Milam v. Mortellaro et al

FLAVIO MILAM,
Plaintiff,
vs.
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
CIVIL ACTION NO . 4:25-CV-03904
CHRISTOPHER MORTELLARO, et al. ,
Def endants.
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ORDER
Pending before this Court are Defendants Leigh Al !en (" Allen") and Rise Association Management
Group, LLC 's ("Rise Management") Motion to Dismiss (Doc. No. 7), Plaintiff Flavio Mi lam's ("Milam ")
Motion to Substitute Service (Doc. No. 13), Defendant Christopher Mortellaro's ("Mortellaro") Motion to
Dismiss (Doc. No. 18), Mi lam's Motion for Entry of Default (Doc. No . 19), Milam 's Motion to Substitute
Service (Doc. No. 20), and Defendants Allen and Rise Management's Motion for Protective Order (Doc.
No. 25) . The Court is also in receipt of all responses and replies. (Doc. No s. 9, 11, 21, 22, 26- 28). Upon
close consideration of the pleadings and relevant legal standards, the Court GRANTS-IN-PART and
DENIES-IN-PART Defendants Allen and Rise Management's Motion to Dismiss (Doc . No. 7) and
GRANTS-IN-PART and DENIES-IN-PART Defendant Mortellaro's Motion to Dismiss (Doc. No . 18).
I. 	Factual Background
This case arises from alleged debt collection violations. Plaintiff Flavio Milam ("Milam") was a
residential tenant in an apartment building located in Houston, Texas. (Doc. No. 6 at 3). In July 2025 , Milam
began to experience financial hardship and was unable to pay his rent. (Id.). On July 3, 2025 , his rent
became overdue, and his account with the apartment building was placed in default. (Id.). While his account
was in default, Milam allegedly received a " barrage of late-night and daytime communications designed to
pressure and intimidate [him] into making a rent payment" from his landlord, Defendant Christopher
Mortellaro (" Mortellaro"). (Id.). Milam also alleges that he received a call from "an individual claiming to
United States District Court
Southern District of Texas
ENTERED
March 31, 2026
Nathan Ochsner, Clerk
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be Mortellaro's attorney," where the individual stated, " it can get bad [for you]." (Id. at 3-4). Milam alleges
that this individual was Defendant James Rubin of Defendant Rubin & Rolong PLLC . (Id.). Milam
allegedly continued to receive threatening and demanding messages and calls from Mortellaro and his
alleged attorney, and Milam alleges that the "frequency, timing, and multi-platform nature of these
communications ... show[ed] a concerted effort to harass, threaten, and coerce payment under the guise of
legal enforcement." (Id. at 4).
Milam also alleges that the management company of the apartment building, Defendant Rise
Association Management Group, LLC ("Rise Management"), was involved in the concerted effort to
demand his rent payment. He alleges that the general manager of the building and employee of Rise
Management, Defendant Leigh Allen ("Allen"), emailed him that she would be entering his apartment to
post an eviction notice. (Id.). Milam alleges that the entry " was made at the landlord 's instruction, without
a court order, and without Plaintiff's voluntary consent." (Id. at 5). Moreover, Milam alleges that the notice
placed inside of his door " bore the heading ' The State of Texas, County of Harris ,' creating the false
impression that it was issued or authorized by a governmental entity when it was in fact a private landlord
demand. " (Id.). After Allen allegedly posted the notice, Milam alleges that multiple " keys" were removed
from the on line security system that prevented his access and "coordinated to surveil , intimidate, and build
a false pretext for abandonment." (Id. at 5-6).
On August 18, 2025 , Milam filed his Original Complaint in this Court. (Doc. No. 1). Milam brought
causes of action against Defendants Mortellaro, Allen, Rise Management, James Rubin, and Rubin &
Rolong PLLC for alleged violations of the Fair Debt Collection Practices Act ("FDCPA"), Texas Debt
Collection Act ("TDCA"), and the Texas Property Code. Milam has not yet effectuated process of service
on James Rubin or Rubin & Rolong PLLC, and he requests this Court to permit substituted service.
Defendants Mortellaro, Allen, and Rise Management have filed Motions to Dismiss the claims filed against
them . The Court addresses the pending Motions below.
II. 	Analysis
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Milam al leges that the Defendants have violated the FDCPA, TDCA, and the Texas Property Code.
Defendants A ll en, Rise Management, and Mortellaro have filed Motions to Dismiss the pending causes of
action filed against them. (Doc. Nos. 7, 18). While Defendants James Rubin and Rubin & Rolong PLLC
have not been served pursuant to the Federal Rules of Civil Procedure or have otherwise appeared in this
lawsuit, Milam requests this Court to authorize substituted service. (Doc. No . 13). This Court considers the
pending Motions below.
