vs. ) CASE NO. 80-2340
HOMER L. (GLENN) WADE and ) AMERICAN COLLECTION SYSTEMS, ) INC., )
Respondents. 1/ )
Pursuant to an amended notice of hearing filed herein on May 12, 1981, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held public hearings herein on June 23, 1981, in Fort Lauderdale, Florida.
For Petitioner: James N. Watson, Esquire
Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
For Respondent: Homer L. (Glenn) Wade, pro se
Ft. Lauderdale, Florida 33308 ISSUE
Whether or not Respondents' certificate of qualification (license) should he suspended, revoked or other disciplinary action taken based on allegations set forth in the Notices to Show Cause filed herein.
Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found.
Respondent, Homer L. (Glenn) Wade, is the holder of certificate No. CA
453 B, which has been issued pursuant to Chapter 559, Florida Statutes. Respondent, Wade, has used that certificate to qualify American Collection Systems, Inc., doing business as American Collection Systems, with its principal offices located at 3011 Northeast 44th Street in Fort Lauderdale. (Petitioner's Composite Exhibit No. 1.)
By two, five count Notices to Show Cause filed herein on November 19, 1980, Petitioner seeks to suspend or revoke Respondent, Wade's certificate of qualification for reasons which will be set forth hereinafter in detail. 2/
Count II of the Notices allege, in pertinent art, that on or about May 22, 1980, Respondent and/or its agent materially misrepresented a consumer claim from a debtor, Ms. Joyce Kilgore, by misrepresenting the amount owed, in violation of Chapter 559.73(3), Florida Statutes.
The deposition of Joyce Kilgore, 3/ taken on April 20, 1981, reveals that Ms. Kilgore, a resident of Atlanta, Georgia, ordered one set of three (3) mint mark covers of the Susan Anthony Dollar from Fleetwood, a coin collection agency in Cheyenne, Wyoming. Ms. Kilgore was billed $28.50 plus a $2.00 interest charge. Ms. Kilgore cancelled the order prior to receiving the coin collection and subsequently received a credit for the receipt of the cancellation notice.
The remaining three (3) allegations set forth in the Notices to Show Cause allege, in pertinent part, that Respondent, Homer L. Glenn Wade, and/or its accent, communicated to debtor Richard Pruss, which gave the appearance of being authorized, issued or approved by a government, governmental agency or attorney at law, when it was not, in violation of Chapter 559.72(10), Florida Statutes: that Respondent and/or its agent engaged in a material misrepresentation by misrepresenting the amount owed in its attempt to collect a consumer claim from debtor Richard Pruss, in violation of Chapter 559.73(3), Florida Statutes, and finally, that Respondent and/or its agent, on September 22, 1980, communicated or threatened to communicate with debtor Richard Pruss' employer, prior to obtaining final judgement against debtor Pruss, and without securing Pruss' permission to do so in writing, in violation of Chapter 559.72(4), Florida Statutes.
The facts surrounding these allegations are that on June 26, 1980, Richard truss took his dog to the Boca West Animal Clinic. The treating veterinarian, Art Malernee, Doctor of Veterinary Medicine (D.V.D.) performed a series of laboratory and symptomatic screenings to determine from what Messr. Pruss' dog was suffering. Within the next day, the treating veterinarian, advised Messr. Pruss that his dog was apparently poisoned and that it was best to "put the dog to sleep." Messr. Pruss agreed to euthanasia and cremation and was presented a bill for $306.50 the following day. Messr. Pruss considered the bill excessive, so advised Dr. Malernee's receptionist and told her that he could only make a partial payment. Pruss also presented the receptionist with a check which along with she was told (by Pruss) to delay presenting for payment until he obtained sufficient funds to cover that check. The following day, Messr. Pruss attempted, without success, to negotiate and pay a lesser amount than the balance due to Dr. Malernee. Messr. Pruss then stopped payment on the check, which was drawn in the amount of $231.40 and he (Pruss) has not paid the remaining balance. The bill was referred to Respondent for collection.
On approximately July 24, 1980, Respondent's agent, a Mr. Bob Stoudt, telephoned Respondent's wife to inquire about the bill. Mrs. Pruss, according to Messr. Pruss, was advised that she should be at Respondent's office by 7:00 P.M., inasmuch as he would "hate to see Messr. Pruss arrested or to know that his employer had learned of this unpaid obligation." Debtor Pruss subsequently received the demands from Respondent requesting payment of $242.50 which represented a fee of an approximate $10.00 service or interest charge to satisfy the alleged unpaid claim. (See Petitioner's Exhibit No. 4.) Messr. Pruss also received a collection notice and a separate notice which basically quoted
Florida's fraudulent check law showing American Collection Systems as the sender of that notice. (Petitioner's Composite Exhibit No. 3.)
On September 22, 1980, debtor Pruss received a letter bearing the same date from Respondent, which appeared to show that a copy of that letter was sent to Pruss' employer (Publix Super Market in Sunrise, Florida), marked to the attention of the store manager. See Petitioner's Exhibit No. 4. Thereafter, debtor Pruss advised his employer of the outstanding obligation.
Debtor Pruss admitted that he initially agreed to pay a portion of the outstanding bill but on September 2, 1980, refused to pay based on the telephone call(s) that he had received at work (allegedly three or four times including the phone calls to his wife at his residence.)
