Ramos v. Cach, LLC

183 So. 3d 1149, 2015 Fla. App. LEXIS 19521, 2015 WL 9491850
CourtDistrict Court of Appeal of Florida
DecidedDecember 31, 2015
DocketNo. 5D14-4438
StatusPublished
Cited by1 cases

This text of 183 So. 3d 1149 (Ramos v. Cach, LLC) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ramos v. Cach, LLC, 183 So. 3d 1149, 2015 Fla. App. LEXIS 19521, 2015 WL 9491850 (Fla. Ct. App. 2015).

Opinion

PALMER, J.

Yarelys Ramos appeals the trial court’s summary final judgment order entered in [1151]*1151favor of appellee, CACH, LLC, on her counterclaim alleging violation of Florida’s Consumer Collection Practices Act (“FCCPA”).1 See §§ 559.715;2 559.72,3 Fla. Stat. (2010). Because no private cause of action exists for the alleged statutory violation, we affirm.4

Ramos allegedly owed a credit card balance to FIA Card Services,- N.A. FIA assigned its rights against-Ramos to CACH. Two days after the assignment of those rights, CACH informed Ramos of the assignment in a letter which stated: “This is a demand for full payment of your account.” The letter further declared: “this is'an Attempt to collect A DEBT, ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. THIS IS A COMMUNICATION FROM A DEBT COLLECTOR.” Some months later, CACH sent another letter to Ramos demanding full payment and, when payment was not remitted, CACH filed the instant collection lawsuit.

In her answer, Ramos asserted affirmative defenses as well as a counterclaim. In her counterclaim, Ramos asserted two claims arising from CACH’s alleged violation of the notice provision in section 559.715: (1) CACH’s violation of the notice provision constitutes a violation of section 559.72(9) and (2) her entitlement to declaratory and injunctive relief pursuant to sections 559.775 and 86.021 6 of the Florida Statutes (2010).

CACH filed a motion seeking summary judgment alleging, inter alia, that Florida law does not recognize a private cause of action for Ramos’ claimed statutory violation. The trial court entered summary judgment against Ramos on that basis.

Entry of “[sjummary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a [1152]*1152judgment as a matter of law.... [T]he standard of review is de novo.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Ramos first contends that a violation of the FCCPA’s notice provision simultaneously constitutes a violation of section 559.72(9), which establishes a cause of action against creditors. Specifically, Ramos argues:

Appellants’ first cause of action claimed that when CACH issued its collection letter only two days after assignment, it was asserting the existence of a legal right (the right to collect the debt) that it knew it did not have in violation of section 559.72(9).

CACH responds by citing to Thomas v. Commercial Recovery Systems, Inc., No. 8:07-CV-1104-T-23MAP, 2008 WL 5246296, at *4 (M.D.Fla. Dec. 16, 2008), where the court addressed the same legal argument raised by Ramos here. The Thomas court rejected the argument, explaining:

In general, a statute that does not purport to establish civil liability ... will not be construed as establishing a civil liability. The FCCPA creates a civil remedy only for a violation of § 559.72— Absent an indication of legislative intent to create a private cause of action for a violation of § 559.715, such a remedy may not be judicially engrafted onto the FCCPA. The plaintiff attempts to avoid the statutory scheme by alleging that CRS’s violation of section 559.715 constitutes an unlawful attempt to enforce a debt pursuant to section 559.72(9). The plaintiff fails to show a legislative intent to provide a civil remedy for violation of the notice provision.

2008 WL 5246296 at *4 (citations omitted). We agree with this reasoning and adopt it as our own.

Ramos attempts to distinguish Thomas by suggesting that FCCPA’s 1993’s notice provision contained different language at the time Thomas was decided. The 1993 version of the statute stated that the as-signee “must give the debtor written notice of such assignment within 30 days after the assignment.” In contrast, the 2010 version of the statute states that the “assignee 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.” Thus, the 2010 changes to section 559.715 merely changed when notice is due; the changes did not create a private cause of action. Weakening Ramos’ argument further, section 559.72 currently makes no reference to the FCCPA’s notice provision.

The Middle District of Florida recently followed the reasoning of Thomas, while applying the notice provision as amended in 2010. Wright v. Dyck-O’Neal, Inc., No. 215CV249FTM38MRM, 2015 WL 6560444, at *2 (M.D.Fla. Oct. 27, 2015). In Wright, the court addressed facts similar to those in Thomas:

Plaintiffs are a group of homeowners who defaulted on their mortgages between 2008 and 2010. Following foreclosure, the judgments were assigned to Defendant Dyck-O’Neal who sought to collect any deficiency. Dyck-O’Neal, by and through its agent, Defendant Con-suegra, mailed Plaintiffs dunning letters demanding payment. When Plaintiffs did not pay, Dyck-O’Neal filed suit in Florida state court.

Id. at *1 (citations omitted). The plaintiffs alleged that the defendant had violated the FCCPA’s notice requirements by seeking to collect the plaintiffs’ debts before providing them with notice of the assignment to Dyck-O’Neal. The plaintiffs argued [1153]*1153that section 559.72(9) triggers liability for the violations of the notice provision. Of consequence, the Wright court observed the following:

[The plaintiffs] base[d] their argument on § 559.72(9)’s clause that prohibits asserting] the existence of some other legal right when such person knows that the right does not exist. Plaintiffs presumably reason that Defendant Con-suegra’s letters were an assertion of the existence of a legal right-the right to collect a debt-when it knew that right did not exist because notice of the prior assignment was never given under § 559.715.

Id. In rejecting this argument, the Wright court emphasized legislative intent and the FCCPA’s structure:

A debt collector’s obligation to provide a notice of assignment is set forth in a separate section, § 559.715, and no analogous requirement is contained in § 559.72. Had the Florida legislature intended to enact a private right of action for violating § 559.715, it could have done so, either by explicitly including language authorizing a private right of action in the statute, or by referencing § 559.715 in § 559.72. Because the legislature chose not to do so, the Court declines Plaintiffs’ invitation for it to graft into the FCCPA a remedy for failure to provide a notice of assignment.

Id. (citations omitted). The court then concluded:

In short, Plaintiffs cannot avoid the statutory scheme by alleging that Defendant Consuegra’s violation of § 559.715 constitutes an unlawful attempt to enforce a debt under § 559.72(9). Adopting Plaintiffs’ approach would result in an end-around the Florida legislature’s decision to exclude civil liability under § 559.715.

Id.

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183 So. 3d 1149, 2015 Fla. App. LEXIS 19521, 2015 WL 9491850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ramos-v-cach-llc-fladistctapp-2015.