When it comes to collecting a consumer debt, individuals, businesses and attorneys’ must be familiar with the Florida Consumer Collection Practices Act (“FCCPA”) and its federal counterpart, the Fair Debt Collection Practices Act (“FDCPA”). Like the FDCPA, the FCCPA protects consumers from abusive, harassing, and unfair debt collection practices. This post addresses Florida federal court case law as to damages for violations of the FDCPA and FCCPA, as well as recent changes to the FCCPA, effective October 1, 2014.
To begin, in the event of a conflict between the FCCPA and FDCPA, the provision which is most protective of the consumer will be utilized. See 15 U.S.C.A. § 1692(n); Fla. Stat. § 559.552. Florida law provides that, in addressing civil remedies under the FCCPA, “due consideration and great weight shall be given to the interpretation of the Federal Trade Commission and the federal courts relating to the [FDCPA].” Thus, while Florida law does not mandate that its state courts obey federal court precedent, Florida courts will likely look to federal precedent for guidance. Dish Network Serv. L.L.C. v. Meyers, 87 So. 3d 72 (Fla. 2nd DCA 2012).
Attorneys fall within the scope of both the FCCPA and FDCPA when they are operating as consumer debt collectors. Under the FDCPA, a debt collector is essentially any person in any business, the principal purpose of which is the collection of any debts, or who regularly collects debts owed. Under the FCCPA, debt collectors are defined more broadly as “any person” in any business or any person who regularly collects or attempts to collect debts owed or due. Fla. Stat. § 559.55(7). Consumer debt is defined as a personal debt that arises 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.” Fla. Stat. § 559.55(6-8).
Attorneys operating as a debt collectors and communicating with debtors must provide a full disclosure statement and a validation notice which is triggered by the initial communication with the debtor. This warning requires attorneys to: (1) disclose you are a debt collector attempting to collect a debt, and (2) that any information obtained will be used for that purpose. Fla. Stat. § 559.72.
Unless the following information is contained in the initial communication or the consumer has paid the debt, the requisite validation notice must include a written notice containing:
- amount of debt;
- name of creditor;
- explanation of the required 30 day dispute period, notifying the consumer that otherwise the debt presumed valid;
- verification of debt if challenged; and
- if requested within the 30 day dispute period, provide name and address of original creditor (if different from current).
See 15 U.S.C.A. § 1692(g). There are also numerous prohibitions to prevent false, deceptive, misleading or harassing communications with debtors. For an overview of those rules, please refer to Jimerson Birr blog post here.
Revisions to the FCCPA:
The 2014 Florida Legislative session provided a number of changes to the FCCPA. These changes are effective October 1, 2014. Most of these changes pertain to agencies required to be registered as collection agencies. The main sections which underwent alterations include: general definitions; registration process for consumer collection agencies; powers and duties of the Financial Services Commission and office; process of examinations and investigations for violations, requirements of registrants; enforcement action for out-of-state debt collectors; and grounds for disciplinary actions for registered persons. See C.S.C.S.H.B. No. 413. As for attorneys who engage in debt collections, those requirements generally stayed the same under the revised FCCPA.
Florida Federal Court Precedent as to Damages:
One of the developing areas in Florida debt collection law involves the award of damages. The FDCPA limits consumer recovery to $1,000 per case, while precedent from Florida federal courts suggests damages in excess of $1,000 are not out of the question. The federal case of Beeders v. Gulf Coast Collection Bureau exemplifies this interpretation.
In Beeders v. Gulf Coast Collection Bureau, a consumer sought relief under the FCCPA and FDCPA for certain telephone calls made to the consumer. Originally, the issue was whether the consumer could maintain ten individual cases against the defendant (one for each phone call) or whether the ten separate cases should be joined in one action.
The Beeders court acknowledged the FCCPA is limited to $1,000 per defendant per adverse adjudication, but, interpreted the term adjudication to mean a final determination or judgment. The court concluded that the determination of each count constituted an adjudication. Therefore, each individual telephone call made in violation of the FCCPA could result in an award up to $1,000 for each violation.
The FDCPA and FCCPA are creatures of statute and must be strictly adhered to by those attempting to collect consumer debts. It is advisable to consult and attorney should you have any questions as to whether you are considered to be a debt collector and your obligations in connection with the FDCPA and FCCPA.
James O. Birr, III, Esq.