What is the Difference Between the FDCPA and the FCCPA?
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Businesses throughout Florida should be aware of consumer statutes that provide remedies to consumers and impose liability to businesses, even for small technical violations. Two important statutes for all businesses to be aware of are the Florida Consumer Collection Practices Act (FCCPA) and the Fair Debt Collection Practices Act (FDCPA). This article discusses the similarities and differences between the FDCPA and the FCCPA.
What is the proper jurisdiction for filing a lawsuit for violation of the FDCPA and the FCCPA?
Lawsuits for violation of the FCCPA are typically brought in Florida state courts. Lawsuits for violation of the FDCPA are typically brought in Federal courts. However, lawsuits may be brought in either forum if the venue and jurisdictional requirements are met.
Specifically, a lawsuit alleging violations of the FDCPA and the FCCPA may be brought in state court in Florida where the venue is appropriate. See 15 U.S.C. § 1692k(d) (“An action to enforce any liability created by [the FDCPA] may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.”) (emphasis added); Clayton v. Bryan, 753 So. 2d 632 (Fla. 5th DCA 2000).
On the other hand, a lawsuit alleging violations of the FDCPA and the FCCPA may be brought in federal court or may be removed to federal court. Federal courts have jurisdiction over FDCPA claims because FDCPA claims arise under the laws of the United States. 28 U.S.C. § 1331. Also, federal courts are given the power to exercise supplemental jurisdiction over state law claims which “form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).
Fair Debt Collection Practices Act
To better understand the Fair Debt Collection Practices Act, I’ve broken it down into three discernable parts:
1) Elements of a cause of action under the FDCPA
The FDCPA prohibits debt collectors from making false or misleading representations and from engaging in various abusive and unfair practices. For example, a debt collector cannot: use violence or make repetitive telephone calls (15 U.S.C. § 1692d); falsely represent “the character, amount, or legal status of any debt” (§ 1692e(2)(A)); or use “unfair or unconscionable means to collect or attempt to collect” a consumer debt (§ 1692f). See Stanley v. Kansas Counselors of Kansas City, No. 14-80284-CIV, 2014 WL 12538974, at *3 (S.D. Fla. Oct. 1, 2014).
To prevail on a claim under the FDCPA, a plaintiff must prove:
- the plaintiff has been the object of collection activity arising from consumer debt;
- the defendant is a “debt collector” as defined by the FDCPA; and
- the defendant has engaged in an act or omission prohibited by the FDCPA
Gause v. Medical Business Consultants, Inc., 424 F. Supp. 3d 1175, 1205 (M.D. Fla. 2019); Bentley v. Bank of Am., N.A., 773 F. Supp. 2d 1367, 1371 (S.D. Fla. 2011) (quoting Kaplan v. Assetcare, Inc., 88 F. Supp. 2d 1355, 1360-61 (S.D. Fla. 2000)).
A “debt collector” is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another… [T]he term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.” A person attempting to collect his or her “own” debt, is not a debt collector under the FDCPA. 15 U.S.C. § 1692a(6). For example, “[a] mortgage servicing company is a debt collector under the FDCPA if it acquired the loan at issue while the loan was in default.” Goodin v. Bank of Am., N.A., 114 F. Supp. 3d 1197, 1204 (M.D. Fla. 2015).
2) Statute of limitations for bringing a violation of the FDCPA
An action to enforce liability under the FDCPA must be brought within one (1) year from the date on which a violation occurs. 15 U.S.C. § 1692k(d).
3) Damages available under the FDCPA
Pursuant to Section 1692k(a) of the United States Code, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of:
- Any actual damage sustained by such person as a result of such failure;
- In the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; and
(3) In the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.
15 U.S.C. § 1692l(a). In determining the amount of liability for statutory damages, the court will consider, among other relevant factors, “the frequency and persistence of noncompliance of the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional.” 15 U.S.C. § 1692k(b).
Actual damages may include recovery for emotional distress. See Alecca v. AMG Managing Partners, LLC, No. 3:13-CV-163-J-39PDB, 2014 WL 2987702, at *2 (M.D. Fla. July 2, 2014) (“Emotional distress must have a severe impact on the sufferer to justify an award of actual damages.”); Goodin, 114 F. Supp. 3d at 1213 (awarding $50,000 in emotional distress damages where plaintiffs suffered prolonged stress, anxiety and sleeplessness for over two and a half years, as a result of the defendant repeatedly threating plaintiff’s with acceleration and foreclosure); Barker v. Tomlinson, No. 8:05-CV-1390-T-27EAJ, 2006 WL 1679645 (M.D. Fla. June 7, 2006) (awarding $10,000 in actual damages where defendant called plaintiff’s work to demand payment for an illegitimate debt, threatened her with arrest if she did not pay, and faxed a request for an arrest warrant to her workplace); Rodriguez v. Florida First Fin. Grp., Inc., No. 6:06-CV-1678-ORL-28DAB, 2009 WL 535980, at *6 (M.D. Fla. Mar. 3, 2009) (awarding $1,000 in actual damages where the plaintiff suffered three panic attacks after the defendant threatened that she could go to jail, threatened to send a deputy to her house, and told her daughter that her mom would be arrested); Beasley v. Anderson, Randolf Price, LLC, No. 16-2007-CA-005308, 2010 WL 6708036 (Fla. 4th Cir. April 19, 2010) (awarded $75,000 for emotional distress where defendant repeatedly called the plaintiff to collect a debt, after receiving a cease and desist letter, and learning that the plaintiff was represented by an attorney).
