CARLYNE DESIR
v.
ANDREU, PALMA, LAVIN & SOLIS, PLLC, ET AL.
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The court held that the plaintiff's FDCPA and fraudulent misrepresentation claims failed as a matter of law, and new claims could not be raised in response to a summary judgment motion.
[1] Attorneys acting solely as counsel for a creditor in debt collection actions do not qualify as debt collectors under the Fair Debt Collection Practices Act and are theref…
Previewing 1 of 1 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“The firm acted solely as counsel for the bank in the collection action.”
Explaining why defendants do not qualify as debt collectors under FDCPA Section 1692a(6).
Plaintiff defaulted on credit card debts, and the law firm representing the bank sent validation notices. Plaintiff disputed the debts and requested c…
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Desir's FDCPA claims fail as a matter of law. Under the statute, a plaintiff must establish (1) that she was the object of collection activity arising from a consumer debt, (2) that the defendant is a debt collector as defined by the statute, and (3) that the defendant engaged in a statutorily prohibited act or omission. Helman v. Bank of Am., 685 F. App'x 723, 726 (11th Cir. 2017). Desir offers no evidence that APLS or an APLS lawyer qualifies as a “debt collector” under section 1692a(6). The firm acted solely as counsel for the bank in the collection action. Heintz v. Jenkins, 514 U.S. 291, 296 (1995); Vega v. McKay, 351 F. 3d 1334, 1336 (11th Cir. 2003). The undisputed affidavits show that the defendants sent the validation notices required by Section 1692g and ceased communication upon Desir's request conduct that fully complies with the FDCPA.
Desir's fraudulent misrepresentation claims are likewise unsupported. She submits no affidavits, exhibits, or other competent evidence showing that any defendant falsely stated a material fact. Butler v. Yusem, 44 So. 3d 102, 105 (Fla. 2010). In her response, Desir asserts that the debts “were not owed to BOA at the time — they had been satisfied or assigned away," but the record contains nothing to substantiate that claim. (Doc. 38 ¶ 40).
To the extent Desir's response to the defendants' motion for summary judgment attempts to assert a new claim for violation of another statute or a common-law tort claim, those claims are not properly raised in a motion for summary judgment. Gilmour v. Gates, McDonald & Co., 382 F. 3d 1312, 1315 (11th Cir. 2004).
CONCLUSION
The defendants' motion for summary judgment is GRANTED and Desir's motion for summary judgment is DENIED. No later than DECEMBER 8, 2025, Desir may amend her complaint to raise a new statutory or common law claim. Desir may not reassert her claim under the FDCPA or her fraudulent misrepresentation claim.
ORDERED in Tampa, Florida, on ______, 2025.
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE
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Citator
Authorities Cited
- Butler v. Yusem, 44 So. 3d 102 (Fla. 2010)
- Gilmour v. Gates, 382 F.3d 1312 (11th Cir. 2004)
- Vega v. Scott D. McKAY, McKay Law Firm, P.A., 351 F.3d 1334 (11th Cir. 2003)