through 

Certificates, Series 2004-OPT1 v. Ible, et al., Case No. 16000056CAAXMX, which 

was pending in the Circuit Court of the Second Judicial Circuit in and for Wakulla 

County, Florida (the “Foreclosure Action”). A true and correct copy of the docket 

in the Foreclosure Action is attached hereto as Exhibit 1.

1

 

 1 Plaintiff repeatedly and expressly references the Foreclosure Action in the 

Complaint and attaches as exhibits to the Complaint various filings from the 

Foreclosure Action. See e.g. Complaint (ECF No. 1) at ¶¶ 1, 9, 13, 19-23, 25-26, 

Ex. A, B. Therefore, the record of the state court action can be considered part of the 

pleadings for all purposes. See Brooks v. Blue Cross and Blue Shield of Fla., Inc., 

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Plaintiff, who is one of Deanna Ible’s four children, appeared in the 

Foreclosure Action on June 5, 2017 by filing a letter with the court. See Ex. 1. 

Plaintiff there after actively participated in the Foreclosure Action by filing a motion 

to dismiss the amended complaint, responses to various filings by the Trustee, and a 

third-party complaint and cross-claim that was later stricken by the court. Id. After 

a non-jury trial was held, an In Rem Final Judgment of Foreclosure (“Foreclosure 

Judgment”) was entered in the Foreclosure Action on August 1, 2018. See Complaint

(ECF No. 1) at ¶ 20. A true and correct copy of the Foreclosure Judgment is attached 

hereto as Exhibit 2.

2

On August 24, 2018, Plaintiff filed in the Foreclosure Action a notice of 

appeal of the Foreclosure Judgment. See Ex. 1. Five days later, Plaintiff filed in the 

Foreclosure Action a purported counterclaim against the Trustee. See id. After the 

appellate court issued a mandate affirming the Foreclosure Judgment in November 

2020, the foreclosure sale for the subject property was scheduled for January 7, 2021. 

 

116 F. 3d 1364, 1369 (11th Cir. 1997) (determining that “where the plaintiff refers 

to certain documents in the complaint and those documents are central to the 

plaintiff’s claim, then the Court may consider the documents part of the pleadings 

for purposes of Rule 12(b)(6) dismissal, and the defendant’s attaching such 

documents to a motion to dismiss will not require conversion of the motion to a 

motion for summary judgment”). Moreover, the Trustee requests that the Court take 

judicial notice of the attached docket and other filings in the Foreclosure Action. See

Fed. R. Evid. 201 (stating that a court may take judicial notice of a fact not subject 

to reasonable dispute that is “capable of accurate and ready determination by resort 

to sources whose accuracy cannot be questioned.”). 

2 See fn. 1 supra.

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Id. Due to the ongoing COVID-19 pandemic and resulting moratorium on 

foreclosures, the January 7, 2021 sale was cancelled and has not yet been 

rescheduled. Id. On January 14, 2021, Plaintiff commenced the instant action.

ARGUMENT

A. STANDARD FOR MOTION TO DISMISS

To survive a motion to dismiss, a complaint must contain material supporting 

each material element “necessary to sustain a recovery under some viable legal 

theory.” Roe v. Aware Woman Ctr. for Choice, Inc., 253 F.3d 678, 684 (11th Cir. 

2001). “Dismissal is warranted under Federal Rule of Civil Procedure 12(b)(6) if, 

assuming the truth of the factual allegations of plaintiff's complaint, there is a 

dispositive legal issue which precludes relief.” Schwab v. Huntington Nat. Bank, No. 

2:12-CV-315-FTM-99, 2013 WL 655248, at *1 (M.D. Fla. Feb. 22, 2013) (citing 

Brown v. Crawford Cnty., 960 F.2d 1002, 1009–10 (11th Cir.1992)).

A pleading in a civil action must contain “a short and plain statement of the 

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While 

a Court must view the facts in the light most favorable to a plaintiff when ruling on 

a motion to dismiss for failure to state a claim, a plaintiff is required to plead “more 

than labels and conclusions, and a formulaic recitation of the elements of a cause of 

action will not do.” Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007). Nor 

can a complaint rest on “‘naked assertion[s]’ devoid of ‘further factual 

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enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “To survive a motion 

to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 

‘state a claim that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). 

