County Small Claims Court:  CONSUMER LAW – Florida Consumer Collection Practices Act – trial court erred in granting defendant’s motion for summary judgment - transcript reveals there remained several unanswered questions of fact – defendant is a “debt collector” as defined by the FCCPA – “debt collector” is not restricted to collection agencies, but applies to anyone attempting to collect a consumer claim unlawfully – Summary Judgment reversed.  Jackson v. Wells Fargo Home Mortgage, Inc., No. 03-5019AP-88A (Fla. 6th Cir. App. Ct. August 9, 2004). 

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

SEATON JACKSON and

DELORES JACKSON,

                        Appellants,

vs.                                                                                            Appeal No. 03-5019AP-88A

                                                                                                UCN522003AP005019XXXXCV

 

WELLS FARGO HOME MORTGAGE, INC.,

                        Appellee.

________________________________________/

 

Opinion filed _______________________

 

Appeal from Summary Judgment

Pinellas County Court, Small Claims Division

 

County Judge Walter Fullerton

 

Mark Tischhauser, Esquire

Attorney for Appellant

 

Dale T. Golden, Esquire

Attorney for Appellee

 

 

 

ORDER AND OPINION

 

            THIS CAUSE came before the Court on appeal, filed by Seaton Jackson and Delores Jackson (the Jacksons), from the Order Granting Defendant’s Motion for Summary Judgment (Order), [1] entered June 10, 2003, in favor of Wells Fargo Home Mortgage Inc. (Wells Fargo).  Upon review of the briefs, the record and being otherwise fully advised, the Court reverses the Order as set forth below.

            The record shows that on January 13, 2003, the Jacksons filed suit against Wells Fargo, alleging that Wells Fargo, through its agent Echevarria & Associates, P.A., attempted to collect a debt in violation of the Florida Consumer Collection Practices Act (FCCPA), Florida Statutes,

§ 559.72.  The Statement of Claim alleged that Wells Fargo unlawfully pursued collection efforts against the Jacksons by sending the Jacksons correspondence and in filing a mortgage foreclosure complaint after the Jacksons had filed for bankruptcy.  The Statement of Claim further alleged that Well Fargo’s actions violated state law by: willfully engaging in conduct which can reasonably be expected to abuse or harass the debtor or their family; threatening to enforce a debt when such person knows that the debt is not legitimate; and, asserting the existence of some legal right when such person knows that the right does not exist.  The Jacksons sought damages from Wells Fargo and demanded a jury trial.   

            In response to the Jacksons’ Statement of Claim, Wells Fargo filed a Motion for Judgment on the Pleadings/Motion for Summary Judgment arguing that the Jacksons failed to state a cause of action under the FCCPA against Wells Fargo.  The motion attached the affidavit of Michael Echevarria, Managing Shareholding of Echevarria & Associates, P.A. (Echevarria), asserting that Echevarria was retained by Wells Fargo as an independent contractor with respect to the foreclosure proceedings against the Jacksons and that Wells Fargo was not involved as a debt collector or person within the meaning of the FCCPA.  The Jacksons responded by filing their own affidavits asserting personal knowledge of the conduct of Wells Fargo, by and through its employees or agents, in Wells Fargo’s attempt to unlawfully collect payments allegedly owed. The matter came before the trial court on April 7, 2003, and after receiving evidence and considering argument of counsel, the trial court granted Wells Fargo’s Motion for Summary Judgment. 

            On appeal, the Jacksons argue that the trial court erred in granting summary judgment when the Florida Rules of Civil Procedure were not properly invoked and where the motion was defective, that the Jacksons were denied due process by the entry of summary judgment at a pre-trial conference, and that the trial court’s interpretation of the FCCAP is in error.  Wells Fargo answered by arguing that no procedural defects existed in the trial court’s granting of summary judgment and that Wells Fargo was entitled to summary judgment as it is not a “debt collector,” cannot be held vicariously liable for the acts of an independent contractor, and is entitled to litigation immunity.

            Initially, the Court finds that the Small Claims Rules, Rule 7.135, Summary Disposition, does provide a procedural mechanism for the trial court to consider a motion for summary judgment without the need to invoke the Florida Rules of Civil Procedure.  Rule 7.135 states, “[a]t pretrial conference or at any subsequent hearing, if there is no triable issue, the court shall summarily enter an appropriate order or judgment.”  See Fla. Sm. Cl. R. Rule 7.135.  Hence, a party need not even file a motion, nor give notice, for the trial court to summarily dispose of a case if there “is no triable issue.”  See id.; see also Bloodworth v. International Auto City, Inc., 10 Fla. L. Weekly Supp. 1046b (Fla. 17th Cir. Ct. 2003)(finding that under small claims rules, the plaintiff was not required to give any particular notice of motion for summary judgment before asking judge to consider motion).  Therefore, the Jacksons’ argument that the trial court improperly proceeded under the Small Claims Rules without invocation of the Florida Rules of Civil Procedure and that they were deprived of due process must fail. [2]   

