Wright et al v. Dyck-O'Neal, Inc. et al

Filing 99

ORDER granting 87 Defendant Dyck-O'Neal, Inc.'s Motion for Judgment on the Pleadings. The Clerk of Court is DIRECTED to enter judgment accordingly, terminate any pending motions and deadlines, and close the file. Signed by Judge Sheri Polster Chappell on 2/15/2017. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MOLLY WRIGHT, TRISHA BREMER,
SHAWN FISHER, KIMBERLY FISHER,
ANGELA MCDOUGALL, THOMAS
PATTERSON, MICHAEL PIASECKI,
CHRIS A. WIGLESWORTH and
DOROTHY WILLIS,
Plaintiffs,
v.

Case No: 2:15-cv-249-FtM-38MRM

DYCK-O’NEAL, INC. and LAW
OFFICES OF DANIEL C.
CONSUEGRA, P.L.,
Defendants.
/
OPINION AND ORDER1
This matter comes before the Court on Defendant Dyck-O’Neal, Inc.’s (“DONI”)
Motion for Judgment on the Pleadings (Doc. 87), to which Plaintiffs respond in opposition
(Doc. 92). The parties also filed supplement briefs and authorities. (Doc. 95; Doc. 96;
Doc. 97; Doc. 98). After considering the parties’ arguments and the applicable law, the
Court grants DONI’s motion.

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BACKGROUND
The facts of this debt collection practices case are detailed at length in the Court’s
previous orders. (Doc. 36; Doc. 52; Doc. 68). For brevity’s sake, the Court will recite only
the facts relevant to the present motion. In the mid-2000s, Plaintiffs executed notes and
mortgages to buy homes. (Doc. 1 at ¶¶ 20-37). When they stopped making mortgage
payments, foreclosures actions were brought that resulted in final judgments. (Id.). The
foreclosure judgments were then assigned to DONI. (Id. at ¶ 38).
DONI, through its agent, the Law Offices of Daniel C. Consuegra (“Consuegra
Law”),2 filed suits against each Plaintiff seeking a deficiency decree based on the
foreclosure judgments. (Id. at ¶¶ 39, 42). Prior to filing the suits, however, Consuegra
Law sent dunning letters to each Plaintiff demanding satisfaction of the deficiency. (Id. at
¶ 43). When Plaintiffs did not pay, DONI pursued the deficiency claims.
In this case, Plaintiffs allege that DONI violated the Fair Debt Collection Practices
Act (“FDCPA”), 15 U.S.C. § 1692e, and the Florida Consumer Collection Protections Act
(“FCCPA”), Fla. Stat. § 559.55 et seq.,3 in collecting on the deficiency balances. They
contend that before sending the dunning letters and filing the deficiency suits, DONI failed
to comply with Florida Statute § 559.715’s notice of assignment requirement. (Doc. 1 at
¶¶ 45-46). DONI now moves for a judgment on the pleadings. It argues that it did not
violate the FDCPA and FCCPA because § 559.715 does not create a condition precedent
to debt collection. (Doc. 87 at 2). Plaintiffs disagree.

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Plaintiffs also named Consuegra Law as a defendant in this action, but they have since
stipulated to dismissing those claims. (Doc. 91). DONI is the only remaining defendant.
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Plaintiffs originally filed this suit as a class action; however, the Court struck their class
allegations from the Complaint. (Doc. 70).

