Edward Michael Kelly v. Julie Duggan

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________

No. 1D17-3618
_____________________________

EDWARD MICHAEL KELLY,

Appellant,

v.

JULIE DUGGAN,

Appellee.
_____________________________

On appeal from the Circuit Court for Leon County.
John C. Cooper, Judge.

October 23, 2019

M.K. THOMAS, J.

Edward Michael Kelly (“Kelly”) challenges the dismissal of his
complaint against Julie Duggan (“Duggan”) for alleged violations
of the Florida Consumer Collection Practices Act (“FCCPA”) in an
unpaid condominium assessment dispute. Kelly argues the trial
court erred in dismissing the complaint for failure to state a cause
of action because condominium assessments qualify as “consumer
debts” under the FCCPA. We agree and reverse.
 I. Facts

A dispute arose between Kelly and Chez Sois Condominium
Association 1 regarding disputed past due assessments. Kelly, a
condominium owner and resident, contends that Duggan,
President of the Association, violated the FCCPA by locking him
out of a storage unit, making public derogatory statements about
him, and disclosing information about his reputation to a vendor.
He further claims he did not receive notice of a board meeting
during which his common area privileges were considered and
eventually suspended.

Kelly seeks a declaration that Duggan violated the FCCPA, 2
an injunction against future violations, and statutory damages of
$1,000 and other monetary damages under section 559.77(2),
Florida Statutes. Duggan moved to dismiss the complaint citing
Bryan v. Clayton, 698 So. 2d 1236 (Fla. 5th DCA 1997), rev. denied,
707 So. 2d 1123 (Fla. 1998), cert. denied, 524 U.S. 933 (1998),
which held that the Fair Debt Collection Practices Act (“FDCPA”)
and the FCCPA's definition of “debt” excludes maintenance
assessments owed to a homeowner's association. Based on Bryan,
the trial court dismissed the complaint. This appeal followed.

II. Legal Analysis

Because the question of whether condominium assessments
fall within the purview of the FCCPA as a consumer debt is one of
statutory interpretation, we review the issue de novo. See Kuria
v. BMLRW, LLLP, 101 So. 3d 425, 426 (Fla. 1st DCA 2012). The
question of whether the complaint stated a cause of action is one
of law, which is also reviewed de novo. Doe v. Baptist Primary
Care, Inc., 177 So. 3d 669, 674 (Fla. 1st DCA 2015) (quoting Locker
v. United Pharm. Grp., Inc., 46 So. 3d 1126, 1128 (Fla. 1st DCA
2010)).

1 Chez Sois Homeowner’s Association, Inc., is a condominium
association operating pursuant to Chapter 718, Florida Statutes.
2 §§ 559.55 - .785, Fla. Stat., (FCCPA).

2
 Both the FCCPA and its federal counterpart, FDCPA,
regulate consumer debt collection in Florida. See § 559.552, Fla.
Stat. (2016) (“Nothing in [FCCPA] shall be construed to limit or
restrict the continued applicability of the federal [FDCPA] to
consumer collection practices in this state. This part is in addition
to the requirements and regulations of the federal act.”). Although
both generally apply to the same conduct, the acts are not
identical. See Read v. MFP, Inc., 85 So. 3d 1151, 1153 (Fla. 2d
DCA 2012). A violation of the FDCPA does not automatically
constitute a violation of the FCCPA. Id. Because the two acts are
not strictly interchangeable, a plaintiff seeking damages under
either the FDCPA or the FCCPA must allege and prove a violation
of the act actually sued upon. Id. Here, Kelly raises only a
violation of the FCCPA, the state law.

The FCCPA provides that no person shall engage in certain
practices while attempting to collect a consumer debt. § 559.72,
Fla. Stat. (2016). To recover under the FCCPA, a plaintiff must
first show that the money being collected qualifies as a “consumer
debt.” Agrelo v. Affinity Mgmt. Servs., LLC, 841 F.3d 944, 950
(11th Cir. 2016). The FCCPA defines “debt” or “consumer debt” as:

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), Fla. Stat. This statutory definition has not
substantively changed since 1993.

At the time of the trial court’s consideration of Kelly’s
complaint, the only Florida appellate court decision addressing
this issue supported dismissal. See Bryan, 698 So. 2d at 1237.
Thus, the trial court was bound by the holding in Bryan. See Pardo
v. State, 596 So. 2d 665, 666 (Fla. 1992) (“[I]n the absence of
interdistrict conflict, district court decisions bind all Florida trial
courts.”).

