Aluia v. Dyck-O'Neal, Inc., 2D15–2059.

• Citation: 205 So.3d 768
• Decision Date: 15 July 2016
• Docket Number: No. 2D15–2059.,2D15–2059.
• Parties: Micheal ALUIA, Appellant, v. DYCK–O'NEAL, INC., Appellee.
• Court: Court of Appeal of Florida (US)

205 So.3d 768

Micheal ALUIA, Appellant,

v.DYCK–O'NEAL, INC., Appellee.

No. 2D15–2059.

District Court of Appeal of Florida, Second District.

July 15, 2016.

David W. Fineman of The Dellutri Law Group, P.A., Fort Myers, for Appellant.

Susan B. Morrison of Law Office of Daniel C. Consuegra, P.L., Tampa (withdrew after briefing); Susan B. Morrison of Law Office of Susan B. Morrison, P.A., Tampa (substituted as counsel of record), for Appellee.

BLACK, Judge.

Micheal Aluia appeals the order denying his motion to dismiss Dyck–O'Neal, Inc.'s action seeking a deficiency decree. He contends that pursuant to the federal Fair Debt Collection Practices Act proper venue is in Michigan and not Florida.

Dyck–O'Neal, Inc. (DONI), brought an action for a deficiency decree against Mr. Aluia based on a Florida final judgment of foreclosure, the sale price of Mr. Aluia's vacation home in Florida, and the property's appraised value. In its complaint, DONI alleged that a final judgment of foreclosure was entered in the amount of $299,252.95, the property was sold for $100, and the property has an appraised value of $115,000. DONI further alleged that subsequent to the foreclosure sale, the final judgment was assigned to it from the original judgment creditor. A copy of the assignment of the judgment was attached to the complaint, along with the final judgment. The final judgment of foreclosure provides that the circuit court retained jurisdiction to enter deficiency judgments. DONI initiated its action pursuant to section 702.06, Florida Statutes (2014).

Mr. Aluia filed a motion to dismiss the complaint, alleging improper venue. He argued that venue in Florida was improper pursuant to the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 – 1692p (2014) (FDCPA). A hearing was held on Mr. Aluia's motion, and the court denied it.¹ The order denying the motion did not include any findings or conclusions and stated only that the motion to dismiss was denied.

Mr. Aluia contends on appeal, as he did in his motion to dismiss below, that the FDCPA's venue provision requires DONI to bring its deficiency judgment action in Michigan where Mr. Aluia "signed the contract sued upon" and where he resides. Mr. Aluia alleges that he is a resident of Michigan and that the note and mortgage were executed in Michigan. He also contends that DONI is a debt collector under the terms of the FDCPA and that the suit for a deficiency decree is a legal action on a consumer debt under the terms of the FDCPA.

The circuit court correctly denied Mr. Aluia's motion. His argument fails for multiple reasons.

Florida's general venue provision, section 47.011, Florida Statutes (2014), provides that "[a]ctions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents." "[B]y removing nonresidents from the scope of the legislatively created venue privilege, a nonresident over whom personal jurisdiction can be obtained consistent with constitutional considerations can, at a plaintiff's election, be sued in any county in this state, subject only to the doctrine of forum non conveniens." Metnick & Levy, P.A. v. Seuling, 123 So.3d 639, 642 (Fla. 4th DCA 2013) (quoting Holton v. Prosperity Bank of St. Augustine, 602 So.2d 659, 662 n. 2 (Fla. 5th DCA 1992) ).

Here, "the well-pleaded allegations of the amended complaint," which were undisputed by Mr. Aluia's verified motion to dismiss, "were sufficient to bring the action within the ambit of Florida's long-arm statute—section 48.193, Florida Statutes. Federal due process concerns were satisfied by [Mr. Aluia's] prior conduct, the final judgment of foreclosure, and the foreseeable future consequence of a deficiency judgment." See Dyck–O'Neal, Inc. v. Huthsing, 181 So.3d 555, 555 (Fla. 1st DCA 2015) ; see also § 48.193(1)(a)(3), Fla. Stat. (2014) ("A person ... submits himself ... to the jurisdiction of the courts of this state for any cause of action arising from ... [o]wning, using, possessing, or holding a mortgage or other lien on any real property within this state."). Mr. Aluia reasonably should have anticipated "being haled into court" in this state.See Huthsing, 181 So.3d at 555 (quoting Venetian Salami Co. v. Parthenais, 554 So.2d 499, 500 (Fla.1989) ); see also Hilltopper Holding Corp. v. Estate of Cutchin, 955 So.2d 598, 601 (Fla. 2d DCA 2007) (stating that constitutional due process requirements are satisfied where the defendant "has committed acts with an effect in Florida such that [he] would anticipate being haled into Florida's courts" (first citing World–Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) ; and then citing Res. Healthcare of Am., Inc. v. McKinney, 940 So.2d 1139, 1141 (Fla. 2d DCA 2006) )). Thus, the circuit court has personal jurisdiction over Mr. Aluia, and venue is proper in Lee County where the deficiency action was filed. See Metnick & Levy, 123 So.3d at 642 ; see also Holt v. Wells Fargo Bank, N.A., 32 So.3d 194, 195 (Fla. 4th DCA 2010) (concluding that circuit court had personal jurisdiction over defendant for purposes of deficiency judgment).

