This blog is for ENTERTAINMENT PURPOSES
ONLY and is providing my opinion ONLY, on topics such as
the Florida statutes and what is happening with the situation as it is unfolding
with my wife and the suit filed against her. This is NOT legal advice but
my opinion on the unfolding events as it pertains to a specific scenario, with a
specific Junk Debt Buyer, and specific circumstances surrounding all the parties
involved. I may at time to time comment on other topics relating to case law and
other issues but again it is to stimulate you to do your own research and
encourage discussion should you choose to do so.
Again, this is
NOT legal advice, I am NOT an attorney nor have I ever been an
attorney. You should NOT rely on anything on this blog as a defense or
apply it to your own situation. Again, this blog is meant to encourage you to
think and do your own research.
If you are, or may soon be, in a similar
situation, do your own research, read the Florida state statutes (or your own
states statutes), read your states Rules of Civil Procedure. YOU will
need to determine your own conclusions, and consult with a bar certified
attorney in your area, if at all possible to do so, so that you can obtain sound
legal advice.
In no event will this blog or I be held liable to any
party for any damages arising, in any way, out of the use of information on this
blog, you have been warned. I am only chronicling my opinion and the events as
they occur. Again, I cannot stress it enough, if this blog has you thinking,
then research, research, research, and talk to a bar certified attorney in your
area.
**********************************************************************************
Hello again, as I promised in my last post that I would follow up with information regarding FL case law I found that applies the 4 yr SOL to credit cards. I am going to be pretty brief as the case is very informative and self explanatory. If you think this case applies to you, and you are going Pro Se, then do your research and make a decision on how to cite it. If you are hiring an attorney then bring this case to his/her attention.
Now the case I am posting below is for a Sears store credit card where the debtor was sued in Florida so I cannot say how or if this will work in your state. As always and as stated in my disclaimer, these are my opinions based on the research I have done. I am not an attorney and you should always, even if you intend to go to court Pro Se, consult with a bar certified attorney in your area. There are good NACA attorneys that will give you a consultation for little or no fee and may even take your case for a reasonable amount, or on contingency.
The case at hand is PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES, Appellee, Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County (13 Fla. L. Weekly Supp. 560a). It seems to cement that store credit cards, meaning credit cards that are not Visa/Mastercard/Discover Card branded cards, are covered under the 4 year SOL for oral contracts in Florida. These are cards like Sears, Home Depot, Target, Walmart, JB Robinson, Zales, Kay Jewelers, Lowes, Rooms to Go, ETC where the credit card can only be used at a specific brand of store. However I have in my google travels also found cases from lower courts where this case was cited to apply the 4 year SOL to major non store cards as well (Visa, Mastercard, Discover, AMEX) successfully. I fully believe, that if properly argued, the FERNANDEZ case can get a lower court to favorably rule on the 4 year SOL for major cards, but I would definitely bet that the JDB or OC will appeal. So remember this is my opinion on what I found and again YMMV.
If it were me I would cite the FERNANDEZ case if I were ever sued for a store card that was outside of 4 years but still within 5 years. I again see no reason why this might not work for major cards as well but, as far as I know, there has been no case law supporting this that I can find.
I cannot tell you what may be the best parts to cite as that is for you to decide. I have however included the entire ruling below. Read it and see what applies to you. Hope this helps and maybe we will see some good case law in the near future for major cards being held to the 4 year SOL.
PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES, Appellee_ Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County
13 Fla. L. Weekly Supp. 560a
Contracts -- Credit agreement -- Limitation of actions -- No error in dismissal of statement of claim for breach of contract, account stated, and unjust enrichment for debt incurred on credit card based on expiration of four-year statute of limitations -- Construction of conflicting statutory provisions establishing five-year limitations period to recover on contract founded on written instrument and four-year limitations period to recover on liability not founded on written instrument and on store accounts requires that store accounts be subject to four-year statute of limitations whether or not founded on written instrument -- Further, action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes.
PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v. PAUL FERNANDES, Appellee. Circuit Court, 15th Judicial Circuit (Appellate) in and for Palm Beach County. Case No. 502005AP000032XXXXMB, Division ‘AY'. March 6, 2006. Appeal from County Court, in and for Palm Beach County, Judge Nancy Perez. Counsel: Leslie Mark Schneider, Hayt, Hayt & Landau, Miami, for Appellant. Paul Fernandes, Boca Raton, pro se.
(PER CURIAM.) Appellant, Portfolio Recovery Associates, LLC (“Portfolio”), sued Appellee, Paul Fernandes, as the alleged assignee of a debt incurred by Fernandes to Sears National Bank on a Sears credit card. Portfolio filed a statement of claim under the Small Claims Rules for breach of contract (Count 1), account stated (Count 2), and unjust enrichment (Count 3), claiming $3,201.06 in damages.
Fernandes orally moved to dismiss the claims as outside the statute of limitations at the pretrial conference. See Rule 7.090(c), Fla. Sm. Cl. R. Portfolio argued that Florida Statute §95.11(2)(b), which provides for a five year statute of limitations, governed because the statement of claim alleged a cause of action to recover on a contract founded on a written instrument. Fernandes argued that Florida Statute §95.11(3)(k), which provides for a four year statute of limitations, governed because the action was not founded on a written instrument or was on a store account. The trial court dismissed the case based on its finding that the credit card account was an open account subject to the four year statute of limitations.1
Portfolio argues that the trial court erred when it dismissed the statement of claim based on a finding that the claim was barred by the four year statute of limitations. We disagree.2
An order dismissing a complaint is reviewed de novo. See City of Hollywood v. Petrosino, 864 So.2d 1175 (Fla. 4th DCA 2004). The claim must be taken as true and considered in the light most favorable to the plaintiff, subject to the trial court's ability to summarily dispose of small claims actions if no triable issue exists. See Bryant v. Adventist Health Systems Sunbelt, Inc., 869 So.2d 681 (Fla. 5th DCA 2004); Rule 7.135, Fla. Sm. Cl. R.
The nature of the claim, and not the specific form of action selected by a plaintiff to assert it, determines the applicable statute of limitations. See 20 Am. Jur. 2d, Credit Cards, §46 (2005). In Count 1, Portfolio alleged that Fernandes “by execution of the application and/or by use of the credit card, accepted the terms and conditions of the credit card holder agreement” attached as Exhibit A. Attached as Exhibit A was a copy of a document entitled “Sears Credit Card Account Sears Premium Card Account Cardholder Account and Security Agreement.”
