UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

CASE NO. 15-cv-000XXXX

ROBERT GONZALEZ Plaintiff -vs- AFNI, INC., PRESIDENT RONALD L. GREEN , GREGORY J. DONOVAN SECRETARY, TREASURER STEVE CZIRJAK, DIRECTV and CHIEF EXECUTIVE OFFICER MICHAEL D. WHITE OF DIRECTV Defendants

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MOTION IN OPPOSITION TO DEFENDANTS DIRECTTV, LLCS MOTION TO DISMISS AND INCORPORATED MEMORANDUM OF LAW

COMES NOW RENE MESA (Plaintiff) and files this motion in opposition to

DEFENDANT DIRECTVS MOTION TO DISMISS PLAINTIFFS COMPLAINT AND

INCORPORATED MEMORANDUM OF LAW filed by DIRECTV, LLC (herein Defendant) under Federal Rule of Civil Procedure 12(b)(6).

Plaintiff states as follows:

INTRODUCTION

1. DIRECTV, under the control of MICHAEL D. WHITE, created, sold, assigned or

contracted with ANFI knowing at all times that ANFI would attempt to collect a non-existent or

time-barred debt. These acts are ongoing. Plaintiff attempts to uncover these facts resulted in

abuse and ANFI hanging up the telephone on the Plaintiff. DIRECTV definitely provided

private information, including location information to ANFI. Through information and belief,

the Plaintiff alleges that the account was sold for between five and ten cents on the dollar to

ANFI. At all times, DIRECTV, under the control of MICHAEL D. WHITE had actual

knowledge of ANFIs business and knew that ANFI would attempt to ask Plaintiff for money.

2. The Defendants statement conflicts with the Plaintiffs allegations which are accepted as

true at this stage. See Quality Foods, 711 F.2d at 99495. Plaintiffs factual allegations ( 37-

53) also alleges that an exact amount was not given, to the extent that DIREECT-TV sold the

account to ANFI, then DIRECTV gave ANFI the wrong amount for collections under their

direction (Statements are material if they influence a consumer's decision--to pay a debt in

response to a dunning letter, for example, see Muha, 558 F.3d at 628--or if they would impair the

consumer's ability to challenge the debt at issue. See Berg v. Blatt, Hasenmiller, Leibsker &

Moore LLC, No. 07 C 4887, 2009 U.S. Dist. LEXIS 26808, 2009 WL 901011, at *7 (N.D. Ill.

Mar. 31, 2009). AFNI's false statements are material in both related senses; AFNI's statements that it is "unable to investigate" a consumer's dispute due to "insufficient information" both

impair the consumer's ability to challenge the debt at issue and influence his or her decision to

pay the debt. Hale v. AFNI, Inc., No. 08 CV 3918, 2010 U.S. Dist. LEXIS 6715, *22 (Jan. 26,

2010).

3. Misrepresenting the financial consequences of not paying a debt is material. Lox v.

CDA, Ltd., 689 F.3d 818 (7th Cir. 2012). Correct identification of the debt collector and the

owner of the debt is material. Wallace v. Wash. Mut. Bank, F.A., 683 F.3d 323 (6th Cir.

2012)), that the least sophisticated consumer would be harassed, oppressed and deem the acts

unfair, and that and that, MICHAEL D. WHITE authorized these acts, and DIRECTV and

MICHAEL D. WHITE failed to exercise due care in selling this account to ANFI and that All

Defendants knowingly, willingly, wantonly, maliciously engaged in acts in violation of state and

federal laws and attempted to collect a debt from Plaintiff and the act of hanging up the

telephone on the Plaintiff and acting belligerent with consumers inquiring as to their collection

accounts. While Plaintiff still has no knowledge of the alleged account shrouded in mystery

by DIRECTV and ANFI, the Plaintiff can only assume that the alleged debt is time-bared, if it

exists at all. Plaintiffs reasonable inquiry and attempts by the Plaintiff to research the debt have

resulted in the Plaintiff being insulted and hung-up on. Plaintiff will have to propound discovery

to obtain documents original documents regarding the alleged account allegedly created by

DIRECTV.

LEGAL STANDARD

4. On a motion to dismiss, this Court accepts as true all the allegations in the *1309

complaint and construes them in the light most favorable to the plaintiff. Jackson v. BellSouth

Telecomms., 372 F.3d 1250, 1262 (11th Cir.2004). Further, this Court favors the plaintiff with

all reasonable inferences from the allegations in the complaint. Stephens v. Dep't of Health &

Human Servs., 901 F.2d 1571, 1573 (11th Cir.1990) ("On a motion to dismiss, the facts stated in

[the] complaint and all reasonable inferences therefrom are taken as true.")

