Defending Against Alleged Violations of the FCCPA and the FRLTA
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Over the past few years, I have seen a rising trend in consumer lawsuits alleging violations of the FCCPA relating to the residential landlord-tenant relationship. These lawsuits may also allege a violation of the Florida Residential Landlord Tenant Act (FRLTA). Oftentimes, the alleged violation is based upon a 3-day notice sent by the landlord or the management company.
Many times, these lawsuits are brought as a class action. The typical targets of these class actions may include apartment complexes, large residential landlords, and property management companies. The fact that lawsuits are brought as a class action increases the risk and exposure for the landlord or property management company. This article seeks to explore this trend as well as general defenses to these claims.
Section 559.72(9), Florida Statutes
The most commonly alleged violation of the FCCPA that I have seen relating to the landlord-tenant relationship is based upon Section 559.72(9), Florida Statutes. Section 559.72(9), provides as follows:
559.72 Prohibited practices generally.—In collecting consumer debts, no person shall:
. . .
(9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.
In order to establish a violation of Section 559.72(9), the debtor must prove: 1) the debt is not legitimate and the person collecting the debt knew the debt was not legitimate; or 2) the assertion of a right that does not exist and the person collecting the debt knew the right did not exist. As it relates to the residential landlord-tenant context, I have seen and defended against both claims.
Argument No. 1: Attempting to Collect a Debt That the Person Knows is not Legitimate
The plaintiff may allege that the landlord or property management company has asserted a right that the landlord or management company knows is not legitimate. For example, a violation of Section 559.72(9) or Chapter 83, Florida Statutes, may occur where the landlord or property management company sends a 3-day notice that seeks to collect money that it is not permitted to collect under the lease agreement or Chapter 83. This may include unpaid rent, late charges, liquidated damages, termination fees or other charges and fees. In this situation, it is the plaintiff’s burden to allege and prove the amounts that that the landlord or property management company are not permitted to collect. If the landlord or property management company are seeking to collect amounts that are not legitimate, it may give rise to not only an individual FCCPA/FRLTA claim, but also exposure on a class basis. As such, landlords and property management companies need to ensure that their 3-day notices are accurate.
Argument No. 2: Asserting a Right That Does Not Exist
The plaintiff may also allege that the landlord or property management company has asserted a right that the landlord or property management company knew did not exist. For example, a landlord or property management company may serve a 3-day notice to a tenant prior to eviction of the tenant pursuant to Section 83.56, Florida Statutes. However, if the 3-day notice deviates from the form provided in Section 83.56, Florida Statutes, or includes additional language threatening action that may be inconsistent with Chapter 83 or the residential lease, then the tenant may argue that the landlord or property management company violated Section 559.72(9).
Common Defenses to Alleged Violations of Section 559.72(9) Based Upon a 3-day Notice
One defense to an alleged violation of Section 559.72(9) based upon an improper 3-day notice is Florida’s litigation privilege. Since a 3-day notice is necessarily preliminary to litigation and is in the course of judicial proceedings, it should be considered litigation privileged. Pledger v. Burnup & Sims, Inc., 432 So. 2d 1323, 1326-27 (Fla. 4th DCA 1983) (identifying the notice requirements in landlord-tenant actions, pursuant to chapter 83 of the Florida Statutes, as an example of communications protected by the litigation privilege).
Another defense to an alleged violation of the FCCPA based upon an improper 3-day notice is that the 3-day notice is consistent with the residential lease agreement. Although the 3-day notice may appear different from the form provided in Section 83.56, Florida Statutes, if the 3-day notice is consistent with the language of the residential lease agreement, then there is likely not a violation of Section 559.72(9).
Common Defenses to Class Actions Brought Under Section 559.72(9) and the FRLTA
Oftentimes, a lawsuit against a landlord or management company for violation of Section 559.72(9) and the FRLTA is brought as a class action. While I could write an entire article/series on class action defense, I just want to point out a couple common defenses.
First, there may be a challenge to the class representative. If the class representative’s claims have been satisfied by payment or otherwise, the class representative’s claims may be moot and the class action may not move forward. Ahearn v. Mayo Clinic, 180 So. 3d 165, 170 (Fla. 1st DCA 2015). Thus, if the landlord or management company pays/satisfies the class representative’s claim in full, then the class action may not move forward.
Additionally, there may be a challenge to whether the class is suitable for a class action at all. In these types of cases, a class action may not be feasible as it would require an individual analysis of each tenant’s lease agreement, each tenant’s payment history, each tenant’s monthly ledger, and each 3-day notice sent to each tenant, which would require a mini trial for each individual class member and would require each tenant to be a party to this lawsuit. A class action under these facts is not permissible. See Heaven v. Trust Co. Bank, 118 F.3d 735, 738 (11th Cir. 1997) (affirming the trial court’s determination that individual class members’ individual claims “would require the court to engage in multiple separate factual determinations” and make the class unmanageable); Maner Props., Inc. v. Siksay, 489 So. 2d 842, 845 (Fla. 4th DCA 1986) (providing that a class action is not an appropriate means for asserting claims that are based upon different circumstances surrounding class members’ separate contracts).
In defending against FCCPA claims in the residential landlord-tenant content, the landlord or property management company should fully evaluate the allegations made and evaluate whether there was, in fact, a violation. If there was a violation, the landlord or property management company should review and modify its procedures to ensure that the violation does not continue to occur. The landlord/management company also must evaluate its risk exposure and implement a strong strategy for defending against such claims.
Florida’s Consumer Collection Practices Act (FCCPA) Part 1: Understanding the FCCPA (jimersonfirm.com)
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 (jimersonfirm.com)
What is the Difference Between the FDCPA and the FCCPA? | Jimerson Birr (jimersonfirm.com)
What Are “Actual Damages” Under the FCCPA and the FDCPA? | Jimerson Birr (jimersonfirm.com)
What Are “Statutory Damages” Under the FCCPA and the FDCPA? | Jimerson Birr (jimersonfirm.com)
What Exposure Does a Business Have to Attorneys’ Fees Under the FCCPA and the FDCPA? | Jimerson Birr (jimersonfirm.com)