          Case: 16-17585     Date Filed: 08/17/2017   Page: 1 of 6


                                                         [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 16-17585
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:16-cv-20610-RNS


SHIRLEY SOLIS,

                                                            Plaintiff-Appellant,

                                   versus


CITIMORTGAGE, INC.,
ROBERTSON, ANSCHUTZ & SCHNEID, P.L.,
AMY SUMACEWSKI,
ZACHARY W. SMITH,
BETZY FALGAS, et al.,

                                                         Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                              (August 17, 2017)
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Before TJOFLAT, WILLIAM PRYOR, and MARTIN, Circuit Judges.

PER CURIAM:

       Shirley Solis (“Solis”) appeals pro se the district court’s dismissal of her

claims against CitiMortgage, Inc. (“Citi”); the law firm Robertson, Anschutz &

Schneid, P.L. (“RAS”); and the law firm Shapiro, Fishman & Gaché (“SFG”). 1

After careful review, we affirm.

                                              I.

       In June 2000, Grace Solis (“Grace”) took out a purchase money mortgage to

buy a piece of real estate in Miami-Dade County. Three years later, Grace

transferred title to the property to herself, Solis, and Sylvia Solis (“Sylvia”). Grace

then refinanced the property with Allstate Mortgage and Investments and executed

a note and mortgage in favor of Allstate. Neither Solis nor Sylvia executed the

note or mortgage. In 2003, Allstate assigned the mortgage to Citi.

       In 2011, Grace stopped making payments on the mortgage. After two years

of nonpayment, Citi filed a foreclosure action in Florida state court. Citi’s

complaint named Solis as a defendant in the action because she was an owner of

the mortgaged property, but acknowledged that only Grace signed the note and

thus only she could be held liable for the debt. Citi was represented by SFG from

the time the foreclosure action was filed until October 2014 when RAS began

       1
         Solis also named individual attorneys at both RAS and SFG as defendants. For
simplicity, we will refer only to the firm names, RAS and SFG.
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representing Citi. As far as the record indicates, the foreclosure action is still

pending in state court.

            In February 2016, Solis filed this suit pro se against Citi, RAS, and SFG.

Solis alleged violations of the Fair Debt Collection Practices Act (“FDCPA”), 15

U.S.C. § 1692, and the Florida Consumer Collections Practices Act (“FCCPA”),

Fla. Stat. § 559.72(5), (9). She claimed the defendants violated these statutes by

filing the state foreclosure action against her when they knew, or should have

known, that she did not sign the note and therefore “did not grant [Citi] a security

interest” in the property.

           The defendants moved to dismiss Solis’s complaint for failure to state a

claim under Federal Rule of Civil Procedure 12(b)(6). The district court granted

the defendants’ motions. The court dismissed Solis’s FDCPA claim because her

complaint failed to allege the defendants were “debt collectors” within the meaning

of the FDCPA. The court dismissed her FCCPA claim because it was barred by

Florida’s litigation privilege. 2 Solis timely appealed.

                                                II.

       “We review de novo the district court’s grant of a motion to dismiss under

Rule 12(b)(6) for failure to state a claim, accepting the allegations in the complaint


       2
          The district court found Solis’s claims were also deficient for other reasons. Because
we affirm the dismissal on the two grounds stated here, we do not discuss the district court’s
alternative grounds for dismissal.
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as true and construing them in the light most favorable to the plaintiff.” Castro v.

Sec’y of Homeland Sec., 472 F.3d 1334, 1336 (11th Cir. 2006) (per curiam)

(quotation omitted and alteration adopted). We construe pro se pleadings liberally.

See Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998) (per

curiam).

                                          A.

      The district court found Solis failed to state a claim under the FDCPA

because she did not adequately allege that the defendants were “debt collectors” as

defined under that statute. We agree.

      The FDCPA defines “debt collector” as “[1] any person who uses any

instrumentality of interstate commerce or the mails in any business the principal

purpose of which is the collection of any debts, or [2] who regularly collects or

attempts to collect, directly or indirectly, debts owed or due or asserted to be owed

or due another.” 15 U.S.C. § 1692a(6); see also Reese v. Ellis, Painter, Ratterree

& Adams, LLP, 678 F.3d 1211, 1218 (11th Cir. 2012) (“[A] party can qualify as a

‘debt collector’ either by using an ‘instrumentality of interstate commerce or the

mails’ in operating a business that has the principal purpose of collecting debts or

by ‘regularly’ attempting to collect debts.”). The statute also specifies several

categories that are excluded from this definition, including “any person collecting

or attempting to collect any debt . . . which was not in default at the time it was


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obtained by such person.” Id. § 1692a(6)(F)(iii). In other words, an entity that

seeks to collect a debt that was not in default when the entity acquired it does not

qualify as a debt collector for purposes of the FDCPA. Id.; Davidson v. Capital

One Bank (USA), N.A., 797 F.3d 1309, 1314 (11th Cir. 2015).

      Solis’s complaint fails to establish that the defendants meet the FDCPA’s

definition of “debt collector.” Although she stated that the “[d]efendants are debt

collectors as defined under the . . . FDCPA,” she provided no factual allegations to

support this assertion. Cf. Reese, 678 F.3d at 1218 (“The complaint [must]

contain[] enough factual content to allow a reasonable inference that the

[defendant] is a ‘debt collector’. . . .”). More specifically, she did not plead facts to

allow a reasonable inference that either the “principal purpose” of the defendants’

business is debt collection or that they “regularly” engaged in debt collection. See

15 U.S.C. § 1692a(6). Further, with respect to Citi, Solis alleged that it acquired

the debt in 2003, more than seven years before the debt went into default. Because

the debt was not in default when Citi acquired it, Citi cannot qualify as a debt

collector. See id. § 1692a(6)(F)(iii).

                                           B.

      Turning to Solis’s FCCPA claim, the district court found that claim must be

dismissed because it is barred by Florida’s litigation privilege. We affirm that

decision.


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      Under Florida law, absolute immunity attaches to “any act occurring during

the course of a judicial proceeding, . . . so long as the act has some relation to the

proceeding.” See Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A.

v. U.S. Fire Ins. Co., 639 So. 2d 606, 608 (Fla. 1994); see also Jackson v.

BellSouth Telecommunications, 372 F.3d 1250, 1274–75 (11th Cir. 2004)

(“Because we are Erie-bound to apply Florida law in evaluating the plaintiffs’

supplemental state-law claims, Florida’s litigation privilege applies to [] state-law

claims adjudicated in federal court.”). The privilege applies to statutory violations,

including violations of the FCCPA. See Echevarria, McCalla, Raymer, Barrett &

Frappier v. Cole, 950 So. 2d 380, 383–84 (Fla. 2007).

      Solis’s FCCPA claim is based entirely on the defendants’ filing of a state

foreclosure action against her. This is clearly an act with “some relation to” a

“judicial proceeding.” Levin, 639 So. 2d at 608. Therefore, as the district court

found, Solis’s claim is barred by Florida’s litigation privilege.

      AFFIRMED.




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