Nidia Merrill v. Dyck-O'Neal,Inc. ( 2018 )


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  •            Case: 18-10456    Date Filed: 08/13/2018   Page: 1 of 10
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 18-10456
    Non-Argument Calendar
    ________________________
    D.C. Docket No. 2:15-cv-00232-PAM-MRM
    NIDIA MERRILL,
    Plaintiff-Appellant,
    versus
    DYCK-O’NEAL, INC.,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    ________________________
    (August 13, 2018)
    Before NEWSOM, BRANCH, and FAY, Circuit Judges.
    PER CURIAM:
    Case: 18-10456     Date Filed: 08/13/2018   Page: 2 of 10
    Nidia Merrill appeals from the district court’s order of summary judgment in
    favor of Dyck-O’Neal, Inc. on Merrill’s claims under the Fair Debt Collection
    Practices Act (FDCPA), 15 U.S.C. § 1692, et seq., and the Florida Consumer
    Collections Protection Act (FCCPA), Fla. Stat. § 559.55, et seq. Specifically,
    Merrill argues that Dyck-O’Neal is liable (1) under both the FDCPA and the
    FCCPA for failing to comply with Fla. Stat. § 559.715, and (2) separately, under
    the FDCPA for misrepresenting the timeframe in which it would pursue collection
    action on Merrill’s debt. We AFFIRM the district court’s order granting summary
    judgment in favor of Dyck-O’Neal.
    I
    This case arises from Merrill’s default on a mortgage debt owed to Chase
    Home Finance, LLC. Chase filed an action to foreclose the mortgage, a final
    judgment of foreclosure was entered in Chase’s favor, and the home was sold at a
    foreclosure sale. The foreclosure sale resulted in a deficiency balance that Dyck-
    O’Neal ultimately purchased from Chase.
    On May 22, 2014, Dyck-O’Neal sent Merrill a letter informing her that it
    had been assigned the debt. The letter stated that the notice was not an attempt to
    collect a debt but was being sent in compliance with Fla. Stat.
    § 559.715. The letter stated that “[n]o collection efforts will occur on this account
    for at least 30 days from the date of this notice.”
    2
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    On June 18, 2014, only 26 days later, Dyck-O’Neal authorized and directed
    its counsel, the Law Offices of Daniel C. Consuegra, P.A., to send Merrill a second
    letter which in relevant part stated as follows: “THIS NOTICE IS A
    COMMUNICATION FROM A DEBT COLLECTOR. THIS IS AN ATTEMPT
    TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE
    USED FOR THAT PURPOSE.”
    Having received the second letter less than 30 days after the first, Merrill
    filed this action, asserting that the collection conduct made her fearful and caused
    her to seek bankruptcy protection. In her complaint, Merrill alleged violation of
    the FDCPA (Count I1) and the FCCPA (Count II). The district court granted
    summary judgment for Dyck-O’Neal. The district court dismissed Count II,
    holding that “there is no private right of action under the FCCPA.” The district
    court also held that Count I failed because the FDCPA claim “hinge[d] on whether
    Florida Statute § 559.715 creates a condition precedent to collecting a debt,” which
    the district court held it did not.
    Merrill timely appealed. We review the district court’s grant of summary
    judgment de novo. Broadcast Music, Inc. v. Evie’s Tavern Ellenton, Inc., 
    772 F.3d 1254
    , 1257 (11th Cir. 2014).
    1
    The parties agree that Count I of Merrill’s complaint alleges a violation of the FDCPA for
    failure to comply with Fla. Stat. § 559.715. However, the parties disagree over whether Count I
    of the complaint also alleges that Dyck-O’Neal violated the FDCPA by misrepresenting in the
    May 22 letter that no collection efforts would occur for at least 30 days in light of the fact that
    the June 18 letter attempted collection only 26 days later. See infra at 2.
    3
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    II
    This appeal presents three issues for our consideration: (1) whether
    compliance with the 30-day timeframe in Fla. Stat. §559.715 is a condition
    precedent to collection of a debt such that Dyck-O’Neal’s failure to comply gives
    rise to liability under the FDCPA; (2) whether Dyck-O’Neal’s failure to comply
    with the 30-day timeframe outlined in Fla. Stat. § 559.715 provides Merrill with a
    private right of action under the FCCPA; and (3) whether Dyck-O’Neal’s two
    letters, taken together, amount to a misrepresentation that gives rise to liability
    under the FDCPA. We address each issue in turn.
