In the ever-changing landscape of consumer protection, courts around the country are constantly coming out with new case law regarding whether certain communications are attempts to collect a debt as defined by the Fair Debt Collect Practices Act. Recently, a Judge in the Southern District of Florida denied a defendant’s motion to dismiss and held that mortgage statements sent to a borrower after borrower’s attorney sent a cease and desist letter, were attempts to collect a debt and in violation of the FDCPA and FCCPA. Lear v. Select Portfolio Servicing, Inc., 17-62206-civ-Zloch (S.D. Fla. April 25, 2018). The Court looked at mortgage statements that Select Portfolio Servicing, Inc. (“SPS”) was sending to a borrower who was currently in foreclosure and had sent SPS a cease and desist letter informing SPS that the borrower was represented by counsel. The Court determined that the mortgage statements sent by SPS after the cease and desist letter, went beyond what was required by federal law and appeared to be debt collection communications that violate the FDCPA and FCCPA. The Court pointed out that each statement featured a notice stating, “This is an attempt to collect a debt. All information obtained will be used for that purpose,” and such language would seem to indicate that the mortgage statements were debt collection communications. In sum, the Court has concluded that statements sent pursuant to federal law can be turned into, with additional language, debt collection communications thereby potentially being in violation of the FDCPA and FCCPA if sent after being put on notice of counsel.
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