+ All Categories
Home > Documents > Salomon Answer Brief

Salomon Answer Brief

Date post: 07-Aug-2018
Category:
Upload: southfllawyers
View: 223 times
Download: 0 times
Share this document with a friend

of 12

Transcript
  • 8/20/2019 Salomon Answer Brief

    1/26

    IN THE 11TH JUDICIAL CIRCUIT IN AND FORMIAMI-DADE COUNTY, FLORIDA

    CASE NO CASE NO: 15-167 AP

    L.T. No.: 2014-10561 CC 25

    RAMI SHMUELY,

    Appellant,

    vs.

    SALOMON CONSTRUCTION &ROOFING CORP.,

    Appellee.

    On Final Review from the County CourtIn and For Miami-Dade County, Florida

    APPELLEE’S ANSWER BRIEF

    Richard C. Wolfe, Esq.

    Wolfe Law Miami, P.A.Counsel for AppelleeSalomon Construction & Roofing Corp.

    175 SW. 7th Street, Suite 2410

    Miami, Florida 33130Telephone: (305) 384-7370

  • 8/20/2019 Salomon Answer Brief

    2/26

    ii 

    TABLE OF CONTENTS

    TABLE OF AUTHORITIES ................................................................................ iii

    PREFACE ................................................................................................................. v

    INTRODUCTION .................................................................................................... 1

    STANDARD OF REVIEW ..................................................................................... 2

    SUMMARY OF ARGUMENT ............................................................................... 3

    RESPONSE TO APPELLANT’S STATEMENT OF THE CASE AND

    FACTS ....................................................................................................................... 3

    ARGUMENT ............................................................................................................ 5

    A. The Language1 Used By The Defendant Was Not Profane, Nor

    Obscene ........................................................................................................ 6

    B. 

    The Language Used Is Protected By The First Amendment And The

    Florida Constitution .................................................................................. 11

    C. The FCCPA Was Never Intended To Regulate Pure Speech (Without

    Further Abusive Collection Tactics) ...................................................... 13

    D. 

    Appellant Attempts To Mislead The Court As To The Reasons Why

    The Trial Court Granted Defendant’s Motion For Summary

    Judgment .................................................................................................... 16

    E. 

    The Court Should Ignore Appellant’s FCC Argument That Was Not

    Raised Below .............................................................................................. 19

    CONCLUSION ....................................................................................................... 19

    1 Counsel for Appellant apologizes to the Court to the extent that “four letter words” are used in this Answer Brief; however,

    counsel wishes to be accurate. Counsel made the same apology to the trial court and Appellant now argues (in his Initial Brief)that the apology is indicative that the language used by Mr. Susi is “profanity per se.” However, language used by a tradesma n

    (to a debtor/lawyer who refuses to pay a legitimate bill) cannot be held to the standard as language that lawyers use whenformally addressing a court of law. 

  • 8/20/2019 Salomon Answer Brief

    3/26

    iii 

    TABLE OF AUTHORITIES

    Cases

     Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001) .................. 2

     Brown v. State, 358 So. 2d 16 (Fla. 1978) ................................................................. 6

     Miller v California, 413 U.S. 15, 93 S. Ct 2607 (U.S. 1972) .................................... 6

     Meininger v. Green Tree Servicing, LLC , 2012 WL 1166161 (M.D. Fla. 2012) ...... 7

     Kelemen v. Professional Collections Systems, 2011 WL 31396 (M.D. Fla. 2011) ... 7

     Montgomery v. Fla. First Fin. Grp., Inc., 2008 WL 3540374, at 6 (M.D. Fla.

    Aug.12, 2008) ....................................................................................................... 7,15 

    Cohen v. California, 403 US 15 (1971) ................................................................ 7,11

     Hagler v. Credit World Servs., 2014 U.S. Dist. LEXIS 139241 (U.S. Dist. Ct. Kan.2015) .................................................................................................................. 8,9,18

     Linko v. Nat’l Action Fin. Servs., 2007 U.S. Dist. Lexis 98718 (M.D. PA. 2007) ... 9

     Luke Records v. Navarro, 960 F. 2d 134 (11th Cir. 1992) ...................................... 10

     Horkey v. J.V.D.B. & Assocs., 333 F.3d 769 (7th Cir. Ill. 2003) ....................... 10,16

     L.A.T. v. State, 650 So. 2d 214, 217 (Fla. 3d DCA 1995) ....................................... 11

    W.L. v. State, 769 So. 2d 1132 (Fla. 3d DCA 2000)................................................ 11