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LEGAL STANDARD
“After the pleadings are closed—but early enough not to delay trial—a party may
move for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “Judgment on the pleadings
is appropriate where there are no material facts in dispute and the moving party is entitled
to judgment as a matter of law.” Cannon v. City of W. Palm Beach, 250 F.3d 1299, 1301
(11th Cir. 2001). In deciding whether judgment is appropriate, the court accepts all
material facts alleged in the complaint as true and views those facts in the light most
favorable to the non-moving party. See Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335
(11th Cir. 2014). “A complaint may only be dismissed under Rule 12(c) if ‘it is clear that
the plaintiff would not be entitled to relief under any set of facts that could be proved
consistent with the allegations.’” Flanigan’s Enters., Inc. of Ga. v. City of Sandy Springs,
Ga., 831 F.3d 1342, 1346 (11th Cir. 2016) (citing Horsley v. Rivera, 292 F.3d 695, 700
(11th Cir. 2002)).
DISCUSSION
Starting with the FCCPA claim, Plaintiffs argue that DONI sent them dunning
letters before complying with Florida Statute § 559.715’s notice of assignment
requirement. (Doc. 1 at ¶¶ 70-71). This claim fails. “[T]here is no private cause of action
under the FCCPA for failure to serve a notice of assignment.” Schmidt v. Synergentic
Comm’ns, Inc., No. 2:14-cv-539, 2015 WL 248635, at *3 (M.D. Fla. Jan. 20, 2015); Trent
v. Mortg. Elec. Registration Sys., Inc., 618 F. Supp. 2d 1356, 1364 (M.D. Fla. 2007), aff’d
288 F. App’x 571 (11th Cir. 2008) (finding an allegation that the defendant failed to comply
with § 559.715 does not establish a claim under the FCCPA). For the same reasons the

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Court dismissed the FCCPA claim against Consuegra Law (Doc. 36), it also dismisses
that claim against DONI.
Turning to the FDCPA claim, Plaintiffs assert that DONI engaged in false or
misleading representations by seeking to collect on the debts before satisfying § 559.715
and its thirty-day notice period. (Doc. 1 at ¶¶ 62-63). DONI’s collection efforts included
sending the dunning letters and filing the deficiency cases. (Doc. 1 at ¶ 62). As stated,
DONI responds that § 559.715 does not create a condition precedent to debt collection
activity. (Doc. 87 at 2).
Plaintiffs’ FDCPA claim hinges on whether Florida Statute § 559.715 creates a
condition precedent to collecting a debt. To decide this question, the Court examines the
statutory language and Florida case law interpreting the statute.
Section 559.715, a provision of the FCCPA, states that
[t]his part does not prohibit the assignment, by a creditor, of the right to bill
and collect a consumer debt. However, 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. The
assignee is a real party in interest and may bring an action to collect a debt
that has been assigned to the assignee and is in default.
Fla. Stat. § 559.715. The issue of whether § 559.715 creates a condition precedent in
the mortgage-foreclosure context came to head twice in 2016: Brindise v. U.S. Bank Nat’l
Ass’n, 183 So. 3d 1215 (Fla. 2d DCA 2016) and 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. See Brindise, 183
So.3d at 1220-21; Siefker, 201 So.3d at 815-816. Both courts acknowledged that
the Legislature knows how to condition the filing of a lawsuit on a prior
occurrence, as evidenced by the statutes for libel and slander actions,
medical malpractice suits, and condominium-related suits, which all require

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some prior act or condition before suit can be brought: “Because 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 (citing Brindise, 183 So. 3d at 1219).
Although defendant-mortgagors in Brindise and Siefker unsuccessfully used
§ 559.715 as an affirmative defense to defeat a mortgage foreclosure suit, the courts’
reasoning as to why that section does not create a condition precedent remains relevant
here. In addition, it is irrelevant that this action stems from a deficiency judgment rather
than a mortgage foreclosure. The principles are the same for why § 559.715 is not a
condition precedent. See Brindise, 183 So. 3d at 1219 (“Focusing solely on whether the
foreclosure suit is an effort to collect a consumer debt, the parties urge us to become
ensnared unnecessarily in a briar patch.

We need not fight their fight.

