Florida Attorney Misses Mark: Florida Appeals Court Holds That Third Party Collection Agencies Canno
Florida has certain laws that make it challenging to collect receivables. For example, Florida Statute §559.715 requires that “an 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.” Consumer defense attorneys have been using this as an affirmative defense for years in third party collections cases. Recently, an attorney used this obscure law to file a two count counterclaim against CACH, LLC (“CACH”) over its alleged failure to send a debtor a written notice of assignment.
While Florida trial courts for years have held that a written notice of assignment is a mandatory condition precedent to filing suit in third party collections cases, it was not until 2014 that a case was appealed to the Fifth District Court of Appeal, which is an intermediate level appellate court. In Burt v. Hudson & Keyse, LLC, 138 So. 3d 1193, 1195 (Fla. 5th DCA 2014), the plaintiff produced a written notice of assignment that was addressed to the defendant, but offered no proof that the written notice of assignment was sent to the defendant.
Because the defendant swore in an affidavit that she never received a written notice of assignment, an issue of fact was created and the case would have to proceed to trial. Id. In Florida, unlike in other states where the burden would be on a defendant to establish that a notice was never sent, filing an affidavit creates an issue of fact, requiring a case proceed to trial where the plaintiff would have to elicit testimony that the written notice of assignment was send to a defendant.
On December 31, 2015, the Fifth District Court of Appeal issued an opinion stating that failure to provide a consumer with a written notice of assignment does not create a private cause of action. In Ramos v. CACH, LLC, 183 So. 3d 1149, 1151 (Fla. 5th DCA 2015, the defendant was sued by CACH after she defaulted on a FIA Card Services credit card that was subsequently assigned to CACH. The defendant asserted affirmative defenses as well as a two count counterclaim arising from CACH’s alleged violation of the written notice provision in s. 559.715. Id. CACH filed a motion for summary judgment as to the counterclaims, arguing that Florida law does not provide for a private cause of action for a violation of s. 559.715. Id.
The circuit judge agreed with CACH and granted its motion for summary judgment. Id. The defendant appealed and the Fifth District Court of Appeal held that failure to provide a consumer with a written notice of assignment does not create a private cause of action. Id.
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