The Court may grant a motion to dismiss where “on the basis of a dispositive issue 

of law, no construction of the factual allegations will support the cause of action.” 

Marshall Cnty. Bd. of Educ. v. Marshall Cnty. Gas Dist., 992 F. 2d 1171, 1174 (11th 

Cir. 1993). 

B. THE COURT LACKS SUBJECT MATTER JURISDICTION PURSUANT TO THE 

ROOKER-FELDMAN DOCTRINE

“The Rooker-Feldman doctrine precludes federal courts – other than the 

United States Supreme Court – from reviewing final judgments of state courts.” 

Figueroa v. MERSCORP, Inc., 477 Fed. Appx. 558, 560 (11th Cir. 2012) (citing

Casale v. Tillman, 558 F. 3d 1258, 1260 (11th Cir. 2009)). As such, “RookerFeldman bars lower federal court jurisdiction in ‘cases brought by state-court losers 

complaining of injuries caused by state-court judgments rendered before the district 

court proceedings commenced and inviting district court review and rejection of 

those judgments’.” Id. (citations omitted). The Rooker-Feldman doctrine further 

applies to claims that are “inextricably intertwined” with a state court judgment. 

Casale, 558 F. 3d at 1260. It does not apply, however, if a party did not have a 

“reasonable opportunity to raise his federal claim in state proceedings.” Symonette 

v. Aurora Loan Servs., LLC, 631 Fed. Appx. 776, 778 (11th Cir. 2015) (quoting 

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Casale, 558 F. 3d at 1260).

The Eleventh Circuit has set forth a two-part inquiry to determine whether the 

Rooker-Feldman doctrine applies: (1) first, a determination of whether the state court 

proceedings have ended, and (2) second, a determination of whether the plaintiff’s 

claims are “inextricably intertwined” with the state court judgment. See Velazquez 

v. South Fla. Fed. Credit Union, 546 Fed. App’x 854, 856-57 (11th Cir. 2013). 

This analysis has been used by the Eleventh Circuit and many district courts 

within the Eleventh Circuit to dismiss actions under Rooker-Feldman where litigants 

have attempted to challenge state court foreclosure judgments. See Symonette, 631 

Fed. Appx. at 778 (affirming dismissal of complaint asserting claims under RESPA, 

TILA and other theories because such claims were inextricably intertwined with a 

state court foreclosure judgment and thus, barred by the Rooker-Feldman doctrine 

and res judicata); Cavero v. One West Bank FSB, 617 Fed. Appx. 928, 930-931 (11th 

Cir. 2015) (affirming dismissal with prejudice of complaint asserting RESPA, TILA 

and other statutory claims because such claims were inextricably intertwined with a 

state court foreclosure judgment and thus, barred by the Rooker-Feldman doctrine); 

Nivia v. Nationstar Mortgage, LLC, 620 Fed. Appx. 822, 825 (11th Cir. 2015) 

(affirming dismissal of FDUTPA claim under Rooker-Feldman doctrine where 

plaintiffs alleged that the lender’s failure to modify their loan deprived them of the 

opportunity to cure their mortgage default); Harper v. Chase Manhattan Bank, 138 

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Fed. Appx. 130, 133 (11th Cir. 2005) (finding no error in the dismissal of ECOA 

and other claims pursuant to the Rooker-Feldman doctrine); Flournoy v. Govt. Nat’l 

Mortgage Ass’n, et. al., No. 15-61985-CIV-GAYLES, 2016 WL 98699 *1, 3-6 (S.D. 

Fla. Jan. 8, 2016) (dismissing with prejudice a pro se plaintiff’s claims for breach of 

contract, specific performance and others because such claims were inextricably 

intertwined with a state court foreclosure judgment and thus, barred by the RookerFeldman doctrine); Paul v. Wells Fargo Bank, N.A., No. 4:12cv305-RS/CAS, 2012 

WL 6628819, *2 (N.D. Fla. Nov. 14, 2012) (dismissing case based on RookerFeldman on grounds that plaintiff “may not seek to overturn a decision of a state 

court” in federal district court); and McKinnon v. Wells Fargo Bank, N.A, No. 6:10-

cv-325-Orl-28DAB, 2010 WL 731801 (M.D. Fla. March 1, 2010) (holding that “[t]o 

the extent Plaintiff asks this court to overturn a state foreclosure judgment, this Court 

lacks subject matter jurisdiction over [the] case”). This Court should reach the same 

result in this case.

