All businesses in the state of Florida need to be familiar with Florida’s Consumer Collection Practices Act (“FCCPA”). The FCCPA is found at Sections 559.55-559.785 of the Florida Statutes. The FCCPA is intended to protect consumers and is intentionally unfair to creditors. See §559.552, Fla. Stat. (2019); Kelly v. Duggan, 282 So. 3d 969, 974 (Fla. 1st DCA 2019) (acknowledging the court’s statutory obligation to construe the FCCPA in a manner that is protective of the consumer). The FCCPA allows for consumers to sue creditors for small, technical violations of the statute. Consumer attorneys will use these technical violations as a way to shake down businesses for a settlement. It is a lucrative business for consumer attorneys as defending against FCCPA claims often costs more than making a nominal offer to resolve the FCCPA claim.
Florida’s Consumer Collection Practices Act (FCCPA) versus the federal Fair Debt Collection Practices Act (FDCPA)
The FCCPA is similar to the federal Fair Debt Collections Practices Act (“FDCPA”). Shaffer v. Servis One, Inc., 347 F. Supp. 3d 1039, 1044 (M.D. Fla. 2018) (providing that the FDCPA and the FCCPA are largely similar and the FCCPA is construed in accordance with the FDCPA). Section 559.77 requires that in construing the FCCPA, the court must give “due consideration and great weight” to the interpretations of the Federal Trade Commission and the federal courts interpreting the FDCPA. §559.77(5), Fla. Stat. (2019). Additionally, in the event of any inconsistency between any provision of the FCCPA and the FDCPA, the provision which is more protective of the consumer/debtor shall prevail. §559.552.
However, notwithstanding Section 559.552, the FDCPA and the FCCPA are not identical and a violation of the FDCPA does not automatically constitute a violation of the FCCPA. Kelly v. Duggan, 282 So. 3d 969, 971 (Fla. 1st DCA 2019).
Who must comply with the FCCPA
Section 559.55, Florida Statutes, provides specific definitions that are used throughout the FCCPA. For example, a “creditor” is defined as “any person who offers or extends credit creating a debt or to whom a debt is owed, but does not include any person to the extent that they receive an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.” §559.55(5). A “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.” §559.55(6). Further, a “consumer” or “debtor” means any natural person obligated or allegedly obligated to pay any debt. §559.55(8).
Section 559.72, Florida Statutes, provides 19 separate subsections describing the actions that are prohibited by the statute while collecting a consumer debt. Some of the prohibitions are rather obvious. See §559.72(1) (simulating a law enforcement officer or a representative of any governmental agency); §559.72(2) (using or threatening force or violence in collecting a debt). However, there are other prohibitions that are not as obvious and technical failures will constitute a violation of the statute. See §559.72(17) (communicating with a debtor between the hours of 9:00 p.m. and 8:00 a.m. in the debtor’s time zone). Also, there are other provisions that are easy to violate if a business has not established procedures for handling consumer debts. See §559.72(18) (communicating with a debtor if the person knows that the debtor is represented by an attorney with respect to the debt).
Every business owner that collects consumer debts should be familiar with Section 559.72 and each of the 19 separate subsections prohibiting certain actions while collecting consumer debts.
Consequences for violating the FCCPA
The consequences for violating the FCCPA can be severe. The statute specifically provides for a private cause of action and allows a consumer/debtor to bring a civil lawsuit for violation of Section 559.72. §559.77(1). A civil lawsuit is to be brought in the county where the alleged violator resides or has its principal place of business or in the county where the alleged violation occurred. §559.77(1).
The remedies afforded by Section 559.77 include: 1) actual damages; 2) additional statutory damages up to $1,000.00; 3) punitive damages; 4) injunctions; 5) court costs; and 6) attorneys’ fees. §559.77(2). The statutory damages are capped at $1,000.00 per action and not $1,000.00 per violation. Arianas v. LVNV Funding LLC, 54 F. Supp. 3d 1308, 1310 (M.D. Fla. 2014). Additionally, in order for a consumer to be awarded statutory damages, the court must consider the nature of the defendant’s noncompliance with Section 559.72, the frequency and persistence of the noncompliance, and the extent to which the noncompliance was intentional. §559.77(2). Additionally, business can be held liable in class action lawsuits for FCCPA violations. §559.77(2). If a class action lawsuit is brought, the business can be liable for additional statutory damages of up to $1,000.00 for each named plaintiff and an aggregate award of additional statutory damages up to the lesser of $500,000.00 or 1 percent of the defendant’s net worth for all remaining class members; however, the aggregate award may not provide an individual class member with additional statutory damages in excess of $1,000.00. §559.77(2).
Statute of limitations for FCCPA violations
There is a 2 year statute of limitations for bringing an FCCPA violation. §559.77(4). This 2 year statute of limitations begins on the date of each FCCPA violation. Harrington v. Roundpoint Mortg. Servicing Corp., 163 F. Supp. 3d 1240, 1246-47 (M.D. Fla. 2016).
Defenses to FCCPA violations
Section 559.77(3) provides for a bona fide error defense against liability for FCCPA violations. See §559.77(3). However, the burden shifts to the creditor or debt collector to prove this defense and proving this defense can be challenging. Part 2 of this FCCPA series addresses the bona fide error defense and how creditors and debt collectors can use the bona fide error defense to protect themselves from liability.
All businesses need to be familiar with the FCCPA. Understanding the requirements of the FCCPA and the practices that are prohibited by the FCCPA can save a business significant time and expense in defending against alleged FCCPA violations.
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