Two words could put a new burden on debt collectors in Florida. On February 14, Sen. Joe Gruters (R-Fla.) introduced Senate Bill 1034, which proposes a change to Florida Statute § 559.715. That section currently requires the assignee of the “right to bill and collect a consumer debt” to “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.” Senate Bill 1034 would change this to require such notice at least 30 days “before bringing any legal action to collect the debt” (additional text noted in italics). The change could overturn decisions by Florida’s First, Second, Fourth, and Fifth District Courts of Appeal regarding consumer debt collection suits.
In Brindise v. U.S. Bank Nat. Ass’n, Florida’s Second District Court of Appeal held that § 559.715 does not make the “notice of assignment a condition precedent to suit,” noting that “the Legislature declined to be more specific when enacting [§] 559.715.” 183 So. 3d 1215, 1219 (Fla. Dist. Ct. App. 2016). Thus, a debt collector’s failure to provide the notice is not a defense to a suit to collect on the debt. Recognizing the “innumerable” cases where defendants had raised § 559.715 as a defense, the Brindise Court certified the issue to the Florida Supreme Court. However, the Florida Supreme Court declined to consider the question and denied the Petition for Review. Since Brindise, the First, Fourth, and Fifth District Courts of Appeal have also held that the notice requirement in § 559.715 is not a condition precedent to filing a suit to collect a consumer debt, as ruled in Dyck-O’Neal, Inc. v. Lanham, No. 1D16-1624, 2019 WL 654358, at *2, ___ So. 3d ____ (Fla. Dist. Ct. App. Feb. 18, 2019); Nat’l Collegiate Student Loan Tr. 2007-1 v. Lipari, 224 So. 3d 309, 311 (Fla. Dist. Ct. App. 2017); and Bank of Am., N.A. v. Siefker, 201 So. 3d 811, 818 (Fla. Dist. Ct. App. 2016).
Potential Ramifications of Florida Senate Bill 1034
Senate Bill 1034 might overturn these precedents by making the notice of assignment a condition precedent to a lawsuit to collect a debt. The bill might introduce the kind of “specific” language Brindise and other courts have found was lacking. If so, failure to provide the notice at least 30 days before a lawsuit could serve as an affirmative defense to an assignee’s efforts to collect the debt. Additionally, bringing a suit without providing the proper notice could violate the Fair Debt Collection Practices Act (“FDCPA”) and the Florida Consumer Collections Protection Act (“FCCPA”).
Since the Brindise line of cases, federal courts have held that the failure to provide the notice required by § 559.715 cannot form the basis of an FDCPA claim because the notice is not a condition precedent to a lawsuit on the debt. See Merrill v. Dyck-O’Neal, Inc., 745 F. App’x 844, 847–48 (11th Cir. 2018); Valle v. First Nat’l Collection Bureau, Inc., 252 F. Supp. 3d 1332, 1343 (S.D. Fla. 2017); Wright v. Dyck-O’Neal, Inc., 237 F. Supp. 3d 1218, 1222 (M.D. Fla. 2017). As mentioned above, Senate Bill 1034 could change this, creating liability under the FDCPA. Likewise, under Senate Bill 1034, a suit to collect on a debt without providing the notice required by § 559.715 might violate the FCCPA, which prohibits the assertion of a “legal right when [the debt collector] knows that the right does not exist.” See Fla. Stat. § 559.72(9); see also Merrill, 745 F. App’x at 848 (holding that a debt collector did not violate the FCCPA because “compliance with § 559.715 is not a condition precedent to collection of a debt,” and thus a failure to provide the notice does “not foreclose [the debt collector’s] right to collect”).
Lastly, the change proposed in Senate Bill 1034 would make clear that the 30-day notice requirement only applies to the bringing of a legal action, as opposed to “any action to collect the debt.” This could benefit debt collectors, as debtors have attempted to use § 559.715’s notice requirement to argue that an assignee cannot take any action to collect the debt—such as sending a dunning letter—until 30 days after providing a § 559.715 notice.
Florida Senate Bill 1034 was referred to the Florida Banking and Insurance, Judiciary, and Rules committees on February 22. Troutman Sanders will continue to monitor this legislative proposal.