     Roth v. United States, 354 U.S. 476 (1957) ............................................................. 11

    State v. Saunders, 339 So. 2d 641 (Fla. 1976) ........................................................ 11

    Cohen v. California, 403 U.S. 15 (1971) ........................................................... 11,13

     Harris v. Beneficial Finance Co., 338 So. 2d 196 (Fla. 1976) ..................... 12,13,15

     Reed v Town of Gilbert, 135 S. Crt. 2218, 192 L. Ed. 2d 236 (2015) ................... 12

  • 8/20/2019 Salomon Answer Brief

    4/26

    iv 

     Brown v. State, 358 So. 2d 16 (Fla. 1978) .............................................................. 13

    Story v. J. M. Fields, Inc., 343 So. 2d 675 (Fla. DCA 1st 1977) ............................ 13

     Household Finance Corp. v. Bridge, 252 Md. 531, 543 (1969) ............................. 14

     Jeter v. Credit Bureau, Inc., 760 F.2d 1168 (7th Cir. 1985) ............................. 14,19

     Beattie v. D.M. Collections, Inc., 754 F. Supp. 383, 394 (D. Del. 1991) ............... 15

     Drossin v. National Action Financial Services Inc., 641 F. Supp. 2d 1314 (S.D. Fl.

    2009)  ....................................................................................................................... 17

    Walker v. Asset Acceptance, LLC , 2012 US DIST. LEXIS 95128 (D. NJ. 2012) . 17

    United States v. Central Adjustment Bureau Inc., 667 F. SUPP. 370 (N.D. Texas

    1986) ....................................................................................................................... 18

     Johnston v. Hudlett , 32 So. 3d 700 (Fla. 4th DCA 2012) ........................................ 19

    Other Authorities

    F.S. 559.72 (8) ........................................................................ 1, 3, 6, 7, 8, 9, 14 &16

    F.S. 559.72 (2) ..................................................................................................... 2, 21

    F.S. 847.04 ........................................................................................................... 6, 15

    F.S. 847.001 (10) ....................................................................................................... 6

    F.S. 559.72 ............................................................................................................... 14

    Federal Act Section 1692(d) .............................................................................. 15, 16

    F.S. 559.72 (4) ......................................................................................................... 16

    First Amendment .................................................................................................... 1, 3

  • 8/20/2019 Salomon Answer Brief

    5/26

    PREFACE

    Citation to the record is as follows: “R,____”, Citation to the Transcript of

    the April 22, 2015 Hearing on the Motion for Summary Judgment is as follows:

    “T:__”. (which is attached hereto). 

  • 8/20/2019 Salomon Answer Brief

    6/26

     

    1

    INTRODUCTION

    Appellant admits he is a lawyer specializing in suing debt collectors under

    the Florida Consumer Collections Practices Act (the “FCCPA”). Appellant

    contracted Appellee to put a new roof on his house. The roof was completed, but

    yet, Appellant would not pay for it. In an effort to collect the debt, the owner of

    the roofing company allegedly said to Appellant “pay your fucking bill …don't be

    a fucking shlub.” 

    Appellant then paid the bill and immediately filed suit under the FCCPA,

    alleging that Appellee’s collection practices violated the FCCPA, even though he

    suffered no damages, thereby forcing Appellee to incur unnecessary legal fees.

    Although Appellee denied making the statements complained of, he did for

     purposes of his summary judgment motion only, admit that the statements were

    made, so there would be no issues of contested facts.

    Appellee successfully argued that his alleged statements, would not, as a

    matter of law violate the FCCPA because:

    1. 

    The language does not rise to the level of punishable profanity

    under F.S. 559.72 (8);

    2.  Appellee’s language, even though commercial speech, is

     protected by the First Amendment and the Florida

    Constitution; or

  • 8/20/2019 Salomon Answer Brief

    7/26

     2

    3. The FCCPA was never intended to regulate pure speech,

    without further abusive collection tactics on the part of a debtcollector. [See T:4-7.]

    Defendant/Appellee filed a motion for summary judgment which was heard

     by the trial Judge, Gloria Gonzalez- Meyer. On April 22, 2015, the Trial Court

    granted Appellee’s motion for summary judgment. After Judge Gonzalez-Meyer

    was reassigned to another division, Plaintiff/Appellant filed a motion for rehearing,

    which was heard by Judge Laura Stuzin, who denied rehearing, finding that

    summary judgment was properly entered.