Section 95.11(2)(b), Fla. Stat., provides that the statute of limitations on actions to recover on a contract founded on a written instrument is five years. Conversely, section 95.11(3)(k), Fla. Stat., provides that the statute of limitations to recover on a contract, obligation or liability not founded on a written instrument and on store accounts is four years.
When construing statutes, the specific controls over the general. See Northwest v. Balkany, 727 So. 2d 382 (Fla. 5th DCA 1999). Thus, if a claim arguably falls within two contradictory subsections of the statute, the more specific controls. Even if Count 1 could be deemed an action founded on a written instrument, it can also be deemed an action on a store account. See 20 Am. Jur. 2d, Credit Cards, §46 (2005); Carte Blanche Corporation v. Pappas, 216 So. 2d 917 (La. 2d Cir. 1968).3 Store accounts have been subject to a separate statute of limitations since 1872. Laws of Florida 1872, c. 1869, §10; McClellan's Digest, §10, p. 733. “The provision is for the benefit of those who have stores, and keep goods therein for sale, and sell them, keeping accounts against the purchasers and relying upon their books of accounts in which the articles are charged as evidence in case of controversy,” and applies whether there is an express or implied agreement covering the charges. Saloman v. The Pioneer Co-operative Company, 21 Fla. 374, 385, 1885 WL 1777 (Fla. 1885). The current grammatical structure, which provides for the limitations period on actions “upon a contract . . . not founded upon an instrument of writing, including an action for goods, wares and merchandise sold and delivered, and on store accounts,” has been used since 1919. (emphasis supplied). Laws of Florida 1919, c. 7838, §10, subd.9. “. . . (C)lauses separated by commas are nonrestrictive clauses intended to introduce independent concepts.” Amendments to the Florida Rules of Appellate Procedure, 696 So. 2d 1103, 1108, footnote 6 (Fla. 1996) (Anstead concurring) (quoting brief); see, also, The Elements of Style, Struck and White, 3rd Ed., p. 5 (“(p)lace a comma before a conjunction introducing an independent clause”). Thus store accounts are subject to a four year statute of limitations whether or not founded on a written instrument. See Saloman, supra; Wagner v. Botts, 88 So. 2d 611, 613 (Fla. 1956) (“(h)istorically, parliamentary enactments originally were not punctuated at all. However, the Legislatures of our country have consistently attempted to follow the rules dictated by grammar books with the result that statutes are now punctuated prior to enactment. The better rule now seems to be that punctuation is a part of the Act and that it may be considered in the interpretation of the Act but may not be used to create doubt or to distort or defeat the intention of the Legislature . . . We deem it proper to adhere to what now appears to be the better rule which is to treat the rules of punctuation on a parity with other rules of interpretation.”); Broward Builders Exchange, Inc. v. Goehring, 231 So. 3d 513, 515 (Fla. 1970) (“(i)t cannot now be assumed that the Legislature was unfamiliar with this simple rule of punctuation . . .”). Store accounts, of course, as a species of open accounts, may be based on either a written or oral agreement. See Robert W. Gottfried v. Cole, 454 So. 2d 695 (Fla. 4th DCA 1984); Hawkins v. Barnes, 661 So. 2d 1271 (Fla. 5th DCA 1995).
Count 1 alleges that Fernandes bound himself to the terms of the Cardholder Account and Security Agreement either when he executed an application for a Sears card or when he used a Sears card. If the Cardholder Account and Security Agreement alone were introduced into evidence at trial, though, it would not be sufficient to establish Fernandes' liability. See Colorado National Bank of Denver v. Story, 261 Mont. 375, 862 P. 2d 1120 (Mont. 1993). By itself, it created no liability for Fernandes.4 Instead, it addressed the manner in which a liability which might be later created should be discharged.5 If evidence of liability is partially in writing but the writings are incomplete to establish liability, then the contract is regarded as oral for statute of limitations purposes. See ARDC Corporation v. Hogan, 656 So. 2d 1371 (Fla. 4th DCA 1995), rev. den. 666 So. 2d 143 (Fla. 1995); Multi-Line Claims Service, Inc. v. Cumis Insurance Society, Inc., 739 So. 2d 144 (Fla. 3d DCA 1999) (four years statute of limitations for breach of oral contract applied to action on oral contract for adjusting services, though parties agreed to compensation based on a written fee schedule); Johnson v. Harrison Hardware Furniture Co., 119 Fla. 479, 472, 160 So. 878 (1935) (“(t)he writings attached to, relied on, and made a part of, the second amendment to plaintiff's replication do not on their face constitute a contractual acknowledgment of the loan of any money by plaintiff to defendant, which is the thing sued for, therefore such writings per se can avail nothing to plaintiff as a sufficient preclusion of the bar of the three-year statute of limitations [applicable to actions not founded upon an instrument in writing.] . . .”); Gulf Life Inc. Co. v. Hillsborough County, 129 Fla. 98, 104, 176 So. 72 (1937) (“(i)n order that a contract be founded upon a written instrument, the instrument must contain a contract to do the thing for the nonperformance of which the action is brought.”); Ball v. Roney, 112 Fla. 186, 150 So. 240 (1933); Schrank v. Pearlman, 683 So. 2d 559 (Fla. 3d DCA 1996), rev. den. 691 So. 2d 1081 (Fla. 1997).6 The action is not founded on a written instrument for statute of limitations purposes.7
The legislative scheme makes sense. See Bush v. International Fidelity Ins. Co., 834 So. 2d 212 (Fla. 4th DCA 2002), rev. den. 847 So. 2d 976 (Fla. 2003) (statutory provisions to be given reasonable and logical construction). “. . . (S)tatutes of limitations are designed to prevent undue delay in bringing suit on claims and to suppress fraudulent and stale claims from being asserted, to the surprise of parties or their representatives, when all the proper vouchers and evidence are lost, or the facts have become obscure from the lapse of time or the defective memory or death or removal of [a] witness.” Foremost Properties, Inc. v. Gladman, 100 So. 2d 669, 672 (Fla. 1st DCA 1958), cert. den. 102 So. 2d 728 (Fla. 1958) (citation omitted). A review of the statute shows, consistent with common sense, that those actions on which proof is less likely to deteriorate over time are subject to longer limitations periods; those actions on which proof is more likely to deteriorate because of faulty memory or otherwise are subject to shorter limitations periods. Unlike a written contract containing all the terms sued on, proof of the balance due under a store credit card depends on the correctness of the store's books. We know, though, that record keepers come and go; purchased items are returned or exchanged; and partial payments are made. Proof of the amount due under a store credit card is simply not as secure as proof of the amount due on, for example, a promissory note that contains in writing all the terms of the parties' undertakings. See Nardone v. Reynolds, 333 So. 2d 25, 36 (Fla. 1976), mod. on other grds., Tanner v. Hartog, 618 So. 2d 177 (Fla. 1993) (unfair to allow one who has slept on his rights to sue a party “ ‘. . .who is left to shield himself from liability with nothing more than tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses' ”); Allie v. Ionata, 503 So. 2d 1237 (Fla. 1987).
