Dyck O'Neal, Inc. v. Ward

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
DYCK O'NEAL, INC., )
)
Appellant, )
)
v. ) Case No. 2D15-2989
)
KAMI WARD, )
)
Appellee. )
___________________________________ )
Opinion filed January 27, 2017.
Appeal from the Circuit Court for Lee
County; Alane Laboda, Judge.
Susan B. Morrison of Law Offices of Susan
B. Morrison, P.A., Tampa, for Appellant.
W. Justin Cottrell of Cottrell Law Group,
LLC, Naples, for Appellee.
KHOUZAM, Judge.
Dyck O'Neal, Inc. (DONI), timely appeals the final summary judgment
entered in favor of Kami Ward in this action for a deficiency decree based on a final
judgment of foreclosure. Because the trial court incorrectly determined that section
559.715, Florida Statutes (2013), creates a condition precedent to a deficiency action,
we reverse.
In 2009, a final foreclosure judgment was entered against Ward. The
property was sold at a foreclosure sale for $100—much less than either the amount due
on the judgment or the value of the property. After the foreclosure sale, the judgment
was assigned to DONI. DONI filed a complaint against Ward, seeking a deficiency
decree based on the foreclosure judgment. Ward asserted as an affirmative defense
that DONI had failed to comply with a condition precedent found in section 559.715,
which provides as follows:
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.
(Emphasis added.) She claimed that DONI had given her notice of the assignment only
thirteen days before filing the deficiency complaint instead of waiting at least thirty days
as required by section 559.715. The trial court agreed with Ward's reasoning and
granted final summary judgment in her favor.
Section 559.715 is part of the Florida Consumer Collection Practices Act,
§§ 559.55-.785 (2013) (FCCPA), which is much like the federal Fair Debt Collection
Practices Act, 15 U.S.C. §§ 1692-1692p (2013) (FDCPA). See Read v. MFP, Inc., 85
So. 3d 1151, 1153 (Fla. 2d DCA 2012) (explaining that both acts apply to the same
types of conduct but are not identical). Because of this similarity, interpretations of the
FDCPA are useful in interpreting the FCCPA. See § 559.77(5) ("In applying and
construing [the FCCPA], due consideration and great weight shall be given to the
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interpretations of the Federal Trade Commission and the federal courts relating to the
federal Fair Debt Collection Practices Act.").
On appeal, DONI argues that the court erred in granting summary
judgment based on DONI's failure to comply with section 559.715 because that section
does not apply to deficiency actions. We agree. In interpreting a provision of the
FDCPA, this court recently held that a "deficiency proceeding, rather than being an
action on a consumer debt that has been reduced to judgment, is actually an action to
enforce the result of a foreclosure proceeding and obtain a money judgment." Aluia v.
Dyck-O'Neal, Inc., 41 Fla. L. Weekly D1660, D1661 (Fla. 2d DCA July 15, 2016). We
reasoned that:
A deficiency suit is not a "legal action on" the note; it is an
action on the final judgment of foreclosure. The final
judgment of foreclosure is not "an obligation . . . of a
consumer to pay money," nor does it arise from a business
dealing or consensual obligation. The final judgment of
foreclosure is a judgment in rem or quasi in rem which arises
from the foreclosure proceeding.
Id. (quoting the definition of "debt" found in 15 U.S.C. § 1692a(5)).
This analysis should apply equally to the FCCPA because the definition of
"debt" under both acts is essentially the same. See 15 U.S.C. § 1692a(5) ("The term
'debt' means any obligation or alleged obligation of a consumer to pay money arising
out of a transaction in which the money, property, insurance, or services which are the
subject of the transaction are primarily for personal, family, or household purposes,
whether or not such obligation has been reduced to judgment."); § 559.55(6) (" 'Debt' or
'consumer debt' means any obligation or alleged obligation of a consumer to pay money
arising out of a transaction in which the money, property, insurance, or services which
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are the subject of the transaction are primarily for personal, family, or household
purposes, whether or not such obligation has been reduced to judgment."). It follows
that a deficiency action is not an action to collect a consumer debt as contemplated by
either act. Because a deficiency action is not an action to collect consumer debt,
section 559.715's requirement that notice must be given "at least 30 days before any
action to collect the debt" does not apply. DONI was not required to give Ward notice
pursuant to section 559.715 before filing a deficiency action.
Reversed and remanded for further proceedings.
LaROSE and CRENSHAW, JJ., Concur.
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