How many consumers are sued every day by a debt buyer they’ve never heard from in the past? This is extremely common and presents an excellent defense for those knowledgeable enough to use it.
One of the best tools we have as a consumer lawyer fighting collection actions brought by companies such as Cach, Asset Acceptance, Sherman Financial Group etc. is Florida Statute Section 559.715. It requires notification of any assignment of the right to bill and collect the debt be given to the consumer prior to filing a lawsuit in an attempt to collect the debt. It acts as a condition precedent to filing suit and requires a case to be dismissed if properly asserted.
A case we had last week is a perfect example. Our client was sued by Cach LLC for an old credit card debt and she represented herself for two years. Not much was done other than an answer was filed. However, the debt buyer recently started working on the file again and a motion for summary judgment was filed. Our client hired us in February of this year to fight that MFSJ. Once we reviewed the file, we determined that we could file our own Motion for Summary Judgment for failure of the debt buyer to send the notice required by Florida Statute Section 559.715. We did and we won. Case dismissed. The Plaintiff’s Motion for Summary Judgment hearing already set a couple weeks later was removed from the calendar as the case was now over. The statute of limitations was still open for the debt buyer to re-file for a few more months. So we next offered to waive our entitlement to attorney’s fees in exchange for the debt buyer releasing their claims against my client. They agreed. Problem solved. No low hanging fruit here Cach decided and they moved on.
Had our client just simply gone to the hearing to argue against the debt buyer’s motion for summary judgment, I believe she would have lost. The Affidavit and supporting documentation filed by the debt buyer was pretty decent, although it skipped over this defense entirely. She had never even heard of the defense we raised and it was not contained within her pro se Answer. She would have then faced 25% wage garnishment. That would have forced a bankruptcy unless she could still live on 75% of her pay.
The law always changes. This particular statute has just been ruled by the Second DCA in Florida in early 2016 as inapplicable to mortgage foreclosure cases in Brindise v. U.S. Bank N.A. But it is alive and well in the context of other non-mortgage consumer debt and is very useful. In Burt v. Hudson & Keyse, LLC, the 5th DCA ruled in 2014 that such a notice was required prior to filing suit when it reversed summary judgment for the plaintiff when the defendant denied having received the notice in an opposing affidavit. However, Judges aren’t always particularly fond of this law believing that the parties will be right back in court once the proper notice is given. In some cases they are correct. In others, the matter has now been resolved and we won’t be back. For more information, please contact Christie D. Arkovich, P.A. Also feel free to check out our AVVO reviews by former clients facing problems similar to this.