First, the state court proceeding (i.e. the Foreclosure Action) has ended for 

purposes of application of the Rooker-Feldman doctrine. “Cases in state court have 

ended: (1) when the highest state court in which review is available has affirmed the 

judgment below and nothing is left to be resolved; (2) if the state action has reached 

a point where neither party seeks further action; and (3) if the state court proceedings 

have finally resolved all of the federal questions in the litigation, but state law or 

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purely factual questions (whether great or small) remain to be litigated.” Velazquez, 

546 Fed. App’x at 857 (internal quotation omitted). Here, the First District Court of 

Appeal for the State of Florida has reviewed and affirmed the Foreclosure Judgment 

See Ex. 1. Thus, the first test is both applicable to and satisfied in this action. See 

Bertram v. U.S. Bank, N.A., No. 8:09-cv-243-T-TBM, 2010 WL 11628839 *8 (M.D. 

Fla. Sept. 30, 2010) (finding borrower’s claims filed in federal court after a 

foreclosure judgment had been affirmed on appeal and the mandate issued were 

barred by the Rooker-Feldman doctrine).

Second, the claims asserted by Plaintiff in this action are inextricably 

intertwined with the Foreclosure Judgment because “the success of the federal claim 

would effectively nullify the state court judgment” and the federal claim “succeeds 

only to the extent that the state wrongly decided the issues.” Springer v. Perryman, 

401 Fed. Appx. 457, 458 (11th Cir. 2007) (setting forth the criteria to determine 

when a federal claim is inextricably intertwined with a state court judgment) 

(internal quotation omitted). As demonstrated by entry of the Foreclosure Judgment, 

Plaintiff is clearly someone who lost in the state court Foreclosure Action. This 

lawsuit is Plaintiff’s last-ditch effort to nullify the effect of that Foreclosure 

Judgment and prevent a foreclosure sale by asking this Court to review some of the 

same issues decided by the state court – namely, whether the Trustee could foreclose 

upon the mortgage signed by Deanna Ible. Plaintiff’s Complaint repeatedly alleges 

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that the Trustee (and the court) committed various wrongs throughout Plaintiff’s 

involvement in the Foreclosure Action, including but not limited to denying that 

Plaintiff possessed standing to assert certain arguments. See e.g. Complaint, at ¶¶ 9-

13, 19-21, 25-26. After asserting such conclusory allegations regarding the Trustee’s 

purported actions in the Foreclosure Action, Plaintiff seeks an award of damages of 

more than $300 million against the Trustee in her prayer for relief. Id. at p. 11. For 

Plaintiff to succeed on her unidentified claims and obtain such damages, this Court 

would have to find that the state court erred in determining that the Foreclosure 

Action could proceed and result in entry of the Foreclosure Judgment. See e.g. Nivia, 

620 Fed. Appx. at 825 (“the homeowners’ claim amounts to an equitable defense to 

foreclosure that they failed to raise before the state court” and thus, “[w]e agree with 

the district court that success on the merits of the FDUTPA claim would require a 

determination that the state court entered the foreclosure judgment ‘wrongly’, i.e. 

that the judgment was legally invalid”). The fact that Plaintiff does not expressly 

ask this Court to overturn the Foreclosure Judgment is of no consequence because 

the damages she seeks would only be available if there were a wrongful foreclosure. 

“Were judgment to be entered in this case in favor of Plaintiff, it would necessarily 

follow that the state court foreclosure was in error and, as a result, this Court cannot 

grant Plaintiff [his] requested relief without disturbing the Florida foreclosure 

judgment.” Zaychick v. Bank of Am., N.A., 146 F. Supp. 3d 1273, 1278 (S.D. Fla. 

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2015) (dismissing claim for violation of section 1024.41 of RESPA as barred by 

Rooker-Feldman regardless of whether plaintiff sought only damages or to overturn 

judgment because “damages would only be available where there was a wrongful 

foreclosure”). 

