Opposition Brief — Bryan v. Clayton

No. 97-1666

OF THE CLERK

In The

Supreme Court of the United States

4~-

October Term, 1997

KEVIN E. BRYAN and RENEE M. BRYAN,

Petitioners,

VS.

KENNETH M. CLAYTON and NEAL McCULLOH,

individually and d/b/a CLAYTON & McCULLOH, a Florida

general partnership,

Respondents.

On Petition for Writ of Certiorari to the

State of Florida Fifth District Court of Appeals

RESPONDENTS’ BRIEF IN OPPOSITION

JAMES E. OLSEN

Counsel of Record

CLAYTON & McCULLOH

Attorneys for Respondents

1065 Maitland Center

Commons Boulevard

Maitland, Florida 32751

(407) 875-2655

utz

(800) 274-3321 + (800) 359-6859 AP am

A DIVISION OF COUNSEL PRESS Services, inc.

i

QUESTION PRESENTED

Whether Florida homeowners’ association or Florida

condominium association assessments are “debts” within the

meaning of the federal Fair Debt Collection Practices Act?

il

TABLE OF CONTENTS

Page

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Reasons for Denying the Writ ........ccccecccccss 6

I. The Question Presented By The Petitioners In

Their Petition For Writ Of Certiorari Has Not Been

Preserved For Review By This Court. ....... 6

Il. The Decision In Newman And The Instant Bryan

Decision Are Not In Conflict Because The

Decisions Rendered In These Cases Are Limited

BO Thetr Respective Facts. . oo. cccesew cscs: 8

Ill. The Judgment Entered By The State Of Florida

Fifth District Court Of Appeal Was Not In Conflict

With Newman When It Was “Rendered” Pursuant

2 ee ES Ss oo ck cece eck es 10

IV. The Petition For Writ Of Certiorari Filed Herein

re a err are RES 12

V. The Issue Presented In This Cause Is Not

Sufficiently Ripe For Review By The Court. .. 14

COON agian a is nk CAR ee eee 15

CRSA RE ASC ak OG BER GNA NE ial

AGO OBS

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Contents

Page

TABLE OF CITATIONS

Cases Cited:

Archer v. Beasley, No. 90-2576 (CSF), 1991 WL 34889

i I cc wee i 15

Azar v. Hayter, 874 F. Supp. 1314 (N.D. Fla. 1995),

aff'd, 66 F.3d 342 (11th Cir. 1995), cert. denied, 116

ee re Ce ears Uae ic ka os xu ex 5

Board of Commissioners v. Lucas, 93 U.S. 108 (1876)

Pa CREW cd aah ca akd tend toed weds COR SLES 10

Eldred v. Reber, 639 So. 2d 1086 (Fla. 5th DCA 1994)

Le RMERAHS eed e Ae case Oe ON oo bee ook eee 10

Grayson v. Harris, 267 U.S. 352 (1925) ........... l

Lowe v. Price, 437 So. 2d 142 (Fla. 1983) .......... 11

Market Street R. Co. v. Railroad Commission, 324 U.S.

RN OL dae bos scans kk wkd da eeeks 1]

Newman v. Boehm, Pearlstein & Bright, 119 F.3d 477

I i ee passim

Republic Natural Gas Co. v. State of Oklahoma, 334

NE 5s ik e's ak bande cok eben 13

Stembridge v. State of Georgia, 343 U.S. 541 (1952)

iv

Contents

Page

United States of America v. Johnston, 268 U.S. 220

Gh) >) BEA eee ane re ye res Semone Sere l

Statutes Cited:

ED Siaiisdis_ 0 SOIC) a's ws ca G ss pee eae ees 4,6

ee EE eo a a b eae ae ac bk ce oe ee a 8

a eR ee ee Lo Erte rr Te ee 8

Fa SE EEN oo 6 06 GN wa es Rew i a 8

Rules Cited:

Federal Rule of Appellate Procedure 36 ............ 1]