A. 	Defendants Allen and Rise Management
Milam alleges that Rise Management and Allen, individually, and as an agent of Rise Management,
violated the FOCPA, TOCA, and the Texas Property Code throughout the eviction process. Rise
Management and Allen argue that Milam has failed to state a claim under Federal Rule of Civil Procedure
12(b)(6) for these causes of action because ( 1) neither Rise Management nor Allen can be considered "debt
collectors" under the FOCPA or the TOCA, and (2) Milam was never denied access to his apartment under
Texas Property Code § 92.0081.
A defendant may fi le a motion to dismiss a complaint for "failure to state a claim upon which relief
may be granted." FED . R. Crv. P. 12(6)(6). To defeat a motion to dismiss under Rule 12(6)(6), a plaintiff
must plead "enough facts to state a claim to relief that is plausible on its face." Bell At!. Corp. v. Twombly,
550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factua l content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."
Ashcroft v. Iqbal, 556 U. S. 662, 663 (2009) (citing Twombly, 550 U.S. at 556). "The plausibility standard
is not akin to a 'probability requirement ,' but it asks for more than a sheer possibility that a defendant has
acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely
consistent with' a defendant's liability, it ' stops short of the lin e between possibility and plausibility of
entitlement to relief. " ' Id. (quoting Twombly, 550 U.S. at 557). In reviewing a Rule 12(b)(6) motion, the
court must accept all well-p leaded facts in the complaint as true and view them in the li ght most favorable
to the plaintiff. Sonnier v. State Farm Mut. Auto. Ins. Co., 509 F.3d 673 , 675 (5th Cir. 2007). The Court is
not bound to accept factual assumptions or legal conc lu sions as true, and on ly a comp laint that states a
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plausible claim for relief survives a motion to dismiss. Iqbal, 556 U.S. at 678- 79. When there are well-
pleaded factual allegations, the court assumes their veracity and then determines whether they plausibly
give rise to an entitlement to relief. Id.
First, the Court addresses whether Rise Management and Allen fall under the statutory definitions
of "debt collectors" under the FDCPA and the TDCA. To state a claim under both the FDCPA and the
TDCA, the plaintiff must sufficiently allege that the defendant is a "debt collector" as defined by the statute.
Akintunji v. Chase Home Financ e, L.L.C. , No . H-11-389, 2011 WL 2470709, at *2 (S.D. Tex. June 20,
2011); Cash v. HSBC Bank USA , N. A., No. 4:21-CV-3404, 2024 WL 3378421 , at *8 (S.D. Tex. July 11 ,
2024). The FDCPA defines a debt collector as "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 who
regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed to
due another." 15 U.S.C. § 1692a. Section l 692a(6)(F) specifically excludes from the definition of 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 obligation or a bona fide escrow
arrangement; (ii) concerns a debt which was originated by such person; (iii) concerns a debt which was not
in default at the time it was obtained by such person; or (iv) concerns a debt obtained by such person as a
secured party in a commercial credit transaction involving the creditor." The TDCA adopts the definition
of debt collector contained in the FDCPA. See Tex. Fin . Code § 392.001(6) (citing 15 U.S.C. § 1692a(6)).
The Complaint alleges that Allen and Rise Management are both considered debt collectors under
the FDCPA and the TDCA because they " regularly collect[], and in this instance attempted to collect, a
residential rent debt already in default owed to another." (Doc. No. 6 at 7). While the Complaint alleges
this conclusory iteration of the definition provided in the statutes, Milam does not allege any specific facts
that Allen or Rise Management are in the business with the " principal purpose of which is the collection of
any debts" or that the Defendants " regularly collect[] or attempt[] to collect" any debts from the building
residents. See 15 U .S.C. § 1692a. While the Complaint includes allegations that Allen entered the unit to
post the eviction notice and disabled Mi lam 's electronic access to certain parts of the building, Milam also
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never alleges that Allen or Rise Management actually attempted to collect any debt through any
communications. The Court notes that while the facts are yet to be developed in this case, the Fifth Circuit
has held that property management companies, like Rise Management, are not subject to the FDCPA when
the collection of payments is "incidental to its fiduciary obligation" to the property owners. See Raburn v.
Community Management, L.L.C. , 761 Fed. App ' x 263 , 266 (5th Cir.2019) (" [T]his holding aligns with one
sister court and numerous district courts that have held that property management companies are not debt
collectors because of the fiduciary obligation."). With direction from the Fifth Circuit and without any
factual allegations that Allen or Rise Management meet the definition of debt collectors under the statutes
or actually attempt to collect a debt, the Court finds that Milam has failed to state a claim for violations
under the FDCPA or TDCA. The FDCPA and TDCA claims against Allen and Rise Management are
dismissed.