Even if a

foreclosure suit is an effort to collect a consumer debt, several reasons compel us to
conclude that the trial court did not err.”); see also Summerlin Asset Mgmt. Trust v.
Jackson, No. 9:14-cv-81302, 2015 WL 4065372, at *4 (S.D. Fla. July 2, 2015) (“Federal
district courts in Florida have held that ‘the purpose and intent of the FCCPA, like the
[FDCPA] is to eliminate abusive and harassing tactics in collection of debts. It is not
meant to preclude a creditor or someone otherwise holding a secured interest from
invoking legal process to foreclose’” (citations omitted)).

At bottom, the Court is

persuaded that § 559.715 does not create a condition precedent because the Florida
Legislature did not draft it that way.
Plaintiffs present two avenues to sidestep this inevitable conclusion. First, they
argue that Burt v. Hudson & Keyse, LLC, 138 So. 3d 1193 (Fla. 5th DCA 2014) is the only
intermediate appellate court in Florida to consider whether § 559.715 is a condition

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precedent to a lawsuit. (Doc. 92 at 2, 5). The Court is unpersuaded. Burt involved credit
card debt. Margaret Burt appealed summary judgment entered in favor of Hudson &
Keyse, LLC for its account stated claims. Burt, 138 So. 3d at 1194. Denying that the
credit card debt was hers, Burt argued that genuine issues of material fact existed as to
whether she was the proper debtor. She created this factual dispute by pointing to H&K’s
notice of assignment. The Fifth District agreed:
the only evidence of notice is a copy of a letter, from H&K, addressed to
“Margaret
Burt-Hosmer-Crist-Caudilll-Brow
[sic],”
regarding
the
assignment. Generally, proof of mailing creates a rebuttable presumption
of receipt. . . . However, while H&K produced a letter that was addressed to
Burt, H&K offered no proof that it mailed the letter . . . Because Burt swore
in her affidavit that she did not receive notice of the assignment, an issue of
fact was created as to whether the notice was actually sent.
Burt, 138 So. 3d at 1195 (internal citations omitted). Burt is not the smoking gun Plaintiffs
purport it to be because it does not discuss § 559.715 as a condition precedent to debt
collection. In fact, the Second DCA in Brindise rejected the plaintiff’s reliance on Burt for
similar reasons:
[t]he Fifth District reversed entry of summary judgment for a creditor
because a material issue of fact remained as to whether the creditor had
actually provided the written notice required by § 559.715. Reading far too
much into Burt, however, the [plaintiffs] argue that the case establishes that
section 559.715 has been incorporated into the elements of pleading a
foreclosure complaint. Burt, however, did not even discuss section 559.715
as a condition precedent to suit.
Brindise, 183 So. 3d at 1220.
The other way Plaintiffs try to hurdle Brindise and Siefker is by persuading this
Court to align with the dissent in Brindise. (Doc. 92 at 4-5). This falls short. Regardless
of whether Brindise and Siefker are binding, the Court is persuaded that the Florida
Supreme Court would not decide the issue differently. This is so because the Brindise

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court certified to the Florida Supreme Court “the following question as one of great public
importance: Is the provision of written notice of assignment under section 559.715 a
condition precedent to the institution of a foreclosure lawsuit by the holder of the note?”
Brindise, 183 So. 3d at 1221.

The Florida Supreme Court declined review of that

question. See Brindise v. U.S. Bank Nat. Ass’n, SC16-300, 2016 WL 1122325, at *1 (Fla.
Mar. 22, 2016).
In short, Section 559.715 has no language making notice of assignment a
condition precedent. DONI thus did not violate the FDCPA. The Court, therefore, grants
DONI’s motion as to the FDCPA claim.
Accordingly, it is now
ORDERED:
(1) Defendant Dyck-O’Neal, Inc.’s Motion for Judgment on the Pleadings (Doc. 87)
is GRANTED.
(2) The Clerk of Court is DIRECTED to enter judgment accordingly, terminate any
pending motions and deadlines, and close the file.
DONE and ORDERED in Fort Myers, Florida this 15th day of February 2017.

Copies: All Parties of Record

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