Respondent's Defense
Respondent generally denied the allegations set forth herein in the Notices to Show Cause. Respondent countered on the basis that he signed no document or authorized any document to be signed to the effect that he was an attorney, nor did the form letter which, in pertinent part, recited the fraudulent check law, purport to be, in any manner a judicial document. Respondent contends that there was no misrepresentation as to the amount owed and that the law authorized a service charge of five percent (5 percent) which is sanctioned per Chapter 559, Florida Statutes. Finally, Respondent denies that any threat was made or that any attempt was made to communicate with debtor Pruss' employer. Respondent points out that there was no future action which is contemplated in a threat inasmuch as the letter here complained of had already been sent and further that it was not written or otherwise approved by Respondent. Additionally, Respondent points out that in any event, the letter was simply a request for assistance from Pruss' employer to adjust a debt and that no disciplinary action was taken against Pruss by his employer. In support of his position as to the fact that the amount claimed to be due by the debtor (Pruss) was in fact owed, Respondent pointed out that Pruss tendered a check in the amount claimed to Dr. Malernee for satisfaction of the obligation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to these actions. Chapter 120.57(1), Florida Statutes.
The authority of the Petitioner is derived from Chapter 559, Florida Statutes (1979).
The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.
During times material, Respondent has been issued a certificate of qualification to operate a collection agency by Petitioner pursuant to Chapter 559, Florida Statutes (1979). As such, Petitioner is subject to the guides of Chapter 559, Florida Statutes (1979).
Chapter 559.7(3), Florida Statutes, provides in pertinent part:
(3) No collection agency . . . shall engage in any material misrepresentation
in soliciting claims from creditors or
in collecting consumer claims from debtors.
Petitioner contends that Respondent and/or its agents materially misrepresented a claim by misrepresenting an amount owed by Ms. Joyce Kilgore in violation of the above-referenced Chapter, i.e., Section 559.73(3), Florida Statutes. An examination of the testimony of Ms. Kilgore, taken by deposition, indicates that Ms. Kilgore was sent a claim for $28.50 plus a $2.00 interest or service fee assessment by Respondent, Respondent contends that the $2.00 fee was a permissible fee authorized by Chapter 559, Florida Statutes. Even assuming that the subject claim for payment of $28.50 was a legitimate claim, which under the circumstances is very questionable in view of the documentary evidence which indicates that Ms. Kilgore cancelled her order and had received a credit for the ordered goods prior to the time that Respondent was called upon to service the Fleetwood account, Chapter 559.74(5), Florida Statutes, prohibits a collection agency from assessing a collection fee to a debtor absent a showing, by the evidence of indebtedness, to the contrary. No such showing was made herein by Respondent. Accordingly, by Respondent's addition of a fee over and above the amount charged by the creditor, Respondent violated Chapter 559.73(3), Florida Statutes. It is so recommended.
Chapter 559.72(10), Florida Statutes, provides in pertinent part that in collecting consumer claims, no person shall:
(10) Use a communication which simulates in any manner legal or judicial process or which gives the appearance of being authorized, issued or approved by a government, governmental agency or attorney-at-law when it is not.
Based on the evidence introduced herein, insufficient evidence was offered to establish that the Respondent violated this provision as alleged.
For reasons stated in Paragraph 5 above, Respondent's addition of a fee to the claim, in servicing the Pruss account, amounts to a misrepresentation of the amount owed in violation of Chapter 559.73(3), Florida Statutes. 4/
Chapter 559.72(4), Florida Statutes, provides in pertinent part that a collection agency is prohibited from communicating, or threatening to communicate with a debtor's employer prior to judgment without the debtor's written permission. The record herein is void of any direct evidence which would establish that Respondent communicated with the debtor's (Pruss) employer within the meaning of Chapter 559.72(4), Florida Statutes. Absent such evidence, insufficient evidence was offered to establish, or otherwise support, a finding that Respondent violated the provisions of Chapter 559.72(4), Florida Statutes, as alleged.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That Respondent's certificate of qualification and license be suspended for a period of thirty (30) days; said suspension commencing 30 days from the Division's final order.
RECOMMENDED this 22nd day of September, 1981, in Tallahassee, Florida.
JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building
Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 1981.
1/ The cases were consolidated for hearing based on common and/or similar facts and issues of the allegations cited in the Notices to Show Cause filed herein.
Both Notices alleged identical basis for the intended disciplinary sanctions.
2/ At the outset of the hearing, Petitioner voluntarily dismissed Count I of the Notices to Show Cause.
3/ Ms. Kilgore has been a resident of Atlanta, Georgia, for the past twenty- five (25) years. She was scheduled to be a witness in the subject hearing.
Since her residence is more than one hundred (100) miles from the place of hearing, her deposition
was accepted in lieu of her live testimony.
4/ Respondent's conduct was also considered within the provisions of Chapter 687.01, Florida Statutes, in mind. Based on the absence of any record evidence by Respondent which would permit the collection of an amount larger than the creditors forwarded consumer claim, it can only be concluded that Respondent's conduct in this regard is proscribed.
James N. Watson, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32301
Homer L. (Glenn) Wade 3011 N. E. 44th Street
Ft. Lauderdale, Florida 33300
