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CACH, LLC Appealing Anyone That Won Previously?

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I'm curious if anyone has had their cases from CACH appealed after winning?  I'm wondering if this is a new tactic they are using.  As some of you know, I have gotten a couple of cases from CACH in Florida dismissed for failure to follow condition precedent on providing 30 days notice of assignment before filing suit.

 

This is an unsettled area of law in Florida, with some jurisdictions ruling that it is a condition precedent and others ruling it is not.  I just received a notice of appeal on one of these cases.  CACH is appealing it to the Circuit Court (the next level after County Court).  It was previously dismissed with prejudice.

 

My guess is that CACH is hoping that the defendant won't be able to hire an appellate attorney to defend it.  They aren't as many appellate attorneys and they generally charge more.  Why they picked this case, I have no idea yet.  It's not for a large sum of money.  I plan to do what I can to help defend the appeal, as I doubt the defendant can find an affordable attorney to fight it and I would hate to see CACH get an easy default win via appeal after fighting to get the dismissal in the first place.  So it's either a new tactic they may start to use when they lose a case, or they are actually trying to get a higher court opinion to weight in and settle this particular area of law.  Either way, it should be interesting.

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I really don't know about other states.  Generally each state has their own statutes regarding consumer debt collection that would generally mirror the FDCPA.  Perhaps check your state statutes on consumer debt collection practices.

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I think they are appealing this one because of the With Prejudice designation. That means this is it, they cannot sue you again which makes the debt worth less when they sell it on whereas if the dismissal was w/o prejudice, they could get more for it.

You should hire an attorney and as part of the appeal, have them taxed the costs if they lose (that happens regularly on appeal). At least consult with a couple of appeals court attorneys and see what will happen.

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@WhoCares1000

 

I believe a dismissal with prejudice applies to the plaintiff who filed suit.  That plaintiff could not sue again.  It would not necessarily apply to a different plaintiff.

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So in other words, say Midland purchases a debt, tries to sue me and I get a dismissal with prejudice, they can simply sell the same debt to say Portfolio who then can sue me again it? Seems like a waste of court resources considering Portfolio would not have any new evidence.

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@WhoCares1000

 

If Portfolio could sue, I think your defense might depend upon the reason for the dismissal.  For instance, if the judge flat out ruled that there was no evidence that the account was yours, that could be an affirmative defense or a motion for dismissal.  I believe it's call res judicata.  The case was already decided on the merits.

 

If he ruled that Midland didn't prove they owned the account, that might be a reason to file a motion to dismiss.  If Midland couldn't prove it owned the account, then Portfolio can't prove it owns an account purchased from a JDB who was unable to prove ownership.

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@LawKitty

 

This is from the Florida statutes Part VI (Consumer Collection Practices).

 

559.78 Judicial enforcement.In addition to other penalties provided in this part, state attorneys and their assistants are authorized to apply to the court of competent jurisdiction within their respective jurisdictions, upon the sworn affidavit of any person alleging a violation of any of the provisions of this part. Such court shall have jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violating any provision of this part, whether or not there exists an adequate remedy at law; and such injunction, suspension, or revocation shall issue without bond.

 

Does that apply to 559.715?   If it does, how could a court rule that it's not a condition precedent if FL law says failure to follow a provision is a violation and an injunction can be issued to the violating party?

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@LawKitty

 

Interesting.  CACH has already appealled a similar case to a FL Circuit Court.  On Feb. 14, 2014, in CACH, LLC v. Mario Salvo, (FL 6th Cir. App. Crt), the court held that FL. 559.715 was a condition precedent that had to be satisfied to bring a collection action.  However, the court also held that by averring that all conditions precedent had been satisfied, the county court's dismissal of the case was improper.  Apparently a FL Dist Appellate Court has yet to rule on the statute.

 

http://www.jud6.org/legalcommunity/legalpractice/opinions/appellatedivisionopinions/2014/02-February/CACHLLC512013AP000005APAXWS.pdf

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Interesting.  CACH has already appealled a similar case to a FL Circuit Court.  On Feb. 14, 2014, in CACH, LLC v. Mario Salvo, (FL 6th Cir. App. Crt), the court held that FL. 559.715 was a condition precedent that had to be satisfied to bring a collection action.  However, the court also held that by averring that all conditions precedent had been satisfied, the county court's dismissal of the case was improper.  Apparently a FL Dist Appellate Court has yet to rule on the statute.

 

http://www.jud6.org/legalcommunity/legalpractice/opinions/appellatedivisionopinions/2014/02-February/CACHLLC512013AP000005APAXWS.pdf

 

@debtzapper

 

Thanks for this case.  The appellee attorney happens to be someone I went to law school with :)  I'm finding this appeal to be quite interesting and have determined I will be helping with it even if I have to do so pro bono, because I feel it is important to keep fighting.  

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@LawKitty,

 

It is important to "keep fighting."  We "fight the good fight," as they say.  I wish you the best in your appeal.  Considering  how populous Florida is and the many FDCPA cases that have been  heard in the U.S. District Courts, relatively few collection cases have been decided by the FL Dist Courts of Appeal.  Thank you for continuing to post here.

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I spoke to my colleague, who was the appellee attorney on the Salvo case.  Basically she said that the court said she had the right argument, but wrong time in the case to make it (motion to dismiss).  She withdrew from the case after it was remanded and supposedly another attorney took it over.  I'm trying to find out what happened on the remand; whether the defendant eventually won, because if they did, then it will help me with my arguments in the appeal.  Interestingly she told me she was also recently contacted by another attorney in the Jacksonville area because CACH is appealing one of their cases in that area for the same thing.  Evidently they are starting to appeal cases if they get dismissed on the failure to perform condition precedent issue.  I figure if this case I'm working on gets remanded, then I'll just file a motion for summary judgment because the trial judge already said they did not follow the statute by sending the required 30 day notice of assignment before filing suit, and that it is a condition precedent.  I suppose I can tack on more attorney fees for the appeal for CACH to pay, as well :)

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I didn't read the specifics of your case, nor have i appealed vs cach, but i'm in the midst of an appeal vs Muddland Funding in California right now. I have a thread with all of my appeal docs, appeal brief, strategy, ect. most of it is california specific but the principles may well translate to other states.

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