YARRA

v.

ARIAS BOSINGER, PLLC

This cause comes before the Court on Defendant Arias Bosinger, PLLC’s Motion to Dismiss (Doc. 20 (the “Motion”)) and Plaintiff Srinadh Yarra’s response thereto (Doc. 21 (the “Response”)). Upon consideration, the Motion is due to be granted.

I. BACKGROUND1

This case stems from an allegation that the law firm Arias Bosinger, PLLC (the “Defendant”), acting as a debt collector for a condominium association, violated the Fair Debt Collection Practices Act (the “FDCPA”) and the Florida Consumer Collection Practices Act (the “FCCPA”) when it tried to collect payment from Srinadh Yarra (the “Plaintiff”) for monies allegedly owed.

Court dismissed the Original Complaint (Doc. 1) as a shotgun pleading, ordering the Plaintiff to address certain factual gaps upon repleader. (Doc. 18, p. 4). In compliance, Plaintiff filed the First Amended Complaint (Doc. 19 (the “First Amended Complaint”)), asserting multiple 15 U.S.C. § 1692 claims and an additional claim under FLA. STAT. § 559.72(9). (Id. ¶¶ 56–75). Plaintiff alleges that the Defendant engaged in deceptive practices in violation of the FDCPA and FCCPA when the Defendant stated that late fees and interest would be waived but then failed to do so in a subsequent bill statement. (Id. ¶¶ 34–43). The specific counts are as follows:¹) a violation of 15 U.S.C. § 1692; 2) a violation of 15 U.S Code § 1692c(a)(2); 3) a violation of FLA. STAT. § 559.72(9). (Id. ¶¶ 56–75). The Defendant filed the instant Motion to Dismiss (Doc. 20), and Plaintiff replied in opposition. (Doc. 21). As such, this matter is now ripe for review.

II. STANDARD OF REVIEW

A complaint 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). To survive a Rule 12(b)(6) motion to dismiss, the complaint “must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. 2 Accordingly, they are considered “debt collector(s)” under the FDCPA. 15 U.S.C. § 1692a(6). (Id. ¶ 17). Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is considered plausible on its face 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. Legal conclusions and recitation of a claim’s elements are properly disregarded, and courts are “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286 (1986). Courts must also view the complaint in the light most favorable to the plaintiff and must resolve any doubts as to the sufficiency of the complaint in the plaintiff’s favor. Hunnings v. Texaco, Inc., 29 F. 3d 1480, 1484 (11th Cir. 1994) (per curiam). In sum, courts must reject conclusory allegations, bald legal assertions, and formulaic recitations of the elements of a claim; accept well-pled factual allegations as true; and view well-pled allegations in the light most favorable to the plaintiff.

Iqbal, 556 U.S. at 679.

III. DISCUSSION

Defendant raises several arguments: the Court finds one of them to be dispositive in the Defendant’s favor. Specifically, the obligation to pay a sum of money giving rise to Plaintiff’s FDCPA and FCCPA claims is not a “debt” as defined under those acts, so Plaintiff fails to state allege a viable cause of action under either statute.³ On this basis in particular, the Motion to Dismiss will be granted. Importantly, a “debt” under both “the FDCPA and FCCPA appl[ies] only to payment obligations of a (1) consumer arising out of a (2) transaction in which the money, property, insurance, or services at issue are (3) primarily for personal, family, or household purposes.” Oppenheim v. I.C. Sys., Inc., 627 F. 3d 833, 837 (11th Cir. 2010) (emphasis in original). “To this end, courts have consistently required that plaintiffs prosecuting FDCPA claims demonstrate that the underlying property giving rise to the debt relates to personal, family or household purposes; alternatively stated, the debt may not arise from a primarily business purpose.” Williams v. Edelman, No. 05-60653-CIV, 2005 WL 8154686, at *4 (S.D. Fla. Oct.⁶, 2005). When determining whether a property transaction gives rise to consumer debt claims under both the FDCPA and the FCCPA, courts must assess whether the plaintiff’s intent at the time of purchase was for a primarily personal purpose or a business purpose. See Matos v. Bus. L. Grp., P.A., No. 6:18-CV-1105- GAP-DCI, 2022 WL 1422883, at *1 (M.D. Fla. May⁵, 2022) (Presnell, J.); see also In re Cherrett, 873 F. 3d 1060, 1067 (9th Cir. 2017) (“Courts determine the debtor’s purpose as of the time the debt was incurred.”).

First Amended Complaint. (Doc. 19, ¶ 20). Consequently, Defendant argues that this case should be dismissed because condominium assessments and fees that are created in a purely business rental property context do not constitute the kind of “debt” necessary to invoke the FDCPA and FCCPA. (Doc. 20, p. 10). Based on Plaintiff’s pleadings, the Court agrees. Defendant cites the Matos case as authority, which the Court finds instructive. Id. Dealing with the same issue implicated here, the Matos court indicated that “the parties dispute whether, at the time of purchase, [the plaintiff] intended to use the condo unit as a vacation home or as an investment rental property,” explicitly holding that “[t]he resolution of this issue determines whether the assessments on the condo unit are consumer debt within the scope of the

FDCPA and FCCPA, or commercial debt that falls outside the statutory definition.” Id. Carefully distinguishing the Eleventh Circuit’s general holding that condominium assessments can qualify as a “debt” if they arose from a consumer transaction, the Matos court concluded that, at the time of purchase, the buyer more likely than not “intended to use the apartment as an investment rental property.” Id. at *3.4 5 As a result, the Court found that “the associated obligation to pay condominium assessments was not for a consumer purpose.” Id. Here, the facts are even clearer: Plaintiff pled unequivocally that he purchased this property with the intent that it would be used as a rental rather than for his own consumer use. (Doc. 19, ¶ 20). Nothing in the pleadings indicates that Plaintiff ever used or planned to use the property at issue even partially in a personal way. The Court thus does not view the plaintiff’s financial obligation with respect to this property as a “debt” that could implicate the FDCPA or FCCPA. In support of his argument that the transaction at hand was primarily for personal purposes, Plaintiff relies on Glawe v. Carpenter, Hazlewood, Delgado & Bolen PLC, 859 Fed. App’x. 102 (9th Cir. 2021). However, Plaintiff’s invocation of this case hinders rather than helps his claim. In Glawe, the Ninth Circuit remanded a district court’s summary judgment precisely because it found that there was a

Plaintiff’s intention at the time of purchase based on his own pleadings was that the condominium be used for business or commercial purposes. (Id. at 3–4). The Plaintiff’s intent at the time of purchase in this case is thus distinguishable from that of the Glawe plaintiffs, who originally intended at the time of purchase to use their property for a personal, consumer purpose. Glawe, 859 Fed. App’x. at 103. That is all that matters.⁶ Accordingly, Plaintiff’s remaining arguments are

IV. CONCLUSION

Accordingly, it is ORDERED AND ADJUDGED as follows: 1. Defendant’s Motion to Dismiss (Doc. 29) is GRANTED;

2. The First Amended Complaint is DISMISSED WITH

PREJUDICE;® and

3. The Clerk of Court is DIRECTED to close the file.

DONE AND ORDERED in Orlando, Florida on September 21, 2022.

ce /

PAUL G.

UNITED STATES®@ISTRICT JUDGE Copies furnished to:

Counsel of Record Unrepresented Parties