Lastly, Plaintiff had a reasonable opportunity to raise the issues about which 

she now complains in the Foreclosure Action. See Springer, 401 Fed. Appx. at 458 

(holding that Rooker-Feldman requires that the claims be raised in the state court 

proceeding or that the party have a reasonable opportunity to raise the claims in the 

state court proceeding). Plaintiff appeared in the Foreclosure Action in August 2017, 

filed various motions and responses, filed a purported cross-claim against third 

parties in March 2018, and otherwise participated fully in the Foreclosure Action. 

See Ex. 1. Thus, Plaintiff had a reasonable opportunity in the Foreclosure Action to 

raise the issues that are the subject of the instant action but opted not to do so until 

after entry of the Final Judgment. Accordingly, Plaintiff’s claims are barred by the 

Rooker-Feldman doctrine and must be dismissed with prejudice. 

C. PLAINTIFF’S CLAIMS ARE BARRED BY FLORIDA’S COMPULSORY 

COUNTERCLAIM RULE

Plaintiff may not bring claims for relief in this Court where such claims should 

have been brought (if at all) as counterclaims in the Foreclosure Action. In applying 

the compulsory counterclaim rule, both the Eleventh Circuit and the Florida 

Supreme Court have held counterclaims to be compulsory where there is any logical 

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relation between the claim and the counterclaim. According to the Eleventh Circuit:

A claim has a logical relationship to the original claim if it arises out of 

the same aggregate of operative facts as the original claim in two 

senses: (1) that the same aggregate of operative facts serves as the basis 

for both claims; or (2) that the aggregate core facts upon which the 

original claim rests activates additional legal rights in a party defendant 

that would otherwise remain dormant. 

Montgomery Ward Dev. Corp. v. Juster, 932 F.2d 1378, 1381 (11th Cir 1991); see 

also Londono v. Turkey Creek, Inc., 609 So. 2d 14, 20 (Fla. 1992). 

Here, Plaintiff’s unidentified claim(s) involve allegations that the Foreclosure 

Judgment should not have been entered and no sale should be held because the 

subject note was invalid, a deficiency judgment was not proper,3 alleged evidence 

was ignored, the non-jury trial was not fair, and Plaintiff’s purported defenses did 

not defeat foreclosure. See Complaint at ¶¶ 9, 12-13, 19-23, 26, 32, 35, 39. As a 

result, Plaintiff’s claims involve parties, property, facts and circumstances, and 

security instruments identical to those involved in the Foreclosure Action. 

Accordingly, Plaintiff’s claims arise out of the same transaction or occurrence that 

was the subject matter of the foreclosure and should have been brought (if at all) as 

counterclaims in the Foreclosure Action. See Floridian Community Bank, Inc. v. 

Bloom, 25 So. 3d 43, 45 (Fla. 4th DCA 2009) (holding that mortgagee’s claims 

pertaining to a loan modification agreement were compulsory counterclaims 

 3 Contrary to Plaintiff’s bare allegations, the Foreclosure Judgment does not include 

any deficiency judgment against Plaintiff or any other party. See Ex. 2.

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properly brought in the mortgagor’s foreclosure action). Because Plaintiff did not 

timely assert her claims in response to the complaint and/or amended complaint in 

the Foreclosure Action, she is now barred from proceeding on those claims in this 

action and her Complaint should be dismissed with prejudice. See Montgomery 

Ward Dev. Corp., 932 F.2d at 1380-82; see also Beepot v. J.P. Morgan Chase Nat’l 

Corp. Servs., Inc., 57 F. Supp. 3d 1358, 1370 (M.D. Fla. 2014) (dismissing with 

prejudice claims asserted by a borrower because they were barred by the compulsory 

counterclaim rule).

D. PLAINTIFF’S COMPLAINT FAILS TO COMPLY WITH THE PLEADING 

STANDARDS OF THE FEDERAL RULES OF CIVIL PROCEDURE

Not only is Plaintiff’s Complaint barred by the Rooker-Feldman doctrine and 

the compulsory counterclaim rule, it wholly fails to comply with applicable pleading 

standards. To begin, Federal Rule of Civil Procedure 10(b) requires each claim 

founded on a sAeparate transaction or occurrence to be stated in a separate count if 

doing so would promote clarity. Fed. R. Civ. P. 10(b). Here, Plaintiff’s Complaint 

consists of approximately 41 numbered paragraphs without any identification or 

designation of the purported legal theories under which Plaintiff seeks relief.4 At 

best, Plaintiff’s allegations contain sporadic and seemingly random citations to 

statutes and other laws without stating whether Plaintiff intends to seek relief under 

 4 The Trustee provides an approximation due to errors in numbering contained in 

Plaintiff’s Complaint. 

