Valle v. First National Collection Bureau, Inc.

Filing 51

ORDER granting 16 Motion for Judgment on the Pleadings. Closing Case.. Signed by Judge Robert N. Scola, Jr on 5/15/2017. (ail) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

United States District Court
for the
Southern District of Florida
Ruby Valle, Plaintiff
v.
First National Collection Bureau,
Inc., Defendant

)
)
)
)
)
)

Civil Action No. 16-62751-Civ-Scola

Order on Defendant’s Motion for Judgment on the Pleadings
Plaintiff Ruby Valle brings this suit against First National Collection
Bureau, Inc. (“FNCB”) for alleged violations of the Fair Debt Collection Practices
Act, 15 U.S.C. § 1692 et seq., (“FDCPA”) and the Florida Consumer Collection
Practices Act, Fla. Stat. § 559.55 et seq., (“FCCPA”). This matter is before the
Court on the Defendant’s Motion for Judgment on the Pleadings (ECF No. 16).
For the reasons set forth in this Order, the Court grants the Motion for
Judgment on the Pleadings (ECF No. 16).
1. Background
On October 10, 2016, FNCB sent the Plaintiff a collection letter in an
attempt to collect a consumer debt. (Compl. ¶ 26, ECF No. 1.) The Plaintiff
alleges that she defaulted on the debt more than five years ago and has made
no payment toward the debt since defaulting, and therefore any legal action to
collect the debt is time-barred. (Id. ¶¶ 30-31.) A copy of the collection letter is
attached to the Complaint as Exhibit A. (Compl. Ex. A, ECF No. 1-3) The
Plaintiff alleges that the collection letter violated a variety of provisions of the
FDCPA, as well as the FCCPA. (Compl. ¶¶ 40-45, ECF No. 1.) The Plaintiff
seeks statutory and actual damages, an injunction prohibiting FNCB from
engaging in further collection activities directed at the Plaintiff, and costs and
reasonable attorneys’ fees. (Id. at 21-22.)
2. Legal Standard
Pursuant to Federal Rule of Civil Procedure 12(c), “[a]fter 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 proper
when no issues of material fact exist, and the moving party is entitled to
judgment as a matter of law based on the substance of the pleadings and any
judicially noticed facts.” Cunningham v. Dist. Attorney’s Office, 592 F.3d 1237,
1255 (11th Cir. 2010). A court ruling on a 12(c) motion must “accept all the

facts in the complaint as true and view them in the light most favorable to the
nonmoving party.” Id.
3. Analysis
A. Alleged Violations of the FDCPA
“In order to prevail on an FDCPA claim, Plaintiff must establish that: (1)
he was the object of collection activity arising from consumer debt; (2)
Defendant qualifies as a ‘debt collector’ under the FDCPA; and (3) Defendant
engaged in an act or omission prohibited by the FDCPA.” Dunham v. Lombardo,
Davis & Goldman, 830 F.Supp.2d 1305, 1306-07 (S.D. Fla. 2011) (Seitz, J.).
Violations of the FDCPA are assessed using the “least sophisticated consumer
standard.” LeBlanc v. Unifund CCR Partners, 601 F.3d 1185, 1193-94 (11th Cir.
2010) (citing Jeter v. Credit Bureau, Inc., 760 F.2d 1168, 1175-77 (11th Cir.
1985)). This standard “looks to the tendency of language to mislead the least
sophisticated recipients of a debt collector’s letters.” Id. “The least sophisticated
consumer can be presumed to possess a rudimentary amount of information
about the world and a willingness to read a collection notice with some care.”
Id. (internal quotations and citations omitted). The standard has an “objective
component” that “prevents liability for bizarre or idiosyncratic interpretations of
collection notices.” Id. (quoting United States v. Nat’l Fin. Serv.’s, Inc., 98 F.3d
131, 136 (4th Cir. 1996)).
The Defendant does not dispute that the Plaintiff was the object of
collection activity arising from consumer debt, or that the Defendant qualifies
as a debt collector under the FDCPA. The parties’ disputes concern whether the
Defendant engaged in an act or omission prohibited by the FDCPA. The Court
will analyze each provision of the FDCPA that the Defendant is alleged to have
violated in turn.
(1) Alleged Violation of 15 U.S.C. § 1692g(a)
15 U.S.C. § 1692g(a) states that, “[w]ithin five days after the initial
communication with a consumer in connection with the collection of any debt,
a debt collector shall, unless the following information is contained in the
initial communication. . .send the consumer a written notice containing –
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after
receipt of the notice, disputes the validity of the debt, or any
portion thereof, the debt will be assumed to be valid by the debt
collector;