Federal Rule of Appellate Procedure 40 ............ 1]

Federal Rule of Appellate Procedure 41 ............ 1]

Florida Rule of Appellate Procedure 9.010(h) ....... 10

Florida Rule of Appellate Procedure 9.020 .......... 12

United States Supreme Court Rule 10(b) ........... 12

United States Supreme Court Rule 12 .............. 13

Other Authority Cited:

Capitol Connection, Volume 1, Issue 1 ....:........ 14

a el

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STATEMENT OF THE CASE

The Petitioners have misstated many key “facts” in their

Petition for Writ of Certiorari. The Petitioners have presented

serious allegations of egregious conduct supposedly

perpetrated by the Respondents’ law firm as “factual” proof of

actual violations of the Fair Debt Collection Practices Act

[hereinafter referred to as the “FDCPA”]. The petition relies

upon the “factual” characterizations of these scandalous,

unfounded and unproven allegations as the justification for

this Honorable Court to accept jurisdiction of this cause.

Petitioners’ allegations of improper conduct are irrelevant, self-

serving, and without support in the record. Petitioners have

presented their unproven and highly refuted version of the

“facts” to this Court as same are contained in their Complaint

filed with the trial court. (A. 20). However, all of the material

“facts” alleged by the Petitioners regarding violations of the

FDCPA were, and always have been, denied by the

Respondents. Respondents vehemently deny all of Petitioners’

allegations that the Respondents’ law firm violated the FDCPA

with respect to the collection of the Petitioners’ delinquent

Florida homeowners’ association assessments. Additionally,

Respondents remain appalled by such improper, untrue, and

impertinent distortions of the manner in which Respondents’

law firm operates. In fact, despite no requirement to do so,

Respondents’ law firm endeavored to comply with the FDCPA.

This Court ordinarily will not grant a Petition for Writ of

Certiorari in order to review evidence and discuss specific facts.

See, e.g., United States of America v. Johnston, 268 U.S. 220

(1925). Additionally, the Supreme Court ordinarily does not

review questions of fact which are not necessary to a

determination of the federal question. E.g., Grayson v. Harris,

267 U.S. 352 (1925).

The inclusion in the petition of such impertinent,

unsubstantiated, and unproven “facts” is improper and

2

immaterial to a determination of the federal question presented

by the Respondents in this Brief in Opposition. In the State of

Florida Fifth District Court of Appeal, the Petitioners presented

the following issue to the court:

THE PLAIN ENGLISH MEANING OF

“TRANSACTION” AND “PERSONAL, FAMILY

OR HOUSEHOLD PURPOSES” COMPELS THE

CONCLUSION THAT HOMEOWNERS’

ASSOCIATION DUES AND ASSESSMENTS ARE

“DEBTS” UNDER THE FDCPA AND THE

FLORIDA ACT.

Yet, the Petitioners have presented the following significantly

and materially different question to this Court:

Are third party collection agents exempt from

having to comply with the federal Fair Debt

Collection Practices Act (“FDCPA”) prohibitions

against overreaching, intimidation,

misrepresentation, etc. when they are attempting

to collect condominium and homeowner

association dues and assessments and ancillary

charges, or are such items “debts” under the

FDCPA?

A comparison of the issue presented to the State of Florida

Fifth District Court of Appeal and the question presented to

this Court clearly evidences the Petitioners’ improper attempt

to interject unresolved, unlitigated, and unproven factual issues

into what the parties and the courts have, to this point,

addressed as a question of law.

Respondents, in this Brief in Opposition, have properly

identified that the federal question presented to this Court is,

ee a

3

and always has been, a question of law and legal interpretation.

As clearly stated by the trial judge, The Honorable James C.

