Consumer JusticeDebt Collection Abuse

Ramos v. CACH- Florida’s Consumer Collection Practices Act NOT A PRIVATE CAUSE OF ACTION!

By January 5, 2016No Comments

Yarelys Ramos appeals the trial court’s summary final judgment order entered in
favor 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.
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 86.0216 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 “[s]ummary judgment is proper if there is no genuine issue of material fact
and if the moving party is entitled to a judgment 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)

Section 559.77 states that “[a] debtor may bring a civil action against a person
violating the provisions of s. 559.72 in the county in which the alleged violator resides or
has his or her principal place of business or in the county where the alleged violation
occurred.”

 Section 86.021 states: “Any person claiming to be interested or who may be in
doubt about his or her rights under a deed, will, contract, or other article, memorandum,
or instrument in writing or whose rights, status, or other equitable or legal relations are
affected by a statute, or any regulation made under statutory authority, or by municipal
ordinance, contract, deed, will, franchise, or other article, memorandum, or instrument in
writing may have determined any question of construction or validity arising under such
statute, regulation, municipal ordinance, contract, deed, will, franchise, or other article,
memorandum, or instrument in writing, or any part thereof, and obtain a declaration of
rights, status, or other equitable or legal relations thereunder.”

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 assignee “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 DyckO’Neal who
sought to collect any deficiency. Dyck–O’Neal, by and through
its agent, Defendant Consuegra, 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 that 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 assert[ing] the existence of some other legal
right when such person knows that the right does not exist.
Plaintiffs presumably reason that Defendant Consuegra’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.

Ramos also argues that it was reversible error for the trial court to enter summary
judgment on her request for declaratory relief because she was “entitled to a declaration
regarding the statutes at issue; specifically, whether notice of assignment is a condition
precedent to collecting the debts at issue and whether CACH violated section 559.72(9)
by attempting to collect debts when it knew it did not have the right to collect such debts.”
We disagree.

To obtain declaratory relief, a party must demonstrate that
[t]here is a bona fide, actual, present practical need for
declaration; that the declaration should deal with present,
ascertained or ascertainable state of facts or present
controversy as to a state of facts; that some immunity, power,
privilege or right of complaining party is dependent on fact or
law applicable to facts; that there is some person or persons
who have, or reasonably may have actual, present, adverse
and antagonistic interest in the subject matter, either in fact or
law; that the antagonistic and adverse interest are all before
the court by proper process or class representation and that
the relief sought is not merely giving of legal advice by the
courts or the answer to questions propounded from curiosity.
Orange Cnty. v. Expedia, Inc., 985 So. 2d 622, 625-26 (Fla. 5th DCA 2008). We have
further explained:

[W]hile the existence of another available remedy does not
preclude a judgment for declaratory relief, a viable declaratory
claim must be asserted and exceptional circumstances must
be shown for the prosecution of such a claim where there is a
raised in the action can be resolved in the pending suit. . . .
[Courts should follow] the almost universal rule . . . that if at
the time the proceeding for a declaratory decree is initiated a
suit is already pending which involves the same issues and in
which litigation the plaintiff in the declaratory decree action
may secure full, adequate and complete relief, such bill for
declaratory decree will not be permitted to stand.

Here, CACH’s still-pending collection lawsuit was pending at the time Ramos
asserted the entitlement to declaratory relief in her counterclaim. Thus, adherence to the
rule cited above required that Ramos be denied declaratory relief. Further, Ramos’ claim
for injunctive relief is ancillary to her claim for declaratory relief and is, therefore,
unavailable.

AFFIRMED.
LAWSON, C.J. and TORPY, JJ., concur.

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