FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D17-3618

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EDWARD MICHAEL KELLY,

Appellant,

v.

JULIE DUGGAN,

Appellee.

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On appeal from the Circuit Court for Leon County.

John C. Cooper, Judge.

October 23, 2019

M.K. THOMAS, J.

Edward Michael Kelly (“Kelly”) challenges the dismissal of his 

complaint against Julie Duggan (“Duggan”) for alleged violations 

of the Florida Consumer Collection Practices Act (“FCCPA”) in an 

unpaid condominium assessment dispute. Kelly argues the trial 

court erred in dismissing the complaint for failure to state a cause 

of action because condominium assessments qualify as “consumer 

debts” under the FCCPA. We agree and reverse.
2

I. Facts

A dispute arose between Kelly and Chez Sois Condominium 

Association1 regarding disputed past due assessments. Kelly, a 

condominium owner and resident, contends that Duggan, 

President of the Association, violated the FCCPA by locking him 

out of a storage unit, making public derogatory statements about 

him, and disclosing information about his reputation to a vendor.

He further claims he did not receive notice of a board meeting 

during which his common area privileges were considered and 

eventually suspended.

Kelly seeks a declaration that Duggan violated the FCCPA,2

an injunction against future violations, and statutory damages of 

$1,000 and other monetary damages under section 559.77(2), 

Florida Statutes. Duggan moved to dismiss the complaint citing 

Bryan v. Clayton, 698 So. 2d 1236 (Fla. 5th DCA 1997), rev. denied,

707 So. 2d 1123 (Fla. 1998), cert. denied, 524 U.S. 933 (1998), 

which held that the Fair Debt Collection Practices Act (“FDCPA”)

and the FCCPA's definition of “debt” excludes maintenance 

assessments owed to a homeowner's association. Based on Bryan, 

the trial court dismissed the complaint. This appeal followed.

II. Legal Analysis

Because the question of whether condominium assessments 

fall within the purview of the FCCPA as a consumer debt is one of 

statutory interpretation, we review the issue de novo. See Kuria 

v. BMLRW, LLLP, 101 So. 3d 425, 426 (Fla. 1st DCA 2012). The 

question of whether the complaint stated a cause of action is one 

of law, which is also reviewed de novo. Doe v. Baptist Primary 

Care, Inc., 177 So. 3d 669, 674 (Fla. 1st DCA 2015) (quoting Locker 

v. United Pharm. Grp., Inc., 46 So. 3d 1126, 1128 (Fla. 1st DCA 

2010)). 

 1 Chez Sois Homeowner’s Association, Inc., is a condominium 

association operating pursuant to Chapter 718, Florida Statutes.

2 §§ 559.55 - .785, Fla. Stat., (FCCPA). 
3

Both the FCCPA and its federal counterpart, FDCPA, 

regulate consumer debt collection in Florida. See § 559.552, Fla. 

Stat. (2016) (“Nothing in [FCCPA] shall be construed to limit or 

restrict the continued applicability of the federal [FDCPA] to 

consumer collection practices in this state. This part is in addition 

to the requirements and regulations of the federal act.”). Although 

both generally apply to the same conduct, the acts are not 

identical. See Read v. MFP, Inc., 85 So. 3d 1151, 1153 (Fla. 2d 

DCA 2012). A violation of the FDCPA does not automatically 

constitute a violation of the FCCPA. Id. Because the two acts are 

not strictly interchangeable, a plaintiff seeking damages under 

either the FDCPA or the FCCPA must allege and prove a violation 

of the act actually sued upon. Id. Here, Kelly raises only a 

violation of the FCCPA, the state law. 

The FCCPA provides that no person shall engage in certain 

practices while attempting to collect a consumer debt. § 559.72, 

Fla. Stat. (2016). To recover under the FCCPA, a plaintiff must 

first show that the money being collected qualifies as a “consumer 

debt.” Agrelo v. Affinity Mgmt. Servs., LLC, 841 F.3d 944, 950

(11th Cir. 2016). The FCCPA defines “debt” or “consumer debt” as:

any obligation or alleged obligation of a consumer to pay 

money arising out of a transaction in which the money, 

property, insurance, or services which are the subject of 

the transaction are primarily for personal, family, or 

household purposes, whether or not such obligation has 

been reduced to judgment. 

§ 559.55(6), Fla. Stat. This statutory definition has not 

substantively changed since 1993. 

At the time of the trial court’s consideration of Kelly’s 

complaint, the only Florida appellate court decision addressing

this issue supported dismissal. See Bryan, 698 So. 2d at 1237. 