3
 In Bryan, the Fifth District determined that the definition of
“consumer debt” is ambiguous and does not clearly encompass a
homeowner’s maintenance assessment. Id. at 1237. In support,
the court cited federal precedent declining to label maintenance
assessments as consumer “debts.” Id. On Motion to Stay or Recall
Mandate in Bryan, the Fifth District reaffirmed its decision but
applied different reasoning. Id. at 1237-38. The Bryan court noted
that a federal decision issued after release of its original opinion
provided further insight. Id. at 1237. Specifically, in Newman v.
Boehm, Pearlstein and Bright, Ltd., 119 F.3d 477 (7th Cir. 1997),
the United States Court of Appeals for the Seventh Circuit
concluded that the assessment imposed upon the owner of a
condominium unit for his pro rata share of the costs of
maintenance of the common elements and other common costs of
condominium unit ownership was a “consumer debt.” The
reasoning in Newman specifically rejected the previous analysis
followed by Zimmerman v. HBO Affiliate Group, 834 F.2d 1163 (3d
Cir. 1987), which limited application of the FDCPA to debts
involving an extension of credit. Although the federal decisions
cited by the original Bryan opinion followed the analysis in
Zimmerman, in reaffirming its decision, the Bryan court explained
that the rejection of the extension of credit analysis 3 did not
determine whether a condominium maintenance assessment was
a consumer debt. Bryan, 698 So. 2d at 1237. The Fifth District
declared that the purchase of a condominium unit was not a
“consumer” transaction. Id. at 1237-38. The court was “dubious
that the question whether an association assessment is a
‘consumer debt’ subject to the [FDCPA] turns on whether the unit
was originally purchased for ‘personal, family, or household’
purposes.” Id. at 1238.

Since Bryan, case law has supported the argument that the
purchase of a home is a consumer transaction for purposes of the
FCCPA. See Bank of Am., N.A. v. Siefker, 201 So. 3d 811, 815 (Fla.
4th DCA 2016) (holding that mortgage foreclosure action was
action to collect debt under FCCPA); Brindise v. U.S. Bank Nat’l

3This Court has also rejected the argument that, to constitute
a debt under the FCCPA, an extension of credit is required.
Morgan v. Wilkins, 74 So. 3d 179, 182 (Fla. 1st DCA 2011).

4
Ass’n, 183 So. 3d 1215 (Fla. 2d DCA 2016) (assuming that a
mortgage foreclosure suit could be considered collection of a
consumer debt); Cole v. Echevarria, McCalla, Raymer, Barrett &
Frappier, 965 So. 2d 1228 (Fla. 1st DCA 2007) (affirming
certification of class of those reinstating mortgages in action
alleging violations of FCCPA and FDCPA).

Although not binding, federal court decisions are given great
weight when construing the FCCPA. See Dish Network Serv.,
L.L.C. v. Myers, 87 So. 3d 72, 77 (Fla. 2d DCA 2012). Since Bryan,
multiple federal courts have weighed in on the parameters of the
FCCPA’s “consumer debt” definition. Specifically, in Wright v.
Bush Ross, P.A., No. 8:07-cv-1885-T-23MAP, 2008 WL 190466
(M.D. Fla. Jan. 18, 2008), the federal court condemned the holding
in Bryan, specified that the alleged wrongdoer under the FCCPA
is not required to be a “debt collector,” and that Bryan's
interpretation of the FCCPA relied partly on the persuasive
authority of early federal district court decisions later reversed or
disapproved. Id. In reaching its decision, the federal district court
in Wright noted, “federal courts . . . consistently hold that
condominium assessments and homeowners' association fees are
‘debts’ under the FDCPA.’’ Id. at *2.

In Agrelo, the United States Court of Appeals for the Eleventh
Circuit addressed the identical issue before us. 841 F.3d at 946.
Agrelo held condominium assessment fees were consumer debts.
Id. at 952. Specifically, “HOA assessments stem directly from the
consensual home-purchase transaction. When a home buyer must
contractually agree to pay homeowners’ assessments in order to
purchase a home, that home buyer takes on ‘debts’ for those
assessments under the FCCPA.” Id. at 951; see also Ladick v. Van
Gemert, 146 F.3d 1205, 1205 (10th Cir. 1998) (holding that
condominium assessments are debts subject to the FDCPA); Kelly
v. Dunlap & Shipman, P.A., No. 4:16cv709-RH/CAS, 2017 WL
528487, *1 (N.D. Fla. Feb. 7, 2017) (holding that condominium
dues were consumer debt under the FDCPA); Malowney v.
Bush/Ross, No. 8:09-CV-1189-T-30TGW, 2009 WL 3806161, *4
(M.D. Fla. Nov. 12, 2009) (“[E]xtending the FCCPA's protections to
people owing homeowners association assessments is more
protective than excluding them from the protections, casting doubt
on the viability of the Bryan decision as it applies to the FCCPA.”);