In conclusion, under the FDCPA, a prevailing plaintiff is entitled to (1) statutory damages up to $1,000; (2) any actual damages; and (3) costs, together with reasonable attorney’s fees. Thus, it is important to be aware of what constitutes a violation of the FDCPA.
Florida Consumer Collection Practices Act (FCCPA)
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. (2021). Additionally, with regard to the relationship between the FCCPA and the FDCPA, Section 559.552 provides: “Nothing in this part shall be construed to limit or restrict the continued applicability of the federal Fair Debt Collection Practices Act to consumer collection practices in this state. This part is in addition to the requirements and regulations of the federal act. In the event of any inconsistency between any provision of this part and any provision of the federal act, the provision which is more protective of the consumer or debtor shall prevail.” §559.552, Fla. Stat. (2021).
1) Elements of a cause of action under the FCCPA
Section 559.72 provides nineteen (19) separate practices that are prohibited under the FCCPA. One example of a prohibited practice is provided in Section 559.72(9), which prohibits a person from attempting or threatening to enforce a debt it knows is not legitimate or asserting some other legal right it knows does not exist. § 559.72(9), Fla. Stat. (2021).
To prevail on a claim under the FCCPA, a plaintiff must prove:
- The defendant is a person within the meaning of the FCCPA;
- The defendant collected or attempted to collect a debt from the plaintiff; and
- The defendant committed an act or omission prohibited by the FCCPA when it collected or attempted to collect the debt
See Gause v. Medical Business Consultants, Inc., 424 F. Supp. 3d 1175, 1203 (M.D. Fla. 2019).
Although the FCCPA parallels the FDCPA, the FCCPA is broader. The prohibited acts under the FDCPA only apply to “debt collectors” as defined in the statute, whereas the prohibited acts under the FCCPA apply to any “person.” Agrelo v. Affinity Mgmt. Servs., LLC, 841 F.3d 944, 952 (11th Cir. 2016) (quoting Schauer v. Gen. Motors Acceptance Corp., 819 So.3d 809 (Fla. 4th DCA 2002) (“Unlike the FDCPA, the FCCPA’s proscriptions are ‘not limited to debt collectors.’”).
To prevail on an FCCPA claim against a person for purportedly attempting to collect or enforce a debt that the person knows is not legitimate, the plaintiff must show that the person:
- Asserted a legal right that did not exist; and
- Had actual knowledge that the right did not exist
Finster v. U.S. Bank Nat’l Ass’n, 245 F. Supp. 3d 1304, 1319 (M.D. Fla. 2017); § 559.72(9), Fla. Stat. (2021).
2) Statute of limitations for bringing a violation of the FCCPA
There is a two (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).
3) Damages available under the FCCPA
Pursuant to Section 559.77(2) of the Florida Statutes, a prevailing plaintiff is entitled to:
- Actual damages;
- Additional statutory damages up to $1,000;
- Court costs;
- Attorney’s fees;
- Injunctive relief; and
- Punitive damages
§559.77(2), Fla. Stat. (2021). Actual damages include emotional distress, as discussed above. In determining whether there is a liability for statutory damages, the court will consider “the nature of the defendant’s noncompliance with Section 559.72 [(the prohibited acts)], the frequency and persistence of the noncompliance, and the extent to which the noncompliance was intentional.” Fla. Stat. § 559.77(2).
For a further in-depth discussion of the FCCPA, please see my two prior articles discussing the FCCPA:
2. Florida’s Consumer Collection Practices Act (FCCPA) Part 2: Implementing Safeguards and Internal Procedures to Establish a Bona Fide Error Defense to Violations of the FCCPA. Florida’s Consumer Collection Practices Act (FCCPA) Part 2: Implementing safeguards and internal procedures to establish a bona fide error defense to violations of the FCCPA
In conclusion, the FDCPA and the FCCPA are similar but contain key differences. Thus, it is important to understand the key differences between the FDCPA and the FCCPA and how to properly defend against such claims.