Vous êtes sur la page 1sur 3

Case 1:11-cv-24033-JEM Document 10 Entered on FLSD Docket 01/03/2012 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA YAUMARY MYRICK, ) ) Plaintiff, ) ) Vs. ) ) FAIR COLLECTIONS & ) OUTSOURCING, INC., and ) FAIRWAY VIEW ASSOCIATES, ) LTD., ) ) Defendants ) _________________________________)

Case No.: 1:11-cv-24033

DEFENDANT FAIR COLLECTIONS & OUTSOURCING, INC.S MOTION TO DISMISS COUNT 7 OF PLAINTIFFS COMPLAINT AND MEMORANDUM IN SUPPORT THEROF

Defendant, Fair Collections & Outsourcing, Inc. (FCO or Defendant), by and through the undersigned counsel files this Motion to Dismiss to dismiss Count 7 of plaintiffs Complaint pursuant the FED. R. CIV. P. 12(b)(6), and specifically because there is no private right of action under Fla. Stat. 559.715. The court should dismiss a plaintiffs claim for failure to state a claim upon which relief may be granted when, taking allegations in the complaint as true, plaintiffs complaint presents no set of facts justifying recovery. Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). On November 8, 2011, plaintiff filed a lawsuit alleging that FCO violated Fla. Stat. 559.715. See Dkt. No. 1, Ct. 7. In particular, while plaintiff alleges no facts to support the claim, Plaintiff brought an FCCPA cause of action against FCO for failure give him/her notice of an assignment. See Dkt. No. 1, 36

Case 1:11-cv-24033-JEM Document 10 Entered on FLSD Docket 01/03/2012 Page 2 of 3

Regardless of whether or not FCO gave plaintiff written notice of an assignment, the same cannot be the basis for a private right of action under the FCCPA. See Renfrow v. First Mortgage America, Inc., 2011 WL 2416247 *4 n.1 (S.D. Fla. 2011) citing Pack v. Unifund CCR Partners, G.P., 2008 WL 686800, *2 n.2 (M.D. Fla. 2008) (Holding there is no separate cause of action for a violation of Fla. Stat 559.715). Simply put, the reason why there is no private right of action under Fla. Stat. 559.715 is because Fla. Stat. 559.77, the civil remedies section of the FCCPA, applies only to violations of Fla. Stat. 559.72. Fla. Stat. 559.77 states in pertinent part:
(1)A debtor may bring a civil action against a person violating the provisions of s. 559.72 in the county in which the alleged violator resides or has his or her principal place of business or in the county where the alleged violation occurred. (2)Any person who fails to comply with any provision of s. 559.72 is liable for actual damages and for additional statutory damages as the court may allow, but not exceeding $1,000, together with court costs and reasonable attorneys fees incurred by the plaintiff

In general, a statute that does not purport to establish civil liability ... will not be construed as establishing a civil liability. Murthy v. N. Sinha Corp., 644 So.2d 983, 986 (Fla.1994). Absent an indication of legislative intent to create a private cause of action for a violation of 559.715, such a remedy may not be judicially engrafted onto the FCCPA. McCorriston v. L.W.T., Inc., No. 8:07-cv-160-T-27EAJ, at 5 (M.D. Fla. June 14, 2007) (granting defendants motion to dismiss). Since Count 7 alleges a violation of Fla. Stat 559.715 and not Fla. Stat 559.72, Count 7 must be dismissed as a matter of law. To the extent FCO is obligated to respond to the other counts at this time, FCO denies all allegations, liability, and damages.
2

Case 1:11-cv-24033-JEM Document 10 Entered on FLSD Docket 01/03/2012 Page 3 of 3

WHEREFORE, Defendant FCO respectfully requests that this Court dismiss Count 7 of plaintiffs Complaint with prejudice and for such other relief as this Court deems just and proper. Submitted this 3rd day of January, 2012. Respectfully Submitted, /s/ Kenneth C. Grace Kenneth C. Grace, Esq. Florida Bar No.: 0658464 Dayle M. Van Hoose, Esq. Florida Bar No.: 016277 SESSIONS, FISHMAN, NATHAN & ISRAEL, L.L.C. 3350 Buschwood Park Drive, Suite 195 Tampa, FL 33618 Telephone: (813) 890-2465 Facsimile: (866) 466-3140 kgrace@sessions-law.biz dvanhoose@sessions-law.biz Attorneys for Defendant, Fair Collections & Outsourcing, Inc.
CERTIFICATE OF SERVICE

I hereby certify that on this 3rd day of January 2012 a copy of the foregoing was served electronically via CM/ECF on the following: Andrew I. Glen, Esq. Card & Glenn, P.A. 2501 Hollywood Boulevard, Suite 100 Hollywood, Florida 33020 Ryan R. McCain, Esq. Barfield, McCain P.A. 2809 Poinsettia Avenue West Palm Beach, Florida 33407 /s/ Kenneth C. Grace Attorney
Doc # 641848

Vous aimerez peut-être aussi