    In his brief, Appellant, misstates the record, miscited 6 judicial decisions,

    misrepresents the reasons for the trial court’s entry of the underlying summary

     judgment order and he improperly raises arguments for the first time on appeal.

    For these reasons and pursuant to F.S. §559.72(2), Appellee asks this court to

    award it his legal fees, as may be reasonably incurred in defense of this appeal.

    STANDARD OF REVIEW

    This case presents pure issues of law. Since the matter was decided on

    summary judgment, the standard of review is de novo.  Major League Baseball v.

     Morsani, 790 So. 2d 1071, 1074 (Fla. 2001)("The standard of review governing a

    trial court's ruling on a motion for summary judgment posing a pure question of

    law is de novo."). However, Appellant is incorrect that where an appeal, as here,

  • 8/20/2019 Salomon Answer Brief

    8/26

     3

    turns on pure issues of law, the court should reverse Summary Judgment “if the

    slightest doubt exists.” 

    SUMMARY OF ARGUMENT

    Mr. Shmuely didn't want to pay for his roof and when the roofer used

    language to emphasize his demand for money, Mr. Shmuely filed a specious

    lawsuit, even though he had suffered no damage by Appellee’s collection

    efforts. In his initial brief, Mr. Shmuely tries to portray himself as a victim and the

    Appellee as a “bully”, but nothing could be further from the truth. The trial judge

    characterized Mr. Shmuely’s suit as “absurd” stating “this is why people hate

    lawyers.” [T:14-15] This Court should affirm the summary judgment ruling below

     because:

    1.  The language allegedly used by the roofer, does not rise to

    the level of punishable obscenity under F. S. §559.72(8);

    2. 

    The language used is protected by the First Amendment and

    the Florida Constitution;

    3.  The FCCPA was never intended to regulate pure speech,

    without further abusive or deceptive collection tactics on the

     part of a debt collector; and

    4.  Appellant misstates the basis of the trial court’s rulings. 

    RESPONSE TO APPELLANT’S STATEMENT OF THE CASE AND

    FACTS

  • 8/20/2019 Salomon Answer Brief

    9/26

     4

    1.  Appellant owed Appellee a debt (the "Debt") for roofing services.

    [R,42-46]. Appellant’s billing and collection department was unable to collect the

    debt from Mr. Shmuely.

    2.  On July 30, 2014, Appellee’s President, Salomon Susi (a Jewish man)

     placed a single phone call to Appellant (also a Jewish Man) in an effort to collect

    the Debt that his billing & collections department was unable to collect. [T:18]

    3.  Appellant is lawyer, who specializes in suing debt collectors for

    violations of the FCCPA.

    4.  On August 14, 2014, Appellant filed the instant action, claiming that

    Mr. Susi violated F. S. § 559.72(8) by using obscenities, in that single phone

    call when he allegedly said "pay the fucking bill" and "don’t be a fucking

    shlub". [R, 8-10]

    5. 

    Shlub is a Yiddish word commonly used by Jews, that roughly

    translates to “unkempt”  or “sloppy.”  [R, 67-77]

    6.  On April 22, 2015, Judge Gonzalez- Meyer entered an order granting

    Appellee’s Motion for Summary Judgment for the reasons stated on the record. [R,

    78]

    7.  On May 6, 2015, Appellant filed a motion for reconsideration of the

    order on Summary Judgment. [R,107-137]

  • 8/20/2019 Salomon Answer Brief

    10/26

     5

    8.  A hearing was conducted on A ppellant’s motion for rehearing and

    Judge Laura Stuzin denied same. [R,150]

    9.  In his statement of facts, Appellant makes the following incorrect

    statements:

    A.  Salomon Susi did not repeatedly and repeatedly yell at Mr.Shmuely. (no record citation);

    B.  Salomon Susi did not verbally abuse Mr. Shmuely inan attempt to collect the debt (no record citation);

    C. 

    Mr. Shmuely did not pay for the roof 5 1/2 months prior to theinstant lawsuit, but rather less than 14 days later. (R, 5-7)

    D. 

    Defendant did not engage a litigation tactics to use Mr.

    Shmuely's status as a “consumer advocate” as a ‘red herring”,nor did Appellee at any time “shift litigation tactics” or

    “attempt to deflect the courts attention”. (T:4,7)

    10. 

    Appellant misstates the reasons for the Trial Court’s entry of the

    order granting the Summary Judgment, claiming:

    i. 

    “Shmuely is not the kind of person that the FCCPA was

    meant to protect” ( see Initial Brief at p 6).

    ii.  “Appellee is not a debt collector” and therefore, not bound by the FCCPA. ( see Initial Brief at P. 9)

    iii. 