Because Count 1 alleges a claim on a store account; because it does not allege a claim to recover on a contract founded on a written instrument; because under the Small Claims Rules the trial court properly inquired into undisputed facts at the pre-trial conference that would be dispositive of the claims; and because the trial court properly found that the claims raised in Counts 2 and 3 of the statement of claim were likewise subject to a four year limitations period, which Portfolio does not dispute, it is
ORDERED AND ADJUDGED that the trial court's judgment is AFFIRMED. (SMITH, MAASS and STERN, JJ., concur.)
__________________
1Apparently the trial court summarily disposed of the statement of claim on being apprised of the last payment date. See Rule 7.135, Fla. Sm. Cl. R.
2On appeal from an order of dismissal an appellate court may consider only issues presented to the trial judge. See Sparta State Bank v. Pape, 477 So. 2d 3 (Fla. 5th DCA 1985). This Court agrees with the trial court's decision to dismiss Counts 2 and 3 of the statement of claim. Neither party has taken issue with the trial court's decision to dismiss those counts. Portfolio concedes its claims are precluded if subject to the four year limitations period.
3Portfolio alleges it is the assignee of Sears National Bank, an affiliate of Sears, Roebuck and Co. See preamble to Cardholder Account and Security Agreement; 12 U.S.C. § 1841(k) (“. . .the term ‘affiliate' means any company that controls, is controlled by, or is under common control with another company.”) Under the Competitive Equality Banking Act of 1987, Sears could own a credit card bank without violating the Bank Holding Company Act of 1956 and thus charge a nationwide uniform rate of interest on credit card sales. See, also, Marquette Nat'l Bank v. First Omaha Serv. Corp., 439 U.S. 299, 99 S. Ct. 540 (1978).
4Portfolio implicitly recognized this when it incorporated elements of a claim for account stated in Count 1. See Paragraphs 8, 9, statement of claim; Merrill-Stevens Dry Dock Co. v. “Corniche Express”, 400 So. 2d 1286 (Fla. 3d DCA 1981).
5No statement of account was attached to the statement of claim.
6The cited cases are distinguishable from those where the written instrument obligated the debtor to purchase defined goods or services and pay for them at a contemporaneously determined or determinable rate. Compare, e.g., McGill v. Cockrell, 88 Fla. 54, 101 So. 199 (1924); Mercy Hospital, Inc. v. Carr, 297 So. 2d 598 (Fla. 3d DCA 1974), cert. den. 307 So. 2d 448 (Fla. 1974).
7For example, assume Smith agrees in writing with Jones that if Jones loans him money Smith will repay it with 10% interest. If Jones later sues Smith claiming Smith borrowed money and did not repay it, whether Smith is liable to Jones is dependent on whether and how much he borrowed. Suit to recover the money loaned is not founded on a written instrument. See Johnson v. Harrison Hardware & Furniture Co., supra.
Monday, September 17, 2012
Sunday, August 26, 2012
Florida Statute of Limitations and Choice of Law
This blog is for ENTERTAINMENT PURPOSES ONLY and is providing my opinion ONLY, on topics such as the Florida statutes and what is happening with the situation as it is unfolding with my wife and the suit filed against her. This is NOT legal advice but my opinion on the unfolding events as it pertains to a specific scenario, with a specific Junk Debt Buyer, and specific circumstances surrounding all the parties involved. I may at time to time comment on other topics relating to case law and other issues but again it is to stimulate you to do your own research and encourage discussion should you choose to do so.
Again, this is NOT legal advice, I am NOT an attorney nor have I ever been an attorney. You should NOT rely on anything on this blog as a defense or apply it to your own situation. Again, this blog is meant to encourage you to think and do your own research.
If you are, or may soon be, in a similar situation, do your own research, read the Florida state statutes (or your own states statutes), read your states Rules of Civil Procedure. YOU will need to determine your own conclusions, and consult with a bar certified attorney in your area, if at all possible to do so, so that you can obtain sound legal advice.
In no event will this blog or I be held liable to any party for any damages arising, in any way, out of the use of information on this blog, you have been warned. I am only chronicling my opinion and the events as they occur. Again, I cannot stress it enough, if this blog has you thinking, then research, research, research, and talk to a bar certified attorney in your area.
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Hello again and while I am waiting to see what happens with my wife's case against Livingston Financial LLC I decided to post some thoughts on some things I found in my research regarding choice of law. I know this is deviating from the current cases, both against my wife in county court and the case she filed in Federal District Court but it's some really good information to get you thinking and researching on your own and I couldn't keep it to myself.
Now while the information I found seems to be established case law in Florida, this may or may not be the case in your state. It depends on whether your state views the statute of limitations (SOL) as procedural or substantive law. If your state, like Florida, deems the SOL to be substantive law, then Florida courts should allow the other states SOL, no guarantees (no one can guarantee how a judge will rule) and again this is my personal opinion as a citizen, I am NOT an attorney! If you do get sued on an out of SOL debt then keep in mind that it will probably be an FDCPA violation as well, but more on that at the end of this post. In keeping with my disclaimer, remember, these are my opinions and you should consult with an attorney to be sure, I cannot stress this enough, even if you intend to go Pro Se. There are many good NACA attorneys that will give consultations for little or no charge and may take your case at little cost or on contingency. The opinions as well as information I am giving below I found from research I am doing into the only other unpaid debt my wife has.
In this specific instance the debt is a Bank of America (BOA) debt that is serviced by FIA card services. Keep in mind FIA also services the old MBNA cards that BOA later purchased along with MBNA. Now first off, you remembered to keep that old BOA or MBNA card agreement didn't you? If not, don't fret, you can find many years of older card agreements for many original creditors (OC) on the web, that's what Google is for! Now we all know that some OC's change their card agreements quite often, sometimes on the order of each year or even more often. Now it's my understanding that to accept the new agreement, you do so by retaining the account and continuing to make purchases, when you default that stops. Therefore it should be the last agreement in effect while the account was still in "good standing" that governs your debt. Your mileage may vary with this but that's how I understand it to be.
