Whether the litigation privilege bars a
claim against counsel seeking to enforce an association assessment was at issue
at Moise v. Ola Cd’m. Ass’n., Inc., Case No. 3D20-143 (Fla 4th DCA, January 20, 2021).
The decision recited that an attorney signed an association assessment claim of lien as the association’s “attorney and agent.” For his law firm he filed a lien foreclosure action on behalf of the Association against Moise and Law and Administration Services LLC (“LAS”).
Moise counterclaimed against the Association and the attorney, and Moise crossclaimed against LAS asserting that the Association assigned to LAS the Association’s assessment rights, including the right to file suit, that Essig was aware of the agreement, and that awareness included the attorney filing suit on behalf of the Association against LAS for breaching of that agreement.
Moise’s claims included the filing of false documents in violation of Section 817.535 Fla. Stat. and violations of the Florida Consumer Collection Protection Act, Section 559.72(9) Fla. Stat. Essig obtained a dismissal of those two counts on the basis of litigation privilege.
The District Court of Appeal reversed on those two counts holding that the litigation privilege does not apply when it was alleged that the attorney had actual knowledge of an agreement assigning the Association’s right in the assessments, and thus there was no basis to file a claim of lien or the underlying lawsuit, citing to the recent related decisions in 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) (RPPTL.org posting 5/3/2020)
Apart from the privilege issue, if your association client assigned its right to collect and did not retain corresponding rights to enforce, then what authority is there to file a lawsuit, especially if you are seeking to enforce that agreement?
Interestingly there was no issue over the Association’s right to assign the debt. One must wonder if the Association’s assignee LAS was not performing as alleged or whether there was a cash flow crunch militating towards the Association seeking to collect the assessments. This may be another consideration for an association contemplating an assignment of rights.
Michael J. Gelfand
Real Property, Probate and Trust Law Section
of The Florida Bar
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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section
© 2021 Michael J. Gelfand