    A
    Merrill’s FDCPA claim premised on violation of the 30-day timeframe in
    Fla. Stat. § 559.715 hinges on an argument that § 559.715 creates a condition
    precedent to the collection of a debt. The district court held that § 559.715 does
    not create a condition precedent. We agree.
    Section 559.715 states that an “assignee [of consumer debt] 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.” Although
    § 559.715 uses mandatory language, reviewing courts have held that the statute
    does not create a condition precedent to debt collection.
    4
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    The issue of whether Fla. Stat. § 559.715 creates a condition precedent to
    collecting a debt in the mortgage-foreclosure context was addressed and decided in
    two Florida Courts of Appeals in 2016. See Brindise v. U.S. Bank Nat’l Ass’n, 
    183 So. 3d 1215
    (Fla. 2d DCA 2016); 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.” Wright v.
    Dyck-O’Neal, Inc., 
    237 F. Supp. 3d 1218
    , 1221 (M.D. Fla. 2017). The Brindise
    and Siefker courts followed the same rationale, reasoning that the Florida
    Legislature had explicitly conditioned the filing of other kinds of lawsuits on a
    prior occurrence—e.g., in the contexts of statutes for libel and slander actions,
    medical malpractice suits, and condominium-related suits—but had not similarly
    created a condition precedent in § 559.715. 
    Brindise, 183 So. 3d at 1219
    ; 
    Siefker, 201 So. 3d at 816
    . Both Brindise and Siefker held that “[b]ecause 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
    (quoting 
    Brindise, 183 So. 3d at 1219
    ).
    The Brindise and Siefker decisions have been followed by other courts
    considering the question whether § 559.715 creates a condition precedent to the
    collection of debt—not only in the judicial foreclosure context, but also (as
    relevant here) in the non-foreclosure litigation context and the non-judicial debt
    5
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    collection context. See Valle v. First Nat’l Collection Bureau, Inc., 
    252 F. Supp. 3d
    1332, 1342 (S.D. Fla. 2017) (non-judicial debt collection); Wright v. Dyck-
    O’Neal, Inc., 
    237 F. Supp. 3d 1218
    , 1222 (M.D. Fla. 2017) (non-judicial debt
    collection); Peters v. Bank of New York Mellon, 
    227 So. 3d 175
    , 178 (Fla. 2d DCA
    2017) (foreclosure); McCall v. HSBC Bank USA, N.A., 
    186 So. 3d 1134
    (Fla. 1st
    DCA 2016) (foreclosure); Trautman v. Dyck O’Neal, Inc., 
    191 So. 3d 470
    (Fla. 2d
    DCA 2016) (non-foreclosure litigation); Nat’l Collegiate Student Loan Tr. 2007-1
    v. Lipari, 
    224 So. 3d 309
    , 311 (Fla. 5th DCA 2017) (non-foreclosure litigation).
    The issue has not yet been addressed by the Florida Supreme Court, which
    declined to review the Second DCA’s decision in Brindise despite the appellate
    court’s certification of the condition-precedent question. Brindise v. U.S. Bank
    Nat’l Association, SC 16-300, 
    2016 WL 1122325
    (Fla. 2016).
    Because this is an issue of state law, the decisions of the Florida district
    courts of appeal are binding:
    [T]he rule is 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. That rule is, if anything,
    particularly appropriate in Florida, where the state’s highest
    court has held that the decisions of the district courts of appeal
    represent the law of Florida unless and until they are overruled
    by the Florida Supreme Court.
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    McMahan v. Toto, 
    311 F.3d 1077
    , 1080 (11th Cir. 2002) (internal citations
    omitted) (internal quotations omitted). Here, there is no “persuasive indication”
    that the Florida Supreme Court would reject the decisions of the Florida District
    Courts of Appeals in the Brindise line of cases. In the absence of that “persuasive
    indication,” Brindise and its progeny are the “law of Florida” and are binding on
    this Court. 
    Id. Following those
    decisions—and the others that have applied them
    in other contexts—we conclude that § 559.715 does not create a condition
    precedent to debt collection, and therefore that Merrill’s FDCPA claim, which is
    predicated on Dyck-O’Neal’s noncompliance with § 559.715, must fail.
    B
    Merrill next argues that the district court erred in holding that Dyck-
    O’Neal’s violation of the 30-day waiting period set forth in § 559.715 does not
    provide her with a private right of action against Dyck-O’Neal under the FCCPA.