PERSONAL JURISDICTION ON DIRECTV AND MICHAEL D. WHITE WILL NOT OFFEND PUBLIC POLICY

5. Defendant brings their motion under 12(b)(2) and 12(b)(6). The exercise of personal

jurisdiction in this case will not offend traditional notions of fair play and substantial justice

When determining whether personal jurisdiction satisfies notions of fair play and substantial

justice, the Eleventh Circuit looks to three factors: (1) the burden on the defendant; (2) the

interests of the forum; and (3) the plaintiffs interest in obtaining relief. See Republic of Panama

v. BCCI Holdings (Luxembourg) S.A., 119 F.3d 935, 947-48 (11th Cir. 1997). The Eleventh

Circuit has noted that the burden on a litigant is only significant if it is gravely difficult and

inconvenient that he unfairly is at a severe disadvantage in comparison to his opponent. Id. at

948.

6. Inconvenience alone is not enough to deny a court personal jurisdiction over the

defendant. Id. (noting that only in rare cases will inconvenience become constitutionally

unreasonable) (citing Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102, 116 (1987).

7. First, a defendant must have sufficient A minimum contacts with the forum state.

Madara v. Hall, 916 F.2d 1510, 1516 (11th Cir. 1990) (citing Intl Shoe Co. v. Washington, 326

U.S. 310, 316, 66 S. Ct. 154, 158 (1945)) (citations omitted). Second, the exercise of personal

jurisdiction over a defendant must not offend A traditional notions of fair play and substantial

justice. Id. (quoting Intl Shoe Co., 326 U.S. at 316, 66 S. Ct. at 158)) (citations omitted).

None of these issues are even addressed the Defendants motion to dismiss and Plaintiff has

satisfied the 11th Circuits test for personal jurisdiction. Under basic contract law, the Defendant

is liable to the extent that a contract was purposely created, sold then assigned to a debt collector.

The Defendant has exercised massive contacts with Florida as the President of DIRECTV and

satisfies the requirement with minimum contacts with the forum state. Madara v. Hall, 916

F.2d 1510, 1516 (11th Cir. 1990) (citing Intl Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.

Ct. 154, 158 (1945)) (citations omitted). MICHAEL D. WHITE and DIRECTV now seek to escape liability; however the argument for lack of personal jurisdiction fails.

ARGUMENT

COLLECTION OF TIME-BARRED DEBT IS DECEPTIVE 8. Defendant DIRECTV, under direction of MICHAEL D. WHITE, either sold this account

for an amount alleged that is unclear, to a party that engaged in debt collection and failed to

provide notice that the debt was time-barred. See United States v. Asset Acceptance, LLC, No.

8:12cv182T27EAJ (M.D. Fla. 2012). That decree requires the company to disclose to consumers whether it knows or believes that a debt was incurred outside the limitations period,

using this language: The law limits how long you can be sued on a debt. Because of the age of

your debt, we will not sue you for it.

9. These letters and the subsequent communications are not opportunities to settle. They

are opportunities and invitations for ANFI and DIRECTV to re-toll the statute of limitations

and deceptive to the least sophisticated consumers; the consumer could be induced to make a

partial payment on an alleged debt. In this way, the statute of limitations on the alleged debt

would re-toll and allow ANFI and DIRECTV to sue the Plaintiff, assuming the debt is legitimate.

Under such a scenario, unsophisticated consumers, having no knowledge of time-barred

accounts, could easily make a payment which could then be used to reduce their credit rating as

well. However when a suspicious consumer (like the Plaintiff) makes inquiry as to legitimacy of

the debt, who owns it, and when the debt was created, he is insulted and hung up on (or any

effect on Plaintiffs credit for example).

10. The Seventh Circuit recently adopted the position urged by the Consumer Financial

Protection Bureau (CFPB, which now enforces the FDCPA and has taken the role of the

enforcement bureau for consumer law after the FTC) in McMahon v. LVNV Funding, 744 F.3d

1010 (7th Cir. 2014), which held that a letter offering to settle a debt violated section 1692e

and 1692f of the FDCPA, because the limitations period had expired. Relying in part on the

well-reasoned position put forth by the FTC and CFPB in their amicus brief (the Delgado case

was combined with McMahon on appeal), the Court held that the running of the limitations

period a central fact about the legal status of a debt, and therefore will be important for a

consumer to know if the limitations period has run. The proposition that a debt collector

violates the FDCPA when it misleads an unsophisticated consumer to believe a time-barred debt

is legally enforceable, regardless of whether litigation is threatened, is straightforward under the

statute. Section 1692e(2)(A) specifically prohibits the false representation of the character or

legal status of any debt. Whether a debt is legally enforceable is a central fact about the character

and legal status of that debt. A misrepresentation about that fact thus violates the FDCPA. This

argument was made in McMahon v. LVNV Funding, 744 F.3d 1010 (7th Cir. 2014). The court

stated:

