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Lee v. McCarthy

United States District Court, S.D. Florida

May 14, 2018

GRIFFEN LEE, Plaintiff,
v.
CHARLES G. McCARTHY, JR., Defendant.

          ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

          JOHN J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE

         THIS 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 is

         ORDERED 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.

         INTRODUCTION

         The 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.

         This 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).

         Because 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.

         FACTS

         The following facts are undisputed.

         Defendant, 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).

         Defendant 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).[1]

         No 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).

         The 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 ¶ 5(v).

         STANDARD ...


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