Hauser, in his Order Granting Defendants’ Motion for Summary

Judgment and Motion to Dismiss dated May 7, 1996, “... the

threshold issue is whether the collection these attorneys were

trying to make was of a ‘debt’ within the definition of the

federal and state acts.” (A. 9). The State of Florida Fifth District

Court of Appeal succinctly stated:

[iJn this appeal we are asked to decide whether

maintenance assessments owed to the appellants’

homeowners’ association are “debts” for purposes

of the Fair Debt Collection Practices Act and the

Florida Consumer Collection Practices Act.

(A. 1).

The trial court held in the instant case that the assessments

sought to be collected are not “debts” within the meaning of

the FDCPA. (A. 12). The trial court, having held that the

assessments are not “debts”, granted summary judgment in

favor of the Respondents due to the Petitioners’ failure to state

a cause of action. (A. 7-13). Thereafter, Final Judgment was

entered in favor of the Respondents. (A. 14-15). The State of

Florida Fifth District Court of Appeal concurred with the trial

court and held that Florida homeowners’ association and

Florida condominium association assessments are not

consumer “debts” within the purview of the FDCPA. (A. 2).

The Florida Supreme Court, without rendering an opinion,

declined to exercise its discretionary jurisdiction to review the

decision of the State of Florida Fifth District Court of Appeal.

(A. 18).

This Court should be mindful that because the federal

question presented by the Respondents in this Brief in

4

Opposition has, to this point, been addressed as a question of

law, there has never been a trial to conclusively establish any

“facts” related to the Petitioners’ allegations of violations of

the FDCPA by Respondents’ law firm. Furthermore, it was held

by the trial court in the instant action that Respondents’ law

firm is not a “debt collector” within the meaning of the FDCPA.

(A. 12). Pursuant to the FDCPA, the term “debt collector”

... Means any person who uses any instrumentality

of interstate commerce or the mails in any business

the principal purpose of which is the collection of

any debts, or who regularly collects or attempts to

collect, directly or indirectly, debts owed or due or

asserted to be owed or due another. * * * The term

does not include —

(F) any person collecting or attempting to collect

any debt owed or due or asserted to be owed or

due another to the extent such activity (1) is

incidental to a bona fide fiduciary obligation... .

[emphasis supplied] [See (A. 57-58) for complete

text]

15 U.S.C.A. § 1692(e)(6).

The Seventh Circuit in the case of Newman v. Boehm,

Pearlstein & Bright, 119 F.3d 477, 482 n.3 (7th Cir. 1997)

intimated that a defense to the complaint may exist if the law

firms in that case were not “debt collectors” as defined in the

FDCPA. Therefore, the law firms in Newman may yet avoid

being subject to the FDCPA. The Seventh Circuit remanded

the case to the trial court for further proceedings consistent

with its holding that the assessments were “debts.” However,

the Seventh Circuit has ostensibly left the door open for a

determination of whether a law firm (such as the Respondents’

5

law firm in the instant action) is a “debt collector” when

collecting homeowners’ association and condominium

association assessments.

As was the case in Newman, if this Court determines in

the instant action that Florida homeowners’ association and

Florida condominium association assessments are “debts”

within the meaning of the FDCPA, this case would have to be

remanded to the trial court for further proceedings consistent

with this Court’s mandate. Assumedly, this Court would not

address the “debt collector” issue because there is no conflict

on this issue between Newman and Bryan which would make

this issue ripe for consideration by the Court.

Therefore, the worst case scenario for the Respondents

would be that the instant case would be remanded for further

litigation to address the legal anc factual issue of whether the

Respondents’ law firm is a “debt collector” as defined by the

FDCPA and also to determine all of the factual issues present

in the instant case.

1. Cf, Azar v. Hayter, 874 F. Supp. 1314 (N.D. Fla. 1995), aff'd, 66

F.3d 342 (11th Cir. 1995), cert. denied, 116 S. Ct. 712 (1996) (holding that

a corporate manager for a condominium association owed a fiduciary duty

to the association to collect delinquent assessments, and therefore the

corporate manager was not a “debt collector”)

eT

6

REASONS FOR DENYING THE WRIT

I.

