Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Revien v. Eastern Revenue, Inc.

United States District Court, S.D. Florida

March 21, 2018

PHILIP REVIEN, Plaintiff,
v.
EASTERN REVENUE, INC., Defendant.

          ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT

          ROBIN L. ROSENBERG JUDGE

         THIS CAUSE is before the Court on Defendant's Motion for Summary Judgment [DE 33] and Plaintiff's Motion for Partial Summary Judgment [DE 34]. The Court has carefully considered both Motions and the parties' respective filings in support thereof and in opposition thereto and is otherwise fully advised in the premises. For the reasons set forth below, both Motions are DENIED.

         I. INTRODUCTION

         This is an action for violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., (“FDCPA”) and the Florida Consumer Collection Practices Act, Fla. Stat. § 559.55 et seq., (“FCCPA”). The relevant facts are not in dispute. On November 4, 1996, Plaintiff Philip Revien executed a Federal Perkins Loan Promissory Note (the “Note”) in favor of Iona College for the amount of $1, 500.00. See DE 33-2. Pursuant to the Note, Plaintiff “promise[d] to pay all reasonable collection costs, including attorney fees and other charges, necessary for the collection of any amount not paid when due.” See Id. at 2. Iona College subsequently entered into a Collection Agreement with Defendant Eastern Revenue, Inc., pursuant to which Iona College agreed to pay Defendant a 23% collection fee. See DE 33-4. Plaintiff is not a party to the Collection Agreement. See id.

         On March 6, 2017, Defendant sent Plaintiff a letter seeking to collect the debt owed to Iona College. See DE 33-1. In that letter, Defendant indicated that Plaintiff owed a total of $3, 308.35, consisting of the $1, 500.00 principal loan amount plus $1, 050.83 in interest and $757.52 in collection costs. See Id. On July 26, 2017, Defendant sent Plaintiff a second letter, indicating that Plaintiff owed a total of $3, 337.53. See DE 33-3. Both letters offered the option to pay by check, money order, or credit card, and indicated that a credit card processing fee would be added to any amount paid by credit card: “$15.00 for payments of $500.00 and less. 5% will be added to payments over $500.00.” See DE 33-1 at 3; DE 33-3 at 2.

         Plaintiff's Complaint contains two counts. In Count I, Plaintiff alleges (1) that Defendant violated § 1692f(1) of the FDCPA by attempting to collect interest, [1] collection costs, and credit card processing fees that were not expressly authorized by the Note or permitted by law and (2) that Defendant violated §§ 1692g(a)(1), 1692e(2), and 1692e(10) of the FDCPA by failing to inform Plaintiff of the true amount of the debt, falsely representing the character and amount of the debt, and using false representations and deceptive means to collect or attempt to collect the debt. See DE 1 ¶¶ 54-55. In Count II, Plaintiff alleges that Defendant violated § 559.72(9) of the FCCPA by attempting to collect costs and fees from Plaintiff when Defendant knew that it had no right to do so. See Id. ¶ 63.[2]

         In its Motion, Defendant argues that the collection costs and credit card processing fees it attempted to collect are authorized both by the terms of the Note and by law, and seeks summary judgment as to all claims asserted by Plaintiff. In his Motion, Plaintiff argues that the credit card processing fees Defendant attempted to collect are authorized neither by the Note nor by law, and seeks partial summary judgment as to his claims that are based on those fees. Plaintiff does not seek summary judgment as to his remaining claims. The Court concludes that neither party is entitled to judgment as a matter of law.

         II. SUMMARY JUDGMENT STANDARD

         Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The existence of a factual dispute is not by itself sufficient grounds to defeat a motion for summary judgment; rather, “the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A dispute is genuine if “a reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (citing Anderson, 477 U.S. at 247-48). A fact is material if “it would affect the outcome of the suit under the governing law.” Id. (citing Anderson, 477 U.S. at 247-48).

         In deciding a summary judgment motion, the Court views the facts in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. See Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006). The Court does not weigh conflicting evidence. See Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007). Thus, upon discovering a genuine dispute of material fact, the Court must deny summary judgment. See id.

         III. DEFENDANT'S MOTION

         The Court begins with Defendant's Motion, the outcome of which turns largely on whether the collection costs and credit card processing fees that Defendant attempted to collect were expressly authorized by the Note or permitted by law. See 15 U.S.C. § 1692f(1) (prohibiting “[t]he collection of any amount . . . unless such amount is expressly authorized by the agreement creating the debt or permitted by law”).[3] For the reasons set forth below, the Court cannot conclude as a matter of law that these costs and fees were expressly authorized by the Note or permitted by law. In addition, the Court concludes that there is sufficient evidence to create a genuine dispute as to whether Defendant knew that it had no right to collect these costs and fees.[4] Accordingly, summary judgment must be denied.

         A. Whether Costs and Fees Were Expressly Authorized by the Note

         In considering whether the collection costs and credit card processing fees at issue in this case were expressly authorized by the Note, the Court is guided primarily by the opinion rendered by the Eleventh Circuit Court of Appeals in Bradley v. Franklin Collection Service, Inc. Prior to filing suit, Melvin Bradley signed a patient agreement with a medical provider in which he “agree[d] to pay all costs of collection, including a reasonable attorney's fee” in the event he failed to pay for his medical treatment. 739 F.3d 606, 607, 609 (11th Cir. 2014) (emphasis added). When Bradley failed to pay, the medical provider referred his account to a debt collector. Id. at 607, 609. Pursuant to the collection contract between the medical provider and the debt collector (to which Bradley was not a party), the medical provider added 33-and-1/3% to the debt prior to ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.