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Florida Statute- 559.715 Written Notice of Assignment of Mortgage in Foreclosure

mattweidnerlaw.com | June 11, 2014

By Matthew D. Weidner, Esq

A Consumer Has RIGHTS!

The recklessness of the banking industry in this nation and in this state in particular is unprecedented. Trillions of dollars in debt and financial obligations sent shifting all across this planet with dizzying speed, mail and notices from one entity after another claiming to have an interest in a consumer’s debt,

WITH NO FORMAL PROOF THAT THE NEW CREDITOR OR SERVICER HAS ANY RIGHT IN THAT DEBT OR OBLIGATION!

The stability of consumers to live in their property without fear that some stranger will come and improperly make a claim on their mortgage was first eviscerated in the MERS v. Azize opinion, and things have only gotten worse, much worse since that time.

The multitude of mortgage transfers…both of servicing and ownership of the underlying debt…has only increased since the financial crisis began. The recklessness, the abusiveness and the outright fraudulent and criminal conduct of the banking and finance industries (too many examples to note…HSBC, London Whale, LIBOR…the pattern of criminal conduct seems to permeate the entire universe of consumer finance transactions) and so one would think that courts would be in the business of enforcing consumer rights and protections that would give more stability and integrity to the financial and legal environment….

17 Fla. L. Weekly Supp. 190a

Creditors’ rights — Consumer law — Florida Consumer Collection Practices Act — Assignee of consumer debt is precluded from bringing action to collect debt where assignee failed to satisfy condition precedent of notice to debtor within 30 days of assignment — No merit to argument that notice requirement applies only to collection agencies.

CENTRAL OHIO CREDIT CORP., Plaintiff, vs. KEVIN LAMAR JONES, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2007-11791-CC, Division A. June 17, 2008. Emmet F. Ferguson, Judge. Counsel: Sidney E. Lewis, Jacksonville. James A. Kowalski, Jr., Jacksonville.

SUMMARY FINAL JUDGMENT FOR DEFENDANT

THIS CAUSE came on before the Court on Thursday, June 5, 2008, on the Plaintiff’s Motion for Summary Judgment and the Defendant’s Cross-Motion for Summary Judgment. The issue presented to the Court concerns the application of Section 559.715, Florida Statutes, to the facts of the instant case, based upon the record evidence indicating Plaintiff did not provide notice of an assignment within thirty (30) days as provided by the Statute.

Section 559.715, Florida Statutes, states: “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.”

Plaintiff asserts Section 559.715, Florida Statutes, only applies to collection agencies by virtue of its proximity to now-repealed statutes dealing with collection agencies. Defendant argues Section 559.715, Florida Statutes, is a condition precedent to the collection of debts following an assignment, applies on its face to all entities receiving assignments of consumer debts, and notes the term “consumer debt” is defined broadly. Section 559.55(1), Florida Statutes.

The Court has reviewed the circuit court case of UMIJC VP, LLC, v. Levine, 10 Fla. L. Weekly Supp. 336 (Circuit Court, 15th Judicial Circuit, 2003), and has also reviewed Plaintiff’s Affidavit As to Indebtedness, wherein Plaintiff’s Affiant testified Plaintiff had received this debt through a series of assignments. The Court finds Section 559.715, Florida Statutes, is a condition precedent and applies to those entities receiving assignments of consumer debts and, having failed to comply by providing notice to Defendant within 30 days after assignment, Plaintiff is precluded as a matter of law from bringing this action. There are no genuine issues of material fact and Defendant KEVIN LAMAR JONES is entitled to Judgment in his favor and against Plaintiff CENTRAL OHIO CREDIT CORP. It is, therefore,

ORDERED AND ADJUDGED,

Defendant KEVIN LAMAR JONES’ Motion for Summary Judgment be and the same is hereby granted, and accordingly Plaintiff CENTRAL OHIO CREDIT CORP. shall take nothing by this action, and the Defendant shall go hence without day.

——————————————————————

15 Fla. L. Weekly Supp. 365b

Consumer law — Assignment of debt — Where debtor’s affidavit stating that she did not receive written notice of any assignment of debt was unrebutted, condition precedent to assignee’s action to collect debt was not met

MIDLAND FUNDING LLC, Plaintiff, vs. GLADYS HILL, Defendant. County Court, 2nd Judicial Circuit in and for Gadsden County, Small Claims Division. Case No. 07-75-SCA. February 13, 2008. Stewart E. Parsons, Judge. Counsel: Robert J. Orovitz, Miami, for Plaintiff. Robert G. Churchill, Jr., Tallahassee, for Defendant.

ORDER GRANTING MOTION FOR SUMMARY DISPOSITION

THIS CAUSE having come on for hearing upon Defendant’s Motion For Summary Disposition, and Court having heard the argument of counsel, it is

ORDERED AND ADJUDGED:

1. Plaintiff filed this action to collect a debt alleging that it was the owner and holder of the debt pursuant to an assignment from the original lender, Fingerhut Credit Advantage. The Court notes that the assignment which was produced in response to Defendant’s Request For Production was from Jefferson Capital Systems, LLC to Midland Funding LLC, and made no mention of Fingerhut Credit Advantage. F.S. 559.715 requires that an assignee of a debt give written notice of the assignment to the debtor within 30 days of the assignment. Defendant filed her affidavit in support of the Motion For Summary Disposition indicating that she received no notice of any assignment of the debt. The affidavit was not rebutted by Plaintiff.

2. The Court finds that the written notice required by F.S. 559.715 was not given, and that the giving of such notice was a condition precedent to bringing this Action. UMLIC-VP, LLC v. Reggie Levine, 10 Fla. L. Weekly Supp. 336a (Fla. 15th Cir. Ct. 2003) & Portfolio Recovery Associates, LLC v. Richard Smith, 15 Fla. L. Weekly Supp. 169a (Leon County Court 2007). Therefore the Motion For Summary Disposition is granted, and this action is hereby dismissed with prejudice.

Matt Weidner is a Florida Foreclosure Defense Attorney

 

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