United States District Court, S.D. Florida
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT
J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE
CAUSE comes before the Court on the Defendant's Motion
for Summary Judgment (DE# 74; 1/31/18) and the
Plaintiff's Motion for Summary Judgment and Incorporated
Memorandum of Law (DE# 75; 1/31/18). Having reviewed the
motions and supporting memoranda, statements of undisputed
facts, responses, replies, affidavits and the Court file, it
AND ADJUDGED that the Defendant's Motion for Summary
Judgment (DE# 74; 1/31/18) is DENIED and the Plaintiff's
Motion for Summary Judgment and Incorporated Memorandum of
Law (DE# 75; 1/31/18) is GRANTED. As more fully explained
below, the out-of-state consumer debt collector exemption
does not apply to the defendant.
plaintiff contends that the plaintiff is entitled to summary
judgment in its favor because the defendant violated the Fair
Debt Collection Practices Act (“FDCPA”) because
the defendant lacked the legal authority to collect a $448.50
debt from the plaintiff by means of a single letter mailed to
the plaintiff on February 1, 2017 because he was not
registered as a consumer collection agency as required by
Subsection 559.553(1) and (2), Florida Statutes. Fla. Stat.
§ 559.553(1) and (2). Subsection 559.553(3) exempts
certain persons from the registration requirements. In
particular, Sub-section 559.553(3)(h) provides an exemption
for “[a]n out-of-state consumer debt collector who does
not solicit debt accounts for collection from credit grantors
who have a business presence in this state.” Fla. Stat.
§ 559.553(3)(h) (hereinafter “out-of-state
consumer debt collector exemption”). The defendant
contends that he is entitled to summary judgment because the
out-of-state consumer debt collector exemption applies and he
was not required to register pursuant to Florida law.
Court previously granted a partial summary judgment in favor
of the plaintiff and ruled that the “Plaintiff has
shown no genuine dispute of material fact that Defendant
violated 15 U.S.C. § 1692e, 15 U.S.C. § 1692e(10),
15 U.S.C. § 1692e(2)(A), and 15 U.S.C. § 1692e(4)
... as long as Defendant is not subject to the
exemption to Florida's licensing requirements under Fla.
Stat. § 559.553(3)(h).” Order on Motion for
Summary Judgment at 17 (DE# 64; 12/19/17) (Emphasis in
original). Thus, the Court found “that there is,
just barely, a genuine issue of material fact
concerning whether the Defendant is entitled to the
‘out-of-state consumer debt collection' exemption
set forth under Fla. Stat. § 559.553(3)(h).”
Id. at 15 (emphasis in original).
the Court finds that the defendant failed to satisfy his
burden of proof to show that the out-of-state consumer debtor
collector exemption applies, the defendant's motion for
summary judgment is DENIED and the plaintiff's motion for
summary judgment is GRANTED as more fully explained below.
following facts are undisputed.
Charles G. McCarthy, Jr., is an Illinois attorney who is a
resident of Illinois. Defendant Law Office of Charles G.
McCarthy, Jr. & Associates was hired by Forest Recovery
Services, LLC as Forest Recovery Services, LLC's
attorney. Forest Recovery Services, LLC was hired to collect
debts by and for Boca Raton Gastroenterology, a medical
practice in Boca Raton, Florida. Forest Recovery Services,
LLC retained Defendant on June 4, 2010. (DE# 74 Exhibit C1;
1/31/18). Exhibit C1 is the Authorization Agreement (Exhibit
C1) between Forest Recovery Services and the Law Office of
Charles G. McCarthy Jr. & Associates. The Authorization
Agreement authorizes the Law Office of Charles G. McCarthy
Jr. & Associates to initiate collection efforts and
expressly states that “[Forest Recovery Services]
retains Attorneys for collection of debts only and
not for representation in any other matter.”
Id. (emphasis added). Forest Recovery Services, LLC,
was licensed as a Florida Consumer Collection Agency, with
the Florida Office of Financial Regulation on August 20, 2013
and holds License Number CCA9903188. See (DE# 74
Exhibit D1; 1/31/18).
is a debt collector as defined by 15 U.S.C. §
1692(a)(6). See Order on Motion for Summary
Judgment, n.2 (DE# 64; 12/19/17) (citing D.E. 60 ¶
5(i)-(iii); D.E. 37 ¶¶ 13-15, 17).
solicitation of any Florida based creditor or credit grantor
by Defendant Law Office of Law Office of Charles G. McCarthy
Jr. & Associates has occurred. McCarthy Affidavit (DE#
74, Exhibit E1, ¶ 5).
defendant was not registered as a consumer collection agency,
as required by Fla. Stat. § 559.553 (1), before
attempting to collect the debt from the plaintiff. (DE# 60