(4) a statement that if the consumer notifies the debt collector in
writing within the thirty-day period that the debt, or any portion
thereof, is disputed, the debt collector will obtain verification of
the debt or a copy of a judgment against the consumer and a
copy of such verification or judgment will be mailed to the
consumer by the debt collector; and
(5) a statement that, upon the consumer’s written request within
the thirty-day period, the debt collector will provide the
consumer with the name and address of the original creditor, if
different from the current creditor.”
The Plaintiff asserts that the collection letter violated § 1692g(a) by failing to
adequately inform the Plaintiff of these rights, as well as how to exercise these
rights. (Compl. ¶ 41(a), ECF No. 1.)
However, the collection letter includes all of the information required by
§ 1692g(a), including an almost verbatim recitation of the information required
by § 1692g(a)(3)-(5). (Compl. Ex. A, ECF No. 1-3.) The Complaint asserts that
merely quoting the statutory language does not adequately inform the
consumer of his or her rights, but the Complaint fails to identify specifically
how the collection letter fails to adequately inform a consumer of his or her
rights. (See Compl. ¶ 41(a), ECF No. 1.) The Plaintiff’s response to the Motion
for Judgment on the Pleadings broadly asserts that the Plaintiff “raises issue
with the use of statutory language,” but again fails to explain how the language
in the collection letter failed to comply with § 1692g. (Resp. at 21, ECF No. 23)
(emphasis in original).
The Plaintiff cites two cases that also involved alleged violations of
§ 1692g(a). (Compl. ¶ 41(a), ECF No. 1.) In the first case, the plaintiff alleged
that the defendant violated § 1692g(a)(3) by omitting the phrase “by the debt
collector” from the statutorily required notice that “unless the consumer,
within thirty days after receipt of the notice, disputes the validity of the debt, or
any portion thereof, the debt will be assumed to be valid by the debt collector.”
DeCapri v. Law Offices of Shaprio Brown & Alt, LLP, No. 3:14cv201-HEH, 2014
WL 4699591, at *5 (E.D. Va. Sept. 19, 2014). The court denied the defendant’s
motion to dismiss the alleged violation, holding that omission of the phrase “by
the debt collector” or its equivalent was sufficient to state a plausible claim for
relief because it was not clear from the collection letter who would assume that
the debt was valid. Id. at *5-6.
Here, however, the collection letter used the phrase “by this office”
instead of the phrase “by the debt collector.” (Compl. Ex. A, ECF No. 1-3.) Since
the collection letter was signed by FNCB and stated that FNCB had been
assigned to collect the debt, the letter was clear that the debt collector, FNCB,
was the entity that would assume that the debt was valid. See Caceres v.