THE QUESTION PRESENTED BY THE

PETITIONERS IN THEIR PETITION FOR WRIT OF

CERTIORARI HAS NOT BEEN PRESERVED FOR

REVIEW BY THIS COURT.

Petitioners present the following question for review in

their Petition for Writ of Certiorari:

Are third party collection agents exempt from

having to comply with the federal Fair Debt

Collection Practices Act (“FDCPA”) prohibitions

against overreaching, intimidation,

misrepresentation, etc. when they are attempting

to collect condominium and homeowner

association dues and assessments and ancillary

charges, or are such items “debts” under the

FDCPA?

The issue of whether the Respondents’ law firm is

“exempt” from the FDCPA goes directly to the question of

whether the Respondents’ law firm is a “debt collector” as

defined in 15 U.S.C.A. § 1692a(6). (A. 57-58). As intimated

by the Seventh Circuit in Newman, the issue of whether a law

firm such as the Respondents’ law firm is a “debt collector”

has not been decided nor has it even been addressed by any of

the few courts who have addressed the issue of applying the

FDCPA to the collection of homeowners’ association and

condominium association assessments.

Importantly, the question of whether the Respondents’ law

firm is a “debt collector” has not been preserved below by the

7

Petitioners. Petitioners have never presented for review on

appeal in the lower courts the question of whether the

Respondents’ law firm is a “debt collector.”? This is true even

though the trial court in the instant Bryan case specifically

held that the Respondents’ law firm “. . . may not be considered

‘debt collectors’ ...”

The significance of the “debt collector” question cannot

be underestimated. This Court should be mindful of the fact,

as the Seventh Circuit recognized in Newman, that the question

of whether homeowners’ association and condominium

association assessments are “debts” within the meaning of the

FDCPA is only one-half of the issue. In fact, whether or not

law firms collecting such assessments are “debt collectors”

has yet to be ruled upon by any court other than the trial court

in the instant Bryan case. For the FDCPA to apply to

Respondents’ law firm, the assessments sought to be collected

must be “debts” AND the Respondents’ law firm must be a

“debt collector.” The single issue ruled upon by the Newman

court was whether the assessments are “debts.” Newman,

therefore, only addressed one-half of the issue. The decision

in Newman is not in conflict with the instant Bryan decision

because only in Bryan has the court held that Respondents’

law firm is not a “debt collector.” No other court has ruled or

even analyzed the “debt collector” issue in the context of

Florida homeowners’ association and Florida condominium

association assessments.

2. In addition to the question presented to the State of Florida Fifth

District Court of Appeal previously identified at page two (2) of this Brief in

Opposition, the Petitioners presented as a second issue the following: “The

precedents relied upon by the trial court are inapplicable, distinguishable,

or ill-conceived.” These were the only two issues submitted by the Petitioners

for consideration by the State of Florida Fifth District Court of Appeal.

8

The Court lacks subject matter jurisdiction over the instant

Petition for Writ of Certiorari because there is no conflict

between Newman and Bryan on the federal question of whether

Respondents’ law firm is a “debt collector” as defined by the

FDCPA. Additionally, the “debt collector” issue has not been

preserved for appeal. Lastly, because the “debt collector” issue

has not been resolved nor even addressed in the prior federal

cases, any opinion expressed on this issue by this Court would

be purely advisory in nature.

THE DECISION IN NEWMAN AND THE INSTANT

BRYAN DECISION ARE NOT IN CONFLICT BECAUSE

THE DECISIONS RENDERED IN THESE CASES ARE

LIMITED TO THEIR RESPECTIVE FACTS.

In the State of Florida, homeowners’ associations and

condominium associations are creatures of statute.’ The

purpose of and the uses to which “assessments” may be spent

are strictly limited by the Florida Statutes and the governing

documents creating the association. In reaching its decision in

the instant Bryan case, the State of Florida Fifth District Court

of Appeal necessarily interpreted the FDCPA definition of

“debt” and “personal, family, and household purposes” within

the confines of the Florida Law.

