NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-1, APPELLANT,
v.
CHARLES LIPARI, APPELLEE
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National Collegiate Student Loan Trust 2007-1 appeals a summary judgment in favor of Charles Lipari, a co-signer on his son's student loan. The court reversed, holding that the notice requirement under Florida's Consumer Collection Practices Act does not apply when an entire debt is assigned (only when the right to bill and collect is assigned), and that notice is not a condition precedent to filing suit.
The court held that section 559.715 does not apply when an entire debt is assigned, only when the right to bill and collect is assigned. Additionally, the court held that even if the statute applied, notice of assignment is not a condition precedent to filing suit; the statute merely requires notice within 30 days of assignment.
[1] The notice requirement of the Florida Consumer Collection Practices Act regarding assignment of a consumer debt applies only to an assignee of the right to bill and colle…
[2] Notice of assignment of a consumer debt is not a condition precedent to filing a collection lawsuit under the Florida Consumer Collection Practices Act.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“section 559.715 applies only to assignees of the right to bill and collect a consumer debt not to assignees of the debt itself”
Establishes the critical distinction that the notice requirement does not apply when the entire debt is assigned.
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Join FLexlaw to unlock all legal intelligenceNicholas Lipari obtained a student loan from JPMorgan Chase Bank, N.A., which was co-signed by Charles Lipari. When Nicholas defaulted, the entire not…
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ON MOTION FOR REHEARING AND CLARIFICATION
Upon consideration of Appellee’s motion for rehearing and clarification, our opinion of May 19, 2017, is withdrawn and the following substituted therefor. The motion for rehearing is denied, and the concurrent motion for clarification is granted in part.
The National Collegiate Student Loan Trust 2007-1 (“NCT”) appeals a final summary judgment, entered in favor of Charles Lipari in an action to collect on a note. Appellee’s son, Nicholas Lipari, entered into a student loan agreement with JPMorgan Chase Bank, N.A. The loan obligation was co-signed by Appellee. Nicholas Lipari failed to make payment, and the loan went into default. NCT then filed an action to collect against both Appellee and his son. Appellee contends that NCT failed to provide notice of an assignment of the debt to him as required by the Florida Consumer Collection Practices Act (“FCCPA.”), section 559.715, Florida Statutes (2007), prior to filing suit. Appellee further contends that notice of the assignment is a condition precedent to the filing of a collection lawsuit under Florida law. The trial court agreed and entered judgment in favor of Appellee. We disagree and reverse.
The FCCPA permits a creditor to assign the “right to bill and collect a consumer debt.” § 559.715, Fla. Stat. (2007). In so doing, such an assignee is required to give written notice to the debtor within *311thirty days after assignment. According to its plain language, the notice requirement contained in section 559.715 does not apply to an assignee that takes all rights to the consumer debt. Deutsche Bank Nat’l Tr. Co. v. Hagstrom, 203 So.3d 918, 921 (Fla. 2d DCA 2016) (“[Sjection 559.715 applies only to assignees of the right to bill and collect a consumer debt not to assignees of the debt itself.”). Instead, it applies only to an assignee of the right to “bill and collect.” In the instant case, the entire note originally made by JPMorgan Bank, N.A. was assigned to NOT. No rights were retained by the assignor. Therefore, section 559.715 does not apply.
Moreover, even if NOT were an assignee as contemplated by the FCCPA, notice of assignment is not a condition precedent to filing suit. Rather, section 559.715, Florida Statutes (2007), merely requires notice “within 30 days after the assignment.” The Legislature knows how to create a condition precedent when it so desires, and it did not do so here. While failure to properly provide a notice may violate the FCCPA in certain circumstances, there is simply no language in the statute to suggest that such a notice is a condition precedent to suit. Accord Bank of Am., N.A. v. Siefker, 201 So.3d 811 (Fla. 4th DCA 2016) (interpreting the post-2010 version' of section 559.715); Brindise v. U.S. Bank Nat’l Ass’n, 183 So.3d 1215 (Fla. 2d DCA 2016) (interpreting the post-2010 version of section 559.715).1 In short, it is not for the court to rewrite the statute, and we decline Appellee’s invitation to do so.
Accordingly, we reverse the summary judgment entered in favor of Appellee and remand the matter to the trial court.
REVERSED and REMANDED.
EVANDER, BERGER, and EISNAUGLE JJ., concur.
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Authorities Cited
- Brindise v. U.S. Bank Nat'l Ass'n, 183 So. 3d 1215 (Fla. 2d DCA 2016)
- Deutsche Bank Nat'l Tr. Co. for Morgan Stanley Home Equity Loan Tr. 2007-1 v. Hagstrom, 203 So. 3d 918 (Fla. 2d DCA 2016)
- Colby A. Smith v. State, 201 So. 3d 811 (Fla. 1st DCA 2016)
- Bank OF Am., N.A. v. Siefker, 201 So. 3d 811 (Fla. 4th DCA 2016)