McCalla Raymer, LLC, 755 F.3d 1299, 1303-04 (11th Cir. 2014) (affirming
dismissal of the plaintiff’s case and holding that substitution of “creditor” for
“debt collector” did not violate § 1692g(a)(3) because “the debt collector is
obviously the agent of the creditor.”).
In the second case cited by the Plaintiff, the District of Oregon found that
a collection letter violated § 1692g(a) because it did not state the total amount
of the debt and because the defendant merely included a photocopy of § 1692g
in the envelope containing the collection letter. Furth v. United Adjusters, Inc.,
No. 82-1537, 1983 U.S. Dist. LEXIS 20368, *3 (D. Or. Nov. 17, 1983). The
court based its holding on an interpretive letter issued by the Federal Trade
Commission (“FTC”) that stated that it is a violation of the FDCPA “to disclose
the information required by 15 U.S.C. § 1692g on a separate piece of paper
unless the collection notice alerts the consumer to the existence of the enclosed
notice.” Id. at *4-5. In addition, the court found that the inclusion of a
photocopy of § 1692g did not provide the plaintiff with an adequate statement
of her rights since neither the notice nor the photocopy clearly identified
§ 1692g as a list of her rights. Id. at *5-6.
Contrary to the facts of that case, the collection letter at issue here
included the amount of the debt and set forth the information required by
§ 1692g in the collection letter itself. (Compl. Ex. A, ECF No. 1-3.) Courts have
found that collection letters that track the language required by § 1692g do not
violate the FDCPA. See, e.g., Shorty v. Capital One Bank, 90 F.Supp.2d 1330,
1332-33 (D.N.M. 2000) (granting the defendant’s motion for judgment on the
pleadings in part because a debt validation notice “follows the language of
§ 1692g.”); Aronson v. Commercial Fin. Serv.’s, Inc., 1997 WL 1038818, *3 (W.D.
Pa. Dec. 22, 1997) (granting summary judgment in favor of the defendant in
part because the collection letters “properly track the language required by 15
U.S.C. § 1692g.”).
Accordingly, since the collection letter set forth all of the information
required to be provided by 15 U.S.C. § 1692g(a), and neither the Complaint nor
the Plaintiff’s briefing identify any specific information that was missing or
misleading, the Court grants the Defendant judgment on the pleadings with
respect to the Plaintiff’s allegation that the collection letter violated § 1692g(a).
(2) Alleged Violation of 15 U.S.C. § 1692f(8)
15 U.S.C. § 1692f prohibits debt collectors from using “unfair or
unconscionable means to collect or attempt to collect any debt,” and
subsection (8) specifically prohibits the use of “any language or symbol, other
than the debt collector’s address, on any envelope when communicating with a
consumer by use of the mails. . .except that a debt collector may use his
business name if such name does not indicate that he is in the debt collection

business.” The Plaintiff alleges that the collection letter violated this provision
because the envelope used to mail the collection letter displayed a bar code
through the transparent window of the envelope. (Compl. ¶ 41(b), ECF No. 1.)
The Plaintiff relies on Palmer v. Credit Collection Serv.’s, 160 F.Supp.3d
819, 823 (E.D. Pa. 2015), which held that § 1692f(8) “plainly forbids bar codes
of any kind.” The Palmer court relied on the Third Circuit’s decision in
Douglass v. Convergent Outsourcing, 765 F.3d 299 (3rd Cir. 2014), which held
that the inclusion of an account number on an envelope containing a debt
collection letter violated § 1692f(8). Palmer, 160 F.3d at 821-23.
However, the Plaintiff fails to mention that a subsequent decision from
the same district court disagreed with Palmer and decided to follow the Fifth
and Eighth Circuits, which have applied a “benign language exception” in
holding that the FDCPA “proscribes only markings that identify the mailing as
a debt collection matter or reveal the debtor’s financial predicament and
personal information.” Anenkova v. Van Ru Credit Corp., 201 F.Supp.3d 631,
633 (E.D. Pa. 2016) (citing Strand v. Diversified Collection Serv., Inc. 380, F.3d
316, 319 (8th Cir. 2004); Goswami v. Am. Collections Enter., Inc., 377 F.3d 488,
494 (5th Cir. 2004)). The court noted that the Fifth Circuit looked to the
legislative history of the FDCPA and the FTC’s interpretations of it, both of
which indicated that the prohibition in § 1692f(8) was meant to be limited to
symbols indicating that the contents of the envelope pertain to debt collection.
Id. (citations omitted). The court noted that the Third Circuit’s Douglass
decision specifically declined to decide whether to adopt the benign language
exception, finding instead that the disclosure of a consumer’s account number
on an envelope was not benign. Id.
The Eleventh Circuit has not had occasion to consider whether the
benign language exception applies to § 1692f(8). See Martell v. ARS Nat’l
Serv.’s, Inc., No. 15-22580, ECF No. 39, at 6 (S.D. Fla. Nov. 4, 2016) (Williams,
J.). However, Judge Williams applied the benign language exception in granting
a defendant’s motion for judgment on the pleadings in an FDCPA case. Id. at 68. The plaintiff in that case alleged that the appearance of a bar code on the
exterior of an envelope violated § 1692f(8) because when scanned, the bar code
revealed the consumer’s account number. Id. at 2. In holding that the bar code
did not violate § 1692f(8), Judge Williams specifically rejected the Third
Circuit’s Douglass decision, holding that “an account number embedded in a
barcode, as a string of alphanumeric characters, does nothing to implicate or
identify Plaintiff as a debtor for purposes of § 1692f(8).” Id. at 8-9. Judge
Williams noted that the “FTC advised that a debt collector does not violate this
section by using an envelope printed with words or notations that does not
suggest the purpose of the communication, deeming them harmless words or