Using the same lawyer as McMahon, Delgado filed a complaint under the FDCPA charging that CMS violated that statute by sending a dunning letter on a timebarred debt and including an offer of settlement which, if accepted, would in fact make the debtor worse off. CMS filed a motion to dismiss for failure to state a claim. In considering that motion, the district court decided that it was appropriate to give Skidmore deference to the views of the Federal Trade Commission, the Consumer Financial Protection Bureau, the Federal Deposit Insurance Corporation, the Federal Reserve Board, and the Office of the Comptroller of the Currency. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). As those agencies had argued in other cases, the court held that when collecting on a time barred debt a debt collector must inform the consumer that (1) the collector cannot sue to collect the debt and (2) providing a partial payment would revive the collectors ability to sue to collect the balance. The court also found the reference in Delgados letter of a possible settlement of the debt to be deceptive, because it implied that a legally enforceable obligation to pay the debt existed. CMS filed a motion under 28 U.S.C. 1292(b) for immediate appeal, given the importance of the issues. This court accepted the appeal on May 8, 2013. Delgados request for class certification is still before the district court, which has suspended proceedings pending the outcome of this appeal. McMahon In 1997, Scott McMahon received a bill from a utility company, Nicor Gas. Apparently McMahon did not pay that bill. Fourteen years later, in September 2011, defendant LVNV Funding, LLC, purchased the debt, which by then was for $584.98. LVNV retained a collection agency, Tate & Kirlin (Tate), to pursue payment. (Although there are several defendants, we refer to them as LVNV for ease of exposition.) Tate sent the letter that sparked this lawsuit to McMahon on December 19, 2011. At the top of the letter, information about the immediate creditor (LVNV), the previous creditor (Nicor Gas), and the total due ($584.98) appeared. The text of the letter read as follows:This account has been listed with our office for collection. This communication is from a debt collector. This is an attempt to collect a debt and any information obtained will be used for that purpose.

An Opportunity: We are pleased to extend to you an offer to settle your account in full for $233.99. This represents a savings of 60% off your balance. Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice

that you dispute the validity of this debt or any portion thereof, this office 4 Nos. 123504 & 132030 will obtain verification of the debt or obtain a copy of a judgment and mail you a copy of such judgment or verification. If you request of this office [sic] in writing within 30 days after receiving this notice this office will provide you with the name and address of the original creditor, if different from the current creditor. At the bottom of the page there was a tearoff payment coupon, which the recipient was instructed to detach and return with his payment. The letter said nothing about when the debt was incurred, and it contained no hint that the four year statute of limitations applicable in Illinois had long since expired. See 810 ILCS 5/2725.

On receiving the letter, McMahon responded to Tate with a request for verification, stating that we can settle this quickly once the debt was verified. In January 2012, one of LVNVs affiliates (defendant Resurgent) replied to McMahon. It gave him some details, including the fact that LVNV now owned the debt, that LVNV had acquired the debt from Nicor on September 23, 2011, and that the amount was $584.98. Resurgent kept mum, however, about the advanced age of the debta detail that would have alerted either McMahon or his lawyer to the fact that he had an ironclad defense under the statute of limitations. The next month, McMahon filed a suit under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. 1692e, 1692f, on behalf of himself and a class. Delgado On February 7, 2012, defendant Capital Management Services LP (CMS) sent a debtcollection letter to plaintiff 6 Nos. 123504 & 132030 Juanita Delgado, another resident of Illinois. The letter stated, in relevant part: Dear Juanita Delgado, This company has been engaged by RESURGENT CAPITAL SERVICES, LP, the servicer of the account, to resolve your delinquent debt of $2404.13. Please submit your payment and make your check or money order payable to Capital Management Services, LP, to the above address. Capital Management Services, LP is authorized to accept less than the full balance due as settlement of the above account. The settlement amount of $721.24, which represents 30% of the amount presently owed, is due in our office no later than fortyfive (45) days after receiving Nos. 123504 & 132030 7 this notice. We are not obligated to renew this offer. For your convenience, this settlement may be made online at: www.cmstrans.com. For other payment options, please contact Capital Management Services . This is an attempt to collect a debt; any information obtained will be used for that purpose. This communication is from a debt collector. The letter did not say that CMS was timebarred from enforcing the debt under Illinoiss statute of limitations, nor did it disclose when the debt was incurred. In fact, Delgados letter was about an eightyearold debt, which meant that any collection action would have been barred by Illinoiss statute of limitations, if the debtor were savvy enough to raise the point. The letter also instructed the recipient to detach and return [the] top portion with payment. Using the same lawyer as McMahon, Delgado filed a complaint under the FDCPA charging that CMS violated that statute by sending a dunning letter on a timebarred debt and including an offer of settlement which, if accepted, would in fact make the debtor worse off. CMS filed a motion to dismiss for failure to state a claim. In

