19
Jun

Florida Consumer Collections Practices Act

Many creditors collecting consumer debts have heard of the Federal Law known as Fair Debt Collection Practices Act.  They may be aware that its provisions do not apply to them, but to third party collectors who collect consumer debts.  However, Florida has its own version of the law governing collection of consumer debts found in  Florida  Statute. §559.72 called the Florida Consumer Collections Practices Act.  Its provisions apply to anyone collecting a consumer debt, which are defined as any debt for personal, family or household purposes.

There are seventeen prohibitions on persons collecting consumer debts under thee Florida Consumer Collections Practice Act.  They are:

  • One may not “simulate in any manner a law enforcement officer” or any other governmental agent.
  • One may not “use or threaten force or violence.”
  • One may not “tell a debtor who disputes a consumer claim” that “information affecting the debtor’s reputation for credit worthiness” will be disclosed to third parties, unless one tells the debtor that such disclosure will be supplemented with the fact that the claim is in dispute.
  • One may not “communicate or threaten to communication with a debtor’s employer prior to obtaining final judgment against the debtor.”
  • However, one may make this type of communication if “the debtor gives his permission in writing . . . or acknowledges in writing the existence of the debt after the debt has been placed for collection.”
  • Also, one may tell the debtor that “his employer will be contacted if a final judgment is obtained.”
  • One may not disclose to an unrelated third party “information affecting the debtor’s reputation . . . 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.”
  • One may not “disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact.”
  • What if one discloses information concerning the existence of a debt before the debtor reasonably disputes the debt in writing?  Then “the person who made the original disclosure shall reveal upon the request of the debtor within 30 days the details of the dispute to each person to whom initial disclosure . . . was made.”
  • One may not “willfully communicate with the debtor or any member of his family with such frequency as can reasonably be expected to harass . . . or willfully engage in other conduct which can reasonably be expected to abuse or harass . . .”
  • One may not “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.”
  • One may not “use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of his family.”
  • One may not “use a communication which simulates . . . legal or judicial process or which gives the appearance of being authorized . . . by a governmental body, or an attorney-at-law, when it is not.
  • One may not “communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments which only attorneys are authorized to prepare.”
  • One may not “orally communicate with a debtor in such a manner as to give the false impression or appearance that such person is or is associated with an attorney.”
  • One may not “advertise or threaten to advertise for sale any debt as a means to enforce payment,” except through a court order or assignment for benefit of creditors.
  • One may not actually, threaten to, or cause a publication or posting of “individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of . . . collection.”
  • One may not “refuse to provide adequate identification . . . when requested to do so by a debtor from whom he is collecting or attempting to collect a consumer debt.”
  • One may not write words on the outside of an envelope or a postcard that are “calculated to embarrass the debtor.”
  • One may not “communicate with the debtor between the hours of 9:00 p.m. and 8:00 a.m. in the debtor’s time zone,” without the prior written consent of the debtor.

The penalties for violations can be costly.  If a creditor has repeatedly “harassed” a consumer, but has not engaged in a clear pattern of abuse, an administrative fine up to $1,000 may be imposed.  A debtor who has been “harassed” may bring a civil action.  A successful debtor will be entitled to recover the greater of $500 or his/her “actual damages” from the violator.  In addition, the debtor shall recover “court costs and reasonable attorney’s fees.”.  It is within the Court’s discretion to award punitive damages to a successful debtor.  The Court may also “provide such equitable relief as it deems necessary or proper, including enjoining the creditor from further violations.”

The area where some creditors can get tripped up is communicating with a debtor when you know the debtor is represented by an attorney.  The civil penalties can add up if the violations are severe of if you have to pay the debtor’s attorney’s fees.

Thomas K. Sciarrino, Esq.

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