symbols.” Id. at 5 (citing 53 Fed. Reg. 50097, 80108 (Dec. 13, 1998)) (internal
quotations omitted).
Here, the Complaint does not even allege that the bar code revealed the
Plaintiff’s account number when scanned. (See Compl. ¶ 41(b), ECF No. 1.)
Rather, the Plaintiff asserts that she is not required to plead or prove that the
bar code reveals the Plaintiff’s personal information in order to establish a
violation of § 1692f(8). (Pl.’s Resp. at 18, ECF No. 23.) The Plaintiff cites to
Michael v. HOVG, LLC, No. 16-62651, 2017 WL 129111, *3-4 (S.D. Fla. Jan. 10,
2017) (Bloom, J.), which denied the defendant’s motion to dismiss the
plaintiff’s claim that a “Quick Response code” displayed on an envelope violated
§ 1692f(8). In denying the motion to dismiss, Judge Bloom cited to the Palmer
decision and noted that the case at hand did not involve a motion for judgment
on the pleadings, and that neither party had provided the court with judicially
noticeable information to establish what the code, if scanned, might show. Id.
The Court finds Judge Williams’s reasoning, as well as the reasoning of
the Fifth and Eighth Circuits, persuasive. The bar code displayed through the
window of the envelope does not implicate or identify the Plaintiff as a debtor in
any way, nor has the Plaintiff alleged that the bar code identified her as a
debtor. (Compl. Ex. A, ECF No. 1-3.) In light of the legislative history indicating
that § 1692f(8) was intended to be limited to symbols indicating that the
contents of the envelope pertain to debt collection, see Anenkova, 201
F.Supp.3d at 633; Martell, No. 15-22580 at 5, the Court does not find that the
mere visibility of a bar code on an envelope containing a collection letter
violates § 1692f(8). Accordingly, the Court grants the Defendant judgment on
the pleadings with respect to the Plaintiff’s allegations that the Defendant
violated 15 U.S.C. § 1692f(8).
(3) Alleged Violation of 15 U.S.C. § 1692e(2)(A)
Section 1692e(2)(A) prohibits a debt collector from using “any false,
deceptive, or misleading representation or means in connection with the
collection of any debt,” including the false representation of “the character,
amount, or legal status of any debt.” The Plaintiff alleges that the collection
letter violated this prohibition because it failed to sufficiently inform the
Plaintiff that the debt was “absolutely time-barred,” and failed to “adequately
disclose the impact making a payment would have, to wit, that making a
payment would revive the Consumer Debt, thus making it legally enforceable.”
(Compl. ¶ 41(c), ECF No. 1.) (emphasis in original).
The collection letter stated, in relevant part:
The law limits how long you can be sued on a debt. Because of the
age of your debt, LVNV Funding LLC will not sue you for it, and
LVNV Funding LLC will not report it to any credit reporting agency.

