From the Blog

July 28, 2014

The Florida Consumer Collection Practices Act: Making a Shield into a Sword

Written by: David E. Grisham

Most Floridians are familiar to some degree with the federal debt collection laws, known as the Fair Debt Collection Practices Act (FDCPA). The law was intended as a shield to help protect consumers from overreaching debt collectors. The law forbids third party debt collectors from doing many things, including disclosing the debt to a third party or harassing debtors, either at their home or place of work. However, fewer people know of Florida’s state law, the Florida Consumer Collection Practices Act (FCCPA), Florida Statutes §559.55-559.785, which incorporates the FDCPA and applies the same restrictions and prohibitions to any person, not just a third party debt collector.

This distinction of “any person” is especially important to Florida business owners trying to get paid for the consumer services or goods they have provided to an individual. A consumer good or service is anything which is primarily for personal, family, or household purposes. A business owner, without knowledge of the FCCPA, could unknowingly violate the law and become a defendant in a lawsuit that brings with it statutory damages and attorney’s fees. Therefore, business owners should be knowledgeable about the entire FCCPA. However, I want to focus on one of the more troublesome provisions, which applies where there is notice to a business owner that a debtor is represented by an attorney.

The FCCPA states that in collecting consumer debts, no person can communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to the debt and has knowledge of, or can readily ascertain, the attorney’s name and address. The only exceptions to communicating with the debtor after receipt of a notice of representation from his attorney is if: (a) the debtor’s attorney fails to respond within 30 days to a communication from the person; (b) the debtor’s attorney consents to a direct communication with the debtor; or, (c) the debtor initiates the communication.

If a business owner, representative or employee of a business communicates with a debtor in any way after receipt of a letter of representation from an attorney, to include sending invoices, phone calls, emails or text messages, then the business has violated the law. Frequently, a business owner will thereafter receive a pre-suit demand letter from the representing attorney requesting payment of several thousand dollars for settlement of the FCCPA action.

Although defending a FCCPA lawsuit can be costly, there are often underlying facts that can deflect a lawsuit, minimize the impact of the violation, or cause dismissal of the suit entirely. These facts include problems with the original notice of representation or the way it was originally sent to the creditor. Also, a person may not be held liable if the violation was not intentional and resulted from an innocent error, even though it violated the business’s procedures used to avoid such an error.

Everyone should be aware of the prohibitions of the FDCPA and the Florida Consumer Collection Practices Act and businesses should implement procedures to comply with the law. If not, then the law that was intended as a shield could act as a sword and cut into a business’s finances.