So now that you have the card agreement, what do you look for? Well alot of OC's are incorporated in Delaware or Virginia, as such they usually have a "Choice of Law" or "What law applies" provision in their agreement choosing the law of their home state. Why does this matter in Florida? Well Florida SOL on credit cards (not store cards, that's a case law discussion for another day) is 5 years. In Delaware (Del.Code Ann. Tit. 10, § 8106 (a)) it is 3 years. With Virginia choice of law it should also be 3 yrs, it's a little dicey but it still looks to be 3yrs as accepted by Florida courts, look up the Capital One Bank v. Gregorich case from Palm Beach County Circuit Court on google for how the Virginia choice of law is worked out by the court. Starting to see my point? There are other choice of law provisions citing other states in card agreements so do your research based on what you are dealing with!
So why would Florida courts use another states SOL? That's where the case law I found in my research comes in to play. First here is some case law I found supporting that Florida courts will treat choice of law provisions as substantive law:
"Florida courts consider the statute of limitations to be substantive, and therefore the statute of limitations of the parties' chosen forum will apply where there exists a contractual choice of laws provision." Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008. "In Florida, a choice of law provision of a contract is presumptively valid unless the party seeking to avoid it shows that application of the chosen law 'contravenes [a] strong public policy' of Florida." Mazzoni Farms, Inc. v. E.I. Du-Pont De Nemours and Co., 761 So.2d 306, 311 (Fla.2000) "We therefore conclude that the contractual provision shortening the period of time for filing a suit was not contrary to a strong public policy." Burroughs Corp. v. Suntogs of Miami, Inc., 472 So. 2d 1166 - Fla: Supreme Court 1985.
Florida also includes choice of law in the Florida Statutes, specifically statute 671.105(1) 2012.
So how does this apply to a case where you are being sued by a junk debt buyer (JDB) that didn't purchase the media for your debt that has the card agreement, or assuming they did, they didn't research it first or flat out ignored it? JDBs like Sherman Financial Group, Sherman Acquisitions, Alegis, Resurgent, Northstar, LVNV Funding, Midland Funding, Midland Credit Management, CACH LLC, Portfolio Recovery, Equitable Ascent, Calvary Portfolio, Asset Acceptance, Arrow Financial, Livingston Financial, ETC ETC. Why does the choice of law provision apply when the agreement was between you and the OC, not the JDB? Well, as the JDB likes to put it when they sue you, the JDB "steps into the shoes" of the OC, so the contract you agreed to then obligates you to them. Well this cuts both ways, the agreement the OC created and that you agreed to binds them as well to that agreement..... and the choice of law provision if it is part of that agreement.
A couple of good cases that I found in my research, that I believe are case law, and that I believe you should also research, are L.W.T., Inc. v. McCorriston, 15 Fla L. Weekly Supp. 443a (Fla. 13th Jud. Cir. November 19, 2007) and Gaisser v. Portfolio Recovery Associates, 2008 WL3824746 (S.D. Fla. August 5, 2008). There are also lower court cases you can research like L.W.T v. Brodsky Fla.Cir.Ct.,2006, and county court cases as well that you can find online such as Capital One Bank v. Pincus and Capital One Bank v. Gregorich. Keep in mind, it is my understanding that lower court rulings (county and circuit) are not caselaw. However other lower courts may take the rulings under advisement as supporting cases. I know I cited Capital One cases but, unfortunately for all you folks with Crap One debt I believe they removed the favorable Virginia choice of law from their more recent card agreements.
Finally, how would this be an actionable FDCPA violation? Well my thinking as a private citizen, again I am NOT an attorney, is this. If a JDB sues you on a time barred debt, even if it was barred due to the choice of law provision being upheld in court, it should be a FDCPA violation. The JDB misinterpreting the law shouldn't get them off the hook for "bona fide error" in my opinion. This also seems to be the opinion of the United States Supreme Court as well. The following case presents the question whether the "bona fide error" defense applies to a violation resulting from a JDB's mistaken interpretation of the legal requirements of the FDCPA. “We conclude it does not.” See, Jerman v. Carlisle, McNellie, Rini, Kramer & Ulnch LPA, No. 08-1200, 130 S. Ct. 1605; 176 L Ed. 2D 519; 2010 U.S. Lexis 3480; (April 21, 2010). The FDCPA violation I have to say is from a very knowledgable fellow over at the www.creditinfocenter.com forums. Please don't hurt me too much for posting this without asking Coltfan1972. But folks, Coltfan1972 is a really knowledgable guy over at credit info center, check out his posts, you'll see what I mean!
Well those are my opinions as well as information I found while helping my wife with research. I suggest, as always, that you do your due diligence and then bring what you find to your consultation with whatever attorney you decide to use. You can always go Pro Se but that's for you to research and determine on your own.
Again, this is NOT legal advice, I am NOT an attorney nor have I ever been an attorney. You should NOT rely on anything on this blog as a defense or apply it to your own situation. Again, this blog is meant to encourage you to think and do your own research.
If you are, or may soon be, in a similar situation, do your own research, read the Florida state statutes (or your own states statutes), read your states Rules of Civil Procedure. YOU will need to determine your own conclusions, and consult with a bar certified attorney in your area, if at all possible to do so, so that you can obtain sound legal advice.
In no event will this blog or I be held liable to any party for any damages arising, in any way, out of the use of information on this blog, you have been warned. I am only chronicling my opinion and the events as they occur. Again, I cannot stress it enough, if this blog has you thinking, then research, research, research, and talk to a bar certified attorney in your area.
**********************************************************************************
Hello again and while I am waiting to see what happens with my wife's case against Livingston Financial LLC I decided to post some thoughts on some things I found in my research regarding choice of law. I know this is deviating from the current cases, both against my wife in county court and the case she filed in Federal District Court but it's some really good information to get you thinking and researching on your own and I couldn't keep it to myself.
Now while the information I found seems to be established case law in Florida, this may or may not be the case in your state. It depends on whether your state views the statute of limitations (SOL) as procedural or substantive law. If your state, like Florida, deems the SOL to be substantive law, then Florida courts should allow the other states SOL, no guarantees (no one can guarantee how a judge will rule) and again this is my personal opinion as a citizen, I am NOT an attorney! If you do get sued on an out of SOL debt then keep in mind that it will probably be an FDCPA violation as well, but more on that at the end of this post. In keeping with my disclaimer, remember, these are my opinions and you should consult with an attorney to be sure, I cannot stress this enough, even if you intend to go Pro Se. There are many good NACA attorneys that will give consultations for little or no charge and may take your case at little cost or on contingency. The opinions as well as information I am giving below I found from research I am doing into the only other unpaid debt my wife has.