    “That the FCCPA does not apply to the primary owner of adebt.” ( see Initial Brief at P 10).

    ARGUMENT 

  • 8/20/2019 Salomon Answer Brief

    11/26

     6

    A. 

    The Language Used By The Defendant Was Not Profane,

    Nor Obscene

    Fla. Stat. § 559.72(8), states:

    (8) [No person shall] [u]se profane, obscene, vulgar, or

    willfully abusive language in communicating with the debtor orany member of her or his family.

    Florida has recognized that while obscenity can be regulated, the definition

    of what is obscene must be limited and constrained. “The court  find(s) F.S. 847.04

    violates Article I, Section 4, Florida Constitution and consequently, incapable of

    redemption. This is so because men of common understanding upon reading the

    statute would reasonably conclude that mere utterance of the proscribed language,

    without more, could subject them to prosecution. The impermissible chilling effect

    upon constitutionally protected speech is apparent”.  Brown v. State, 358 So. 2d 16

    (Fla. 1978). Indeed, Florida law follows the Supreme Court mandate in  Miller v

    California 413 U.S. 15, 93 S. Ct 2607 (U.S. 1972) recognizing that that there is a

    narrow definition of what is “obscene”. See  F.S. 847.001(10) requiring a court to

    consider “whether the average person applying contemporary community

    standards finds the material to appeal to the prurient interest and depicts in a

     patently offensive way sexual conduct”.  Clearly using the word “fucking” as an

    adjective (merely to emphasize the statement that follows) cannot be deemed

    obscene under these standards because such common language fails both of the

    Miller prongs.

  • 8/20/2019 Salomon Answer Brief

    12/26

     7

     No appellate court has considered what language violates F.S. §559.72 (8),

    however the FCCPA was clearly intended to protect consumers against obscene

    language as an inappropriate tactic to collect a debt. Under Florida law, the word

    "fucking" (when used as an adjective) does not (as a matter of law) rise to the level

    of profanity or obscenity required to violate such statute. Courts have held that

    merely rude and/or unpleasant language is not enough to set forth a valid violation

    of the federal version of the FCCPA. See Meininger v. Green Tree Servicing, LLC ,

    2012 WL 1166161 (M.D. Fla. 2012) (holding that "loser" and "deadbeat" are rude

    and unpleasant terms, but do not rise to the level of willfully abusive language

    required by F.S. §559.72(8);  Kelemen v. Professional Collections Systems, 2011

    WL 31396 (M.D. Fla. 2011) (holding that "pay your damn bills" does not fall

    within the definition of profanity and does not violate Florida Statutes);

     Montgomery v. Fla. First Fin. Grp., Inc., 2008 WL 3540374, at 6 (M.D. Fla.

    Aug.12, 2008) (“The term ‘liar’ falls short of language ‘akin to profanity or

    obscenity’ and therefore, does not violate F.S. §559.72(8)).

    In determining what is obscene or profane, courts are required to consider

    the context of the language used. Here, the Trial Court properly considered the

    nature of the parties, (one being a tradesmen (a roofer) who use words such as

    “fucking” as part of their everyday parlance especially when used as an adjective

    to emphasize a point and the other, being a sophisticated lawyer. See Cohen v.

  • 8/20/2019 Salomon Answer Brief

    13/26

     8

    California, 403 US 15 (1971); and Hagler v. Credit World Servs., 2014 U.S. Dist.

    LEXIS 139241 (U.S. Dist. Ct. Kan. 2015). The FCCPA was not enacted to clean

    up speech, nor to prevent the use of “4-letter words”, but rather to address truly

    abusive debt collection tactics and actions. Appellant does not even come close to

    showing that the words “schlub” or “fucking” (when used as an adjective) is   an

    obscenity or profanity. A finding that words, alone, are actionable would promote a

    storm of litigation, every time a “colorful”  word is used during a business

    communication, which would serve to further clog our court system and harm the

     public interest.

    When directly asked by the Trial Court to do so, Appellant failed to cite a

    single case where the use of the word “fucking” and/or “schlub” during a single

     phone call regarding a debt amounted to a violation of F.S. §559.72(8) or the

    related Federal Statute. [T:10-11] None of the cases now cited by Appellant are on

     point and Appellant has misstated the holdings in many of the cases that he relies

    upon. Appellant did not claim in the Complaint or Amended Complaint, that

    Appellee’s use of the word “schlub” was intended to be racist or “fighting” words.

