Florida Fair Debt Collection Practices Act 559.715 Assignment of consumer debts.

[wipedout]

The collections agency who is pursuing me was kind enough to provide me with the "assignment of note/debt", after I DV'd. them. Here is the problem. The "assignment" took place 2 months before they sent me their initial dunning letter. The assignment was made from the OC to an outfit who isn't registered to collect debt in Florida, so they are using another collections agency to pursue me. Since they provided me with the signed, dated, and stamped "assignment", and I also have a copy of their first dunning letter to me (which is dated 2 months after the assignment), do I have some recourse? According to FFDCPA 559.715, "the assignee must give the debtor written notice of such assignment within 30 days after the assignment".... I have never heard from the actual assignee, just from the CA that they have hired.

Florida Fair Debt Collection Practices Act 559.715 Assignment of consumer debts.--This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30 days after the assignment. The assignee is a real party in interest and may bring an action in a court of competent jurisdiction to collect a debt that has been assigned to such assignee and is in default.

[debtorshusband]

You have to be a little careful.

"Assignment" has different meanings, depending context.

One meaning is when a debt is sold, and all rights are privileges are "assigned" to the buyer.

Another meaning is when the owner of a debt hires a collection agency, and "assigns" the debt to them to collect.

Your statute may be using the first meaning. If your debt has not actually been sold, i.e., the second meaning, the statute may not apply.

Good luck.

DH

Edited August 17, 2012 by debtorshusband
fix typo

[kutuzov]

You will need to read the statutes about the definition of assigment, I read it some months ago, I belive (I could be wrong), that is when is sold, not just given to someone in order to collect, for what I remember.

[nascar]

The statute you are relying on was amended in 2010. It no longer favors consumers to the extent it once did.

559.715 Assignment of consumer debts.—This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default.

History.—s. 1, ch. 89-69; ss. 6, 13, ch. 93-275; s. 3, ch. 2010-127.

[wipedout]

I just skimmed the whole thing, and it doesn't really define what "assignment" is, but it defines a lot of other things, like debtor, creditor, debt collector, etc.

The oc had insurance on the loan. They cashed in on their insurance, and assigned the note to the ins company. 2 months later I get a dunning letter from a ca, different company than ins company. I dv them. About 45 days later they reply, and in their reply is a copy of the assignment from oc to ins company. I've never heard from the ins company. I'm not sure how the whole ca thing works, but it appears that the ins company doesn't do their own collecting, they hire a ca to do that, without actually giving the ca an assignment. In other words, the ins company is the ca's client, which is spelled out in their dv letter.

[Seadragon]

The statute you are relying on was amended in 2010. It no longer favors consumers to the extent it once did.

The devil is always in the details with statutes. It is a good bet that florida judges are gonna say that they are good. You can find something else wrong with it though.

[wipedout]

The statute you are relying on was amended in 2010. It no longer favors consumers to the extent it once did.

Wouldn't a dunning letter from the ca, demanding payment in full, be considered "an action to collect the debt"? If so, I never received any prior communications from anyone.

Unless I'm missing something, I should have received notice that bank xyz assigned the note to company abc, before the ca sent me a payment demand letter, which seems like an action to collect the debt, no? Is there some definition of "action to collect" that I'm missing?

[kutuzov]

They won't send you that, since they are not licensed. You could file a complain here:

http://www.myfloridacfo.com/Division/Consumers/understandingCoverage/Guides/documents/Collections.pdf

You will need to print it, notarize it and send it, I send it cmrr just in case. If they are unlicensed you don't have a private right of action, under Florida statutes for that violation.

[wipedout]

Ok, to be clear. The ins company who received the note assignment isn't licensed to collect in Florida, but the ca is. Are you thinking that I do or don't have a valid complaint?

[kutuzov]

Statutes & Constitution :View Statutes :->2012->Chapter 727 : Online Sunshine

Read that, somewhere it difines assigment. They for sure cannot put a collection in your credit, since they are not licence, they can however, assign it to this second CA in florida, and they could put a collection, but the original CA cannot, or should not, since they are not licenced in Florida, and a collection in your credit is considered attempt to collect. So it depends on what they do exactly.