In this specific instance the debt is a Bank of America (BOA) debt that is serviced by FIA card services. Keep in mind FIA also services the old MBNA cards that BOA later purchased along with MBNA. Now first off, you remembered to keep that old BOA or MBNA card agreement didn't you? If not, don't fret, you can find many years of older card agreements for many original creditors (OC) on the web, that's what Google is for! Now we all know that some OC's change their card agreements quite often, sometimes on the order of each year or even more often. Now it's my understanding that to accept the new agreement, you do so by retaining the account and continuing to make purchases, when you default that stops. Therefore it should be the last agreement in effect while the account was still in "good standing" that governs your debt. Your mileage may vary with this but that's how I understand it to be.
So now that you have the card agreement, what do you look for? Well alot of OC's are incorporated in Delaware or Virginia, as such they usually have a "Choice of Law" or "What law applies" provision in their agreement choosing the law of their home state. Why does this matter in Florida? Well Florida SOL on credit cards (not store cards, that's a case law discussion for another day) is 5 years. In Delaware (Del.Code Ann. Tit. 10, § 8106 (a)) it is 3 years. With Virginia choice of law it should also be 3 yrs, it's a little dicey but it still looks to be 3yrs as accepted by Florida courts, look up the Capital One Bank v. Gregorich case from Palm Beach County Circuit Court on google for how the Virginia choice of law is worked out by the court. Starting to see my point? There are other choice of law provisions citing other states in card agreements so do your research based on what you are dealing with!
So why would Florida courts use another states SOL? That's where the case law I found in my research comes in to play. First here is some case law I found supporting that Florida courts will treat choice of law provisions as substantive law:
"Florida courts consider the statute of limitations to be substantive, and therefore the statute of limitations of the parties' chosen forum will apply where there exists a contractual choice of laws provision." Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008. "In Florida, a choice of law provision of a contract is presumptively valid unless the party seeking to avoid it shows that application of the chosen law 'contravenes [a] strong public policy' of Florida." Mazzoni Farms, Inc. v. E.I. Du-Pont De Nemours and Co., 761 So.2d 306, 311 (Fla.2000) "We therefore conclude that the contractual provision shortening the period of time for filing a suit was not contrary to a strong public policy." Burroughs Corp. v. Suntogs of Miami, Inc., 472 So. 2d 1166 - Fla: Supreme Court 1985.
Florida also includes choice of law in the Florida Statutes, specifically statute 671.105(1) 2012.
So how does this apply to a case where you are being sued by a junk debt buyer (JDB) that didn't purchase the media for your debt that has the card agreement, or assuming they did, they didn't research it first or flat out ignored it? JDBs like Sherman Financial Group, Sherman Acquisitions, Alegis, Resurgent, Northstar, LVNV Funding, Midland Funding, Midland Credit Management, CACH LLC, Portfolio Recovery, Equitable Ascent, Calvary Portfolio, Asset Acceptance, Arrow Financial, Livingston Financial, ETC ETC. Why does the choice of law provision apply when the agreement was between you and the OC, not the JDB? Well, as the JDB likes to put it when they sue you, the JDB "steps into the shoes" of the OC, so the contract you agreed to then obligates you to them. Well this cuts both ways, the agreement the OC created and that you agreed to binds them as well to that agreement..... and the choice of law provision if it is part of that agreement.
A couple of good cases that I found in my research, that I believe are case law, and that I believe you should also research, are L.W.T., Inc. v. McCorriston, 15 Fla L. Weekly Supp. 443a (Fla. 13th Jud. Cir. November 19, 2007) and Gaisser v. Portfolio Recovery Associates, 2008 WL3824746 (S.D. Fla. August 5, 2008). There are also lower court cases you can research like L.W.T v. Brodsky Fla.Cir.Ct.,2006, and county court cases as well that you can find online such as Capital One Bank v. Pincus and Capital One Bank v. Gregorich. Keep in mind, it is my understanding that lower court rulings (county and circuit) are not caselaw. However other lower courts may take the rulings under advisement as supporting cases. I know I cited Capital One cases but, unfortunately for all you folks with Crap One debt I believe they removed the favorable Virginia choice of law from their more recent card agreements.
Finally, how would this be an actionable FDCPA violation? Well my thinking as a private citizen, again I am NOT an attorney, is this. If a JDB sues you on a time barred debt, even if it was barred due to the choice of law provision being upheld in court, it should be a FDCPA violation. The JDB misinterpreting the law shouldn't get them off the hook for "bona fide error" in my opinion. This also seems to be the opinion of the United States Supreme Court as well. The following case presents the question whether the "bona fide error" defense applies to a violation resulting from a JDB's mistaken interpretation of the legal requirements of the FDCPA. “We conclude it does not.” See, Jerman v. Carlisle, McNellie, Rini, Kramer & Ulnch LPA, No. 08-1200, 130 S. Ct. 1605; 176 L Ed. 2D 519; 2010 U.S. Lexis 3480; (April 21, 2010). The FDCPA violation I have to say is from a very knowledgable fellow over at the www.creditinfocenter.com forums. Please don't hurt me too much for posting this without asking Coltfan1972. But folks, Coltfan1972 is a really knowledgable guy over at credit info center, check out his posts, you'll see what I mean!
Well those are my opinions as well as information I found while helping my wife with research. I suggest, as always, that you do your due diligence and then bring what you find to your consultation with whatever attorney you decide to use. You can always go Pro Se but that's for you to research and determine on your own.
Wednesday, August 15, 2012
Update: FDCPA case pending in US District Court
This blog is for ENTERTAINMENT PURPOSES ONLY and is providing my opinion ONLY, on topics such as the Florida statutes and what is happening with the situation as it is unfolding with my wife and the suit filed against her. This is NOT legal advice but my opinion on the unfolding events as it pertains to a specific scenario, with a specific Junk Debt Buyer, and specific circumstances surrounding all the parties involved. I may at time to time comment on other topics relating to case law and other issues but again it is to stimulate you to do your own research and encourage discussion should you choose to do so.
Again, this is NOT legal advice, I am NOT an attorney nor have I ever been an attorney. You should NOT rely on anything on this blog as a defense or apply it to your own situation. Again, this blog is meant to encourage you to think and do your own research.
If you are, or may soon be, in a similar situation, do your own research, read the Florida state statutes (or your own states statutes), read your states Rules of Civil Procedure. YOU will need to determine your own conclusions, and consult with a bar certified attorney in your area, if at all possible to do so, so that you can obtain sound legal advice.
