The County Court of the 13th Judicial Circuit in and for Hillsborough County, Florida, recently struck a mortgagee's and servicer's offer of judgment in an action under the Florida Consumer Collection Practices Act ("FCCPA"), holding in a matter it deemed of great public importance that the FCCPA preempts Florida's Offer of Judgment statute. A copy of the order is attached.
In May of 2013, a borrower filed a one-count complaint against defendants, a mortgagee and its loan servicer, alleging a violation of the FCCPA. The defendants filed an offer of judgment pursuant to section 768.79, Florida Statutes. In response, the plaintiff borrower moved to strike the offer of judgment.
The defendants argued that the plaintiff borrower's motion to strike was premature because whether the offer of judgment even applies cannot be determined until after damages are quantified. However, the court rejected this argument, reasoning that the motion was not premature because the question before the court was whether the offer of judgment statute applies at all in FCCPA actions.
The court then rejected the plaintiff borrower's argument that the offer of judgment would unduly prejudice him because he would be exposed to liability if he guessed wrong about the strength of his case, finding that was precisely what the Florida legislature intended in adopting the offer of judgment statute -- i.e., to encourage settlement.
The court reasoned that while two appellate court rulings — decided by the Second and Fifth District Courts of Appeals respectively — held that the federal Magnuson-Moss Warranty Act does not preempt Florida's offer of judgement statute, they did not involve either the federal Fair Debt Collection Practices Act ("FDCPA") or Florida's equivalent, the FCCPA, and thus while persuasive, were not controlling.
Nevertheless, the court granted the plaintiff borrower's motion to strike, reasoning that the Fifth District Court of Appeals' decision in Clayton v. Bryan was on point, as it dealt direct with the FDCPA and FCCPA and held that section 559.72 of the FCCPA preempts Florida's Offer of Judgment law, section 768.79, Florida Statutes. The court also found persuasive a 2003 order of the 13th Judicial Circuit in and for Hillsborough County, which held that section 559.72 of the FCCPA provides the sole remedy for cases brought under that Act.
The court added in passing that in the absence of controlling authority from the Second District Court of Appeals, and but for the fact that its decision was not a final order, it would deem the conflict between the consumer protection policies behind the FCCPA and policy of encouraging settlement in Florida's Offer of Judgment statute to be a matter of great public importance and would certify the following question to the Second District Court of Appeals: Does a claim made pursuant to Fla. Stat. 552.72 (FCCPA) pre-empt the application of the offer of judgment provisions of Fla. Stat. 768.79?
A recent examination of the docket (attached) shows no interlocutory appeal was attempted.
Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874
Admitted to practice law in Illinois
California | Florida | Illinois | Indiana | Massachusetts | New Jersey | New York | Ohio | Pennsylvania | Texas | Washington, DC
NOTICE: We do not send unsolicited emails. If you received this email in error, or if you wish to be removed from our update distribution list, please simply reply to this email and state your intention. Thank you.
Our updates and webinar presentations are available on the internet, in searchable format, at: