Opinion
No. 88-1331.
June 15, 1989.
Appeal from the Circuit Court, Orange County, Cecil H. Brown, J.
Bruce A. Nants, of Law Offices of Bruce A. Nants, Orlando, for appellant.
Robert J. Winicki, Brett P. Abner, and Barry L. Anderson of Mahoney, Adams, Milam, Surface Grimsley, Jacksonville, for appellee Barnett Recovery Corp., f/k/a State Wide Collection Corp.
Appellee collection agency sued appellant debtor on a promissory note which provided that the maker (debtor) was liable for a reasonable attorney's fee if the note was placed with an attorney for collection. Appellant debtor filed a "class action" counterclaim alleging that a collection letter sent by appellee collection agency to appellant debtor contained a threat within the meaning of the Florida Consumer Collection Practices Act, section 559.72(9), Florida Statutes. The trial court dismissed the counterclaim on the basis that it failed to state a cause of action as a matter of law. Appellant debtor appeals and argues that the collection letter contained a threat because in the letter the appellee collection agency threatened to "assess" an attorney's fee in the specified amount of $350 if the debtor did not settle the claim with the collection agency.
Section 559.72(9), Florida Statutes, provides that in the collection of consumer claims, no person shall "claim, attempt, or threaten to enforce a consumer claim when such person knows that the claim is not legitimate or some other legal right when such person knows that the right does not exist; . . ."
We agree with the trial judge that the counterclaim does not state a cause of action because, as a matter of law, the collection letter, the relevant part of which is set forth below, does not constitute a wrongful threat within the meaning of section 559.72(9), Florida Statutes.
The letter reads in relevant part:
I have tried to contact you numerous times by phone and by mail concerning your balance of $4,652.00 with Barnett Bank.
By not contacting me I will have to assume you do not want to make arrangements to take care of this account. I will then have no choice but to send this to our attorney and this action will increase your balance to $5,002.00 plus court costs and interest.
AFFIRMED.
COBB, COWART and DANIEL, JJ., concur.