Second, Milam alleges that Allen and Rise Management violated Texas Property Code § 92 .0081
when "Defendants unlawfully restricted Plaintiff's access to the leased premises by disabling the electronic
key fob necessary to enter the building and access the elevator to his floor." (Doc . No. 7 at 16). Further,
Milam alleges that " [a]lthough the lock on Plaintiff's individual unit door was not changed, Defendants '
disabling of Plaintiff's key fob effectively excluded him from the premises by preventing him from entering
the secure building entrance and accessing the elevator required to reach his apartment." (Id.). Section
92.0081 (b) states that " [a] landlord may not intentionally prevent a tenant from entering the leased premises
except by judicial process unless the exclusion results from .. . changing the door locks on the door to the
tenant's individual unit of a tenant who is delinquent in paying at least part of the rent." The Code also
provides that " [a] landlord who changes the locks or otherwise prevents a tenant from entering the tenant's
individual rental unit may not change the locks or otherwise prevent a tenant from entering a common area
ofresidential property." Tex. Prop. Code§ 92.0081(e-1).
Allen and Rise Management argue that because Milam admits that the locks on his individual door
were not changed, Milam has failed to state a claim under the Texas Property Code . While the locks on the
individual unit were not changed, Milam alleges that Allen and Rise Management terminated his electronic
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access to the entrance of the building, common areas, and the elevator, and without access to those doors,
he was "effectively excluded" from his apartment. This is the same factual scenario contemplated by §
92 .008 l(e-1). See id. (allowing courts to consider landlords that "otherwise prevent[] a tenant from entering
the tenant's individual rental unit"). Accepting all well-pleaded factual allegations as true, the Court finds
that the allegation that Allen and Rise Management removed his access to the building is sufficient to state
a plausible claim for the violation of§ 91 .008 l.
B. 	Defendant Mortellaro
Milam also alleges that his landlord, Mortellaro, violated the FDCPA, TDCA, and the Texas
Property Code. As a preliminary matter, Mortellaro requests this Court to dismiss the claims under Federal
Rules of Civil Procedure 12(b)(4) and 12(b)(5) for improper service. 1 Rule 12(b)(5) permits a named
defendant to challenge proper service of the summons and complaint in a case. The party making service
has the burden of demonstrating its validity when an objection to service is made. Carimi v. Royal
Caribbean Cruise Line, Inc., 959 F.2d 1344, 1346 (5th Cir. 1992). A district court has broad discretion to
dismiss an action pursuant to Rule 12(b)(5) for insufficient service of process. Kreimerman v. Casa
Veerkamp, SA. de C. V, 22 F.3d 634, 645 (5th Cir. 1994).
Mortellaro argues that the service of process was insufficient because he has permanently resided
in Spain since May 2020. (Doc. No. 18-1). While Milam initially represented to the Court that Mortellaro
was served in Wesley Chapel, Florida, see (Doc. No. l 0), by a process server, Mortellaro states in his sworn
declaration that he has never lived in Florida and that he has "never been personally served with a summons
or a copy of the Complaint." (Doc. No. 18-1). Mortellaro contends that he does not waive his right "to be
personally served" and asserts this right in the Motion to Dismiss. (Id.).
In response, Milam concedes that he has not effectuated service in Spain and requests the Court to
authorize substituted service. (Doc. No. 20). Under Federal Rule of Civil Procedure 4(f), an individual
1 After Mortellaro filed his Motion to Dismiss (Doc. No. 18), Milam requested the Court to enter default
against Mortellaro. (Doc. No. 19). Given that Mortellaro has appeared in this litigation, this request (Doc.
No . 19) is DENIED.
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residing out of any judicial district of the United States may be served "by any internationally agreed means
of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention
on the Service Abroad of Judicial and Extrajudicial Documents" (the "Hague Convention") . Spain is a party
to the Hague Convention. See O 'Donnell v. Diaz, No. 3: I 7-CV-1922, 2018 WL 7048073, at *2 (N.D. Tex.
Dec. 21 , 2018). Mi lam agrees that Mortellaro has not been served with this lawsuit pursuant to the Federal
Rules of Civil Procedure or the Hague Convention .
