The Second District Court of Appeal of Florida has affirmed the dismissal of a Florida Consumer Collection Practices Act claim brought over a demand letter that warned of attorney’s fees, leaving in place a trial court’s conclusion that the letter did not assert a legal right the sender knew did not exist.
The background: In March 2025, a law firm sent the plaintiff a demand letter on behalf of an individual client over two alleged debts stemming from an alleged oral agreement between the two of them to split their wedding costs.
- The letter alleged the plaintiff made several initial payments and then stopped paying a balance she had incurred on the client’s credit card. It quoted a text message in which she said she would no longer be paying because it “no longer aligns with [her] life,” but asserted that “[d]espite this, [her] agreement remains valid.”
- The letter closed with a warning: “If payment is not received within 30 days from the date of this letter, [the client] will have no choice but to pursue legal action to recover the amounts owed, plus attorney’s fees and costs.”
- The plaintiff sued in Hillsborough County Court accusing the defendant of collecting a consumer debt while asserting “the existence of some . . . legal right when such person knows that the right does not exist.” Her theory was that no contract or statute entitled the client to fees in an ordinary collection action.
- The defendants moved to dismiss, arguing the letter referenced fees that might become available later under section 57.105(1) if the plaintiff raised a frivolous defense. The trial court agreed and dismissed the amended complaint with prejudice.
The ruling: Two judges affirmed the ruling without writing an opinion. The third judge dissented, arguing the trial court accepted a “post hoc rationalization for threatening to assert a right to attorney’s fees that did not exist at the time of [the] demand letter.”
- The section 57.105 contingency the defense relied on “was not mentioned in the demand letter, which conspicuously lacks any reference to section 57.105(1),” Atkinson wrote. The only stated condition was nonpayment.
- He warned the defense theory would swallow the statute: “all threats are by nature something that will happen in the future,” and “by the appellees’ rationale, no demand letter would violate section 559.72(9) because all such letters make only contingent threats. The pertinent question is on what the threat is made contingent.”
- When the letter went out, he added, “no lawsuit had been filed, no defense had been asserted, and no safe harbor motion had been served.”
- He called the argument that any defense would be frivolous “impermissibly presumptuous,” noting the plaintiff might have defaulted, confessed judgment, or disputed only the amount.
- Applying the least sophisticated consumer standard, he concluded the language signaled fees would be sought “without any preconditions.”