In no event will this blog or I be held liable to any party for any damages arising, in any way, out of the use of information on this blog, you have been warned. I am only chronicling my opinion and the events as they occur. Again, I cannot stress it enough, if this blog has you thinking, then research, research, research, and talk to a bar certified attorney in your area.
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I know I haven't updated this blog in a while but alot has happened since the last time I wrote. All I can say is that currently my wife has a FDCPA lawsuit in progress in the Florida Middle District Court. The case is currently being converted to a class action for violation of the FDCPA due to Livingston violating the licensing statute, FL Statutes 559.553. I would definitely look up the case on Justia (just google Livingston Financial LLC Florida Middle District) and contact the attorney handling her case if you were sued by Livingston Financial LLC in Florida (even if they won) between approximately May 2011 and March/April 2012, possibly even outside these dates but only he can tell you if the case applies to your situation.
Per the Florida Office of Financial Regulation, Livingston Financial LLC wasn't licensened to collect debt in Florida until July 25th 2012. If you were contacted or sued by them any time before the date they were licensed (or at least before they applied, not sure when that was) I would contact a NACA affiliated attorney pronto like we did to see if there is anything you can do.
I also firmly believe a violation of FL statute 559.553 applies even if you are only contacted through US Mail about a debt by their affiliated companies like Messerli & Kramer PA (license expired in FL as of this post), or the family of companies that seem to be affiliated in some way to Messerli and Kramer listed below (contact a NACA attorney to be 100% sure):
Bayfield Financial, LLC - Not licensed as of the time of this post
Dakota Bluff Financial, LLC - Not licensed as of the time of this post
Livingston Financial, LLC - Licensed as of 7/25/2012
Red Rock Lake Financial, LLC - Not licensed as of the time of this post
World Credit Investors, LLC - Not licensed as of the time of this post
But it's up to you and your attorney, assuming you have one, to verify licensure and how it affects any contacts to you about a debt or actions they bring against you.
As always the above is my opinion and information based on the experience we are going through. I am NOT an attorney and highly suggest you contact one if you are contacted by or being sued by a JDB like Livingston Financial LLC. You might be surprised like we were by what you find out.
Again, this is NOT legal advice, I am NOT an attorney nor have I ever been an attorney. You should NOT rely on anything on this blog as a defense or apply it to your own situation. Again, this blog is meant to encourage you to think and do your own research.
If you are, or may soon be, in a similar situation, do your own research, read the Florida state statutes (or your own states statutes), read your states Rules of Civil Procedure. YOU will need to determine your own conclusions, and consult with a bar certified attorney in your area, if at all possible to do so, so that you can obtain sound legal advice.
In no event will this blog or I be held liable to any party for any damages arising, in any way, out of the use of information on this blog, you have been warned. I am only chronicling my opinion and the events as they occur. Again, I cannot stress it enough, if this blog has you thinking, then research, research, research, and talk to a bar certified attorney in your area.
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I know I haven't updated this blog in a while but alot has happened since the last time I wrote. All I can say is that currently my wife has a FDCPA lawsuit in progress in the Florida Middle District Court. The case is currently being converted to a class action for violation of the FDCPA due to Livingston violating the licensing statute, FL Statutes 559.553. I would definitely look up the case on Justia (just google Livingston Financial LLC Florida Middle District) and contact the attorney handling her case if you were sued by Livingston Financial LLC in Florida (even if they won) between approximately May 2011 and March/April 2012, possibly even outside these dates but only he can tell you if the case applies to your situation.
Per the Florida Office of Financial Regulation, Livingston Financial LLC wasn't licensened to collect debt in Florida until July 25th 2012. If you were contacted or sued by them any time before the date they were licensed (or at least before they applied, not sure when that was) I would contact a NACA affiliated attorney pronto like we did to see if there is anything you can do.
I also firmly believe a violation of FL statute 559.553 applies even if you are only contacted through US Mail about a debt by their affiliated companies like Messerli & Kramer PA (license expired in FL as of this post), or the family of companies that seem to be affiliated in some way to Messerli and Kramer listed below (contact a NACA attorney to be 100% sure):
Bayfield Financial, LLC - Not licensed as of the time of this post
Dakota Bluff Financial, LLC - Not licensed as of the time of this post
Livingston Financial, LLC - Licensed as of 7/25/2012
Red Rock Lake Financial, LLC - Not licensed as of the time of this post
World Credit Investors, LLC - Not licensed as of the time of this post
But it's up to you and your attorney, assuming you have one, to verify licensure and how it affects any contacts to you about a debt or actions they bring against you.
As always the above is my opinion and information based on the experience we are going through. I am NOT an attorney and highly suggest you contact one if you are contacted by or being sued by a JDB like Livingston Financial LLC. You might be surprised like we were by what you find out.
Wednesday, March 7, 2012
Is the Attorney for Sprechman and Associates breaking the law?
This blog is for ENTERTAINMENT PURPOSES ONLY and is providing my opinion ONLY, on topics such as the Florida statutes and what is happening with the situation as it is unfolding with my wife and the suit filed against her. This is NOT legal advice but my opinion on the unfolding events as it pertains to a specific scenario, with a specific Junk Debt Buyer, and specific circumstances surrounding all the parties involved. I may at time to time comment on other topics relating to case law and other issues but again it is to stimulate you to do your own research and encourage discussion should you choose to do so.
Again, this is NOT legal advice, I am NOT an attorney nor have I ever been an attorney. You should NOT rely on anything on this blog as a defense or apply it to your own situation. Again, this blog is meant to encourage you to think and do your own research.
If you are, or may soon be, in a similar situation, do your own research, read the Florida state statutes (or your own states statutes), read your states Rules of Civil Procedure. YOU will need to determine your own conclusions, and consult with a bar certified attorney in your area, if at all possible to do so, so that you can obtain sound legal advice.
In no event will this blog or I be held liable to any party for any damages arising, in any way, out of the use of information on this blog, you have been warned. I am only chronicling my opinion and the events as they occur. Again, I cannot stress it enough, if this blog has you thinking, then research, research, research, and talk to a bar certified attorney in your area.
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I had to post this, not sure if it will go anywhere but it is interesting. As I stated previously regarding the lawsuit that Sprechman and Associates PA has brought against my wife for Livingston Financial LLC. Is it possible that Livingston Financial LLC is in violation of Florida Statutes chapter 559 part VI. While the State of Florida is determining the merits of my wife's complaint I wonder if the attorney that files suit at Sprechman is also violating the statute and as such in reach of statute 559.785.......