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those statutes. As a result, it is impossible to determine the purported legal claims 

under which Plaintiff seeks relief and to which Plaintiff’s allegations pertain. Such 

lack of clarity is exactly that which Federal Rule of Civil Procedure 10 is designed 

to prevent.

Moreover, to state a claim under Federal Rule of Civil Procedure 8(a), “a 

complaint must state a plausible claim for relief.” Sinaltrainal v. Coca-Cola Co., 

578 F.3d 1252, 1260-1261 (11th Cir. 2009). A claim has “facial plausibility 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. “The mere 

possibility the defendant acted unlawfully is insufficient to survive a motion to 

dismiss.” Id. “The well-pled allegations must nudge the claim ‘across the line from 

conceivable to plausible’.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 

555 (2007)). Although the court must accept well-pled facts as true, the court is not 

required to accept a plaintiff’s legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937, 

1949 (2009). “In evaluating the sufficiency of a plaintiff’s pleadings,” the court 

makes “reasonable inferences in [a p]laintiff’s favor, ‘but [is] not required to draw 

plaintiff’s inference’.” Sinaltrainal, 578 F.3d at 1260-61. Likewise, unwarranted 

deductions of fact in a complaint are not admitted as true for the purpose of testing 

the sufficiency of plaintiff’s allegations. Id.

While the pleading standard enunciated in Fed. R. Civ. P. 8(a) does not require 

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“detailed factual allegations,” “it demands more than an unadorned, the defendantunlawfully-harmed-me accusation.” Ashcroft, 129 S. Ct. at 1949 (citing Twombly, 

550 U.S. at 555). Plaintiffs cannot merely assert “labels and conclusions” or a 

“formulaic recitation of the elements of a cause of action.” Id. Similarly, a 

complaint will not survive a motion to dismiss if it sets forth “naked assertions 

devoid of further factual enhancement.” Id. (citing Twombly, 550 U.S. at 557). 

Although the Court must afford a litigant proceeding pro se wide leeway in 

pleadings, a pro se litigant must nonetheless satisfy essential burdens. Brown v. 

Crawford, 906 F. 2d 667, 670 (11th Cir. 1990); see also Loren v. Sasser, 309 F. 3d 

1296, 1304 (11th Cir. 2002) (holding that pro se plaintiffs must “conform to 

procedural rules.”) In particular, pro se plaintiffs are not relieved of their obligation 

to allege sufficient facts to support a cognizable legal claim. Id. Indeed, a pro se

litigant “is subject to the relevant law and rules of court, including the Federal Rules 

of Civil Procedure.” Moon v. Newsome, 863 F.3d 835, 837 (11th Cir. 1989), cert. 

denied, 493 U.S. 863 (1989). Plaintiff’s Complaint fails to meet these burdens.

Here, Plaintiff’s purported allegations consist of generic conclusions that the 

“Defendants” lumped together as a whole and/or the Trustee violated the law without 

any facts specific to Plaintiff or identifying how the law was allegedly violated. See 

e.g. Complaint at ¶¶ 1, 8-10, 12, 15, 20, 23, 25, 26, 31, 34, 35-36, 40-41. Plaintiff’s 

Complaint then includes a prayer for relief seeking an award of damages against the 

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Trustee of $4,080,000 for purported “general damages, and future economic losses” 

without citing to any legal basis therefor and an award of $300 million in punitive 

damages “as allowed by 15 U.S. Code §1692k and Fla. Stat. § 768.73(c).” 

Complaint, at p. 11. Plaintiff, however, does not – and cannot – assert a claim for 

relief and damages under the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 

et. seq. (“FDCPA”), or Florida law. Accordingly, Plaintiff’s Complaint must be 

dismissed for failure to comply with the pleading standards of the Federal Rules of 

Civil Procedure. See Transatlantic, LLC v. Humana, Inc., No. 8:13-cv-1925-T17TBM, 2016 WL 7319711 *1, 2-4 (M.D. Fla. Mar. 4, 2016) (dismissing civil RICO 

complaint that set forth legal conclusions couched as factual allegations because it 

failed to comply with Federal Rules of Civil Procedure 8(a) and 9(b)).

