FLORIDA CONSUMER COLLECTION PRACTICES ACT DEFENSE
Collecting consumer debt can pose significant challenges for creditors and debt collectors separate and apart from collecting upon the debt. Conversations about owed money are never pleasant, and hostile interactions are simply a side-effect of the job. Unfortunately, because creditors and debt collectors are bearers of bad news, they are subject to increased risks for lawsuits under the Florida Consumer Collection Practices Act (FCCPA), even when they are doing their job.
If receiving payment is the primary goal of a creditor or debt collector, ensuring collection practices comply with state and federal collection laws is perhaps a close second. To further protect consumer debtors from abusive, deceptive, and unfair debt collection practices, Florida enacted additional laws to supplement the federal Fair Debt Collection Practices Act. The FCCPA practically mirrors the federal law but deviates in a few significant areas of note. When asked to contrast federal and state statutes on consumer collection practices, Florida Statute Chapter 559 requires that in construing the FCCPA, Florida courts must give “due consideration and great weight” to the interpretations of the Federal Trade Commission and the federal courts interpreting the FDCPA. 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. However, notwithstanding Florida Statute Chapter 559 citations, the FDCPA and the FCCPA are not identical, and a violation of the FDCPA does not automatically constitute a violation of the FCCPA. Jimerson Birr attorneys are adept at finding those areas of the law, whether state or federal, that turn technical violations into defensible conduct.
FCCPA Claim Prevention and Defense
Florida law identifies specific definitions for creditors, debtors and debt, all of which should be utilized in determining whether aggrieved conduct is legally viable. When evaluating any of the dozens of statutory subsections describing the actions that the Florida legislature prohibits creditors from taking while collecting a consumer debt, as well as the many doctrines of interpretive case law setting forth the contours of actionable and defensible conduct, Jimerson Birr attorneys draw on their experiences and abilities to identify winning strategies that stifle a FCCPA claim from advancing beyond minor nuisance to significant financial exposure.
If an FCCPA case is not handled properly, the consequences for alleged violations of 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 seeking: 1) actual damages; 2) additional statutory damages up to $1,000.00; 3) punitive damages; 4) injunctions; 5) court costs; and 6) attorneys’ fees. While the statutory damages are capped at $1,000.00 per action and not $1,000.00 per violation, the exposure can multiply in many different ways if it is not managed and mitigated. 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.
When a unique claim or class action alleging FCCPA violations commences, a strong shield is necessary to defend from the swords wielded by plaintiffs with FCCPA claims. This shield is provided by, among other legal defenses and strategies, the bona fide error defense, which protects debt collectors and creditors from liability under FCCPA. To establish a bona fide error defense, a creditor or debt collector has the burden to prove by a preponderance of the evidence (i.e., at least 50.01%) that: 1) the FCCPA violation was not intentional; 2) that the FCCPA violation resulted from a bona fide error; and 3) that the business maintains procedures reasonably adapted to avoid such error. For claims that meet proper statutory standing in defense of FCCPA claims, our attorneys will work with your business to prove facts and assert defenses that show that the error resulting in a violation was made in good faith, with a focus on showcasing the inadvertent conduct of your company and policies it develops or utilizes in preventing errors of this type. An innocent error can result in an FCCPA violation unless businesses implement reasonable safeguards. All businesses that engage in the collection of consumer debt should carefully consider the FCCPA’s bona fide error defense and should implement policies and procedures to prevent FCCPA violations in the first place. If implemented correctly, these procedures can help you fight back against consumer law shakedowns. Investing in policies and procedures reasonably adapted to prevent FCCPA violations can limit a business’s exposure to potential FCCPA violations and can afford a defense in the event of a technical violation of the statute.
We take pride in helping our clients prevent mistakes and learn from avoidable mistakes. FCCPA violations happen. Even the most prudent business owners will encounter potential FCCPA violations. Through our experience, we have learned that the best way for debt collectors to avoid liability for FCCPA violations is to understand the laws and to develop policies and procedures designed to prevent violations. Through sound policy making and conscientious practices, debt collectors can defend shake downs by consumer lawyers looking to capitalize on unintentional and hyper-technical violations of the statute.
Jimerson Birr offers the following FCCPA class action defense services, including:
- Providing defense counsel for clients facing a class action that alleges FCCPA violations
- Helping our clients understand the elements of an alleged FCCPA violation and offering advice on procedural improvements that could prevent future litigation
- Developing a defense strategy that highlights procedural mechanisms employed to ensure FCCPA compliance and support a bona fide error defense
- Utilizing class action litigation strategies to challenge class certification and standing
- Negotiating and facilitating cost-effective resolutions when appropriate
- Trial counsel that challenges the allegations and limits exposure for damages
FCCPA Class Action Defense
Jimerson Birr offers FCCPA unique claim and class action defense services to our clients tasked with defending their debt collection practices against alleged FCCPA violations. Our class action litigation experience, coupled with our FCCPA legal expertise, allows us to develop multi-facet defenses for our clients, which challenge the procedure and apply the law to the facts. The attorneys at Jimerson Birr have extensive experience defending class actions and are well equipped to challenge standing and class certification. Our expertise in debt collection and knowledge of FCCPA law allows us to help our clients understand FCCPA requirements and recognize the significant facts necessary to fortify defenses. Our attorneys diligently represent our clients throughout the litigation, developing defense strategies unique to their situation, which considers the risks and costs. Although our firm is renowned for our work in a courtroom, we will explore all available pre-trial avenues in line with client objections that may provide cost-efficient resolutions for our clients. However, should a trial be necessary, we are cognizant of the fact that the reputations of our firm and our client are on the line in that courtroom. When Jimerson Birr’s FCCPA defense lawyers are engaged, our clients rest assured knowing that our firm will provide the best possible defense.
Jimerson Birr is a premier law firm with a market-leading practice that is tailored to the nuances of the businesses we serve. Our teams have a global perspective and strong Florida roots. Our clients look to us to bring a distinctively high degree of quality, passion and creativity to resolve their FCCPA challenges effectively and cost efficiently.
We’re honored to work with some of the world’s most accomplished organizations and the leaders who drive them. We know that on any given day our clients are confronting competition, corporate advancement, risk management, process and product innovation, resource allocation, efficiency stewardship and talent oversight problems; some days all the above. When our clients place their FCCPA class action defense matters with us, they enlist sets of broad shoulders that carry their burdens for them so that they no longer feel their weight. This deep business partnership will give us both an opportunity to be at our best.
We draw on the strength of our character and talents to deliver the best of our firm to every client through true collaboration. On those occasions where our client is concerned it may have erred or is accused of being in the wrong, we help them become right. We don’t confuse effort with results, and we focus on the immutable, allied goals at all times. Partnership with Jimerson Birr on an FCCPA class action defense matter means that you are not looking in any direction but ahead.