Thus, the trial court was bound by the holding in Bryan. See Pardo 

v. State, 596 So. 2d 665, 666 (Fla. 1992) (“[I]n the absence of 

interdistrict conflict, district court decisions bind all Florida trial 

courts.”). 
4

In Bryan, the Fifth District determined that the definition of 

“consumer debt” is ambiguous and does not clearly encompass a 

homeowner’s maintenance assessment. Id. at 1237. In support, 

the court cited federal precedent declining to label maintenance 

assessments as consumer “debts.” Id. On Motion to Stay or Recall 

Mandate in Bryan, the Fifth District reaffirmed its decision but 

applied different reasoning. Id. at 1237-38. The Bryan court noted 

that a federal decision issued after release of its original opinion 

provided further insight. Id. at 1237. Specifically, in Newman v. 

Boehm, Pearlstein and Bright, Ltd., 119 F.3d 477 (7th Cir. 1997), 

the United States Court of Appeals for the Seventh Circuit

concluded that the assessment imposed upon the owner of a 

condominium unit for his pro rata share of the costs of 

maintenance of the common elements and other common costs of 

condominium unit ownership was a “consumer debt.” The

reasoning in Newman specifically rejected the previous analysis 

followed by Zimmerman v. HBO Affiliate Group, 834 F.2d 1163 (3d 

Cir. 1987), which limited application of the FDCPA to debts 

involving an extension of credit. Although the federal decisions 

cited by the original Bryan opinion followed the analysis in 

Zimmerman, in reaffirming its decision, the Bryan court explained 

that the rejection of the extension of credit analysis3 did not 

determine whether a condominium maintenance assessment was 

a consumer debt. Bryan, 698 So. 2d at 1237. The Fifth District

declared that the purchase of a condominium unit was not a 

“consumer” transaction. Id. at 1237-38. The court was “dubious 

that the question whether an association assessment is a 

‘consumer debt’ subject to the [FDCPA] turns on whether the unit 

was originally purchased for ‘personal, family, or household’ 

purposes.” Id. at 1238.

Since Bryan, case law has supported the argument that the 

purchase of a home is a consumer transaction for purposes of the 

FCCPA. See Bank of Am., N.A. v. Siefker, 201 So. 3d 811, 815 (Fla. 

4th DCA 2016) (holding that mortgage foreclosure action was 

action to collect debt under FCCPA); Brindise v. U.S. Bank Nat’l 

 3 This Court has also rejected the argument that, to constitute 

a debt under the FCCPA, an extension of credit is required. 

Morgan v. Wilkins, 74 So. 3d 179, 182 (Fla. 1st DCA 2011). 
5

Ass’n, 183 So. 3d 1215 (Fla. 2d DCA 2016) (assuming that a 

mortgage foreclosure suit could be considered collection of a 

consumer debt); Cole v. Echevarria, McCalla, Raymer, Barrett & 

Frappier, 965 So. 2d 1228 (Fla. 1st DCA 2007) (affirming 

certification of class of those reinstating mortgages in action 

alleging violations of FCCPA and FDCPA).

Although not binding, federal court decisions are given great 

weight when construing the FCCPA. See Dish Network Serv., 

L.L.C. v. Myers, 87 So. 3d 72, 77 (Fla. 2d DCA 2012). Since Bryan, 

multiple federal courts have weighed in on the parameters of the 

FCCPA’s “consumer debt” definition. Specifically, in Wright v. 

Bush Ross, P.A., No. 8:07-cv-1885-T-23MAP, 2008 WL 190466 

(M.D. Fla. Jan. 18, 2008), the federal court condemned the holding 

in Bryan, specified that the alleged wrongdoer under the FCCPA 

is not required to be a “debt collector,” and that Bryan's

interpretation of the FCCPA relied partly on the persuasive 

authority of early federal district court decisions later reversed or 

disapproved. Id. In reaching its decision, the federal district court 

in Wright noted, “federal courts . . . consistently hold that 

condominium assessments and homeowners' association fees are 

‘debts’ under the FDCPA.’’ Id. at *2. 

In Agrelo, the United States Court of Appeals for the Eleventh

Circuit addressed the identical issue before us. 841 F.3d at 946. 

Agrelo held condominium assessment fees were consumer debts.

Id. at 952. Specifically, “HOA assessments stem directly from the 

consensual home-purchase transaction. When a home buyer must 

contractually agree to pay homeowners’ assessments in order to 

purchase a home, that home buyer takes on ‘debts’ for those 

assessments under the FCCPA.” Id. at 951; see also Ladick v. Van 

Gemert, 146 F.3d 1205, 1205 (10th Cir. 1998) (holding that 

condominium assessments are debts subject to the FDCPA); Kelly 

v. Dunlap & Shipman, P.A., No. 4:16cv709-RH/CAS, 2017 WL 

528487, *1 (N.D. Fla. Feb. 7, 2017) (holding that condominium 

dues were consumer debt under the FDCPA); Malowney v. 