    Both parties are Jewish and Mr. Susi used common Jewish vernacular that cannot

     possibly be deemed racist or fighting words. Appellant acknowledged the Yiddish

    word “schlub” roughly translates to “sloppy” or “slovenly”. [R,67-77] Appellant,

    likewise cited no case law to support his position that “schlub” is a word that is

  • 8/20/2019 Salomon Answer Brief

    14/26

     9

    racist, an ethnic slur, fighting words or obscene. In  Hagler v. Credit World Servs.,

    2014 U.S. Dist. LEXIS 139241 (US Dist. Kan. 2014), the Court held that an

    obscenity is to be viewed in the “ears of the “hearer” and the standard is whether

    the language is abusive. On this point, Appellant misstates the holding in  Linko v.

     Nat’l Action Fin. Servs., 2007 U.S. Dist. Lexis 98718 (M.D. PA. 2007). At page 14

    of his brief, Appellant falsely asserts that the Linko court denied summary

     judgment upon a finding that a debt collectors use of the term “you are a fucking

    liar a single time” was a violation of the federal equivalent of the FCCPA.  Almost

    the opposite is true. In Linko, a debt collector called (not the debtor) but her former

    daughter in law and said “You people are garbage. You are a fucking liar. You are

    garbage”  Then, the debt collector called back, using the false caller id “financial

    company”.  The court did deny summary judgment, but not as Appellant asserts

     based upon the language used. Contrary to Appellant’s position, the court also

    found “even though the phone call was not appropriate… the two comments do not

    rise to the level of what a reasonable person would find highly offensive.”  Id. 

    The proper legal standard under Florida law is not whether Appellant was

    merely offended by this single phone communication with Appellee, but rather

    whether the words used are abusive or per se obscene and whether Appellee

    willfully abused Appellant with the mere language. This is a far higher standard

    than what Appellant asserts. Appellant cites to no case holding that the words

  • 8/20/2019 Salomon Answer Brief

    15/26

     10

    “schlub” or “fucking” (when used as an adjective) are obscene, harassing  or

    willfully abusive. Finally, even if Appellee had used the word “fuck” as a noun,

    mere use of the word could not be obscene, or a profanity where films and photos

    graphically showing actual acts of “fucking” are  legally protected and not legally

    obscene or vulgar. See  e.g.  Luke Records v. Navarro, 960 F. 2d 134 (11th Cir.

    1992) (music describing “fucking” as a noun  held not to be legally obscene, nor a

     profanity).

    When asked by the Trial Court, Appellant could not cite to a single case

    (in Florida or otherwise) to support his position that mere use of the words

    “fucking” and/or “schlub” rise to the level of obscene or willfully

    abusive language. Then and now, Appellant only cited to a Seventh Circuit case

    out of Illinois, Horkey v. J.V.D.B. & Assocs., 333 F.3d 769 (7th Cir. Ill. 2003). The

    Trial Court correctly held that  Horkey is not on point with the instant matter and

    Appellant as the temerity to make the same arguments here, which he knows are

    incorrect. [T:12]. In  Horkey,  the court granted summary judgment for a debtor

     because the collector called the debtor’s place of employment after being told “not

    to call me at work” and thereafter called the debtor’s co-worker saying, “Tell

    Amanda to quit being a fucking bitch!”. That case centered on the abusive actions

    (calling the debtor’s workplace) and language of the debt collector, not  just the

    mere language used.

  • 8/20/2019 Salomon Answer Brief

    16/26

     11

    B. 

    The Language Used Is Protected By The First Amendment

    And The Florida Constitution 

    The U.S. and the Florida Constitution does not allow for the punishment of

    the exercise of free speech simply because its exercise is done in an offensive

    manner. See L.A.T. v. State, 650 So. 2d 214, 217 (Fla. 3d DCA 1995). Pure speech

    is protected by the First Amendment if it does not threaten individual or public

    safety. W.L. v. State, 769 So. 2d 1132 (Fla. 3d DCA 2000) (holding that the

    conduct for which respondent was punished - yelling offensive language at police

    officers - was pure speech, and thus protected by the First Amendment of the

    United States Constitution); see also  Roth v. United States, 354 U.S. 476 (1957)

    (holding the fact that society may find speech offensive, is not a sufficient reason

    for suppressing it).

