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Kelly v. Duggan

Court of Appeal of Florida, First District

October 23, 2019, Decided

No. 1D17-3618

Opinion

 [*970]  M.K. Thomas, J.

Edward Michael Kelly ("Kelly") challenges the dismissal of his complaint  [*971]  against Julie Duggan ("Duggan") for alleged violations of the Florida Consumer Collection Practices Act ("FCCPA") in an unpaid condominium assessment dispute. Kelly argues the trial court erred in dismissing the complaint for failure to state a cause of action because condominium assessments qualify as "consumer debts" under the FCCPA. We agree and reverse.

I. Facts

A dispute arose between Kelly and Chez Sois Condominium Association1 regarding disputed past due assessments. Kelly, a condominium owner and resident, contends that Duggan, President of the Association, violated the FCCPA by locking him out of a storage unit, making public derogatory statements about him, and disclosing information about his reputation to a vendor. He further claims he did not receive notice of a board meeting during which his common area privileges were considered and eventually [**2]  suspended.

Kelly seeks a declaration that Duggan violated the FCCPA,2 an injunction against future violations, and statutory damages of $ 1,000 and other monetary damages under section 559.77(2), Florida Statutes. Duggan moved to dismiss the complaint citing Bryan v. Clayton, 698 So. 2d 1236 (Fla. 5th DCA 1997), rev. denied, 707 So. 2d 1123 (Fla. 1998), cert. denied, 524 U.S. 933, 118 S. Ct. 2334, 141 L. Ed. 2d 706 (1998), which held that the Fair Debt Collection Practices Act ("FDCPA") and the FCCPA's definition of "debt" excludes maintenance assessments owed to a homeowner's association. Based on Bryan, the trial court dismissed the complaint. This appeal followed.

II. Legal Analysis

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282 So. 3d 969 *; 2019 Fla. App. LEXIS 16019 **; 44 Fla. L. Weekly D 2591; 2019 WL 5406481

EDWARD MICHAEL KELLY, Appellant, v. JULIE DUGGAN, Appellee.

Prior History: Kelly v. Dunlap & Shipman, P.A., 2017 U.S. Dist. LEXIS 20799 (N.D. Fla., Feb. 7, 2017)

CORE TERMS

consumer, condominium, homeowners'

Banking Law, Consumer Protection, Fair Debt Collection, Liability for Violations, Real Property Law, Common Interest Communities, Condominiums, Condominium Associations, Governments, Legislation, Interpretation, Civil Procedure, Appeals, Standards of Review, De Novo Review, Pleadings, Complaints, Requirements for Complaint, Unfair Practices, Courts, Judicial Precedent, Banking & Finance, Fair Debt Collection, Homeowners Associations