Chapter 8-5 Florida Consumer Collection Practices Act

8-5 Florida Consumer Collection Practices Act

The Florida Consumer Collection Practices Act (FCCPA) prohibits certain collection practices of consumer debt.⁶⁵ Such prohibitions apply to any "person," not only debt collectors.⁶⁶ The FCCPA lists 19 separate unlawful collection practices, many of which require intent.⁶⁷ Foreclosure defendants who assert FCCPA counterclaims may recover actual damages, statutory damages up to $1,000, and attorney's fees with court costs.⁶⁸

One section of the FCCPA, § 559.715, requires the assignee of "the right to bill and collect a consumer debt" to give the debtor written notice of the assignment "as soon as practicable after the assignment is made."⁶⁹ Nevertheless, Fla. Stat. § 559.715 does not create a condition precedent to foreclosure.⁷⁰ Moreover, the Second District Court of Appeal takes a restrictive view of Fla. Stat. § 559.715 and holds that the statute "applies only to assignees of the right to bill and collect a consumer debt not to assignees of the debt itself."⁷¹ "Neither is it an affirmative defense to foreclosure actions; it does not establish a condition precedent and in no other way avoids the claims to foreclose a mortgage and enforce a note."⁷²

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Notes:

^[65] Fla. Stat. § 559.72; Abby v. Paige, 903 F. Supp. 2d 1330, 1334 (S.D. Fla. 2012).

^[66] Fla. Stat. § 559.72.

^[67] For example, the FCCPA prohibits communication with a debtor if the person knows the debtor has counsel, Fla. Stat. § 559.72(18), disclosure of information concerning a debt known to be reasonably disputed by a debtor, Fla. Stat. § 559.72(6), and disclosure to a person other than the debtor or his or her family information affecting the debtor's reputation, with knowledge or reason to know the other person does not have a legitimate business need for such information. Fla. Stat. § 559.72(5).

^[68] Fla. Stat. § 559.77(2).

^[69] Fla. Stat. § 559.715.

^[70] United States Bank N.A. v. Adams, 219 So. 3d 211, 214 (Fla. 2d DCA 2017); National Collegiate Student Loan Tr. 2007-1 v. Lipari, 224 So. 3d 309, 311 (Fla. 5th DCA 2017); McCall v. HSBC Bank USA, N.A., 186 So. 3d 1134 (Fla. 1st DCA 2016); Brindise v. U.S. Bank Nat. Ass'n, 183 So. 3d 1215, 1221 (Fla. 2d DCA 2016); Bank of Am., N.A. v. Siefker, 201 So. 3d 811, 818 (Fla. 4th DCA 2016); see Deutsche Bank v. Hagstrom, 203 So. 3d 918, 922-24 (Fla. 2d DCA 2016); Bank of N.Y. Mellon v. Welker, 194 So. 3d 1078, 1079-80 (Fla. 2d DCA 2016).

^[71] Deutsche Bank Nat. Tr. Co. v. Hagstrom, 203 So. 3d 918, 921 (Fla...