Moreover, although not argued by DONI, it is apparent that Mr. Aluia's motion was also correctly denied based on the retention of jurisdiction in the final judgment of foreclosure. Florida's deficiency decree statute, section 702.06"binds a plaintiff [in a mortgage foreclosure action] to a deficiency decree once the plaintiff sets the deficiency process in motion, but expressly provides that ‘the complainant shall also have the right to sue at common law to recover such deficiency,’ " except in one limited circumstance. Royal Palm Corp. Ctr. Ass'n, Ltd. v. PNC Bank, NA, 89 So.3d 923, 931 (Fla. 4th DCA 2012) (quoting § 702.06, Fla. Stat. 2008 ). It would defy logic to say that—solely because DONI elected to file the statutorily permitted independent action to pursue the deficiency—venue no longer lies in Florida but that if DONI had been substituted party plaintiff in the foreclosure action and filed its motion for deficiency therein venue in Florida would be indisputable.² Venue cannot simply be "lost" because DONI brought a new action to recover the deficiency rather than proceeding within the foreclosure suit.

Our conclusion that venue lies in Lee County is unchanged by consideration of Mr. Aluia's argument regarding the venue provision of the FDCPA. As Mr. Aluia points out, the Florida Legislature has expressly stated that Florida courts should give effect to the FDCPA:

Nothing in this part shall be construed to limit or restrict the continued applicability of the federal Fair Debt Collection Practices Act to consumer collection practices in this state. This part is in addition to the requirements and regulations of the federal act. In the event of any inconsistency between any provision of this part and any provision of the federal act, the provision which is more protective of the consumer or debtor shall prevail.

§ 559.552, Fla. Stat. (2014). The Florida Consumer Collection Practices Act, §§ 559.55–.785, does not have a venue provision. However, the venue provision of the FDCPA, 15 U.S.C. § 1692i, provides, in relevant part:

(a) Venue

Any debt collector who brings any legal action on a debt against any consumer shall—

(1) in the case of an action to enforce an interest in real property securing the consumer's obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity—

(A) in which such consumer signed the contract sued upon; or

(B) in which such consumer resides at the commencement of the action.

By it terms, the FDCPA's venue provision governs legal action "on a debt" brought by a "debt collector." "Debt" is defined by the FDCPA as "any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment." 15 U.S.C. § 1692a(5).

[T]he FDCPA applies "only when an obligation to pay arises out of a specified transaction." Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1371 (11th Cir.1998) ; see also Oppenheim [v. I.C. Sys., Inc.], 627 F.3d [833,] 837 [ (11th Cir.2010) ] ("The statute thus makes clear that the mere obligation to pay does not constitute a ‘debt’ under the FDCPA.").

Surber v. McCarthy, Burgess & Wolff, Inc., 634 Fed.Appx. 292, 294 (11th Cir.2015). And "at a minimum, a ‘transaction’ under the FDCPA must involve some kind of business dealing or other consensual obligation." Oppenheim, 627 F.3d at 838 (quoting Hawthorne, 140 F.3d at 1371 ).

The FDCPA defines "debt collector," in pertinent part, as "any person who [ (1) ] uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or [ (2) ] who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. " 15 U.S.C. § 1692a(6) (emphasis added).

Mr. Aluia claims the deficiency judgment suit is a legal action on a debt because the note secured by the mortgage meets the FDCPA's definition of debt. We disagree. A deficiency suit is not a "legal action on" the note; it is an action on the final judgment of foreclosure. The final judgment of foreclosure is not "an obligation ... of a consumer to pay money," nor does it arise from a business dealing or consensual obligation. The final judgment of foreclosure is a judgment in rem or quasi in rem which arises from the foreclosure proceeding. As such, the venue provision of the FDCPA does not apply to...