United States District Court, S.D. Florida
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL
L. ROSENBERG JUDGE
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.
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.
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.
Complaint contains two counts. In Count I, Plaintiff alleges
(1) that Defendant violated § 1692f(1) of the FDCPA by
attempting to collect interest,  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.
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.
SUMMARY JUDGMENT STANDARD
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).
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.
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”). 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. Accordingly, summary judgment must be
Whether Costs and Fees Were Expressly Authorized by the
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 ...