In the case of Newman v. Boehm, Pearlstein & Bright, Ltd.,

119 F.3d 477 (7th Cir. 1997), the Seventh Circuit expressly

examined Illinois law in reaching its conclusions that, in Illinois,

3. In Florida, homeowners’ associations are governed generally by

Chapter 617, Fla. Stat., and are specifically governed by §§ 617.301-617.312,

Fla. Stat. (i.e. the “Florida Homeowners’ Association Act”). Condominiums

are governed by Chapter 718, Florida Statutes (i.e. the “Florida Condominium

Act.”)

9

homeowners’ association and condominium association

assessments are debts under the FDCPA. /d. at 481. Specifically,

the Seventh Circuit stated:

... the Riters became bound by the Declaration of

Covenants, Conditions, and Restrictions of their

homeowners association, which required the

payment of regular and special assessments

imposed by the association. The Newmans similarly

became obligated upon the purchase of their

condominium unit to pay any assessments pursuant

to the condominium ownership declaration and the

by-laws of their association, as well as under an

Illinois statute addressed to condominium

property.

(Emphasis supplied.) Newman, 119 F.3d at 481.

As previously stated, homeowners’ associations and

condominium associations in Florida are creatures of statute. In

Illinois, ostensibly, only condominium associations in Florida

are statutorily governed. Furthermore, there is a very strong

likelihood that the governing documents of the homeowners’

association in the instant Bryan case and the governing

documents for the associations in the Newman case are vastly

different.

Therefore, because the Laws of Florida and the Laws of

Illinois may differ on the use and purposes of assessments,

and because the specific governing documents of the

associations in Bryan and Newman are not identical, and may

not even be similar, the decisions in Bryan and Newman should

be limited to their specific facts and their specific jurisdictions.

As such, there is no conflict between the Bryan decision and

the Newman decision which vests jurisdiction over this Petition

for Writ of Certiorari with this Court.

10

Iil.

THE JUDGMENT ENTERED BY THE STATE OF

FLORIDA FIFTH DISTRICT COURT OF APPEAL WAS

NOT IN CONFLICT WITH NEWMAN WHEN IT WAS

~“RENDERED” PURSUANT TO STATE LAW.

The State of Florida Fifth District Court of Appeal issued its

written opinion holding in favor of the Respondents on May 9,

1997. (A. 1). After the entry of this written opinion, the Petitioners

filed with the State of Florida Fifth District Court of Appeal their

Motion for Clarification, Rehearing, Rehearing En Banc, and

Certification, and for Ancillary Relief. This motion for rehearing

was denied by Order of the Court dated June 25, 1997. (A. 17).

Therefore, as of June 25, 1997, the judgment was “final” for the

purposes of appeal to the Florida Supreme Court. The State of

Florida Fifth District Court of Appeal was left with only the

ministerial act of issuing its mandate in order to conclude the

case. See Board of Commissioners v. Lucas, 93 U.S. 108 (1876).

A judgment is “rendered”, pursuant to the Florida Rules of

Appellate Procedure, when the signed, written order is filed with

the Clerk.* However, rendition of the judgment is stayed pending

the disposition of a timely filed motion for rehearing. Therefore,

in the instant cause, the judgment of the State of Florida Fifth

District Court of Appeal was “rendered” on June 25, 1997, upon

the entry of the Order of the Court denying Petitioners’ Motion

for Clarification, Rehearing, Rehearing En Banc, and Certification,

and for Ancillary Relief.* (A. 17).

4. Rule 9.010(h), Fla. R. App. Pr.

5. Cf. Eldred v. Reber, 639 So. 2d 1086 (Fla. 5th DCA 1994) [holding

that a statute of limitations begins to run from the date the appellate court

“renders” its decision rather than from the date the appellate court issues its

mandate].

