Nidia Merrill v. Dyck-O'Neal,Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 13, 2018
• Docket: 18-10456
• Status: Unpublished

Opinion

Case: 18-10456 Date Filed: 08/13/2018 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-10456 Non-Argument Calendar ________________________

D.C. Docket No. 2:15-cv-00232-PAM-MRM

NIDIA MERRILL,

Plaintiff-Appellant,

versus

DYCK-O’NEAL, INC.,

Defendant-Appellee.

________________________

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

(August 13, 2018)

Before NEWSOM, BRANCH, and FAY, Circuit Judges.

PER CURIAM: Case: 18-10456 Date Filed: 08/13/2018 Page: 2 of 10

Nidia Merrill appeals from the district court’s order of summary judgment in

favor of Dyck-O’Neal, Inc. on Merrill’s claims under the Fair Debt Collection

Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., and the Florida Consumer

Collections Protection Act (FCCPA), Fla. Stat. § 559.55, et seq. Specifically,

Merrill argues that Dyck-O’Neal is liable (1) under both the FDCPA and the

FCCPA for failing to comply with Fla. Stat. § 559.715, and (2) separately, under

the FDCPA for misrepresenting the timeframe in which it would pursue collection

action on Merrill’s debt. We AFFIRM the district court’s order granting summary

judgment in favor of Dyck-O’Neal.

I

This case arises from Merrill’s default on a mortgage debt owed to Chase

Home Finance, LLC. Chase filed an action to foreclose the mortgage, a final

judgment of foreclosure was entered in Chase’s favor, and the home was sold at a

foreclosure sale. The foreclosure sale resulted in a deficiency balance that Dyck-

O’Neal ultimately purchased from Chase.

On May 22, 2014, Dyck-O’Neal sent Merrill a letter informing her that it

had been assigned the debt. The letter stated that the notice was not an attempt to

collect a debt but was being sent in compliance with Fla. Stat.

§ 559.715. The letter stated that “[n]o collection efforts will occur on this account

for at least 30 days from the date of this notice.”

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On June 18, 2014, only 26 days later, Dyck-O’Neal authorized and directed

its counsel, the Law Offices of Daniel C. Consuegra, P.A., to send Merrill a second

letter which in relevant part stated as follows: “THIS NOTICE IS A

COMMUNICATION FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT

TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE

USED FOR THAT PURPOSE.”

Having received the second letter less than 30 days after the first, Merrill

filed this action, asserting that the collection conduct made her fearful and caused

her to seek bankruptcy protection. In her complaint, Merrill alleged violation of

the FDCPA (Count I1) and the FCCPA (Count II). The district court granted

summary judgment for Dyck-O’Neal. The district court dismissed Count II,

holding that “there is no private right of action under the FCCPA.” The district

court also held that Count I failed because the FDCPA claim “hinge[d] on whether

Florida Statute § 559.715 creates a condition precedent to collecting a debt,” which

the district court held it did not.

Merrill timely appealed. We review the district court’s grant of summary

judgment de novo. Broadcast Music, Inc. v. Evie’s Tavern Ellenton, Inc., 772 F.3d

1254, 1257 (11th Cir. 2014). 1 The parties agree that Count I of Merrill’s complaint alleges a violation of the FDCPA for failure to comply with Fla. Stat. § 559.715. However, the parties disagree over whether Count I of the complaint also alleges that Dyck-O’Neal violated the FDCPA by misrepresenting in the May 22 letter that no collection efforts would occur for at least 30 days in light of the fact that the June 18 letter attempted collection only 26 days later. See infra at 2. 3 Case: 18-10456 Date Filed: 08/13/2018 Page: 4 of 10

II

This appeal presents three issues for our consideration: (1) whether

compliance with the 30-day timeframe in Fla. Stat. §559.715 is a condition

precedent to collection of a debt such that Dyck-O’Neal’s failure to comply gives

rise to liability under the FDCPA; (2) whether Dyck-O’Neal’s failure to comply

with the 30-day timeframe outlined in Fla. Stat. § 559.715 provides Merrill with a

private right of action under the FCCPA; and (3) whether Dyck-O’Neal’s two

letters, taken together, amount to a misrepresentation that gives rise to liability

under the FDCPA. We address each issue in turn.