considering that motion, the district court decided that it was appropriate to give Skidmore deference to the views of the Federal Trade Commission, the Consumer Financial Protection Bureau, the Federal Deposit Insurance Corporation, the Federal Reserve Board, and the Office of the Comptroller of the Currency. See Skidmore v. Swift & Co., 323 U.S. 134 (1944). As those agencies 8 Nos. 123504 & 132030 had argued in other cases, the court held that when collecting on a time barred debt a debt collector must inform the consumer that (1) the collector cannot sue to collect the debt and (2) providing a partial payment would revive the collectors ability to sue to collect the balance. The court also found the reference in Delgados letter of a possible settlement of the debt to be deceptive, because it implied that a legally enforceable obligation to pay the debt existed. II. District Court Decisions In reaching their respective conclusions, both district courts noted that the FTC has found that nondisclosure of the fact that a debt is timebarred might deceive a consumer in Nos. 123504 & 132030 9 at least two ways: first, because most consumers do not know or understand their legal rights with respect to the collection of timebarred debt, attempts to collect on such debt may create a misleading impression that the consumer has no defense to a lawsuit; and second, consumers often do not know that in many states the making of a partial payment on a stale debt actually revives the entire debt even if it was otherwise timebarred. Given the potential for confusion, and to avoid creating a misleading impression, the FTC recommended that if a collector knows or should know that it is collecting on a timebarred debt, it must inform the consumer that (1) the collector cannot sue to collect the debt, and (2) providing partial payment would revive the collectors ability to sue to collect the remaining balance. FED. TRADE COMMN, THE STRUCTURE AND PRACTICE OF THE DEBT BUYING INDUSTRY 47 (2013) (FTC Report 2013). Both district courts were also aware that the FTC had secured a consent decree with Asset Acceptance, LLC. See United States v. Asset Acceptance, LLC, No. 8:12cv182T27EAJ (M.D. Fla. 2012). That decree requires the company to disclose to consumers whether it knows or believes that a debt was incurred outside the limitations period, using this language: The law limits how long you can be sued on a debt. Because of the age of your debt, we will not sue you for it. In Delgado, the district court found the FTCs position persuasive and thus denied CMSs motion to dismiss. It held that, for debts that have aged beyond the period of limitations, a dunning letter that contains no disclosure about when the debt was incurred, the implications of that date for its enforceability, and the consequences of making a payment on it, may mislead and deceive unsophisticated consumers. As for the specific letter Delgado received, which 10 Nos. 123504 & 132030 included an offer to settle, the district court found it plausible that an unsophisticated consumer could be deceived into believing that the offer of settlement implies a legally enforceable obligation to pay the debt.

11. The CFPB determined in its amicus brief Delgado v. Capital Management Services, LP,

No. 13-2030, actual or threatened litigation is not a necessary predicate for an FDCPA violation

in the context of time-barred debt . . . Depending on the circumstances, a time-limited settlement

offer could plausibly mislead an unsophisticated consumer to believe a debt is enforceable in

court even if the offer is unaccompanied by any clearly implied threat of litigation. See CFPBs

Delgado Brief at p.2.

12. In Sixth Circuit Court of Appeals, Buchanan v. Northland Group Inc., No. 13-2523, the

CFPB filed another amicus brief and reiterated Plaintiffs position that the FTCs position that

consumers do not expect that a partial payment will have the serious, adverse consequence of starting a new statute of limitations and that collectors may violate the FDCPA if they fail

to disclose clearly and prominently to consumers prior to requesting or accepting such

payments that (1) the collector cannot sue to collect the debt and (2) providing a partial payment

would revive the collectors ability to sue to collect the balance. See CFPBs Buchanan Brief at

pages 17-18.

13. The source of a debt and the amount a bad debt buyer paid for plaintiffs debt is at all times relevant, as well as the statute of limitation. Coppola v. Arrow Financial Services,

3:02CV577, 2002 U.S. Dist. LEXIS 26788, 2002 WL 32173704 (D. Conn., Oct. 29, 2002) (must phrase request clearly); Kimbro v. IC System, 3:01CV1676, 2002 WL 1816820

(D.Conn. July 22, 2002); Boutvis v. Risk Management Alternatives, Inc., 3:01 CV 1933 (DJS), 2002 U.S. Dist. LEXIS 8521 (D.Conn., May 3, 2002) (price paid is relevant to the

nature of the relationship between the alleged assignee and prior owner, i.e. had the company actually bought the debt). A low price is also relevant to whether the purchaser is on notice that the debt is time-barred or discharged in bankruptcy. How amount sought was calculated. Coppola v. Arrow Financial Services, 3:02CV577, 2002 U.S. Dist. LEXIS 26788,

2002 WL32173704 (D.Conn., Oct. 29, 2002); Kimbro v. IC System, 3:01CV1676, 2002 WL

1816820 (D .Conn. July 22, 2002) Documents conferring authority on defendant to collect debt.

Coppola v. Arrow Financial Services, 3:02CV577, 2002 U.S. Dist. LEXIS 26788, 2002 WL

32173704 (D.Conn., Oct. 29, 2002); Kimbro v. IC System, 3:01CV1676, 2002 WL 1816820

(D.Conn. July 22, 2002); Yancey v. Hooten, 180 F.R.D. 203 (D.Conn. 1998).

14. To the extent that DIRECTV, at all times under the direction of MICHAEL D. WHITE

inflated the amounts owed and sold the debt to ANFI, then DIRECTV and MICHAEL D.

WHITE are the source of the debt alleged and are liable under the Florida Consumer Collection

practices Act (FCCPA). The FCCPA states:

559.77 Civil remedies.

(5) In applying and construing this section, due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices Act.

15. Unlike McMahon, the Defendants, DIRECTV under the control of MICHAEL D.

WHITE and ANFI gave Plaintiff no details in the alleged communication of the debt. Like the

Defendant Resurgent kept mum in Delgado about the advanced age of the debta detail that

would have alerted either McMahon or his lawyer as to the legal status of the debt, Defendants

kept silent as to the character and legal status of the debt.

FDCPA AND FCCPA HAVE A COMMON GOAL: PROTECT CONSUMERS 16. Plaintiff relies in part upon a recent Eleventh Circuit opinion, LeBlanc v. Unifund CCR,

601 F.3d 1185 (11th Cir. 2010), which held that a violation of the FCCPA for failure to register

as an out of state consumer collection agency may support a federal cause of action under 15

U.S.C. 1692e(5) of the FDCPA against a collector for threatening to take an action it could not

legally take. The Plaintiffs proposition that the Defendants DIRECTV and MICHAEL D.

WHITEs attempt to revive the statute of limitations of a time-barred debt is an action not legally

allowed to take along with improper amounts owed. This in part stated as claim for an action

under 1692d with harassing conduct, just as the Eleventh Circuit found similar congruence

between the FDCPA and FCCPA and an act not legally allowed to be taken under the FCCPA.

Plaintiff also asserts that as in LeBlanc, Plaintiff is not seeking a per se rule that one violation

equals the other, but rather that the same conduct can separately support a violation of both the

FDCPA and FCCPA.

17. The FCCPA provides guidance in how courts should interpret the statute stating that "[i]n

applying and construing [the FCCPA], due consideration and great weight shall be given to

interpretations of the Federal Trade Commission and the federal courts relating to the Fair Debt

Collection Practices Act." 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. 10A

Fla. Jur.2D Consumer 138 (2010). The FCCPA also defines and protects an individual's right

to privacy with regards to consumer collections practices in the state. See generally, Laughlin v.

Household Bank, Ltd., 969 So.2d 509 (Fla. Dist.Ct.App. 1st Dist.2007).

18. Relevant to the question presented here, the FDCPA and FCCPA have certain parallels.

For instance, Section 559.72(9) of the FCCPA prohibits a debt collector from asserting the

existence of [a] legal right when such person knows that the right does not exist. See Fla. Stat.

559.72(9); compare 15 U.S.C. 1692e(5). The FCCPA unequivocally states its goal-to

provide the consumer with the most protection possible under either the state or federal statute.

See Fla. Stat. 559.552 (In the event of any inconsistency the provision which is more

protective of the consumer or debtor shall prevail.) Further, the fact that the FCCPA deemed its

remedies cumulative reveals that the Florida legislature contemplated dual enforcement of state

and federal law regarding the opinions of the FTC.

19. However, the FCCPA was drafted to provide stronger consumer protection than the

FDCPA, explicitly providing that "[i]n 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." Relying on this "more protective" language in 559.552, two

Florida courts have interpreted terms in the FCCPA to afford the consumer greater protection

than that in the FDCPA Beeders v. Gulf Coast Collection Bureau, 632 F. Supp. 2d 1125 (M.D.

Fla. 2009) and Kahmeyer v. Federal Credit Corporation, (by the 13th Judicial Circuit in

Hillsborough County, Florida). The Court should therefore apply the same decisions and

analysis to both the FDCPA and FCCPA claims.

20. Plaintiff alleges that the Defendant engaged in a violation under either section 559.72(7),

Florida Statutes, which prohibits a debt collector from willfully engag[ing] in . . . conduct

which can reasonably be expected to abuse or harass the debtor, or section 559.72(9), Florida

Statutes, which creates a violation if a debt collector assert[s] the existence of some . . . legal

right when such person knows that the right does not exist. Defendant cites several federal

district court cases in Florida in support of its position.

21. Plaintiffs complaint as mentioned above with the impermissible shifting of statutory

burdens in which Plaintiff was required to decide whether the rights set forth by DIRECTV,

under the control of MICHAEL D. WHITE, and ANFI constitutes an assertion of the existence

of a legal right that Defendant knew did not exist, thereby violating section 559.72(9). As

Plaintiff urges, with respect to determining what constitutes a misrepresentation of a legal right

under section 559.72(9), the court must refer to other statutes that establish the legitimacy of a

debt and define legal rights. See Cliff v. Payco Gen. American Credits, Inc., 363 F.3d 1113,

1126 (11th Cir. 2004) (citing Kaplan v. Assetcare, Inc., 88 F.Supp.2d 1355, 1363 (S.D. Fla.

2000)). Consequently at this early stage, the Plaintiff has sufficiently alleged violations of

sections 559.72(9), the Court should deny the motion to dismiss.

THE FEDERAL TRADE COMMISION, THE FDCPA AND THE FCCPA 22. A claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair

practice; (2) causation; and (3) actual damages. Virgilio v. Ryland Group, Inc., 680 F.3d 1329,

1338 n.25 (11th Cir. 2012) (quoting Rollins, Inc. v. Butland, 951 So. 2d 860, 869 (Fla. Dist. Ct.

App. 2006)). Here, Plaintiff alleges that Defendants, including DIRECTV under the control of

MICHAEL D. WHITE, violated FDUTPA by engaging and unfair and deceptive acts. See

factual allegations 1-53. The complaint identifies DIRECTV under the control of MICHAEL

D. WHITE, is liable for the alleged deceptive acts that caused the violation of FDUTPA.

Plaintiffs allegations are sufficient to withstand a Rule 12(b)(6) dismissal. Plaintiff must be

afforded the opportunity to prove the allegations through the discovery process.

23. Florida courts have adopted the definition of unfair used under the federal scheme,

which provides that an unfair practice is one that offends established public policy and one

that is immoral, unethical, oppressive, unscrupulous or substantially injurious to consumers.

Samuels v. King Motor Co. of Fort Lauderdale, 782 So. 2d 489, 499 (Fla. 4th DCA 2001) (citing

Spiegel, Inc. v. Fed. Trade Comm'n, 540 F.2d 287, 293 (7th Cir.1976)). Plaintiff alleges that the

acts of DIRECTV under MICHAEL D. WHITES control, offend public policy.

24. In order for there to be a deceptive trade practice, there must be a representation,

omission or practice that is likely to mislead the consumer (actual deception not required). Rollins, Inc. v. Butland, 951 So. 2d 860 (Fla. 2d DCA 2006). The representation, omission or

practice must be material enough to affect the consumers conduct or decision, even though no actual reliance is required. Rollins, Inc. v. Butland, 951 So. 2d 860 (Fla. 2d DCA 2006).It is

presumptively material when the claims relate to health, safety or cost. See FTC Policy

Statement on Deception, as appended appended to Cliffdale Associates, Inc., 103 F.T.C. 110, 174

(1984).

25. Given the potential for confusion, and to avoid creating a misleading impression, the FTC

recommended that if a collect knows or should know that it is collecting on a time-barred debt, it

must inform the consumer that (1) the collector cannot sue the debt, and (2) providing partial

payment would revive the collector's ability to sue to collect the remaining balance. FED.

TRADE COMM'N, THE STRUCTUR AND PRACICE OF THE DEBT BUYING INSUSTRY

47 (2013) (FTTC Report 2013). The FTC subsequently secured a consent decree with Asset

Acceptance, LLC. See United States v. Asset Acceptance, LLC, No. 8:12-cv-182-T-27EAJ

(M.D. Fla. 2012). That decree requires the company to disclose to consumers whether it knows

or believes that a debt was incurred out-side the limitations period, using this language: "The

law limits how long you can be sued on a debt. Because of the age of your debt we will not sue

you for it."

26. Federal courts have not held that a consumer may only assert his rights defensively in

response to a claim initiated by an assignee for balance due on the contract. All conduct

specifically prohibited or disclosures specifically required by the FDCPA is material. Mark v.

J. C. Christensen & Assoc., Inc., 09-100, 2009 U.S. Dist. LEXIS 67724, *11 (D.Minn. Aug. 4,

2009); Warren v. Sessoms & Rogers, P.A., 676 F.3d 365, 374 (4th Cir. 2012) (violations of

1692e(11) are always material); Garo v. Global Credit & Collection 84 Corp., CV-09-2506-

PHX-GMS, 2011 U.S. Dist. LEXIS 7737 (D.Ariz. January 26, 2011). This would be in clear

contravention of the FTC's intention. 536 NE2d at 590, n. 5. Accord, Thomas v. Ford Motor

Credit Company, supra, 429 A.2d at 282, and Vasquez v. Superior Court of San Joaquin County,

484 P.2d 964, 979-980, 94 Cal. Rptr. 796, 823-824 (1971). The Plaintiff proposes that the same

holds true for the FCCPA.

In abrogating the holder in due course rule in consumer credit transactions, the FTC preserved the consumer's claims and defenses against the creditor-assignee. The FTC rule was therefore designed to reallocate the cost of seller misconduct to the creditor. The commission felt the creditor was in a better position to absorb the loss or recover the cost from the guilty party -- the seller.

27. It is this public policy which Plaintiffs now move this Court to enforce. See Compl.

34-38 & 43-44, FTC v. Fairbanks Capital Corp., 03-12219 (D. Mass. Nov. 12, 2003) (alleging

that the charging of late fees and other associated charges was unfair practice under Section 5 of

the FTC Act and a violation of 807 and 808 of the FDCPA), available at

http://www.ftc.gov/os/2003/11/0323014comp.pdf.