In support of his Motion for Alternative Service, Milam contends that "Defendant has refused to
disclose any address in Spain necessary to effect service through the Hague Convention" and requests this
Court to order Mortellaro to produce his address in Spain. (Doc. No. 20 at 1). Nevertheless, "[a]bsent proper
service of process, the Court lacks jurisdiction over" Mortellaro. Medina v. RCL Servs. , Inc. , No . 2:21-CV-
00279, 2022 WL 22607146, at * I (S.D. Tex. Mar. 4, 2022). While the Corni cannot order Mortellaro to
provide information to Milam, the Court does grant leave for Milam to properly effectuate service on
Mortellaro in accordance with the Federal Rules of Civil Procedure by July 6, 2026. Mortellaro's Motion
to Dismiss (Doc. No . 18) is GRANTED-IN-PART and DENIED-IN-PART. Milam's Request for
Alternative Service (Doc. No . 20) is denied without prejudice. After diligent efforts to effect service on
Mortellaro in Spain, Milam may reraise this Motion, if he so chooses, in accordance with the Federal Rules
of Civil Procedure and Texas Rules of Civil Procedure.
C. 	Defendants James Rubin and Rubin & Rolong PLLC
Lastly, Milam requests this Court to authorize substituted service on Defendants James Rubin and
Rubin & Rolong PLLC under Texas Rule of Civil Procedure 106(b). Under Rule I 06(b), " [u]pon motion
supported by a statement- 	sworn to before a notary or made under penalty of perjury- 	listing any location
where the defendant can probably be found and stating specifically the facts showing that service has been
attempted . . . at the location named in the statement but has not been successful, the court may authorize
service" by either " leaving a copy of the citation and of the petition with anyone older than sixteen at the
location specified in the statement" or "in any other manner, including electronically by social media, email ,
or other technology, that the statement or other evidence shows will be reasonably effective to give the
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defendant notice of the suit." In support of the Motion, Milam provided an Affidavit of Non-Service
prepared by a certified process service. (Doc. No. 13 at 9). The Affidavit, which was executed under the
penalty of perjury in accordance with Rule 106(b), out lin es five unsuccessful attempts to service James
Rubin and/or his law firm. (Id.) . One of the unsuccessful attempts occurred after the process server reached
Rubin via telephone and arranged a meetup at the co urthouse. (Id.) . When the process server arrived, Rubin
" informed [him] hi s case was handled and he was not at the courthouse." (Id.).
Consider in g Milam 's compliance with the Texas Rules of Civi l Procedure and the five un successful
attempts to serve James Rubin and Rubin & Rolong PLLC, the Court hereby GRANTS Milam 's Motion
for Substituted Service (Doc. No. 13) and ORDERS Mi lam to execute the substituted service by May 5,
2026 through posting the required documents and a copy of this order to the front door of Rubin & Ro long
PLLC at its principal place of business at 25814 Budde Road , Suite B-307, Spring, Texas 77380 and at the
residence of its registered agent for service of process, at the residence of James Rubin, at 2019 Washington
Avenue, Suite 202, Houston, Texas 77007, and by emai ling the required documents and a copy of this order
to rubinrolong@ rrlawtx.com .
III. 	Conclusion
For the fo regoing reasons, the Court hereby GRANTS-IN-PART and DENIES-IN-PART
Defendants Allen and Rise Management's Motion to Dismiss (Doc. No. 7). The FDCPA and TDCA claims
against Allen and Rise Management are dismi ssed with prejudice. The Texas Property Code claim aga inst
Allen and Rise Management remains li ve. Defendants A ll en and Rise Management's Motion for Protective
Order (Doc. No. 25) is denied as moot. The Court GRANTS-IN-PART and DENIES-IN-PART Defendant
Mortellaro's Motion to Dismiss (Doc. No. 18). The Court finds that Mi lam has not served Mortellaro in
accordance with the Federal Rules of Civil Procedur e. The Court DENIES Mi lam 's Request for Alternative
Service (Doc. No. 20) without prejudice. Milam is ORDERED to serve Morte ll aro in accordance with the
Federal Rules of Civ il Procedure by July 6, 2026. If Milam fails to serve Morte ll aro or request further
intervention from this Court by that date, the claims against Mortellaro wi ll be dismissed without prejudice.
M il am's Motion for Entry of Default (Doc. No. 19) is denied. Lastly, the Court GRANTS Milam 's Motion
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for Substituted Service (Doc. No. 13). Milam is ORDERED to execute the substituted service by May 5,
2026 through posting the required documents to the front door of Rubin & Ro long PLLC at its principal
place of business at 25814 Budde Road, Suite B-307, Spring, Texas 77380 and at the residence of its
registered agent for service of process, at the residence of James Rubin, at 2019 Washington Avenue, Suite
202, Houston, Texas 77007, and by emailing the required documents and a copy of this order to
rubinrolong@rrlawtx.com .
It is so ordered.
<:>--+-
Signed on this the~ day of March 2026.
fxb\k_Andrew S. Hanen
United States District Judge
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