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Appeals Court Rules Potential Violation of State Law Does Not Create Precedent For FDCPA Violation

The Court of Appeals for the Eleventh Circuit, in an unpublished opinion, has upheld a lower court’s ruling that granted summary judgment in favor of a defendant that was accused of violating the Fair Debt Collection Practices Act and the Florida Consumer Collections Practices Act by sending a collection letter four days earlier than originally intended.

A copy of the ruling in the case of Merrill v. Dyck-O’Neal can be accessed by clicking here.

The plaintiff’s home had been foreclosed on, and following the sale of the property, a deficiency balance remained. The balance was sold to the defendant, which sent a letter to the plaintiff on May 22, 2014 saying it had been assigned the debt. The letter said that the notice was not an attempt to collect a debt, and was being sent in compliance with a state law and that “[n]o collection efforts will occur on this account for at least 30 days from the date of this notice.”

However, 26 days later, the defendant authorized its lawyer to send a collection letter to the plaintiff. The plaintiff subsequently filed a lawsuit. A District Court judge dismissed the claim alleging a violation of the FCCPA because that law does not include a private right of action, and dismissed the FDCPA claim because it “hinged” on whether the 30-day provision in the FCCPA creates a precedent to collecting a debt, ruling it does not.

The Appeals Court agreed that the FCCPA’s 30-day notification does not create a precedent to collecting a debt, at least in the context of a mortgage foreclosure.

Violating the 30-day provision does not create a private right of action under the FCCPA, the courts ruled.

Finally, the plaintiff threw a Hail Mary, arguing that the violation of the 30-day window constitutes a false or misleading representation under the FDCPA. But, because the argument was initially raised at the summary judgment stage and not in the initial complaint, neither the District Court nor the Appeals Court would consider it. The plaintiff attempted to point to language in her complaint that referenced a violation of the FDCPA, but the court noted that she failed to specifically mention the initial letter sent by the defendant in the complaint.

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