In many circumstances, you can renew the debt and start the time
period for the filing of a lawsuit against you if you take specific
actions such as making certain payment on the debt or making a
written promise to pay. You should determine the effect of any
actions you take with respect to this debt.
(Compl. Ex. A, ECF No. 1-3.)
The Plaintiff cites to three cases in support of her allegation. (Compl. ¶
41(c), ECF No. 1.) However, the collection letters at issue in each of the three
cases made no reference whatsoever to the age of the debt or the possible effect
of making a payment on the statute of limitations. See Palmer v. Dynamic
Recovery Sol.’s, LLC, No. 6:15-cv-59-Orl-40KRS, 2016 WL 2348704, *4 (M.D.
Fla. May 4, 2016) (noting that the plaintiff had a strong likelihood of proving a
violation of the FDCPA because the collection letter failed to disclose that the
debt was time barred and offered to settle the debt, which gave the false
impression that the debt collector could sue to enforce the debt); Daugherty v.
Convergent Outsourcing, Inc., et. al., 836 F.3d 507, 513 (5th Cir. 2016) (holding
that “a collection letter seeking payment on a time-barred debt (without
disclosing its unenforceability) but offering a ‘settlement’ and inviting partial
payment (without disclosing the possible pitfalls) could constitute a violation of
the FDCPA”); McMahon v. LVNV Funding, LLC, 744 F.3d 1010, 1020 (7th Cir.
2014) (holding that “if the debt collector uses language in its dunning letter
that would mislead an unsophisticated consumer into believing that the debt is
legally enforceable. . .the collector has violated the FDCPA.”)
This case is starkly different from the cases cited by the Plaintiff because
the collection letter specifically stated that FNCB would not sue the Plaintiff
because of the age of the debt. The collection letter also specifically disclosed
that payment of the debt or a promise to pay the debt could re-start the statute
of limitations. Even from the perspective of the least sophisticated consumer,
the Defendant did not misrepresent the legal status of the debt. See Ehrich v.
Convergent Outsourcing, Inc., No. 15-22796, 2015 WL 6470453, *4 (S.D. Fla.
Oct. 28, 2015) (Moore, J.) (holding that since the Defendant neither initiated
nor threatened legal action in its collection efforts, the Defendant did not
engage in unlawful debt collection by seeking the voluntary settlement of a
time-barred debt). Therefore, the Court grants the Defendant judgment on the
pleadings with respect to the Plaintiff’s allegation that the letter violated 15
U.S.C. § 1692e(2)(A).
(4) Alleged Violations of 15 U.S.C. § 1692e(10)
15 U.S.C. § 1692e(10) prohibits “[t]he use of any false representation or
deceptive means to collect or attempt to collect any debt or to obtain