559.785 Criminal penalty.—
It shall be a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, for any person not exempt from registering as provided in this part to engage in collecting consumer debts in this state without first registering with the office, or to register or attempt to register by means of fraud, misrepresentation, or concealment.
I cannot say if the attorney is indeed violating that statute as well but it's interesting to consider. Just a thought while she is waiting on the State.
Again, this is NOT legal advice, I am NOT an attorney nor have I ever been an attorney. You should NOT rely on anything on this blog as a defense or apply it to your own situation. Again, this blog is meant to encourage you to think and do your own research.
If you are, or may soon be, in a similar situation, do your own research, read the Florida state statutes (or your own states statutes), read your states Rules of Civil Procedure. YOU will need to determine your own conclusions, and consult with a bar certified attorney in your area, if at all possible to do so, so that you can obtain sound legal advice.
In no event will this blog or I be held liable to any party for any damages arising, in any way, out of the use of information on this blog, you have been warned. I am only chronicling my opinion and the events as they occur. Again, I cannot stress it enough, if this blog has you thinking, then research, research, research, and talk to a bar certified attorney in your area.
**********************************************************************************
I had to post this, not sure if it will go anywhere but it is interesting. As I stated previously regarding the lawsuit that Sprechman and Associates PA has brought against my wife for Livingston Financial LLC. Is it possible that Livingston Financial LLC is in violation of Florida Statutes chapter 559 part VI. While the State of Florida is determining the merits of my wife's complaint I wonder if the attorney that files suit at Sprechman is also violating the statute and as such in reach of statute 559.785.......
559.785 Criminal penalty.—
It shall be a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083, for any person not exempt from registering as provided in this part to engage in collecting consumer debts in this state without first registering with the office, or to register or attempt to register by means of fraud, misrepresentation, or concealment.
I cannot say if the attorney is indeed violating that statute as well but it's interesting to consider. Just a thought while she is waiting on the State.
JDB lawsuit: Livingston Financial LLC v. my wife via Sprechman and Associates P.A.
Let me start this out by saying the following, which will appear at the start of all my posts:
This blog is for ENTERTAINMENT PURPOSES ONLY and is providing my opinion ONLY, on topics such as the Florida statutes and what is happening with the situation as it is unfolding with my wife and the suit filed against her. This is NOT legal advice but my opinion on the unfolding events as it pertains to a specific scenario, with a specific Junk Debt Buyer, and specific circumstances surrounding all the parties involved. I may at time to time comment on other topics relating to case law and other issues but again it is to stimulate you to do your own research and encourage discussion should you choose to do so.
Again, this is NOT legal advice, I am NOT an attorney nor have I ever been an attorney. You should NOT rely on anything on this blog as a defense or apply it to your own situation. Again, this blog is meant to encourage you to think and do your own research.
If you are, or may soon be, in a similar situation, do your own research, read the Florida state statutes (or your own states statutes), read your states Rules of Civil Procedure. YOU will need to determine your own conclusions, and consult with a bar certified attorney in your area, if at all possible to do so, so that you can obtain sound legal advice.
In no event will this blog or I be held liable to any party for any damages arising, in any way, out of the use of information on this blog, you have been warned. I am only chronicling my opinion and the events as they occur. Again, I cannot stress it enough, if this blog has you thinking, then research, research, research, and talk to a bar certified attorney in your area.
Now with that out of the way, lets begin. We found out that a Junk Debt Buyer (JDB) called Livingston Financial LLC, purchased a debt they say is my wife's when we received letters beginning in late 2010 through early 2011. The letters were from a law firm named Messerli and Kramer. We have never really dealt with this in the past, as we have no money to pay, we did as we have come to find out most people do, we ignored it, trashed the letters and continued doing as best we could for our family.
Almost 2 weeks ago now we started receiving lawyer ads in the mail, all referencing a lawsuit filed against my wife. This was the first alert of a lawsuit we received. Due to how tight money is we went into a slight panic. We cannot afford an attorney and we cannot afford to file a bankruptcy at the moment. I had a feeling this would happen when my wife decided not to file with me in 2009 when I filed for bankruptcy, she had much less debt than me and had high hopes of doing the right thing and paying them off. Well she lost her job since then, and even with that still managed to pay one off before her unemployment ran out.
These letter spurred us into action once the panic wore off, my wife started to do some research, I helped as much as I could at her direction, giving her my opinion as her husband, and so it begins.....
As of the moment she has not been served but she is expecting that any day now. Until then it's research and prepare. Before today we never really heard of FDCPA, FCRA, FCCPA, or any of the other consumer protection laws. If we had then we would definitely have save the correspondence they sent my wife. We didn't but as she says, that's what discovery is for. Why does she say that? Well she directed me to a statute she found in, FL Statute chapter 559, specifically 559.553. This is where you learn to keep all correspondence. Luckily, Livingston financial filed suit, so my wife should be able to obtain the communication or record thereof via discovery.
So what was it my wife found in chapter 559? Let me list the statutes and the relevant facts as they pertain to my wife's situation. But first, if you do your research and find they may apply to you, I highly recommend doing as she did and alert the Florida Office Of Financial Regulation and the Florida Attorney Generals office. Then speak with an attorney. My wife is currently awaiting the results of her complaints which I will post here.
So lets see what she found:
FL Statute 559.553 states..........Relevant to my wifes issue will be in red.
559.553 Registration of consumer collection agencies required; exemptions.—
So as per the above statute, sections (1),(2), and (3) an out of state collector that solicits debt for collection from a credit granter that has a business presence in this state must register. Livingston Financial LLC and Messerli and Kramer, the ones who first made contact with my wife, are NOT registered to collect debt per the FL Office of Financial Regulations website. They sent the first of several notices to my wife well before Sprechman and Associates got in on the action. The bank, while a Midwestern bank has not only bank branded ATMs in the Orlando Area but also has a bank branded wealth management office in Palm Beach. Livingston Financial LLC and Messerli and Kramer are neither one Florida bar certified. This excludes them from the exceptions in 559.553(b) and (h). Leaving 559.553(5) requiring enforcement action.
There is more in chapter 559 that requires the attorney general for have them cease and desist. There is also the penalty of up to $10,000 as well as the fact it's a misdemeanor on anyone who violates that statute.