Bush/Ross, No. 8:09-CV-1189-T-30TGW, 2009 WL 3806161, *4

(M.D. Fla. Nov. 12, 2009) (“[E]xtending the FCCPA's protections to 

people owing homeowners association assessments is more 

protective than excluding them from the protections, casting doubt 

on the viability of the Bryan decision as it applies to the FCCPA.”);
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Williams v. Edelman, 408 F. Supp. 2d 1261, 1266–68 (S.D. Fla.

2005) (holding condominium assessments are “debts” under the 

FDCPA); Agan v. Katzman & Korr, P.A., No. 03–62145-CIV, 2004 

WL 555257, *1 (S.D. Fla. Mar. 16, 2004) (holding condominium 

assessments are “debts” under the FDCPA); Fuller v. Becker &

Poliakoff, P.A., 192 F. Supp. 2d 1361, 1368 (M.D. Fla. 2002)

(holding maintenance assessments that the HOA sought to collect 

in Defendants' letters are debts subject to the FDCPA).4

We respectfully disagree with the Fifth District that the 

FCCPA’s definition of debt has “no plain meaning and its intent is 

anything but crystal clear.” Bryan, 698 So. 2d at 1237. To apply, 

the payment obligation or “debt” must arise (1) from a consumer 

out of a (2) money, property, insurance, or services transaction 

which is (3) primarily for personal, family, or household purposes. 

See Agrelo, 841 F.3d at 950. A condominium assessment arises 

from a transaction to purchase property—a condominium. See § 

718.1256, Fla. Stat. (2017) (classifying condominiums as 

residential property). The purchase of a condominium subjects the 

owners to a declaration of covenants, which statutorily must 

include an obligation to pay assessments imposed by the 

association. See § 718.104(4)(g), Fla. Stat. (2017) (requiring a 

declaration to include the shares of liability for common expenses); 

§ 718.115(2), Fla. Stat. (2017) (providing that funds for payment of 

common expenses be collected by assessments on units in 

percentages set forth in condominium declaration). Even if the 

owner pays the assessments at a later time, the owner incurred 

the obligation to pay during the purchase transaction. See § 

718.116(1)(a), Fla. Stat. (2017) (providing that condo owner, 

regardless of how acquired title, is liable for all assessments when 

they come due). 

 4 Based on the same facts, Kelly also sued counsel for Chez 

Sois in the United States District Court for the Northern District 

of Florida alleging violation of the FDCPA relating to its attempts 

to recover delinquent condominium assessments. See Kelly v. 

Dunlap & Shipman, P.A., No. 4:16cv709-RH/CAS, 2017 WL 

528487, *1 (N.D. Fla. Feb. 2, 2017). In denying a motion to dismiss, 

the Northern District’s order detailed, “The defendant first asserts 

that the obligation to pay condominium dues is not a consumer 

debt covered by the statute. The better view is to the contrary.” Id.
7

The maintenance assessment obligation arises from a 

governing contract. The central question is whether a contractual 

obligation to pay maintenance assessments creates a “debt” under 

the FCCPA. We answer the question in the affirmative. The 

assessments are grounded in the consensual home-purchase 

transaction. When a home buyer must contractually agree to pay 

homeowners’ or maintenance assessments as a prerequisite to 

purchase, that home buyer takes on “debts” for those assessments 

under the FCCPA. By entering into the contract or governing 

documents, homeowners agree that a failure to comply with 

assessment requirements could result in a fine that would be 

deemed an individual assessment. Thus, the obligation to pay an 

assessment for a claimed breach of the contract arose out of an 

underlying consumer transaction.

Application of the FCCPA’s protections to condominium 

associations is supported by case law and the rules of statutory 

construction. This application is consistent with our statutory 

obligation to construe the FCCPA in a manner that is protective of 

the consumer. See § 559.552, Fla. Stat. Accordingly, we hold that 

condominium assessments are consumer debts under the FCCPA 

such that a consumer may seek civil remedies for violations 

thereof. In so holding, we certify conflict with Bryan, reverse the 

dismissal of Kelly’s complaint, and remand for further 

proceedings. 

REVERSED and REMANDED.

RAY, C.J., and LEWIS, J., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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David H. Abrams of the Law Office of David H. Abrams, 

Tallahassee, for Appellant.
8

C. Todd Owen and William T. Jackson of Dennis, Jackson, Martin 

& Fontela, P.A., Tallahassee, for Appellee.