information concerning a consumer.” The Plaintiff alleges that the Defendant’s
use of the language “will not sue you” was misleading because it implied that
the Defendant chose not to sue the Plaintiff when, in reality, the Defendant
could not sue the Plaintiff as a matter of law because of the age of the debt.
(Compl. ¶ 41(d)(1), ECF No. 1.) The Plaintiff alleges that the language would
cause the least sophisticated consumer to believe that the Defendant had the
option to change its mind if the Plaintiff did not pay. (Id.)
The Court disagrees. The phrase with which the Plaintiff takes issue
must be read in the proper context. The relevant paragraph states in full: “The
law limits how long you can be sued on a debt. Because of the age of your debt,
LVNV Funding LLC will not sue you for it, and LVNV Funding LLC will not
report it to any credit reporting agency.” Thus, the Defendant informed the
Plaintiff that there are legal limits to how long she could be sued for the debt,
and then stated that “Because of the age of your debt,” she would not be sued.
Read in the context of the entire paragraph, the phrase “will not sue you” is not
false or deceptive, even from the perspective of the least sophisticated
consumer.
The Defendant argues that this claim must be dismissed because the
exact language with which the Plaintiff takes issue was mandated to be
included in collection letters by two consent decrees, one of which was between
the FTC and a debt collector and one of which was between the Consumer
Financial Protection Bureau (“CFPB”) and a debt collector. (Mot. at 10-11, ECF
No. 16.) Both consent decrees mandate that the debt collectors in those
matters include the following language in collection letters for debts that are
time-barred: “The law limits how long you can be sued on a debt. Because of
the age of your debt, we will not sue you for it.” (Mot. Ex. 1 at 12-13, ECF No.
16-1; Mot. Ex. 2 at 8-9, ECF No. 16-3.)
The Plaintiff notes that a court may consider documents attached to a
motion for judgment on the pleadings without converting it into a motion for
summary judgment if the documents are (1) central to the plaintiff’s claim; and
(2) the authenticity of the documents are not challenged. (Resp. at 7, ECF No.
23.) The Plaintiff argues that the consent decrees referenced by the Defendant
are not central to her claims. (Id. at 7-8.) However, the Defendant is not relying
on the consent decrees as documentary evidence. Rather, the Defendant is
arguing that the consent decrees are persuasive authority that the language in
the collection letter did not violate the FDCPA. (See Mot. at 10-11, ECF No. 16.)
The consent decrees are not binding in this case because neither the
Plaintiff nor the Defendant were a party to those cases. The question is whether
the fact that the FTC and CFPB mandated the use of the language utilized by
the Defendant in those consent decrees is of any persuasive value to this
Court. An agency’s informal interpretation of a statute, such as opinion letters,

policy statements, agency manuals, and enforcement guidelines, are not
entitled to deference. Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000)
(citations omitted). However, such interpretations are entitled to respect “to the
extent that those interpretations have the power to persuade.” Id. (internal
quotations and citations omitted). The consent decrees do not explain why the
CFPB and the FTC chose the specific language that is mandated to be used by
the decrees. (See Mot. Ex. 1, ECF No. 16-1; Mot. Ex. 2, ECF No. 16-3.)
However, the Court does find that the fact that the two agencies charged with
enforcing the FDCPA mandated the language used by the Defendant serves to
reinforce its finding that the language does not constitute a false representation
or a deceptive means of collecting the debt.
The Plaintiff also alleges that the collection letter violated § 1692e(10)
because the “Defendant wrongfully portrays the current creditor’s willingness
to settle the Consumer Debt for less than the full amount as having the same
net result as paying the full amount of the Consumer debt.” (Compl. ¶ 41(d)(2),
ECF No. 1.) The Plaintiff alleges that this is a false representation because
debts that are settled for less than the full amount are reported to credit
bureaus differently and have different tax consequences than paying the full
amount of a debt. (Id.)
The basis for this allegation is unclear. The collection letter extends a
“discounted offer” pursuant to which the Plaintiff could make six payments
amounting to 20% of the total outstanding debt. (Compl. Ex. A, ECF No. 1-3.)
Prior to describing the discounted offer, the letter states “You should determine
the effect of any actions you take with respect to this debt.” (Id.) The letter
makes no representation that acceptance of the discounted offer would have
the “same net result as paying the full amount of the debt,” nor has the
Plaintiff pointed to any statutory requirement or case law requiring that a debt
collector disclose the tax or credit consequences of settling a debt for less than
the full amount. The mere fact that the letter describes the offer being extended
by the Defendant does not constitute a false representation or a deceptive
means of collecting the debt.
Accordingly, the Court grants the Defendant judgment on the pleadings
with respect to the Plaintiff’s allegations that the collection letter violated 15
U.S.C. § 1692e(10).
(5) Alleged Violations of 15 U.S.C. § 1692f(1)
15 U.S.C. § 1692f(1) prohibits the use of “unfair or unconscionable
means to collect or attempt to collect any debt,” including “[t]he collection of
any amount (including any interest, fee, charge, or expense incidental to the
principal obligation) unless such amount is expressly authorized by the

