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Florida Consumer Collection Practices

While for the most part the type of activities prohibited between the Federal Debt Collection Practices Act and the Florida Consumer Collection Practices Act are similar, there are some substantial differences.   The biggest difference between the two is that Florida’s act is far broader in its application of the prohibited acts.  While the Federal act prohibits certain acts only as to “debt collectors,” the applicable Florida provision applies to all “persons.”

Furthermore, the state’s version has a two year statute of limitation for bringing the action while the Federal limits consumers to one year to bring their lawsuit.  Lastly, the state has a very rigid registration process for “collection agencies” which carry criminal fines and penalties.

The most applicable part of the act is in Florida Statute 559.72, which states: “In collecting consumer debts, no person shall:”

  1. Simulate a law enforcement officer or a representative of any governmental agency.
  2. Use or threaten to use force or violence.
  3. Tell you that information affecting your reputation for credit worthiness will be disclosed or, if you dispute the validity of a debt, tell you that the existence of that debt will be improperly disclosed.
  4. Communicate or threaten to communicate with your employer before obtaining final judgment, unless you give your permission in writing to do so or acknowledges in writing the existence of the debt after the debt has been placed for collection. This does not prohibit a person from telling you that your employer will be contacted if a final judgment is obtained.
  5. Disclose to anyone other than you or your family, information affecting your reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false.
  6. Disclose information concerning the existence of a debt known to be reasonably disputed by you without disclosing that fact. If a disclosure is made before such dispute has been asserted and written notice is received by you that any part of the debt is disputed, and if such dispute is reasonable, the person who made the original disclosure must reveal upon your request within 30 days the details of the dispute to each person to whom disclosure of the debt without notice of the dispute was made within the preceding 90 days.
  7. Willfully communicate with you or any member of your family with such frequency as can reasonably be expected to harass you or your family, or willfully engage in other conduct which can reasonably be expected to abuse or harass.
  8. Use profane, obscene, vulgar, or willfully abusive language with you or your family.
  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.
  10. Use a communication that simulates in any manner legal or judicial process or that gives the appearance of being authorized, issued, or approved by a government, governmental agency, or attorney at law, when it is not.
  11. Communicate with you under the guise of an attorney by using the stationery of an attorney or forms or instruments that only attorneys are authorized to prepare.
  12. Orally communicate with you in a manner that gives the false impression or appearance that such person is or is associated with an attorney.
  13. Advertise or threaten to advertise for sale any debt as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor.
  14. Publish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or your name as part of a list, for the purpose of enforcing or attempting to enforce collection of consumer debts.
  15. Refuse to provide adequate identification of themselves of their employer or other entity whom they represent if requested to do so by you.
  16. Mail any communication to you in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass you. An example of this would be an envelope addressed to “Deadbeat, Jane Doe” or “Deadbeat, John Doe.”
  17. Communicate with you at any time other than between the hours of 9am and 9pm in your time zone without your prior consent.
    a) The person may presume that the time a telephone call is received conforms to the local time zone assigned to the area code of the number called, unless the person reasonably believes that the your telephone is located in a different time zone.
    b) If, such as with toll-free numbers, an area code is not assigned to a specific geographic area, the person may presume that the time a telephone call is received conforms to the local time zone of the your last known place of residence, unless the person reasonably believes that the your telephone is located in a different time zone.
  18. Communicate with you if the person knows that you are represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless your attorney fails to respond within 30 days to a communication from the person, unless your attorney consents to a direct communication with you, or unless you initiate the communication.
  19. Cause you to be charged for communications by concealing the true purpose of the communication, including collect telephone calls.

REGISTRATION OF COLLECTION AGENCIES
After January 1, 1994, no person shall engage in business in this state as a consumer collection agency without first registering and maintaining a valid registration.  Registration does not apply to:

  1. any original creditor;
  2. any member of The Florida Bar;
  3. any financial institution authorized to do business in this state and any wholly owned subsidiary and affiliate;
  4. any licensed real estate broker;
  5. any insurance company authorized to do business in this state;
  6. any consumer finance company and any wholly owned subsidiary and affiliate;
  7. any person licensed to sell retail installment sales contracts;
  8. any out-of-state consumer debt collector who does not solicit consumer debt accounts for collection from credit grantors who have a business presence in this state; and
  9. any FDIC-insured institution, subsidiary or affiliate.

Registration includes paying a $200 fee and providing various information to the Office of Financial Regulation of the Financial Services Commission.  Each registered consumer collection agency must also maintain and make available for inspection all books, accounts, records, and documents necessary to determine the registrant’s compliance and in connection with each  debt collection transaction for at least 3 years after the date each transaction is completed.

An out-of-state consumer debt collector who collects or attempts to collect consumer debts in this state without first registering is subject to an administrative fine of up to $10,000 together with reasonable attorney fees and court costs in any successful action by the state to collect such fines.   Also, it is a first degree misdemeanor for any person not exempt from registering as with the state to conduct collection activities or to register or attempt to register by means of fraud, misrepresentation, or concealment.

ASSIGNMENT OF DEBTS
The statute does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give you written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default.

CIVIL REMEDIES
You may bring a civil action against a person violating the provisions of this Act in the county in where the violator lives, has their principal place of business or in the county where the alleged violation occurred.  Any person who undertakes one of the prohibited acts listed above is liable for;

  1. actual damages, and
  2. additional statutory damages as the court may allow, but not exceeding $1,000, together with court costs and reasonable attorney’s fees.

In determining the defendant’s liability for any additional statutory damages, the court must consider the nature of the defendant’s noncompliance, the frequency and persistence of the noncompliance, and the extent to which the noncompliance was intentional. In a class action lawsuit brought under this section, the court may award additional statutory damages of up to $1,000 for each named plaintiff and an aggregate award of additional statutory damages up to the lesser of $500,000 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. The court may also award punitive damages and may provide such equitable relief as it deems necessary or proper, including enjoining the defendant from further violations. If the court finds that the suit fails to raise a “justiciable issue” of law or fact, then you could be liable for court costs and reasonable attorney’s fees incurred by the defendant.

A person may not be held liable in any action brought under the act if that person shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid that type of error.

Lastly, the state statute is very clear that nothing in it can be interpreted to in any way limit or restrict the Federal Fair Debt Collection Practices Act.  Instead, the state act is specifically in addition to the regulations of the federal act and therefore you can collect under both statutes for the same offense.

If you or anyone you know is being pursued by a debt collector or creditor and have any questions about how to protect yourself and fight back, please contact us today!  Let the lawyers and staff at the Law Offices of Evan M. Rosen serve you.

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