    We disagree.
    “[T]here is no private cause of action under the FCCPA for failure to serve a
    notice of assignment” under Fla. Stat. § 559.715. Wright v. Dyck-O’Neal, 237 F.
    Supp. 3d 1218, 1220-21 (M.D. Fla. 2017) (internal quotations removed) (quoting
    Schmidt v. Synergetic Commc’ns, Inc., 
    2015 WL 248635
    at *3 (M.D. Fla. Jan 20,
    2015); see also Trent v. Mortg. Elec. Registration Sys., Inc., 
    618 F. Supp. 2d 1356
    ,
    1364 (M.D. Fla. 2007), aff’d 288 Fed.Appx. 571 (11th Cir. 2008). Recognizing as
    7
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    much, Merrill relies on § 559.715, § 559.72(9), and § 559.77, taken together, to
    argue that Dyck-O’Neal’s violation of the 30-day waiting period in § 559.715
    gives rise to a private right of action. Section 559.77 provides a private right of
    action for violation of the provisions of § 559.72. Merrill contends that violation
    of the waiting period set forth in § 559.715 constitutes a violation of § 559.72(9),
    which states that no person shall “[c]laim, attempt or threaten to enforce a debt
    when such person knows that the debt is not legitimate, or assert the existence of
    some other legal right when such person knows that the right does not exist.”
    Although violation of § 559.72(9) does afford a debtor a private right of
    action, violation of the 30-day waiting period set forth in § 559.715 does not
    constitute a violation of § 559.72(9). Because (as already explained) compliance
    with § 559.715 is not a condition precedent to collection of a debt, failure to
    comply with § 559.715’s 30-day waiting period did not somehow de-“legitim[ize]”
    the debt that Merrill owed to Dyck-O’Neal and thus did not foreclose Dyck-
    O’Neal’s right to collect it.
    In this case, there was a violation of § 559.715 but not a violation of
    § 559.72(9). The violation of § 559.715 alone does provide Merrill a private right
    of action against Dyck-O’Neal. See Wright, 
    237 F. Supp. 3d 1218
    , 1220-21.
    C
    8
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    Finally, Merrill contends that Dyck-O’Neal violated the FDCPA’s
    prohibition against false or misleading representations through its statement in the
    May 22 letter that no action to collect her debt would be made for at least 30 days.
    15 U.S.C. § 1692e. In particular, Merrill asserts that the representation that Dyck-
    O’Neal would wait 30 days before taking action to collect Merrill’s debt was
    transformed into a misrepresentation, in violation of the FDCPA, by the debt-
    collection letter that Dyck-O’Neal’s lawyer sent on June 18, less than 30 days later.
    Because Merrill did not properly raise this argument before the district court she
    cannot raise it on appeal.
    Merrill first made the argument she makes now in her summary judgment
    motion. (Doc. 51 at 14). But as we have held, a party is not afforded “an
    opportunity to raise new claims at the summary judgment stage.” Gilmour v.
    Gates, McDonald & Co., 
    382 F.3d 1312
    , 1314 (11th Cir. 2004). Merrill says that
    she presented the argument in paragraph ¶ 24 of her complaint. Paragraph 24
    reads: “Defendants violated the FDCPA’s prohibition against false or misleading
    representations (15 U.S.C. § 1692e) by seeking to collect the alleged debt prior to
    complying with § 559.715, Fla. Stat. or the expiration of the time period
    thereunder, by CONSUEGRA LAW sending a dunning letter attempting to collect
    a debt.” Conspicuously absent from that paragraph of the complaint, though, is
    any reference to the May 22 letter that Merrill now argues is the basis of her
    9
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    FDCPA claim. Merrill failed to allege in her complaint that the May 22 letter
    contained a misrepresentation in violation of the FDCPA, and she could not
    present that argument for the first time in her summary judgment motion. See
    
    Gilmour, 382 F.3d at 1314
    .
    Because Merrill failed to raise the May-22-letter-as-misrepresentation
    argument in her complaint, the district court did not err in rejecting it.
    * * *
    For the reasons explained above, we conclude that the district court did not
    err in denying Merrill’s motion for summary judgment and in granting summary
    judgment in favor of Dyck-O’Neal.
    AFFIRMED.
    10
    

Document Info

Docket Number: 18-10456

Filed Date: 8/13/2018

Precedential Status: Non-Precedential

Modified Date: 8/13/2018