28. Section 5 of the FTCA makes unfair or deceptive acts or practices in or affecting

commerce unlawful. 15 U.S.C. 45(a)(1). To establish liability under section 5of the FTCA,

the FTC must establish that (1) there was a representation; (2) the representation was likely to

mislead customers acting reasonably under the circumstances, and (3) the representation was

material. FTC v. Tashman, 318F.3d 1273, 1277 (11th Cir. 2003). Defendant properly states

that:

Plaintiff claims DIRECTV violated the FCCPA by attempting to collect a debt that was illegitimate because it was time-barred. 3 Under Fla. Stat. 599.72(9), [n]o person shall . . . [c]laim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate. Therefore, to sustain his claim, plaintiff must allege facts showing DIRECTV was claiming a legal right that did not exist and that [DIRECTV] had actual knowledge that the right did not exist.

29. To the extent that DIRECTV is not a debt collector, they are still actionable under the

FCCPA. DIRECTV knew that the debt was time-barred when they sold it and attempted to

collect it, in part by either hiring ANFI or selling the debt to ANFI at 5-10 cents on the dollar and

gave Plaintiffs private location information to ANFI. Assignment of a debt is still debt

collection and under the purview of the FCCPA. Plaintiff has been offered no proof that

DIRECTV extended credit or that ANFI is owed any money. The Defendants are required to

provide proper documentation of their claim. The Defendant has superior knowledge of all these

facts and there can be no question that they were at all times aware of these facts when they

assigned or sold the account.

30. Defendant then states:

Finally, plaintiff also fails to allege actionable damages under FDUPTA. Here, plaintiff requests actual damages for frustration and stress . . . . (Id. at Pg. 12). FDUTPA explicitly states that it does not apply to a claim for personal injury or death or a claim for damage to property other than the property that is the subject of the consumer transaction. T.W.M. v. Am. Med. Sys., Inc., 886 F. Supp. 842, 844 (N.D. Fla. 1995); see Taviere v. Precision Motor Cars, Inc., 2010 WL 557347, at * 5 (FDUPTA claim dismissed because plaintiff alleged damages relating to stress, anxiety and depression while FDUTPA bars claims for personal injuries.). Plaintiffs failures to allege a deceptive act or actionable damages are fatal to his claim.

31. This count fails because the Defendant again wants the court to assume that the Plaintiff

can offer no set of facts as to his factual allegations 1-53. This is simply false. Floridas

Deceptive and Unfair Trade Practices Act (FDUTPA) (F.S. 501.201 et seq.) was enacted to give

consumers stronger legal protection against commercial wrongdoing. It is patterned after the

Federal Trade Commission Act (FTC act) (15 U.S.C. 45 et seq.), which provides a right of

action only to the FTC. See Holloway v. Bristol-Myers Corp., 485 F.2d 986 (D.C. Cir. 1973);

Baum v. Great Western Cities, Inc., 703 F.2d 1197, 1209 (10th Cir. 1983). Like its federal

counterpart, Floridas little FTC act prohibited unfair methods of competition and unfair or

deceptive acts or practices in the conduct of any trade or commerce. FDUTPA further provided

that in construing those provisions, due consideration and great weight shall be given to the

interpretations of the FTC and the federal courts relating to the FTC act. Fla. Stat. 501.204(2);

Rollins, Inc. v. Heller, 454 So. 2d 580, 584 (Fla. 3d D.C.A. 1984), rev. den., 461 So. 2d 414 (Fla.

1985).

32. The purpose of the FDUTPA is [t]o protect the consuming public and legitimate

business enterprises from those who engage in unfair methods of competition, or

unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce."

501.202(2), Fla. Stat. (2005); see also Citibank (S.D.) N.A. v. Nat'l Arbitration Council, Inc.,

2006 WL 2691528 (M.D. Fla. Sept. 19, 2006). FDUTPA makes unlawful unfair methods of

competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the

conduct of trade or commerce. 501.204, Fla. Stat. (2005); see also Citibank. Instead of

defining specific elements for an action under the statute, it directs the courts of Florida to give

due consideration and great weight . . . to the interpretations of the Federal Trade Commission

Act, 15 U.S.C., section 45(a)(1). 501.204(2), Fla. Stat. (2005); see also Romano v. Motorola,

Inc., 2007 WL 4199781 (S.D. Fla. Nov. 26, 2007); Davis v. Powertel, Inc., 776 So. 2d 971, 974

(Fla. 1st DCA 2000), review denied 794 So. 2d 605 (Fla. 2001).

33. The Florida Deceptive and Unfair Trade Practice act has been referred to as the mini

FTC act. Accepting the weight of authorities from the actions of the Florida Deceptive and

Unfair Trade Practices Act (FDUTP). FTC has prosecuted many a debt collector for violation

of the FTC act including many debt collectors including, but not limited to MIDLAND,

ENFORCEMENT, etc. etc. Seems that the Federal Trade Commission believes that debt

collectors are engaged in trade. This argument fails miserably. To the extent that there the issue

of whether DIRECTV, which offers entertainment. Even assuming arguendo the facts as pled

establish that MERS engaged in deceptive acts or unfair trade practices, MERS' actions do not

qualify as "trade or commerce" under the Act. Under FDUTPA, "trade or commerce" means:

[A]dvertising, soliciting, providing, offering, or distributing, whether by sale, rental, or otherwise, of any good or service, or any property, whether tangible or intangible, or any other article, commodity, or thing of value, wherever situated. `Trade or commerce' shall include the conduct of any trade or commerce, however denominated, including any nonprofit or not-for-profit person or activity.