[kutuzov]

Statutes & Constitution :View Statutes : Online Sunshine

727.103 Definitions.—As used in this chapter, unless the context requires a different meaning, the term:

(1) “Asset” means a legal or equitable interest of the assignor in property, which includes anything that may be the subject of ownership, whether real or personal, tangible or intangible, including claims and causes of action, whether arising by contract or in tort, wherever located, and by whomever held at the date of the assignment, except property exempt by law from forced sale.

(2) “Assignee” means a natural person solely in such person’s capacity as an assignee for the benefit of creditors under the provisions of this chapter, which assignee shall not be a creditor or an equity security holder or have any interest adverse to the interest of the estate.

(3) “Assignor” means the person or entity that has executed and delivered the assignment to the assignee.

(4) “Assignment” means an assignment for the benefit of creditors made under this chapter.

(5) “Claims bar date” means the date that is 120 days after the date on which the petition is filed with the court.

(6) “Consensual lienholder” means a creditor that has been granted a security interest or lien in personal property or real property of the assignor prior to the date on which a petition is filed with the court and whose security interest or lien has been perfected in accordance with applicable law.

(7) “Court” means the circuit court where the petition is filed in accordance with s. 727.104(2).

(8) “Creditor” means any person having a claim against the assignor, whether such claim is contingent, liquidated, unliquidated, or disputed.

(9) “Estate” means all of the assets of the assignor.

(10) “Filing date” means the date upon which the original petition is filed in accordance with s. 727.104(2).

(11) “Lien” means a charge against or an interest in property to secure payment of a debt or performance of an obligation, and includes a security interest created by agreement, a judicial lien obtained by legal or equitable process or proceedings, a common-law lien, or a statutory lien.

(12) “Liquidation value” means the value in cash obtainable upon a forced sale of assets after payment of valid liens encumbering said assets.

(13) “Petition” means the initial document filed with the court, as set forth in s. 727.104(2), establishing the court’s jurisdiction under this chapter.

History.—s. 3, ch. 87-174; s. 1, ch. 89-54; s. 3, ch. 2007-185.

[wipedout]

Thanks for all that info. At this time, there are no collections on my cr. Just an inquiry from the ins company, around the time of the assignment, then by the ca, about 60 days later. The ca's query happened shortly before I received their letter. It's like the ins company got the note and sat on it for 60 days before hiring the ca.

[ladyhunter]

Just saw your post. Hold on!

The law you state is how it read prior to October 2010. On October 2010, the law changed to read that they now have to notify you 30 days prior to taking an action (filing a lawsuit).

So this is definitely a defense for you if the debt was purchased by the JDB PRIOR to October 2010. If not, they only have to notify you that they purchased the debt at least 30 days prior to their filing a lawsuit against you.

What is the date they purchased the debt?

There is no private right of action on this statute, but if violated, it sets up an FDCPA violation, as well as an FCCPA violation under 559.72(9) by attempting to collect on an alleged debt when the legal right to do so did not exist.

Edited August 18, 2012 by ladyhunter

[wipedout]

Oh ok, well boo for me.

The debt was transferred or assigned this year. No lawsuit, I'm considering settling with them for the right price. The debt is substantial, as it was a second mortgage.

Oh well...

[ladyhunter]

I'm sorry. It is a great defense for those who have debt that dates back to 2006 - 2010 that is now being sued on.

This was my basic defense in my case, although I had other defenses, as well. It was awhile before I realized the law changed.

In my case, I was quoting the law as you did, and their attorney was quoting it differently. Then he e-mailed me and asked me where on earth did I find the wording of the law as I stated it in my complaint. So I started searching.

That's when I found that the law was amended October 1, 2010. However, for me, it worked out great. My debt, and their purchase of it, was prior to October 2010, so I was still able to use it as a defense. When I pointed out the amended date to the attorney in comparison to the date the debt was procured by Asset and the date of their first dunning letter (42 days later), that's when things started shifting very quickly to my side.