# Opposition Brief — Bryan v. Clayton

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1374%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1998
- **Citation:** 524 U.S. 933

## Text

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
POR FUGME cok oo kc ckkere bene es nau i
eee OE I ook os hk ss akc whiincenee eee il
eee GE COO 6 kb kes koko ee ee iil
webannehl UE GS SD Ss vo go kc Kok Ree eee ]
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

lil

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

l
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

eee earn nm

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_1374%3A2. Public record. Not legal advice.