A

Merrill’s FDCPA claim premised on violation of the 30-day timeframe in

Fla. Stat. § 559.715 hinges on an argument that § 559.715 creates a condition

precedent to the collection of a debt. The district court held that § 559.715 does

not create a condition precedent. We agree.

Section 559.715 states that an “assignee [of consumer debt] must give the

debtor written notice of such assignment as soon as practical after the assignment

is made, but at least 30 days before any action to collect the debt.” Although

§ 559.715 uses mandatory language, reviewing courts have held that the statute

does not create a condition precedent to debt collection.

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The issue of whether Fla. Stat. § 559.715 creates a condition precedent to

collecting a debt in the mortgage-foreclosure context was addressed and decided in

two Florida Courts of Appeals in 2016. See Brindise v. U.S. Bank Nat’l Ass’n, 183

So.3d 1215 (Fla. 2d DCA 2016); Bank of Am., N.A. v. Siefker, 201 So.3d 811 (Fla.

4th DCA 2016). “In both cases, the Florida courts held that § 559.715’s notice

requirement is not a condition precedent to a mortgage foreclosure.” Wright v.

Dyck-O’Neal, Inc., 237 F. Supp. 3d 1218, 1221 (M.D. Fla. 2017). The Brindise

and Siefker courts followed the same rationale, reasoning that the Florida

Legislature had explicitly conditioned the filing of other kinds of lawsuits on a

prior occurrence—e.g., in the contexts of statutes for libel and slander actions,

medical malpractice suits, and condominium-related suits—but had not similarly

created a condition precedent in § 559.715. Brindise, 183 So.3d at 1219; Siefker,

201 So.3d at 816. Both Brindise and Siefker held that “[b]ecause the Legislature

declined to be more specific when enacting section 559.715, we will not expand

the statute to include language the Legislature did not enact.” Siefker, 201 So.3d at

816 (quoting Brindise, 183 So.3d at 1219).

The Brindise and Siefker decisions have been followed by other courts

considering the question whether § 559.715 creates a condition precedent to the

collection of debt—not only in the judicial foreclosure context, but also (as

relevant here) in the non-foreclosure litigation context and the non-judicial debt

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collection context. See Valle v. First Nat’l Collection Bureau, Inc., 252 F. Supp.

3d 1332, 1342 (S.D. Fla. 2017) (non-judicial debt collection); Wright v. Dyck-

O’Neal, Inc., 237 F. Supp. 3d 1218, 1222 (M.D. Fla. 2017) (non-judicial debt

collection); Peters v. Bank of New York Mellon, 227 So. 3d 175, 178 (Fla. 2d DCA

2017) (foreclosure); McCall v. HSBC Bank USA, N.A., 186 So. 3d 1134 (Fla. 1st

DCA 2016) (foreclosure); Trautman v. Dyck O’Neal, Inc., 191 So. 3d 470 (Fla. 2d

DCA 2016) (non-foreclosure litigation); Nat’l Collegiate Student Loan Tr. 2007-1

v. Lipari, 224 So. 3d 309, 311 (Fla. 5th DCA 2017) (non-foreclosure litigation).

The issue has not yet been addressed by the Florida Supreme Court, which

declined to review the Second DCA’s decision in Brindise despite the appellate

court’s certification of the condition-precedent question. Brindise v. U.S. Bank

Nat’l Association, SC 16-300, 2016 WL 1122325 (Fla. 2016).

Because this is an issue of state law, the decisions of the Florida district

courts of appeal are binding:

[T]he rule is that, absent a decision from the state supreme court on an issue of state law, we are bound to follow decisions of the state’s intermediate appellate courts unless there is some persuasive indication that the highest court of the state would decide the issue differently. That rule is, if anything, particularly appropriate in Florida, where the state’s highest court has held that the decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by the Florida Supreme Court.

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McMahan v. Toto, 311 F.3d 1077, 1080 (11th Cir. 2002) (internal citations

omitted) (internal quotations omitted). Here, there is no “persuasive indication”

that the Florida Supreme Court would reject the decisions of the Florida District

Courts of Appeals in the Brindise line of cases. In the absence of that “persuasive

indication,” Brindise and its progeny are the “law of Florida” and are binding on

this Court. Id. Following those decisions—and the others that have applied them

in other contexts—we conclude that § 559.715 does not create a condition

precedent to debt collection, and therefore that Merrill’s FDCPA claim, which is

predicated on Dyck-O’Neal’s noncompliance with § 559.715, must fail.