    Remarks such as those alleged - "fucking bill" and "fucking shlub" - are

     perhaps distasteful, perhaps even vulgar but, such words do not (as a matter of law)

    threaten individual or public safety. Compare State v. Saunders, 339 So. 2d 641

    (Fla. 1976) (holding that only "fighting words" are not protected, which are "words

    like shouts of 'fire' in a crowded theater" that do threaten public safety). In the

    seminal case of Cohen v. California, 403 U.S. 15 (1971), the United States

    Supreme Court held "while the particular four-letter word being litigated here

    [fuck] is perhaps more distasteful than most others of its genre, it is nevertheless

    often true that one man's vulgarity is another's lyric." If this Court reverses the

  • 8/20/2019 Salomon Answer Brief

    17/26

     12

    Summary Judgment order, trial courts will be burdened with the responsibility of

    acting as the “language police” whereby  a lawsuit might arise any time an

    individual uses a distasteful four-letter word in the collection of a debt, no matter

    the context. Consider the following scenario: a longshoreman orders a beer in a

     bar. The bar tender says “hey Joe, give me fucking 2 dollars for the beer.”  By

    Appellant’s argument, a law suit might ensue.  The trial judge commented on

    Appellants arguments in this regard calling them … “absurd.” [T:14-15]

    The fact that Mr. Susi’s conversation might be deemed commercial speech

    does not change the ultimate analysis, because pure commercial speech still enjoys

    first amendment constitutional protections. See  Harris v. Beneficial Finance Co.,

    338 So. 2d 196 (Fla. 1976) (“calling a communication “commercial” does not

    serve to strip it of all constitutional guarantees…”).

    The distinction of limited first amendment protection over commercial

    speech (as opposed to pure speech) is all but evaporated. Indeed, this year the U.S.

    Supreme Court in an unanimous ruling in  Reed v Town of Gilbert,  135 S. Crt.

    2218, 192 L. Ed. 2d 236 (2015), considered the constitutionality of sign restriction

    laws, finding notions of strict scrutiny requires every ordinance regulating

    commercial speech to be narrowly tailored to ensure its compelling state interest

     purposes.

  • 8/20/2019 Salomon Answer Brief

    18/26

     13

    It is well established law that use of the words “fuck” and “fucking” do not

    rise to the level of unprotected speech; because such adjectives enjoy constitutional

     protection. Cohen v. California, 403 U.S. 15 (1970); see also  Brown v. State, 358

    So. 2d 16 (Fla. 1978) (only fighting words –  those not protected by the constitution

    (and not including “fuck”) –  are only fighting words when spoken face-to-face (not

    over a telephone are actionable.

    C.  The FCCPA Was Never Intended To Regulate Pure Speech,

    Without Further Abusive Collection Tactics On The Part

    Of A Debt Collector

    Appellant fails to cite a single case where either a debt collector or a

     principal creditor violated F. S. §559.72(8) based solely on poor language used in a

    single phone call, without allegations of harassing, abusive or deceitful behavior.

    This is because the legislative purpose of the FCCPA was not to protect debtors

    from a single legitimate collection effort whereby a colorful adjective or noun was

    used. Presumably, the Florida legislature has better things to do than concern

    themselves with the use of language amongst adults, and most certainly, the

    legislature did not intend for the courts to become the “language police.”   "The

    FCCPA is a laudable legislative attempt to curb what the Legislature evidently

    found to be a series of abuses in the area of debtor-creditor relations."  Harris v.

     Beneficial Finance Company of Jacksonville, 338 So. 2d 196, 200-201 (Fla.

    1976). In discussing a section of FCCPA, the court in Story v. J. M. Fields, Inc.,

  • 8/20/2019 Salomon Answer Brief

    19/26

     14

    343 So. 2d 675 (Fla. DCA 1st 1977) stated, “How frequent must communication

     be to constitute harassment?....[F. S. §559.72] is not entirely without semblance of

    objective, predictable standards. It requires willfulness, and thus recognizes that:

    [u]nless some latitude is given the creditor…we may well end up with the result

    that the creditor will find it preferable to proceed immediately with legal action

    when a debt becomes in default, without any warning to the debtor, rather than run

    the risk of being answerable to a supersensitive debtor …" quoting  Household

     Finance Corp. v. Bridge, 252 Md. 531, 543 (1969). Here, Appellant either is a

    supersensitive debtor or more likely, a litigious lawyer looking to punish a roofer

    who merely wanted to be paid for his work. Few district courts have interpreted

    section 1692(d) of the Federal Act, (the equivalent of 559.72(8), but the courts that

    have done so have construed it very narrowly. The leading case is  Jeter v. Credit

     Bureau, Inc., 760 F.2d 1168 (7th Cir. 1985), where the Seventh Circuit held that a

    collection letter stating that an account would be referred for legal action, and that

    this “may cause you embarrassment, inconvenience and further expense,” did not

    violate section 1692(d). Id. at 1178-79. The court found the mere words used did

    not create a “tone of intimidation.”  Id. at 1179; because subsection (d) was “meant

    to deter offensive language which is at least akin to profanity or obscenity.” 

