An interesting class action lawsuit from Miami-Dade County was recently
dismissed. The name of the plaintiff was changed in this entry in light
of the fact that this was a local case and we do not want to bring unnecessary
attention to the litigant, who may well appeal the decision. The essential
facts of the case are as follows. The Miami-Dade Clerk is authorized by
law to charge collection fees when collecting debts under certain circumstances,
for debts owed to the Clerk. The Clerk then hired a debt collection company
to collect from members of the public on the Clerk’s behalf. One
member of the public, Bob Jones was charged a 40% collection fee, the
fee being assessed at the time that they first sought to collect the debt.
Normally when contracts or statutes collect fees they provide for a reasonable
amount of money to be paid based upon the time actually spent trying to
collect money, not simply increasing the debt by a certain amount. Mr.
Jones then sued the clerk and the debt collector, essentially arguing
that they tried to collect money not actually owed in that since the debt
collector had only just started working, they had not actually run up
enough of a bill to justify a 40% fee.
The relevant statute of Florida Statute 28.246(6), the operative language
is “collection fee, including any reasonable attorney’s fee,
paid to any attorney or collection agent retained by the clerk may be
added to the balance owed in an amount not to exceed 40 percent of the
amount owed at the time the account is referred to the attorney or agent
The opinion is reasonable but I feel fails to properly consider certain
critical language in the statute, though this was not sufficiently raised
by Mr. Jones. The statute provides for a payment of up to 40% of the amount
owed, only if it was “paid to any attorney or collection agent”.
A number of attorneys in our firm have debt collection experience in the
past and based upon our time as debt collectors and our time fighting
them, there is virtually no possibility that the Miami-Dade County Clerk
actually paid a debt collector a significant amount up front to collect
upon an account, nearly all debt collectors are given a portion of the
sums collected upon success and not paid a substantial amount up front.
It is entirely possible that the Clerk contracted with a debt collector
to pay them something up front, but it would not be enough to cover 40%
of each account. Which would mean that the statute is totally inapplicable
in the first place.
The Court also considered whether or not the Clerk of Court and the debt
collector were immune by reason of sovereign immunity and in a decision
helpful to local consumer-protection attorneys found that they were not.
If you would like to read more about the FDCPA and consumers fighting back
against debt collectors, you can find other stories on our blog:
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This document has been provided for informational purposes only and is
not intended and should not be construed to constitute legal advice. Please
consult your attorney in connection with any legal issues related to the
matters discussed in this article as the applicability of state, local
and federal laws may vary.