+3

bam

11

It is well settled law in Florida that appellate courts are to

apply the law as it exists at the time the appellate decision is

rendered. E.g., Lowe v. Price, 437 So. 2d 142 (Fla. 1983). In

reaching its decision in the instant cause, the State of Florida

Fifth District Court of Appeal cited to an unbroken line of

federal decisions which held that homeowners’ association and

condominium association assessments are not “debts” within

the meaning of the FDCPA. (A. 2).

The Petitioners urge this Court to accept jurisdiction based

upon an alleged conflict between the instant Bryan decision

rendered by the State of Florida Fifth District Court of Appeal

and the case of Newman v. Boehm, Pearlstein & Bright, Ltd.,

119 F.3d 477 (7th Cir. 1997). However, the “judgment” in

Newman was not “entered” until July 2, 1997, which date is

after final rendition of the Bryan judgment.® Furthermore, the

judgment in Newman was not final for the purposes of the

issuance of a mandate until the motion for rehearing in that

case was denied by the Seventh Circuit on September 12, 1997.’

The State of Florida Fifth District Court of Appeal decision

was “final” for purposes of appeal to this Court on June 25,

1997. See, e.g., Market Street R. Co. v. Railroad Commission,

324 U.S. 439 (1945). The decision by the Newman court was

not “final” until September 12, 1997. Accordingly, the Seventh

Circuit’s decision in Newman is not in “conflict” with the instant

decision in Bryan due to the fact that the Bryan decision was,

by state law, rendered and final prior to the Seventh Circuit's

decision in Newman.

Therefore, the State of Florida Fifth District Court of Appeal

has not “... decided an important federal question in a way

6. Rule 36, Federal Rules of Appellate Procedure.

7. Rules 40 and 41, Federal Rules of Appellate Procedure.

12

that conflicts with the decision of another state court of last

resort or of a United States court of appeals.’”* This is true

because at the time the Bryan decision was rendered pursuant

to state law, the decision in Newman was not final pursuant to

the Federal Rules of Appellate Procedure.

Additionally, this Court should reject certiorari review

because a resolution of the alleged conflict would be a retroactive

application of the law to the decision in Bryan because the

Bryan decision was final pursuant to state law prior to the

judgment in Newman. Therefore, because the instant Bryan

decision is “rendered” and “final” pursuant to applicable state

law, acceptance of the Petition for Writ of Certiorari and the

subsequent rendition of a decision by this Court would be purely

advisory in nature and would not alter or amend the result

reached by the Florida State Courts.

IV.

THE PETITION FOR WRIT OF CERTIORARI FILED

HEREIN IS UNTIMELY.

As previously argued in this Brief in Opposition, the

decision of the State of Florida Fifth District Court of Appeal

was “rendered” on June 25, 1997, the date when the State of

Florida Fifth District Court of Appeal entered its Order of the

Court denying Petitioners’ Motion for Clarification, Rehearing,

Rehearing En Banc, and Certification, and for Ancillary Relief.

(A. 17). Petitioners’ Motion to Stay or Recall Mandate is not

an authorized motion which tolls rendition of the judgment.°

8. Rule 10(b), Rules of the Supreme Court of the United States.

9. The commentary to Rule 9.020, Fla. R. App. Pr., states that

“[mJotions that postpone the date of rendition have been narrowly limited to

prevent deliberate delaying tactics. To postpone rendition the motion must

be timely, authorized, and one of those listed.” A motion to stay or recall

mandate is not listed as an “authorized motion” which would toll rendition

of the judgment.

SEALE SSS SO ee

13

Petitioners Motion to Stay or Recall Mandate postponed only

the ministerial act of the issuance of the court’s mandate, not

the rendition of the judgment. If nothing more than a ministerial

act remains to be done, the decree is regarded as concluding

the case and is immediately reviewable by the Court. Republic

Natural Gas Co. v. State of Oklahoma, 334 U.S. 62 (1948).