    Other district courts have read section 1692(d) narrowly, recognizing that it

     prohibits “only oppressive and outrageous conduct,” and that it was “not intended

  • 8/20/2019 Salomon Answer Brief

    20/26

     15

    to shield even the least sophisticated recipients of debt collection activities from

    the inconvenience and embarrassment that are natural consequences of debt

    collection.”  See Beattie v. D.M. Collections, Inc., 754 F. Supp. 383, 394 (D. Del.

    1991) (attempts to collect debt from wrong individuals did not violate section

    1692d);  Montgomery v. Florida First Financial Group, Inc., 2008 WL 3540374

    (M.D. Fla. Aug. 12, 2008) (calling debtor a “liar” and her mother a liar not enough

    to prove section 1692(d) claim). This case and others focused upon the

    sophistication and offensiveness of the recipient. Here, the recipient is a lawyer

    and the court must (and did) consider that fact in determining if the language used

    rose to the level of an “obscene ethnic slur.”  Appellant claims that  Harris v.

     Beneficial Finance Co., 338 So. 2d 196 (Fla. 1976), holds that the 1 st Amendment

    does not protect Appellant. However, the holding in Harris  is inapposite to

    Appellant’s position. In Harris, the court determined that portions of F.S.

    §559.72(4) of the FCCPA, constituted an unconstitutional deprivation of the

    defendant’s property without due process of law.  Contrary to

    Appellants position, and consistent with the position advocated herein, the Harris

    court noted that communications directed solely to the collection of the debt is

     purely commercial speech which…."Does not serve to strip it of all constitutional

    guarantees.” 

  • 8/20/2019 Salomon Answer Brief

    21/26

     16

    The underlying Motion for Summary Judgment argued that F. S.

    §559.72(8) was never intended to make the courts the "language police"

    regulating pure speech alone, without more. Judge Gonzalez-Meyer directly

    agreed based upon her extensive experience in hearing FCCPA cases every day,

    stating the statute was never intended to curb speech alone without other abusive or

    deceptive harassing actions on the part of a debt collector. [T:11,13-16] Just like

    the Trial Court did, this Court should find the Horkey decision is not on point with

    the facts here, because Horkey  had an extra element of action (missing here):

    har assing calls to a debtor’s place of employment.

    D. 

    Appellant Attempts To Mislead The Court As To The

    Reasons Why The Trial Court Granted Defendant’s

    Motion For Summary Judgment

    Appellant argues at pages 6-10 of his Initial Brief that the Trial Court ruled

     based upon its’ determination that:

    a)  Shmuely is not the kind of person who is protected by the

    FCCPA;

     b)  Appellant is not a debt collector under the FCCPA;

    c)  The FCCPA does not apply to the primary owner of the

    debt.

    Appellant is attempting to mislead this Court in an attempt to manufacture

    non-existent appellate issues. Nowhere in the record does the Trial Court state it is

  • 8/20/2019 Salomon Answer Brief

    22/26

     17

    making these findings and Appellee did not even raise these arguments in the

    Motion for Summary Judgment (R, 42-46) or at any time during the Hearing. [T:1-

    21]

    Appellant misstates the holding in  Drossin v. National Action Financial

    Services Inc., 641 F. Supp. 2d 1314 (S.D. Fl. 2009). The Drossin holding was not

     based upon pure language, as Appellant asserts. Drossin was a class-action case

    and the court found that similar messages were sent to 30,139 Florida

    residents. There was no issue in Drossin about the specific language that was used

     by the debt collector, but rather whether or not the debt collector failed to advise

    the debtors in those calls that the debt collector was in fact a debt collector.

    Appellant also miscited Walker v. Asset Acceptance, LLC , 2012 US DIST.

    LEXIS 95128 (D. NJ. 2012), which does not support Appellant’s position. In

    Walker, the court never reached the issue as to whether or not the language used

    was profanity or obscenity. Rather, the sole issue before the court was whether or

    not evidence of an abusive voicemail message existed. In Walker, the plaintiff was

    not claiming that the language used was obscene or profane, but rather that the

    tactics of the debt collector was abusive. Here, there is no allegation by Appellants

    that any actions on the part of Appellee was abusive or harassing, only that the

    language used was an obscenity.

