Background
Cristina Serrano sued Mombrun Law, PLLC, and Agnes Mombrun Geter under section 559.72(9), Florida Statutes (2025), after receiving a demand letter concerning two alleged debts arising from an oral agreement with John Huszar. The letter stated that if Serrano did not pay within thirty days, Huszar would pursue legal action to recover the amounts owed “plus attorney’s fees and costs.”
Serrano alleged that the fee language asserted a legal right the debt collector knew did not exist because no contract or statute authorized attorney’s fees in an ordinary collection action. The appellees argued that fees could become available under section 57.105 if Serrano asserted a frivolous defense in later litigation. The county court accepted that argument and dismissed Serrano’s amended complaint with prejudice.
The Court’s Holding
The Second District Court of Appeal affirmed the dismissal in a per curiam decision. The majority supplied no reasoning, so the opinion establishes only that the judgment dismissing Serrano’s amended complaint with prejudice was affirmed.
Judges Northcutt and Labrit concurred. Judge Atkinson dissented, reasoning that section 57.105 did not create a right to fees when the demand letter was sent because no lawsuit, defense, or safe-harbor motion then existed. In his view, Serrano adequately alleged that the letter asserted a nonexistent legal right in violation of section 559.72(9), and the trial court should not have accepted a later, hypothetical sanctions theory as grounds for dismissal.
Key Takeaways
- The court affirmed with no majority analysis, leaving the precise rationale for its decision unstated.
- The affirmed judgment dismissed with prejudice a claim alleging that a collection letter improperly threatened recovery of attorney’s fees.
- The dissent would have allowed the claim to proceed because any possible future entitlement to sanctions under section 57.105 did not establish an existing right to fees when the letter was sent.
Why It Matters
The decision leaves intact a dismissal based on a collection letter’s reference to attorney’s fees that might become recoverable only after later litigation conduct. Because the majority issued only a per curiam affirmance, practitioners should not treat the dissent’s detailed statutory analysis—or the trial court’s rationale—as an express holding adopted by the appellate majority.
The dissent nevertheless identifies a recurring issue for Florida debt collectors and consumer lawyers: whether section 559.72(9) permits a demand letter to threaten fees based solely on a right that could arise if future litigation becomes sanctionable.