The Respondents argued in their Brief on Jurisdiction filed

with the Florida Supreme Court that the Petition for

Discretionary Review was untimely filed more than thirty days

after a rendition of the judgment. Therefore, the Florida

Supreme Court may very well have based its denial of the

Petition for Discretionary Review on state law timeliness

grounds. When the highest court of the state delivers no opinion

and it appears that the judgment might have rested upon non-

federal grounds, the Court ordinarily will not accept certiorari

jurisdiction. Stembridge v. State of Georgia, 343 U.S. 541

(1952).

As a prerequisite to granting the instant Petition for Writ

of Certiorari, this Court should seek a ruling or clarification

from the Florida Supreme Court to determine, under state law,

whether or not a motion to stay or recall mandate is an

“authorized motion” which would toll the time period for

seeking discretionary review. If a motion to stay or recall

mandate does not toll the time period for seeking discretionary

review, then the instant Petition is untimely and this Court lacks

subject matter jurisdiction.'°

The decision of the State of Florida Fifth District Court of

Appeal was rendered on June 25, 1997. The instant Petition

for Writ of Certiorari was untimely filed more than ninety (90)

days after a rendition of the judgment of the State of Florida

Fifth District Court of Appeal.

10. Rule 12, Rules of the Supreme Court of the United States.

14

V.

THE ISSUE PRESENTED IN THIS CAUSE IS NOT

SUFFICIENTLY RIPE FOR REVIEW BY THE COURT.

The Petitioners have noted that

[t]o date, Newman is the first federal appellate court

(and only the second appellate court anywhere,

Bryan being the first) to expressly construe the

FDCPA in the context of dues and assessments for

community associations.

(Pet. 8-9). As noted by the State of Florida Fifth District Court

of Appeal, the FDCPA “.. . has no plain meaning and its intent

is anything but clear.” (A. 2).

This Court should await further clarification and/or

interpretation from other courts of appeal in order that this

Court should benefit from a variety of views, rather than only

the two views presented by Newman and Bryan. Furthermore,

the resolution of the federal question presented by the

Respondents in this Brief in Opposition should be accomplished

legislatively rather than judicially. In fact, according to the

March 1998 issue of the Community Associations Institute

Capitol Connection Newsletter of the Government & Public

Affairs Department, the Community Associations Institute

[hereinafter referred to as “CAI”] has drafted legislative

amendments to the FDCPA in order to clarify the federal

question presented by the Respondents in this Brief in

Opposition. The proposed CAI legislation would exempt

homeowners’ association assessments and condominium

association assessments from the purview of the FDCPA. As

stated in the newsletter, CAI is currently meeting with members

of the United States House and Senate Banking Committees to

15

solicit support for the amendments proposed by CAI. This Court

should await further developments in the case law or additional

legislative clarification prior to judicially legislating the federal

question presented herein.

The previously unbroken line of cases which have squarely

addressed the federal question presented herein, and upon

which the Bryan court relied, dates all the way back to Archer

v. Beasley, No. 90-2576 (CSF), 1991 WL 34889 (D.N.J. March

5, 1991). The Seventh Circuit in Newman was the first court to

reject this unbroken line of federal cases which arose from

Archer. Until Newman, Congress had no federal question to

legislatively clarify because there was no disparity in the

judicial interpretation given to the federal question presented

in the instant cause. Only now, after Newman, is there a need

for Congressional involvement to clarify the federal question.

This Court should await the anticipated legislative reaction to

Newman prior to judicially legislating a resolution of the federal

question presented in the instant cause.

OAR ARN ne cl Et EEE RS late EF NE IE ET AT ENN et Ne Ne

CONCLUSION

This case does not merit review by the Court. For the

foregoing reasons, the Court should deny the Bryans’ Petition

for Writ of Certiorari.

Respectfully submitted,

JAMES E. OLSEN

Counsel of Record

CLAYTON & McCULLOH

Attorneys for Respondents

1065 Maitland Center

Commons Boulevard

Maitland, Florida 32751

(407) 875-2655

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