If you are a consumer in Florida that is facing debt you have rights under both, Federal and State law. A number of consumers may not be fully informed regarding their rights when dealing with creditors and debt collectors. Consumers have rights in both Federal and State Courts and the judicial system is required by law to protect these rights. Thus, even if you are facing debt, you can still seek redress. In debt lawsuits, you may have counterclaims to assert and raise!
The Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act (“FDCPA”) was enacted to permit consumers to pursue claims against debt-collectors that fail to comply with consumer rights at the Federal level. If a debt collector has violated your consumer rights by engaging in improper conduct or using improper methods to collect a debt (i.e. harassment, deceit), you could seek damages against the debt-collector in Federal Court under the FDCPA.
Maximiliano v. Simm Associates, Inc., 2018 WL 783104, at 4 (S.D. Fla. February 8, 2018)
The Southern District Federal Court in Florida provided guidance regarding the application of the FDCPA:
- “…the FDCPA which is a “consumer-protection statute intended to ‘eliminate abusive debt collection practices’ to ensure that ‘debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged,’ and ‘to promote consistent state action in protecting consumers against debt collection abuses.’ ” Leonard v. Swicker, 2017 WL 4979160, at *2 (11th Cir. Nov. 1, 2017) (quoting Davidson v. Capital One Bank (USA), N.A., 797 F.3d 1309, 1312-13 (11th Cir. 2015)). The FDCPA regulates “debt collector” conduct by giving consumers the right to sue debt collectors that violate its provisions. Id. (citing Crawford v. LVNV Funding, LLC, 758 F.3d 1254, 1258 (11th Cir. 2014)).
- In an FDCPA claim, a plaintiff must prove that: “(1) the plaintiff has been the object of collection activity arising from consumer debt; (2) the defendant is a debt collector as defined by the FDCPA; and (3) the defendant has engaged in an act or omission prohibited by the FDCPA Anselmi v. Shendell & Assoc., P.A., No. 12-61599-CIV-WILLIAMS, 2015 WL 11121357, at *2 (S.D. Fla. June 6, 2015).”
The FDCPA regulates communications from debt collectors, whether verbal or in writing, seeking payment of the purported debt from the consumer for home, auto and student loans. Note that debt-collectors are not original creditors, i.e., the party and entity that extended the financing and credit originally. Therefore, the FDCPA generally applies to debt collectors but not to the original creditors, subject to certain exceptions (consult these with your attorney!). Prohibited, enumerated conduct under the FDCPA can be found under 15 U.S.C. §1692. If the debt collectors fail to comply with the required conduct under the FDCPA, you may be able to seek damages against them, including statutory damages up to $1000, actual damages caused as a proximate consequence of the improper conduct and practice, as well as reimbursement of your attorneys’ fees and costs.
The Florida Consumer Collection Protection Act
The FCCPA is the Florida Statute that emulates and follows the FDCPA, at the state level. The FCCPA is more expansive than the FDCPA in that it can apply to debt-collectors, but also to original creditors. Thus, in the event that you are dealing with debt-collection efforts from an original creditor, you should still be able to pursue your claim in Florida State Court and seek damages against creditors that engage in the prohibited, enumerated conduct under Fla.Stat. §559.79.
Kelliher v. Target National Bank, 826 F.Supp.2d 1324, at 1327-1328 (M.D. Fla. 2011)
The District Court explained that:
“The FCCPA provides that “[i]n applying and construing this section, due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices Act.” Fla. Stat. § 559.77(5)
There is one distinct difference between the two laws, however. Although the federal FDCPA does not apply to original creditors, the FCCPA has been interpreted to apply to original creditors as well as debt collection agencies. *1328 Craig v. Park Fin. of Broward County, Inc., 390 F.Supp.2d 1150, 1154 (M.D.Fla.2005). Thus, Target is subject to the FCCPA. “
Additionally, the FCCPA is similar to the FDCPA since it allows consumers to seek damages against original creditors that have engaged in improper conduct and methods when collecting a debt. The FCCPA authorizes a consumer to seek statutory damages per violation of up to $1000, actual damages based on losses caused as a proximate consequence of the improper conduct, punitive damages (to be awarded at the court’s discretion based on the wrongful conduct), attorneys’ fees and costs.
Contact Loan Lawyers
If you feel that you have been the target of improper collection methods and communications by an original creditor and, or a debt collector, you should consult with a licensed attorney to better assess your rights and options as a consumer. If you are being sued for debt, you may have an existing counterclaim to raise.
Due to the attorneys’ fees and costs reimbursement provisions under both the FDCPA and FCCPA, your attorney may be able to take your case on a contingency basis, i.e., you do not have to pay until the case is resolved.
At Loan Lawyers, our team of attorneys in Fort Lauderdale are here to help with creditor harassment and have years of experience helping consumers fight back.
Loan Lawyers has helped over 5,000 South Florida homeowners and consumers with their debt problems, we have saved over 1,800 homes from foreclosure, eliminated $100,000,000 in mortgage principal and consumer debt, and have collected millions of dollars on behalf of our clients due to bank, loan servicer, and debt collector violations, negligence and fraud. Contact us for a free consultation to see how we may be able to help you. Call us at 1-888-Fight13 (344-4813).