            Nonetheless, the trial court’s ruling must be reversed.  In reviewing Wells Fargo’s Motion for Summary Judgment and the transcript of hearing, the Court finds that Wells Fargo was challenging the sufficiency of the complaint itself, not the sufficiency of the evidence to support the complaint.  A motion to dismiss and a motion for summary judgment are not interchangeable and serve different purposes.  See Holland v. Anheuser Busch, Inc., 643 So.2d 621 (Fla. 2d DCA 1994).  However, assuming that Wells Fargo’s Motion for Summary Judgment was properly before the court as a summary proceeding, it is clear from the transcript that there were several unanswered questions of fact that precluded the entry of summary judgment, i.e. whether Wells Fargo unlawfully attempted to collect a debt from the Jacksons through correspondence and/or legal proceedings.  See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130-31 (Fla. 2000)(stating that summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to judgment as a matter of law). 

            Further, it was error for the trial court to grant summary judgment as Wells Fargo’s is a “debt collector” as defined in § 559.55(6), which is “any person who uses any instrumentality of commerce within this state, whether initiated from within or outside this state, in any business the principle purpose of which is the collection of debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.”  (emphasis added).  Although Wells Fargo may not have directly attempted to collect the debt, it is undisputed that Wells Fargo indirectly attempted to collect the mortgage balance due by employing the services of Echevarria.  Case law also provides that “debt collector” is not restricted to collection agencies, but applies to anyone attempting to collect a consumer claim unlawfully.  See Williams v. Streeps Music Co., Inc., 333 So.2d 65, 67 (Fla. 4th DCA 1976)(finding that § 559.72 includes all allegedly unlawful attempts at collecting consumer claims); see also Heard v. Mathis, 344 So.2d 651, 655 (Fla. 1st DCA 1977)(providing that the word “person” is applicable to persons generally, not just collection agencies).  Therefore, the Court finds no merit in Wells Fargo’s argument that it is cannot be held vicariously liable for the acts of an independent contractor, nor is Wells Fargo entitled to litigation immunity. 

            The parties do not raise any other issues surrounding the Jacksons’ cause of action.  Even so, for the sake of clarity on remand, the Court finds that under Florida Statutes, §§ 559.72, 559.77, and the cases referenced therein, and in accepting as true all well-pleaded allegations of the Statement of Claim, the Court finds that the Jacksons sufficiently pled a FCCPA cause of action to, at a minimum, withstand a motion to dismiss. [3]   See Fox v. Professional Wrecker Operators of Florida, Inc., 801 So.2d 175, 178 (stating that an appellate court applies the same principles as the trial court in determining whether the complaint properly states a cause of action); compare with Sandlin v. Shapiro & Fishman, 919 F.Supp. 1564, 1566, 1569-70 (M.D. Florida 1996)(denying defendant’s motion to dismiss FCCPA claim where plaintiff alleged defendant unlawfully attempted to collect a debt through correspondence and/or legal proceedings).  This finding is not to be construed as a ruling as to Wells Fargo’s liability, which goes to the ultimate merits of the case, nor a ruling as to the sufficiency of the evidence to support the Jacksons’ Statement of Claim, nor any comment whatsoever concerning appropriate damages even if the Jacksons prevail. 

            Therefore, it is,

            ORDERED AND ADJUDGED the Order Granting Defendant’s Motion for Summary Judgment is reversed and this cause is remanded for action consistent with this Order and Opinion.

            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ________ day of August 2004.

 

 

 

 

 

                                                            ___________________________________                         

                                                            JOHN A. SCHAEFER

                                                            Circuit Judge, Appellate Division

 

 

 

 

Copies furnished to:

 

Judge Walter Fullerton

 

Mark Tischhauser, Esquire

3134 North Boulevard

Tampa, FL  33603

 

Dale Golden, Esquire

100 North Tampa Street, Suite 3550

Tampa, FL  33602

[1] Neither party disputes that this order is final for purposes of appeal.  See e.g. McQuaid v. Wal-Mart Stores, Inc., 789 So.2d 1215 (Fla. 1st DCA 2001)(stating that an order which merely grants a motion for summary judgment, without more, is not an appealable final order).

[2] The Court need not reach the issue of whether it was error for the trial court to consider Wells Fargo’s motion for judgment on the pleadings since the trial court ultimately granted Wells Fargo’s motion for summary judgment.  Compare with Sypien v. NCO Financial Systems, Inc., 10 Fla. L. Weekly Supp. 755a (Fla. 6th Cir. App. Ct. 2003)(finding that it was improper for the trial court to enter judgment on the pleadings when Rule 1.140(c), Florida Rules of Civil Procedure, was not properly invoked).

[3] Damages are not an issue on appeal; however, emotional distress damages are not recoverable in an FCCPA action unless pled as a separate cause of action.  See e.g. Ford Motor Credit Co. v. Sheehan, 373 So.2d 956, 959 (Fla. 1st DCA 1979); Townsend v. Asset Acceptance Corp., Case No. 03-1921CI-88A (Fla. 6th Cir. App. Ct. Aug. 2004).