agreement creating the debt or permitted by law.” The Complaint cites to
Florida Statute § 559.715, which states:
This 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.
There is no private right of action to enforce a violation of § 559.715. See Fla.
Stat. § 559.77. However, the Complaint asserts that § 559.715 creates a
condition precedent to the lawful collection of an assigned debt. (Compl. ¶
41(e), ECF No. 1.) Since the Plaintiff alleges that she did not receive notice of
the assignment thirty days before receiving the collection letter, the Plaintiff
alleges that the Defendant had no lawful authority to collect the debt and thus
violated § 1692f(1). (Id.)
In response, the Defendant points to two state court cases that have held
that § 559.715 does not create a condition precedent to the filing of a
foreclosure lawsuit. Brindise v. U.S. Bank Nat’l Ass’n, 183 So.3d 1215, 1219
(Fla. 2d. Dist. Ct. App. 2016) (noting that “Section 559.715 has no language
making written notice of assignment a condition precedent to suit.”), cert.
denied; Bank of America, N.A. v. Siefker, 201 So.3d 811, 817 (“The plain
language [of § 559.715] does not impose a bar on filing suit if notice is not
provided consistent with the statute. . .”) (Fla. 4th Dist. Ct. App. 2016).
Florida’s Second Circuit Court of Appeal explained that “The Legislature knows
how to create a condition precedent. 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.” Brindise, 183 So.3d at 1219.
The court also recognized that, in light of the administrative enforcement
mechanisms set forth in the FCCPA, such as disciplinary actions and cease
and desist orders, “making section 559.715 a condition precedent is not
necessary to the primary purpose of the FCCPA.” Id. at 1220. Although the two
cases concerned the filing of a mortgage foreclosure lawsuit, the statutory
provision broadly applies to “any action to collect the debt” and there is no
reason that the rationale employed by the courts should be limited to the
initiation of a lawsuit to foreclose on a mortgage.
The Plaintiff cites to Schmidt v. Synergentic Commc’ns, Inc., in which the
Middle District of Florida held that a plaintiff’s allegation that a defendant
violated § 559.715 could constitute a violation of the FDCPA. No. 14-cv-539FtM-29CM, 2015 WL 248635, *3-4 (M.D. Fla. Jan. 20, 2015) (citations

