Creditors CANNOT Contact Consumers!
ANGELA TROMBETTA, Plaintiff, vs. 21st MORTGAGE CORPORATION, Defendant. County Court, 6th Judicial Circuit in and for Pasco County. Case No. 51-2014-CC-000554WS, Division O. September 5, 2014. Paul E. Firmani, Judge. Counsel: Ryan Christopher Torrens, Tampa, for Plaintiff. Robert Nathan Johnson, Quintairos, Prieto, Wood & Boyer, P.A., Orlando, for Defendant.
The competing motions for partial summary judgment are as to liability on Counts 2 through 4 of the 1st Amended Complaint against the Defendant 21st Mortgage Corporation.
A movant is entitled to summary judgment if the pleadings, depositions, answers to interrogatories, admissions affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Center, Inc. 928 So.2d 1272 (Fla. 2nd DCA 2006) [31 Fla. L. Weekly D1482a] (quoting Fla. R. Civ. P. 1.510(c)).
The Court commends Counsel for both parties in succinctly making their arguments in their filed motions and oral argument and for the sake of brevity the Court will not repeat the extensive legal argument made by both sides in this order.
Sufficient to say that the Court finds that the Plaintiff did satisfy its initial burden to show that there were no genuine issues and material fact that existed and therefore the burden does shift to the non-moving party to demonstrate that the genuine issues and material facts exist so the Plaintiff is not entitled to a judgment as a matter of law. See Holl v. Talcott 191 So.2d 40 (Fla. 1966); Bryson v. Branch Banking and Trust Co. 75 So.3d 783 (Fla. 2nd DCA 2011) [36 Fla. L. Weekly D2582a].
The Court finds that the actions of the Defendant were violative of Fla. Stat. 559.72 (18) in that contact was made with the Plaintiff by written communications after the Defendant was notified that shewas represented by Counsel.
On January 15th Plaintiff’s Counsel submitted by facsimile a third party authorization form executed by both the undersigned Counsel and the Plaintiff, authorizing information regarding the account to be released to the undersigned Counsel and stating that all communication go through Plaintiff’s Attorney. This communication was attached as exhibit B to the Joint Stipulation. Defendant’s Counsel admits that it received the third party authorization from the undersigned on January 16th, 2014 at 8:11 a.m.
Simultaneously with the third party authorization the Plaintiff’s Counsel sent the Defendant via facsimile a cease and desist letter entitled Consumer Protection Notice (Joint Stip Exhibit C) demanding that the Defendant immediately cease any direct contact with the Plaintiff and demanding that all communications regarding the debt go through her attorney. Again this communication was attached to the joint stipulation as exhibit D.
On or about February 10th, 2014 the undersigned Counsel received a letter from the Defendant dated February 3rd, 2014, a true and correct copy of the letter along with the attachments was attached by joint stipulation as exhibit E. The letter stated that upon receipt of the third party authorization and consumer protection notice, the account was coded cease and desist and the customers mailing address was updated to reflect Counsel’s representation.
On January 30th, 2014 the Plaintiff received two letters in the mail from the Defendant, one letter was titled notice of abandonment and is dated January 22nd, 2014 and was attached to the joint stipulation as exhibit F. The other letter was titled” Notice of Our Plan to Sell Property” and was attached to the joint stipulation as exhibit G.
On February 4th, 2014 the Plaintiff received by certified mail yet another copy of the January 22nd, 2014 notice of our plan to sell property which is attached to the joint stipulation as exhibit H. The certified mail envelope showed that the letter was mailed from Knoxville, Tenn., the city of the Defendants principle place of business on January 27th, 2014 11 days after the Defendant, by its own admission was on notice that the Plaintiff had retained Counsel. A true and correct copy of the certified mail was attached to the joint stipulation as Exhibit I.
The Court must also address the various affirmative defenses when ruling on the parties’ motion for summary judgment.
The Defendant’s first and second affirmative defenses have allegations regarding Defendant’s violation of Fla. Stat. 559.72 (7) which is not before the Court on the instant motion for partial summary judgment as to that statute and therefore not relevant.
The Defendants third affinnative defense claims the Defendant cannot be found in violation of Fla. Stat. 559.72 (18) because the notice of abandonment and notice of the plan to sell property were sent by Defendant to Plaintiff were not attempts to communicate with the Plaintiff while represented by Counsel but rather that these were simply attempts to place the Plaintiff on notice of the alleged abandonment of the property and that applicable State law regarding foreclosure liens required these notices. The Plaintiff’s argument is well taken that the defense is legally insufficient on its face as the notice of abandonment was sent to the Plaintiff (joint stipulation as exhibit F) and contains Plaintiff’s specific account number and is addressed to the estate of Angela M. Trombetta despite the fact that the Plaintiff is not dead.
Further the Defendant’s claim that this notice is required by applicable State law regarding foreclosure of liens is not correct as this was actually a repossession action, not a foreclosure. Furthermore on the same day the Plaintiff received from the Defendant a notice of our plan to sell property attached to the joint stipulation as exhibit G which indicated to the Plaintiff that she could get the property back if she paid the full amount that was owed to the Defendant in due and past due payments as well as any additional costs, taxes and insurance that may be due. The notice provided the phone number for the Plaintiff to call to find out “the exact amount you must pay.” The Court finds this to be a direct contact made with the Plaintiff by the Defendant regarding Plaintiff’s account after the Defendant was placed on notice that the Plaintiff had retained Counsel and therefore is in direct violation of Fla. Stat. 559.72 (18).
As to the Defendant’s fourth affirmative defense the Court affirms the Plaintiff’s argument that the Defense is legally insufficient on its face. The Florida Consumer Collection Practices Act “FCCPA” specifically Fla. Stat. 559.77 (2) provides for statutory damages and damages are not required to be proven. Therefore the Defendant’s claims that the Plaintiff is estopped and barred from recovering any damages because any damages were the direct and approximate cause of the approximate result of the conduct of the Plaintiff are irrelevant.
The Defendant’s fifth affirmative defense has been withdrawn and therefore is not considered by this Court.
The Defendant’s sixth affirmative defense which seeks to reserve additional and further defenses may be revealed by additional information discovered through the case is also not considered by this Court as as of the time of the hearing on the competing motions for summary judgment no such leave had been requested.
Finally the Court finds the Defendant’s argument that the Plaintiff was merely receiving courtesy copies of the same communications that were being sent to Counsel is without merit. The whole purpose of retaining Counsel is to avoid communication between the debt collector and the Plaintiff so that she can be protected by virtue of the fact that any future communications would be sent to her Counsel. As such the Court finds the Plaintiff’s Motion for Summary Judgment to be well taken and will be granted as to Counts 2, 3 and 4.
For the very same reasons the Defendant’s Motion for Partial Summary Judgment as to Counts 2, 3 and 4 are respectfully denied.