E. PLAINTIFF’S COMPLAINT FAILS TO AND CANNOT STATE A CLAIM FOR 

WHICH RELIEF MAY BE GRANTED

Although Plaintiff’s Complaint fails to identify separate counts and legal 

theories under which she purports to state a claim, its prayer for relief seeks an award 

of damages pursuant to the FDCPA and Section 768(1)(c) of the Florida Statutes.

5

 

Plaintiff, however, does not and cannot state a claim for which relief may be granted 

 5 Plaintiff’s Complaint erroneously cites to Fla. Stat. § 768.73(c), which does not 

exist. For purposes of this motion, the Trustee presumes that Plaintiff intended to 

cite to Fla. Stat. § 768.73(1), which is the only section containing a (c) subsection.

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under either of these laws.

i. Plaintiff’s Complaint Does Not and Cannot State a Claim for Relief 

Under the FDCPA

The FDCPA requires Plaintiff to allege that she was the subject of debt 

collection activity by the Trustee. See 15 U.S.C. §1692e (wherein each provision is 

predicated on conduct that is “in connection with the collection of any debt”). See 

also Goodin v. Bank of America, N.A., 114 F. Supp. 3d 1197, 1204 (M.D. Fla. 2015) 

(holding that to successfully state a claim under the FDCPA, a plaintiff must allege 

that: (1) she was the object of debt collection activity arising from consumer debt; 

(2) the defendant is a debt collector as defined by the FDCPA; and (3) the defendant 

engaged in an act or omission prohibited by the FDCPA). Plaintiff’s Complaint does 

not and cannot fulfill this requirement.

Plaintiff’s request for relief under the FDCPA relies solely upon the 

prosecution of the Foreclosure Action as the basis for her purported claim(s). Indeed, 

Plaintiff’s allegations concern documents filed and actions that occurred in the 

Foreclosure Action. As a matter of law, however, “[i]t is well settled that a 

foreclosure action, in and of itself, is not debt collection activity for the purposes of 

the FDCPA or, for that matter, its state law counterpart, the FCCPA.” DeBoskey v. 

SunTrust Mortgage, Inc., No. 8:14- cv-1778-MSS-TGW, 2017 WL 4083557 *1, 4 

(M.D. Fla. Sept. 14, 2017) (citing Warren v. Countrywide Home Loans, Inc., 342 

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Fed. Appx. 458 (11th Cir. 2009)). See also Freire v. Aldridge Connors, LLP, 994 F. 

Supp. 2d 1284, 1287-88 (M.D. Fla. 2014) (“in the Eleventh Circuit, the filing of a 

mortgage foreclosure action will constitute debt collection activity only when the 

complaint seeks also to collect on the note, that is to “demand payment on the 

underlying debt”) (citing Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F. 3d 

1211 (11th Cir. 2012)). Just as the mere filing of the Foreclosure Action does not 

constitute debt collection activity for purposes of the FDCPA, none of the purported 

acts upon which Plaintiff bases her purported claims constitutes such activity. 

Indeed, the acts about which Plaintiff now complains relate solely to the efforts by 

the Trustee to enforce its security interest in the subject property. Accordingly, 

Plaintiff’s Complaint does not and cannot allege that she was the subject of debt 

collection activity and thus, should be dismissed with prejudice. See e.g. Calarese v. 

Bayview Loan Servicing, LLC, No. 17-60747- DIMITROULEAS, 2017 WL 

3267932 *1, 3 (S.D. Fla. Jul. 31, 2017), appeal docketed No. 17-13520 (11th Cir.), 

(dismissing with prejudice claims for violation of the FDCPA premised solely upon 

alleged false representations made as part of a state court foreclosure action); Gillis 

v. Deutsche Bank Trust Co. Americas, No. 2:14-cv-418-FTM-38, 2015 WL 1345309 

*1, 3 (M.D. Fla. Mar. 23, 2015) (“Plaintiff cannot assert violations of the FDCPA 

predicated upon only Defendants' actions in the state-court foreclosure 

proceedings.”); Ausar–El ex rel. Small, Jr. v. Bank of Am. Home Loans Servicing 

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LP, 448 Fed. Appx. 1, 2 (11th Cir. 2011) (“[A]n enforcer of a security interest ... 