omitted). However, the Court notes that this decision pre-dates the state court
decisions holding that the § 559.715 does not create a condition precedent.
The Plaintiff also cites to LeBlanc v. Unifund CCR Partners, 601 F.3d
1185 (11th Cir. 2010). In LeBlanc, the Eleventh Circuit held that Florida
Statute § 559.553, which requires consumer collection agencies to register with
the state and also does not create a private right of action, could nevertheless
constitute a violation of the FDCPA. Id. at 1190-92. The Eleventh Circuit looked
to the stated goal of the FCCPA, which is “to provide the consumer with the
most protection possible under either the state or federal statute,” and to the
fact that the “Florida legislature contemplated dual enforcement – that an ‘outof-state debt collector’ could quite possibly be subject to the sanctions and
enforcement provisions of both of the various states or the FDCPA.” Id. at
1192. The Eleventh Circuit also attributed “significant weight to Florida’s
chosen means of enforcement,” because the Florida legislature determined that
a debt collector’s failure to register and “subsequent pursuit of unauthorized
debt collection activity is a misdemeanor criminal act.” Id.
However, the Eleventh Circuit limited its holding, explaining that,
The FDCPA was designed to provide basic, overarching rules for debt
collection activities; it was not meant to convert every violation of a state
debt collection law into a federal violation. Only those collection activities
that use any false, deceptive, or misleading representation or means,
including the threat to take any action that cannot legally be taken
under state law, will also constitute FDCPA violations.
Id. (quoting Carlson v. First Revenue Assurance, 359 F.3d 1015, 1018 (8th Cir.
2004) (internal quotations omitted).
The only similarity the Court observes between the provision of the
FCCPA at issue in LeBlanc and § 559.715 is that there is no private right of
action to enforce either provision. There is no provision contemplating dual
enforcement for violations of § 559.715 as there is for the provision at issue in
LeBlanc. See Fla. Stat. Ch. 559. In addition, the Florida legislature has not
designated violations of § 559.715 as criminal in nature. Id.
The Court gives great weight to the two recent Florida state court
decisions holding that § 559.715 does not create a condition precedent to
taking an action to collect on a debt. Brindise, 183 So.2d at 1221; Siefker, 201
So.3d at 818. The Plaintiff does not substantively address these decisions,
dismissing them as “non-binding.” (Resp. at 17, ECF No. 23.) However, the
interpretation of a Florida statute is a question of state law, and the Eleventh
Circuit has noted 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.” McMahan v. Toto, 311
F.3d 1077, 1080 (11th Cir. 2002), abrogated on other grounds, Horowitch v.
Diamond Aircraft Indus., Inc., 645 F.3d 1254 (11th Cir. 2011).
Section 559.715 specifically states that “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.” If failure to provide 30 days’ notice of an
assignment as required by § 559.715 does not impede an assignee’s right to
collect a debt, then there is no violation of the FDCPA’s prohibition on “[t]he
collection of any amount. . . unless such amount is expressly authorized by the
agreement creating the debt or permitted by law.” 15 U.S.C. § 1692f(1).
The Plaintiff also alleges that the Defendant violated § 1692f(1) because
the collection letter did not comply with § 1692g(a). (Compl. ¶ 41(f), ECF No. 1.)
However, as explained above, the collection letter did comply with § 1692g(a).
Therefore, the Court grants the Defendant judgment on the pleadings
with respect to the Plaintiff’s allegations that the collection letter violated 15
U.S.C. § 1692f(1).
B. Allegations That the Collection Letter Violated the FCCPA.
Count Two of the Complaint alleges that the Defendant violated Florida
Statute § 559.72(9), which prohibits a debt collector from claiming, attempting,
or threatening to enforce a debt when such person knows that the debt is not
legitimate, or asserting the existence of some other legal right when such
person knows that the right does not exist. (Compl. ¶ 44(a), ECF No. 1.) First,
the Plaintiff alleges that FNCB violated this provision by attempting to collect
the debt before giving the Plaintiff thirty days’ notice of the assignment of the
debt as required by § 559.715. (Id.) However, as the Plaintiff acknowledged in
her response to the Motion for Judgment on the Pleadings, the FCCPA does not
create a private right of action to enforce § 559.715. See Wright v. Dyck-O’Neal,
Inc., No. 15-cv-249-FtM-38MRM, 2015 WL 6560444, *2 (M.D. Fla. Oct. 27,
2015) (dismissing alleged violation of the FCCPA for failure to serve a notice of
assignment pursuant to Florida Statute § 559.715 because the Florida
legislature did not authorize a private right of action to enforce § 559.715).
Second, the Plaintiff alleges that the Defendant violated § 559.72(9)
because the collection letter did not comply with 15 U.S.C. § 1692g(a). (Compl.
¶ 44(b), ECF No. 1.) Finally, the Plaintiff alleges that the Defendant violated
§ 559.72(9) because the Defendant unlawfully displayed a bar code on the
envelope used to mail the collection letter in violation of 15 U.S.C. § 1692f(8).
(Id. ¶ 44(c)However, as explained above, the collection letter did comply with
§ 1692g(a) and the visibility of the bar code did not violate § 1692f(8).
Therefore, the Court grants the Defendant judgment on the pleadings
with respect to Count Two of the Complaint.

4. Conclusion
Accordingly, for the reasons set forth above, the Court grants the
Defendant’s Motion for Judgment on the Pleadings (ECF No. 16). The Court
directs the Clerk to close this case. Any pending motions are denied as moot.
Done and ordered in chambers, at Miami, Florida, on May 15, 2017.
________________________________
Robert N. Scola, Jr.
United States District Judge