  • 8/20/2019 Salomon Answer Brief

    23/26

     18

    Appellant also miscited the holding in Hagler  v. Credit World Services Inc.,

    2014 U.S. Dist. LEXIS 139241 (U.S. Dist. Kan. 2014). In  Hagler , there was no

    allegation that the debt collector simply used obscenity or profanity, rather the

    issue was whether or not the debt collector used deceptive tactics when he failed to

    identify himself as a debt collector, as is required.

    Appellant tries to mislead the court by arguing at pages 21-24 of his Initial

    Brief, that there is a “least sophisticated consumer” test for the court to apply when

    the court is to consider the language used by a debt collector. Appellant is simply

    wrong and no case supports Appellant’s position. In each of the cases cited by

    Appellant, the issue turned on the behavior and actions of the debt collector and

    whether or not "the debt collection practices had a tendency or capacity to

    deceive". In the instant case, there is no issue regarding debt collection practices

    actions by Appellee that is alleged to be deceptive, harassing or abusive; therefore,

    the unsophisticated consumer test has no place in the instant lawsuit. See United

    States v. Central Adjustment Bureau Inc., 667 F. SUPP. 370 (N.D. Texas 1986)

    (yet another case miscited by Appellant). Appellant asserts that the Central

    Adjustment court found language "the judge doesn't give a fuck about your

    complaint" to be profanity or an obscenity. That did not occur in that decision. The

    issue in Central Adjustment Bureau was not the specific language used by a debt

    collector in a single phone call, but rather, whether a particular debt collector had

  • 8/20/2019 Salomon Answer Brief

    24/26

     19

    engaged a pattern of abusive behavior in violation of 13 different sections of the

    FDCPA and nowhere in the opinion did the court even consider if the particular

    language used was obscene or profane, as Appellant incorrectly asserts.

    Finally, Appellant miscited the holding in  Jeter v Credit Bureau, 760 F. 2d

    1168 (11th  Cir. 1985), incorrectly arguing that there is an objective standard

    governing the use of “offensive language.”  The  Jeter   decision did not involve

    whether language used by a debt collector was obscene, but rather whether the

    tactics of sending letters that contained misleading and deceptive statements to a

    creditor was intended to mislead and deceive.

    E. 

    This Court Should Ignore Appellant’s FCC Arguments

    That Were Not Raised Below

    At pages 19- 20 of his Initial Brief, Appellant argues that the Federal

    Communications Commission (FCC) has held that the word “fuck” cannot be

     broadcast over the public airways and hence, this Court should find likewise for

     purposes of the FCCPA. Aside from the obvious distinction in language broadcast

    over the regulated airways from non-regulated language spoken by individuals on

    the street, Appellant raises this argument for the first time on appeal. Hence, this

    Court need not consider same. See Johnston v. Hudlett , 32 So. 3d 700 (Fla. 4th 

    DCA 2012).

    CONCLUSION

  • 8/20/2019 Salomon Answer Brief

    25/26

     20

    For the foregoing reasons, the Court should affirm the Trial Court’s order

    granting Appellee’s Motion for Summary Judgment and award Appellee its’ 

    attorneys’ fees pursuant to F. S. §558.72(2), remanding same to the Trial Court for

    a determination as to the proper amount.

    RESPECTFULLY SUBMITTED,

    Richard C. Wolfe, Esq.

    Wolfe Law Miami, P.A.Counsel for

     Appellee Salomon Construction175 SW. 7th Street, Suite 2410

    Miami, Florida 33130Telephone: (305) 384-7370

    [email protected] 

    Florida Bar No.: 355607

    CERTIFICATE OF SERVICE

    WE HEREBY CERTIFY that a true and correct copy of the foregoing was

    furnished via U.S. Mail, on this 4th day of August, 2015, on Richard Peck, Esq.,

    Elkin-Peck PLLC, Attorneys for Appellant, 12515 Spring Hill Dr., Spring Hill,

    Florida 34609.

     /s/Richard C. Wolfe, Esq. 

    CERTIFICATE OF COMPLIANCE

    I HEREBY CERTIFY that pursuant to Fla. R. App. P. 9.210(a)(2), this Briefhas been printed in Times New Roman 14 point proportionate type.

    mailto:[email protected]:[email protected]:[email protected]

  • 8/20/2019 Salomon Answer Brief

    26/26

     /s/Richard C. Wolfe, Esq. 


Recommended