Fla. Stat. 501.203(8).

Defendant DIRECTV and MICHAEL D. WHITE engage in trade and commerce.

See DIRECT-TC http://www.directv.com/ which states:

There's only one company that delivers an amazing entertainment experience across your TV, computer, tablet, or phone with industry-leading customer serviceand it's spelled DIRECTV. Be careful of any company that advertises the DIRECTV name with a misspelling of any sort, whether it's DIRECT TV with a space in between or DIRECTTV with two T's.

According to the FTC, DIRECTV is actionable and does engage in trade. DIRECTV is no

stranger to enforcement actions against them and unlawful debt collection activity.

http://www.consumerreports.org/cro/news/2015/03/ftc-directv-deceptive-advertising/index.htm.

FTC Charges DIRECTV with Deceptively Advertising the Cost of Its Satellite Television Service

March 11, 2015

Note: A conference call-in for media with FTCs Bureau of Consumer Protection Director Jessica Rich will occur as follows:

The Federal Trade Commission has charged DIRECTV, the countrys largest provider of satellite television services, with deceptively advertising a discounted 12-month programming package because it fails to clearly disclose that the package requires a two-year contract. .

.DIRECTV does not clearly disclose that the cost of the package will increase by up to $45 more per month in the second year, and that early cancellation fees of up to $480 apply if consumers cancel the package before the end of the two-year period.

DIRECTV also fails to disclose that its offer of free premium channels for three months is in fact a negative option continuity plan that requires consumers to proactively cancel to avoid automatic charges on their credit or debit cards, the FTC alleges. DIRECTV misled consumers about the cost of its satellite television services and cancellation fees, said FTC Chairwoman Edith Ramirez.

the FTC is seeking a court order that permanently bars DIRECTV from engaging in the allegedly illegal conduct, as well as a monetary judgment that could be used to provide refunds to affected consumers

The Commission vote approving the complaint was 5-0. It was filed in the U.S. District Court for the Northern District of California, San Francisco Division on March 11, 2015, and names as defendants DIRECTV and DIRECTV, LLC.

34. Proof of prior illegal acts is admissible to show knowledge and intent. Joseph Taylor

Coal Co. v. Dawes, 122 Ill.App. 389 (1905), aff'd. 220 Ill. 147, 77 N.E. 131 (1906); Edgar v.

Fred Jones Lincoln-Mercury, 524 F.2d 162, 167 (10th Cir. 1975; Eaves v. Penn, 587 F.2d 453,

463-4 (10th Cir. 1978) (in civil action for breach of fiduciary duty, evidence of breaches of

fiduciary other than one for which recovery was sought properly admitted to show intent);

Welch v. Barnett, 34 Okla. 166 125 P. 472 (1912) (that five Indians willed property to the same

unrelated whitemen in different transactions is convincing proof that undue influence and fraud

were practiced on all); Barry v. Arrow Pontiac, Inc., 100 N.J. 57, 494 A.2d 804, 814 (1985).

35. The FTCs rule on preservation of consumers claims and defenses (16 CFR 433; the

holder rule) makes it an unfair practice to take or receive a consumer credit contract not

containing a specified notice that any holder is subject to the claims and defenses which the

debtor could assert against the seller of the goods or services. The holder rule was designed to

abrogate the use of the holder-in-due-course doctrine in consumer credit transactions. (Similarly,

the 1993 amendments to FDUTPA removed its exemption for a holder in due course of a

negotiable instrument or the transferee of a credit agreement received in good faith without

knowledge of a violation of FDUTPA). Fla. Stat. 501.212; Senate Staff Analysis, supra note

12, at 3. See Dept of Legal Affairs v. Commerce Commercial Leasing, LLC, 946 So. 2d 1253,

1259 (Fla. 1st DCA 2007) (holding that OAGs complaint challenging contract terms as

unconscionable stated cause of action under FDUTPA without identifying the terms or why they

were unconscionable).

CONCLUSION For the aforementioned reasons, Defendants motion should be denied. Dated: June 23, 2015. Respectfully submitted,

_______________________

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that the original was filed with the Court and a copy of the

foregoing was furnished by United States Mail, postage prepaid and properly addressed this June

22, 2015 to all included in the service list below.

SERVICE LIST

Respectfully, _______________________ ROBERT GONXALEZ 12500 SW 204 STREET MIAMI, FLORIDA

FTC Charges DIRECTV with Deceptively Advertising the Cost of Its Satellite Television Service