Eugenia G. Hasbun v. Recontrust Company, N.A., No. 11-15214 (11th Cir. 2013)
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Case: 11-15214 Date Filed: 02/13/2013 Page: 1 of 3 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ___________________________ No. 11-15214 Non-Argument Calendar __________________________ D. C. Docket No. 0:11-cv-60488-WPD EUGENIA G. HASBUN, Plaintiff-Appellant, versus RECONTRUST COMPANY, N.A., Defendant-Appellee. __________________________ Appeal from the United States District Court for the Southern District of Florida __________________________ (February 13, 2013) Before TJOFLAT, MARTIN and FAY, Circuit Judges. PER CURIAM: Case: 11-15214 Date Filed: 02/13/2013 Page: 2 of 3 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 Recontrust Company ( RC ) as substitute trustee. On March 11, 2010, RC sent Hasbun a foreclosure letter, entitled Notice of Acceleration and Foreclosure, which notified her that her promissory note was in default, that RC had been asked to institute foreclosure proceedings against the property, and that the notice was not intended as a demand for the balance due on the promissory note when she defaulted payment. Based on her receipt of this letter, Hasbun brought this lawsuit seeking damages against RC for its alleged violation of the Fair Debt Collection Practices Act ( FDCPA ), 15 U.S.C. § § 1692(e), 1692(f)(1). RC moved to dismiss Hasbun s complaint for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). The court granted its motion. After her first and second amended complaints failed to state a claim, the court dismissed her case with prejudice. Hasbun appeals the dismissal. We affirm. The FDCPA expressly excludes from the term debt collector any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent such activity (i) is incidental to a bona fide fiduciary 2 Case: 11-15214 Date Filed: 02/13/2013 Page: 3 of 3 obligation or a bona fide escrow arrangement. 15 U.S.C. § 1692(a)(F). In short, creditors and their fiduciaries are not debt collectors subject to the Act. The District Court properly dismissed Hasbun s second amended complaint for two reasons. First, RC, as fiduciary of the creditor to whom the debt was owed, was not a debt collector under the Act. And second, the March 11, 2011 letter explicitly informed Hasbun that RC was not demanding payment of a debt; instead, it was notifying her that the property was being foreclosed. AFFIRMED. 1 1 We stayed brief in this appeal at Hasbun s request pending the issuance of our mandate in Reese v. Ellis, Painter, Ratterbee & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012). Reese is, as it turns out, inapposite. 3
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