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Florida Third DCA rules that litigation privilege does not apply to condo assessment collection activity knowingly undertaken without legal authority

On January 20, 2021, in Moise v. Ola Condominium Association, Inc. et al., No. 3D20-143, the Florida Third DCA addressed the issue whether Florida’s common law litigation privilege applies if the assertion of the privilege relates to purported legal actions for which the alleged privilege holder had no authority.  The appellee condo association had allegedly assigned its right to pursue condominium assessments against a unit owner to a third party in 2016 and then in 2018 attempted to collect the delinquent assessments itself by having an attorney send collection demands to the owner.  After the association subsequently filed a condominium lien foreclosure action, the unit owner counterclaimed that the association had violated Fla. Stat. §817.535 by unlawfully filing a false document (the September 2018 claim of lien) as well as Fla. Stat. 559.72(9), the Florida Consumer Collection Practices Act.  The basis for these counterclaims was that the condo association, by virtue of its assignment of its foreclosure rights to a third party, had no authority to engage in its collection activity. The trial court granted the association’s motion to dismiss the counterclaims on the basis that the actions of the association fell within the protected ambit of Florida’s litigation privilege.  The Third DCA disagreed, noting that it had ruled to the contrary in a very similar case, Rhonda Hollander, P.A. v. Fortunato, 45 Fla. L. Weekly D825 (Fla. 3d DCA Apr. 8, 2020), and Rhonda Hollander, P.A. v. Adrien, 45 Fla. L. Weekly D825 (Fla. 3d DCA Apr. 8, 2020).  In Fortunato, the Third DCAruled that the litigation privileged did not apply to assessment collection efforts that were conducted notwithstanding the knowledge that the Declaration which authorized the assessments had expired and was unenforceable. Finding the litigation privilege inapplicable in this case, the Third DCA reversed the order dismissing the counterclaim.

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