B

Merrill next argues that the district court erred in holding that Dyck-

O’Neal’s violation of the 30-day waiting period set forth in § 559.715 does not

provide her with a private right of action against Dyck-O’Neal under the FCCPA.

We disagree.

“[T]here is no private cause of action under the FCCPA for failure to serve a

notice of assignment” under Fla. Stat. § 559.715. Wright v. Dyck-O’Neal, 237 F.

Supp. 3d 1218, 1220-21 (M.D. Fla. 2017) (internal quotations removed) (quoting

Schmidt v. Synergetic Commc’ns, Inc., 2015 WL 248635 at *3 (M.D. Fla. Jan 20,

2015); see also Trent v. Mortg. Elec. Registration Sys., Inc., 618 F. Supp. 2d 1356,

1364 (M.D. Fla. 2007), aff’d 288 Fed.Appx. 571 (11th Cir. 2008). Recognizing as

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much, Merrill relies on § 559.715, § 559.72(9), and § 559.77, taken together, to

argue that Dyck-O’Neal’s violation of the 30-day waiting period in § 559.715

gives rise to a private right of action. Section 559.77 provides a private right of

action for violation of the provisions of § 559.72. Merrill contends that violation

of the waiting period set forth in § 559.715 constitutes a violation of § 559.72(9),

which states that no person shall “[c]laim, attempt or threaten to enforce a debt

when such person knows that the debt is not legitimate, or assert the existence of

some other legal right when such person knows that the right does not exist.”

Although violation of § 559.72(9) does afford a debtor a private right of

action, violation of the 30-day waiting period set forth in § 559.715 does not

constitute a violation of § 559.72(9). Because (as already explained) compliance

with § 559.715 is not a condition precedent to collection of a debt, failure to

comply with § 559.715’s 30-day waiting period did not somehow de-“legitim[ize]”

the debt that Merrill owed to Dyck-O’Neal and thus did not foreclose Dyck-

O’Neal’s right to collect it.

In this case, there was a violation of § 559.715 but not a violation of

§ 559.72(9). The violation of § 559.715 alone does provide Merrill a private right

of action against Dyck-O’Neal. See Wright, 237 F. Supp. 3d 1218, 1220-21.

C

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Finally, Merrill contends that Dyck-O’Neal violated the FDCPA’s

prohibition against false or misleading representations through its statement in the

May 22 letter that no action to collect her debt would be made for at least 30 days.

15 U.S.C. § 1692e. In particular, Merrill asserts that the representation that Dyck-

O’Neal would wait 30 days before taking action to collect Merrill’s debt was

transformed into a misrepresentation, in violation of the FDCPA, by the debt-

collection letter that Dyck-O’Neal’s lawyer sent on June 18, less than 30 days later.

Because Merrill did not properly raise this argument before the district court she

cannot raise it on appeal.

Merrill first made the argument she makes now in her summary judgment

motion. (Doc. 51 at 14). But as we have held, a party is not afforded “an

opportunity to raise new claims at the summary judgment stage.” Gilmour v.

Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th Cir. 2004). Merrill says that

she presented the argument in paragraph ¶ 24 of her complaint. Paragraph 24

reads: “Defendants violated the FDCPA’s prohibition against false or misleading

representations (15 U.S.C. § 1692e) by seeking to collect the alleged debt prior to

complying with § 559.715, Fla. Stat. or the expiration of the time period

thereunder, by CONSUEGRA LAW sending a dunning letter attempting to collect

a debt.” Conspicuously absent from that paragraph of the complaint, though, is

any reference to the May 22 letter that Merrill now argues is the basis of her

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FDCPA claim. Merrill failed to allege in her complaint that the May 22 letter

contained a misrepresentation in violation of the FDCPA, and she could not

present that argument for the first time in her summary judgment motion. See

Gilmour, 382 F.3d at 1314.

Because Merrill failed to raise the May-22-letter-as-misrepresentation

argument in her complaint, the district court did not err in rejecting it.

* * *

For the reasons explained above, we conclude that the district court did not

err in denying Merrill’s motion for summary judgment and in granting summary

AFFIRMED.