falls outside the ambit of the FDCPA for all purposes, except for the purposes of § 

1692f(6).”); Crespo v. Butler & Hosch, P.A., No. 13-60047-CIV, 2014 WL

11531360, at *4 (S.D. Fla. Mar. 21, 2014) (“[C]onduct undertaken with the sole 

purpose of enforcing a security interest does not constitute debt collection activity 

under any part of the FDCPA, with the exception of § 1692f(6).”).

Not only does Plaintiff fail to allege that she was the subject of debt collection 

activity, she wholly fails to allege that the Trustee is a “debt collector” as defined by 

the FDCPA. See e.g. 15 U.S.C. § 1692e, 1692f, 1692g (prohibiting certain activities 

by “debt collectors”); 15 U.S.C. § 1692a(6) (defining a “debt collector”). Because 

Plaintiff does not and cannot allege that the FDCPA applies to the Trustee, the 

Complaint should be dismissed with prejudice. See e.g. Beepot v. J.P. Morgan Chase 

Nat’l Corp. Servs., Inc., 57 F. Supp. 3d 1358 (M.D. Fla. 2014) (finding that plaintiff 

did not adequately allege that defendant was a “debt collector” for purposes of the 

FDCPA).

ii. Plaintiff’s Complaint Does Not and Cannot State a Claim for Punitive 

Damages Under Fla. Stat. § 768.73(1)(c) 

Section 768.73(1)(c) of the Florida Statutes provides that there is no cap on 

an award of punitive damages upon certain determinations by a fact finder, which 

applies to actions for damages in tort or contract. See Fla. Stat. §§ 768.71(1), 

768.73(1)(c) (2020). Plaintiff, however, fails to identify any state law under which 

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she seeks damages – whether in tort or contract – against the Trustee. To the 

contrary, and as set forth above, Plaintiff fails to specifically identify any law under 

which she seeks relief against the Trustee. Even if Plaintiff’s random citations to 

state law in the Complaint could somehow be construed as a claim for relief against 

the Trustee, Florida law prohibits the assertion of a claim for punitive damages 

unless and until there is a “reasonable showing by evidence in the record or proffered 

by the claimant which would provide a reasonable basis for recovery of such 

damages.” Fla. Stat. § 768.72(1). Plaintiff’s Complaint does not and cannot make 

such a showing and should be dismissed with prejudice.

CONCLUSION

Based on the foregoing, this Court should dismiss with prejudice the 

Complaint in its entirety. 

WHEREFORE, Defendant WELLS FARGO BANK, NATIONAL 

ASSOCIATION, AS TRUSTEE FOR CITIGROUP MORTGAGE LOAN TRUST, 

SERIES 2004-OPT1, ASSET BACKED PASS-THROUGH CERTIFICATES, 

SERIES 2004-OPT1, respectfully requests that this Court enter an order dismissing 

with prejudice the Complaint in its entirety and awarding such other and further 

relief as it deems just and appropriate.

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Respectfully submitted,

GREENBERG TRAURIG, P.A.

By: s/ Linda M. Reck

Linda M. Reck, Esq.

Florida Bar No. 669474

450 South Orange Avenue, Suite 650

Orlando, FL 32801

Telephone: (407) 420-1000

Reckl@gtlaw.com 

Culpepperdl@gtlaw.com

FLService@gtlaw.com

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on March 15, 2021, I electronically filed the 

foregoing document with the Clerk of Court using CM/ECF, which will send an 

electronic notification of such filing to Eric A. Krebs, Esq.

(pleadings@warnerlaw.us), Warner Law Firm, P.A., 501 W. 11th Street, Suite A, 

Panama City, FL 32401. I also certify that the foregoing document is being served 

this day on Plaintiff Ishanna Ible, 107 Stuart Cove Rd., Crawfordville, FL 32327, 

Email: ishanna@theible.com, via Registered Email and U.S. Mail.

By: s/ Linda M. Reck

ACTIVE 55921734v1

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