Well that's how she see's it and I fully agree. So she filed her complaints, in the meantime it looks like there is caselaw out there where violating 559.553 prevents the JDB from being able to do any collection action thereby violating the FDCPA. I know my wife is looking into that aspect as well. We are going to try and have the funds to file a counter suit when my wife answers their complaint. Lets see what happens. If nothing else, should we lose, this will buy the time to file BK for my wife. But thats hopefully not going to have to happen. Until then there is also the angle of is this even a debt she owes? and do they even have standing/unbroken title to bring suite? I'll blog more about that when the time comes.
This blog is for ENTERTAINMENT PURPOSES ONLY and is providing my opinion ONLY, on topics such as the Florida statutes and what is happening with the situation as it is unfolding with my wife and the suit filed against her. This is NOT legal advice but my opinion on the unfolding events as it pertains to a specific scenario, with a specific Junk Debt Buyer, and specific circumstances surrounding all the parties involved. I may at time to time comment on other topics relating to case law and other issues but again it is to stimulate you to do your own research and encourage discussion should you choose to do so.
Again, this is NOT legal advice, I am NOT an attorney nor have I ever been an attorney. You should NOT rely on anything on this blog as a defense or apply it to your own situation. Again, this blog is meant to encourage you to think and do your own research.
If you are, or may soon be, in a similar situation, do your own research, read the Florida state statutes (or your own states statutes), read your states Rules of Civil Procedure. YOU will need to determine your own conclusions, and consult with a bar certified attorney in your area, if at all possible to do so, so that you can obtain sound legal advice.
In no event will this blog or I be held liable to any party for any damages arising, in any way, out of the use of information on this blog, you have been warned. I am only chronicling my opinion and the events as they occur. Again, I cannot stress it enough, if this blog has you thinking, then research, research, research, and talk to a bar certified attorney in your area.
Now with that out of the way, lets begin. We found out that a Junk Debt Buyer (JDB) called Livingston Financial LLC, purchased a debt they say is my wife's when we received letters beginning in late 2010 through early 2011. The letters were from a law firm named Messerli and Kramer. We have never really dealt with this in the past, as we have no money to pay, we did as we have come to find out most people do, we ignored it, trashed the letters and continued doing as best we could for our family.
Almost 2 weeks ago now we started receiving lawyer ads in the mail, all referencing a lawsuit filed against my wife. This was the first alert of a lawsuit we received. Due to how tight money is we went into a slight panic. We cannot afford an attorney and we cannot afford to file a bankruptcy at the moment. I had a feeling this would happen when my wife decided not to file with me in 2009 when I filed for bankruptcy, she had much less debt than me and had high hopes of doing the right thing and paying them off. Well she lost her job since then, and even with that still managed to pay one off before her unemployment ran out.
These letter spurred us into action once the panic wore off, my wife started to do some research, I helped as much as I could at her direction, giving her my opinion as her husband, and so it begins.....
As of the moment she has not been served but she is expecting that any day now. Until then it's research and prepare. Before today we never really heard of FDCPA, FCRA, FCCPA, or any of the other consumer protection laws. If we had then we would definitely have save the correspondence they sent my wife. We didn't but as she says, that's what discovery is for. Why does she say that? Well she directed me to a statute she found in, FL Statute chapter 559, specifically 559.553. This is where you learn to keep all correspondence. Luckily, Livingston financial filed suit, so my wife should be able to obtain the communication or record thereof via discovery.
So what was it my wife found in chapter 559? Let me list the statutes and the relevant facts as they pertain to my wife's situation. But first, if you do your research and find they may apply to you, I highly recommend doing as she did and alert the Florida Office Of Financial Regulation and the Florida Attorney Generals office. Then speak with an attorney. My wife is currently awaiting the results of her complaints which I will post here.
So lets see what she found:
FL Statute 559.553 states..........Relevant to my wifes issue will be in red.
559.553 Registration of consumer collection agencies required; exemptions.—
(1) After January 1, 1994, no person shall engage in business in this state as a consumer collection agency or continue to do business in this state as a consumer collection agency without first registering in accordance with this part, and thereafter maintaining a valid registration.
(2) Each consumer collection agency doing business in this state shall register with the office and renew such registration annually as set forth in s. 559.555.
(3) A prospective registrant shall be entitled to be registered when registration information is complete on its face and the applicable registration fee has been paid; however, the office may reject a registration submitted by a prospective registrant if the registrant or any principal of the registrant previously has held any professional license or state registration which was the subject of any suspension or revocation which has not been explained by the prospective registrant to the satisfaction of the office either in the registration information submitted initially or upon the subsequent written request of the office. In the event that an attempted registration is rejected by the office the prospective registrant shall be informed of the basis for rejection.
(4) This section shall not apply to:
(a) Any original creditor.
(b) Any member of The Florida Bar.
(c) Any financial institution authorized to do business in this state and any wholly owned subsidiary and affiliate thereof.
(d) Any licensed real estate broker.
(e) Any insurance company authorized to do business in this state.
(f) Any consumer finance company and any wholly owned subsidiary and affiliate thereof.
(g) Any person licensed pursuant to chapter 520.
(h) Any out-of-state consumer debt collector who does not solicit consumer debt accounts for collection from credit grantors who have a business presence in this state.
(i) Any FDIC-insured institution or subsidiary or affiliate thereof.
So as per the above statute, sections (1),(2), and (3) an out of state collector that solicits debt for collection from a credit granter that has a business presence in this state must register. Livingston Financial LLC and Messerli and Kramer, the ones who first made contact with my wife, are NOT registered to collect debt per the FL Office of Financial Regulations website. They sent the first of several notices to my wife well before Sprechman and Associates got in on the action. The bank, while a Midwestern bank has not only bank branded ATMs in the Orlando Area but also has a bank branded wealth management office in Palm Beach. Livingston Financial LLC and Messerli and Kramer are neither one Florida bar certified. This excludes them from the exceptions in 559.553(b) and (h). Leaving 559.553(5) requiring enforcement action.
There is more in chapter 559 that requires the attorney general for have them cease and desist. There is also the penalty of up to $10,000 as well as the fact it's a misdemeanor on anyone who violates that statute.
Well that's how she see's it and I fully agree. So she filed her complaints, in the meantime it looks like there is caselaw out there where violating 559.553 prevents the JDB from being able to do any collection action thereby violating the FDCPA. I know my wife is looking into that aspect as well. We are going to try and have the funds to file a counter suit when my wife answers their complaint. Lets see what happens. If nothing else, should we lose, this will buy the time to file BK for my wife. But thats hopefully not going to have to happen. Until then there is also the angle of is this even a debt she owes? and do they even have standing/unbroken title to bring suite? I'll blog more about that when the time comes.
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