5
Williams v. Edelman, 408 F. Supp. 2d 1261, 1266–68 (S.D. Fla.
2005) (holding condominium assessments are “debts” under the
FDCPA); Agan v. Katzman & Korr, P.A., No. 03–62145-CIV, 2004
WL 555257, *1 (S.D. Fla. Mar. 16, 2004) (holding condominium
assessments are “debts” under the FDCPA); Fuller v. Becker &
Poliakoff, P.A., 192 F. Supp. 2d 1361, 1368 (M.D. Fla. 2002)
(holding maintenance assessments that the HOA sought to collect
in Defendants' letters are debts subject to the FDCPA). 4

We respectfully disagree with the Fifth District that the
FCCPA’s definition of debt has “no plain meaning and its intent is
anything but crystal clear.” Bryan, 698 So. 2d at 1237. To apply,
the payment obligation or “debt” must arise (1) from a consumer
out of a (2) money, property, insurance, or services transaction
which is (3) primarily for personal, family, or household purposes.
See Agrelo, 841 F.3d at 950. A condominium assessment arises
from a transaction to purchase property—a condominium. See §
718.1256, Fla. Stat. (2017) (classifying condominiums as
residential property). The purchase of a condominium subjects the
owners to a declaration of covenants, which statutorily must
include an obligation to pay assessments imposed by the
association. See § 718.104(4)(g), Fla. Stat. (2017) (requiring a
declaration to include the shares of liability for common expenses);
§ 718.115(2), Fla. Stat. (2017) (providing that funds for payment of
common expenses be collected by assessments on units in
percentages set forth in condominium declaration). Even if the
owner pays the assessments at a later time, the owner incurred
the obligation to pay during the purchase transaction. See §
718.116(1)(a), Fla. Stat. (2017) (providing that condo owner,
regardless of how acquired title, is liable for all assessments when
they come due).

4 Based on the same facts, Kelly also sued counsel for Chez
Sois in the United States District Court for the Northern District
of Florida alleging violation of the FDCPA relating to its attempts
to recover delinquent condominium assessments. See Kelly v.
Dunlap & Shipman, P.A., No. 4:16cv709-RH/CAS, 2017 WL
528487, *1 (N.D. Fla. Feb. 2, 2017). In denying a motion to dismiss,
the Northern District’s order detailed, “The defendant first asserts
that the obligation to pay condominium dues is not a consumer
debt covered by the statute. The better view is to the contrary.” Id.
6
 The maintenance assessment obligation arises from a
governing contract. The central question is whether a contractual
obligation to pay maintenance assessments creates a “debt” under
the FCCPA. We answer the question in the affirmative. The
assessments are grounded in the consensual home-purchase
transaction. When a home buyer must contractually agree to pay
homeowners’ or maintenance assessments as a prerequisite to
purchase, that home buyer takes on “debts” for those assessments
under the FCCPA. By entering into the contract or governing
documents, homeowners agree that a failure to comply with
assessment requirements could result in a fine that would be
deemed an individual assessment. Thus, the obligation to pay an
assessment for a claimed breach of the contract arose out of an
underlying consumer transaction.

Application of the FCCPA’s protections to condominium
associations is supported by case law and the rules of statutory
construction. This application is consistent with our statutory
obligation to construe the FCCPA in a manner that is protective of
the consumer. See § 559.552, Fla. Stat. Accordingly, we hold that
condominium assessments are consumer debts under the FCCPA
such that a consumer may seek civil remedies for violations
thereof. In so holding, we certify conflict with Bryan, reverse the
dismissal of Kelly’s complaint, and remand for further
proceedings.

REVERSED and REMANDED.

RAY, C.J., and LEWIS, J., concur.

_____________________________

Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________

David H. Abrams of the Law Office of David H. Abrams,
Tallahassee, for Appellant.

7
C. Todd Owen and William T. Jackson of Dennis, Jackson, Martin
& Fontela, P.A., Tallahassee, for Appellee.

8