Recent Trends and Common Allegations in FCCPA Litigation
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The Florida Consumer Collection Practices Act (FCCPA) is a pro-consumer statute. Unlike the FDCPA, which only applies to debt collectors, the FCCPA applies to all persons or businesses collecting consumer debts. As such, all businesses need to be aware of the statute and the risk and potential liability associated with the statute.
Over the past few years, there have been new trends relating to the FCCPA and consumer litigation in general. This article seeks to explain a few of the trends relating to the FCCPA. Since FCCPA litigation is a constantly evolving area of law, we expect these trends and arguments to develop further over the coming years.
Consumer Class Action Lawsuits
One of the biggest trends we have seen is consumer lawyers taking a singular violation of the FCCPA and alleging the violation on a class-wide basis. By filing a class action lawsuit, there is heightened risk and exposure to the business that has to defend against the allegations. As such, whether the consumer lawyer intends to pursue the class or not, this is seen as a tactic to increase settlement value for the debtor, even if the settlement is only on an individual basis.
Alleged Violations of the Florida Residential Landlord Tenant Act
We have also seen an increase in lawsuits that involve or allege violations of both the FCCPA and the Florida Residential Landlord Tenant Act (FRLTA). These lawsuits are oftentimes based on Section 559.72(9) of the FCCPA and Chapter 83, Florida Statutes. These lawsuits are typically based upon an allegedly improper 3-day notice sent to a tenant/debtor. The tenant/debtor will usually allege that the 3-day notice either sought to collect an illegitimate debt or the 3-day notice threatened the existence of a legal right that did not exist.
In a prior article, I explained and evaluated alleged violations of the FCCPA and the FRLTA.
Allegedly Contacting a Debtor Who is Represented by Counsel
Another commonly alleged violation of the FCCPA, which is not new but is still seen on a consistent basis is where a business contacts a debtor regarding a debt but the business knows that the debtor is already represented by a lawyer. Such action would violate Section 559.72(18), Florida Statutes. While we do not typically see this alleged violation brought as a class action, all businesses should be aware of this potential violation and implement policies and procedures to avoid such violations.
Alleged Violations for Sending Emails to Debtors After 9pm and Before 8am
A relatively new violation that we are beginning to see is alleging a violation of Section 559.72(17) based upon email communications. The plaintiff may allege a violation of Section 559.72(17), where an email is sent to a debtor after 9pm and before 8am. While Section 559.72(17) references telephone calls, some consumer lawyers are arguing that Section 559.72(17) is broad enough to encompass emails.
In a prior article, I explained Section 559.72(17) in greater detail and evaluated whether Section 559.72(17) is broad enough to encompass emails to debtors.
Other helpful articles
I have written many other articles on the FCCPA that may be helpful to businesses. These articles are as follows:
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)
Conclusion
Because the FCCPA applies to the collection of consumer debt by businesses, all businesses must be aware of the FCCPA and the potential violations under the FCCPA. There are many consumer lawyers out there waiting for the opportunity to allege a violation of the FCCPA.