Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-5328 _____________________________ YASHAR KORKMAS, Appellant/Cross-Appellee, v. ONYX CREATIVE GROUP & NADIA KAMAL, Appellees/Cross-Appellants. _____________________________ On appeal from the Circuit Court for Leon County. Karen Gievers, Judge. June 22, 2020 WINOKUR, J. Yashar Korkmas appeals the trial court’s judgment entered in his suit against Onyx Creative Group and Nadia Kamal. Korkmas argues that the court erred when it ruled that he violated the Florida Consumer Collection Practices Act (FCCPA) when he attempted to collect a debt from Kamal. 1 Korkmas also contends that the trial court erred when it determined that he was not entitled to late fees or interest on the debt. 1 Sections 559.55–559.785 constitute the “Florida Consumer Collection Practices Act.” § 559.551, Fla. Stat. We reverse the trial court’s ruling that the agreement was a “debt” under FCCPA and that FCCPA remedies apply. We affirm the court’s decision that Korkmas is not entitled to interest on the loan; however, we reverse the ruling that he was not entitled to late fees. 2 I. Korkmas agreed to loan Kamal $25,000 for Kamal’s business venture, Onyx Creative Group. Korkmas and Kamal entered into a written agreement, the Note, which attempted to set forth the parameters of the loan. Kamal drafted the Note. Following non- payment of the loan, Korkmas filed suit, seeking the principal of $25,000, interest, and late fees. Kamal counterclaimed, arguing that Korkmas violated FCCPA because he harassed her in his attempt to collect the debt. The trial court found that Kamal did borrow $25,000 from Korkmas and had not repaid any of the principal. However, the court also ruled that Korkmas violated FCCPA in his attempts to collect the debt, thereby “entitling [Kamal] to relief pursuant to the civil remedies provision of [FCCPA], including the $1,000 statutory damages, plus [Kamal’s] attorney’s fees and costs . . . .” Additionally, the court held that Korkmas could not collect any interest on the loan, nor was Korkmas entitled to any late fees. II. A. Applicability of the FCCPA The FCCPA prohibits certain actions in collecting debts and permits a debtor to collect certain penalties against a person engaging in these prohibited practices. See § 559.72 & 559.77, Fla. Stat. The trial court found that Korkmas engaged in these practices. 2 We reject Korkmas’ claim that the court erred in denying his motion for continuance. We also reject Kamal’s cross-appeal. The rulings on which those issues are based are affirmed without further comment. 2 For FCCPA to apply to a transaction, the obligation must meet the definition of “debt” under section 559.55(6), which states: “Debt” or “consumer debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. (Emphasis added.) Whether a transaction is a “debt” under section 559.55(6) depends on what gave rise to the obligation. In addition, the “subject of the transaction” must be “primarily for personal, family, or household purposes.” § 559.55(6), Fla. Stat. This Court considers questions of statutory interpretation de novo. State, Dep’t of Health v. Bayfront HMA Med. Ctr., LLC, 236 So. 3d 466, 471 (Fla. 1st DCA 2018). The trial court determined that FCCPA applied to the transaction between Korkmas and Kamal because “the funds were used primarily for . . . Kamal’s personal use.” (Emphasis added.) The trial court’s focus was misplaced. Again, the FCCPA applies to an obligation based on what gave rise to the obligation, not what the debtor eventually used the loan for. It is undisputed that Korkmas provided the loan to Kamal for her business venture—Onyx Creative Group—as opposed to some “personal, family, or household purpose[].” Accordingly, “the subject of the transaction” was not for “personal, family, or household purposes.” Instead, the “subject of the transaction” was to fund Onyx Creative Group—a business. Consequently, applying FCCPA to the current cause of action—including any of FCCPA’s fines or penalties—was erroneous. B. Interest and Late Fees “A trial court’s interpretation of a contract is a matter of law and is thus subject to de novo review.” Rose v. Steigleman, 32 So. 3d 644, 645 (Fla. 1st DCA 2010). “Contracts are to be construed in 3 accordance with the plain meaning of the words contained therein.” Ferreira v. Home Depot/Sedgwick CMS, 12 So. 3d 866, 868 (Fla. 1st DCA 2009). “The parties are bound by the unambiguous terms of their contract.” Chrysler Realty Corp. v. Davis, 877 So. 2d 903, 906 (Fla. 4th DCA 2004). We affirm the trial court’s finding regarding Korkmas’ entitlement to interest. However, the lower court erred by determining that Korkmas was not entitled to late fees because no due date could be determined for them to apply. “[W]hen an ambiguity [in a contract] exists and the parties’ intent can be resolved only by resort to conflicting extrinsic evidence, a question of fact is presented, which must be resolved by the trier of fact.” Wagner v. Wagner, 885 So. 2d 488, 492 (Fla. 1st DCA 2004). Moreover, “[i]nsofar as contract language may be deemed ambiguous, Florida law dictates that any ambiguity will be interpreted against the party who selected the language.” First Texas Sav. Ass’n v. Comprop Inv. Properties Ltd., 752 F. Supp. 1568, 1571 (M.D. Fla. 1990) (citing Consol. Dev. & Eng’g Corp. v. Ortega Co., 158 So. 94, 96 (Fla. 1933)). The Note between Korkmas and Kamal references two different due dates, after which a 5% late fee would be added to the principal. Because the Note lists two different due dates, we agree with the trial court that the due date for repayment of the loan is ambiguous and cannot be resolved on the face of the Note. However, even after hearing extrinsic evidence in an attempt to resolve the ambiguity, the trial court simply held that the ambiguity could not be resolved, and therefore, that Korkmas was not entitled to a late fee. We disagree. As stated, we interpret ambiguities in a contract against the party who selected the language. Kamal, as the drafter of the Note, bears the burden of the ambiguity. As such, the fact that the agreement is ambiguous regarding Korkmas’ entitlement to late fees is not a sufficient reason to deny late fees to him. 3 3 We express no final opinion on whether Korkmas is otherwise entitled to late fees, or on the amount of fees owed. We 4 III. It was error to define the obligation under the loan as “debt” under FCCPA. Therefore, because FCCPA is inapplicable, we reverse all penalties, fines, and fees associated with Korkmas’ purported violation of FCCPA. In addition, it was error to determine that the Note’s ambiguous due date prevented the lower court from selecting a due date altogether. Therefore, upon remand, the lower court must determine Korkmas’ entitlement to late fees. 4 AFFIRMED in part, REVERSED in part and REMANDED. B.L. THOMAS and OSTERHAUS, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Ronald Newlin of The Newlin Law Firm, LLC, Tallahassee, for Appellant/Cross-Appellee. Daniel W. Hartman of Hartman Law Firm, P.A., Tallahassee, for Appellees/Cross-Appellants. find only that the trial court’s reason for denying late fees was erroneous. 4 We note that Korkmas’ entitlement to late fees is separate from his entitlement to interest, which the trial court correctly denied. 5