A Primer on the Florida Consumer Collection Practices Act and the Fair Debt Collection

Practices Act.
Nicholas A. Vidoni, Esq.
Watson, Soileau, DeLeo, & Burgett, P.A.
3490 N. US Hwy 1
Cocoa, FL 32926
vidoni@brevardlawgroup.com
321-631-1550
Length of Presentation: 60 min.
Biography of Nicholas A. Vidoni, Esq.
Nicholas A. Vidoni is an Air Force brat, and lived in various places before ending up in
Brevard county in 2012. He received his B.A. from Hope College in Holland, MI in 2005, and
received his J.D. from University of Iowa in 2011. Upon leaving law school, he started working
in the foreclosure defense industry in South Florida. He is an associate at Watson, Soileau,
DeLeo, & Burgett, P.A., and practices in areas of creditor/debtor law, appellate law, real estate
litigation, foreclosure, community association law, landlord and tenant law, and commercial
litigation.
Overview
1.
The Florida Consumer Collection Practices Act (FCCPA) (Fla. Stat. 559.55-785)
was first enacted in 1972.
2.
The Fair Debt Collection Practices Act (FDCPA) (15 USC 1692-1692p) was first
enacted in 1977. Some portions of the FDCPA borrows language from the FCCPA,
suggesting that congress partly modeled the FDCPA after the FCCPA and legislation in
other states.
3.
The FDCPA provides the following declaration of purpose:
15 USC 1692
Congressional findings and declarations of purpose
(a) Abusive practices
There is abundant evidence of the use of abusive, deceptive, and unfair debt
collection practices by many debt collectors. Abusive debt collection practices
contribute to the number of personal bankruptcies, to marital instability, to the
loss of jobs, and to invasions of individual privacy.
(b) Inadequacy of laws
Existing laws and procedures for redressing these injuries are inadequate to
protect consumers.
(c) Available non-abusive collection methods

Means other than misrepresentation or other abusive debt collection practices are
available for the effective collection of debts.
(d) Interstate commerce
Abusive debt collection practices are carried on to a substantial extent in interstate
commerce and through means and instrumentalities of such commerce. Even
where abusive debt collection practices are purely intrastate in character, they
nevertheless directly affect interstate commerce.
(e) Purposes
It is the purpose of this subchapter to eliminate abusive debt collection practices
by debt collectors, to insure that those debt collectors who refrain from using
abusive debt collection practices are not competitively disadvantaged, and to
promote consistent State action to protect consumers against debt collection
abuses.
4.

5.

A Senate Report states that the purpose of the Acts debt verification is to eliminate the
recurring problem of debt collectors dunning the wrong person or attempting to collect
debts which the consumer has already paid. S. Rpt. 95-382 at 4, reprinted in 1977
U.S.C.C.A.N. 1695, 1699. A House Report noted congressional intent to regulate
collection activities based on either mistaken identity or mistaken facts. H.R. Rep. No.
131, at 8. Congress recognized that computer errors are a related problem, and that
[c]onsumers who are victims of computer error find it extremely difficult to obtain
correction of records. This may lead to collection agency harassment. Id.
Construction:
a.
Because the FDCPA... is a remedial statute, it should be construed liberally in
favor of the consumer. Johnson v. Riddle, 305 F.3d 1107, 1117 (10th Cir. 2002)
citing in part Ellis v. General Motors Acceptance Corp., 160 F.3d 703, 707 (11th
Cir.1998); Barany-Snyder v. Weiner, 539 F.3d 327, 333 (6th Cir. 2008) ([T]he
FDCPA is extraordinarily broad, crafted in response to what Congress perceived
to be a widespread problem.).
b.
The FCCPA specifies that, in construing its provisions, 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). Read v. MFP, Inc., 85 So.3d 1151 (Fla. 2d DCA 2012).
c.
Strict Liability and Defenses
i.
The FDCPA is a strict liability statute. Taylor v. Perrin, Landry,
deLaunay & Durand, 103 F.3d 1232, 1238-39 (5th Cir.1997); Russell v.
Equifax A.R.S., 74 F.3d 30, 33 (2d Cir.1996); Clark v. Capital Credit &
Collection Serv., 460 F. 3d 1162 (9th Cir. 2006); LeBlanc v. Unifund CCR
Partners, 601 F. 3d 1185 (11th Cir. 2010) (The FDCPA does not
ordinarily require proof of intentional violation and, as a result, is
described by some as a strict liability statute.)
(1)
The FDCPA applies even when a false representation was
unintentional. Gearing v. Check Brokerage Corp., 233 F.3d 469,

ii.

iii.

472 (7th Cir.2000); see also Turner v. J.V.D.B. & Associates, Inc.,
330 F.3d 991, 995 (7th Cir.2003) (holding unintentional
misrepresentation that debtor was obligated to pay a debt
discharged in bankruptcy violated FDCPA)
(2)
FDCPA liability can ensue, even if there is no harm and even if the
violation gave a benefit to the consumer. One court found FDCPA
liability where the debt collector understated the debt. McDermott
v. Marcus, Errico, Emmer & Brooks, P.C., 911 F.Supp.2d 1 (D.
Mass. 2012).
Bona fide error defense
(1)
No violation if the violation was not intentional and resulted from
a bona fide error notwithstanding the maintenance of procedures
reasonably adapted to avoid any such error. 15 U.S. Code
1692k(c)
(2)
Relying upon unverified furnished information does not rise to a
bon fide error. McCollough v. Johnson, Rodenburg & Lauinger,
LLC, 637 F. 3d 939, 948 (9th Cir. 2011).
(3)
To qualify for the bona fide error defense under the FDCPA, the
debt collector has an affirmative obligation to maintain procedures
designed to avoid discoverable errors, including, but not limited to,
errors in calculation and itemization. Reichert v. National Credit
Systems, Inc., 531 F. 3d 1002, 1007 (9th Cir. 2008).
(4)
Mistakes of law are not a defense. Jerman v. Carlisle, McNellie,
Rini, Kramer, 130 S. Ct. 1605 (2010).
(5)
Reliance on incorrect advice of counsel is not a defense to the
FDCPA. Jerman v. Carlisle, McNellie, Rini, Kramer, 130 S. Ct.
1605 (2010).
(6)
The Bona fide error Defense applies to violations resulting from
qualifying factual errors. Jerman v. Carlisle, McNellie, Rini,
Kramer, 130 S. Ct. 1605 (2010).
Lack of knowledge or intent (FCCPA).
(1)
Many provisions in the FCCPA provide an element of knowledge
or intent. Example: The FCCPA prohibits persons from
communicating with a debtor if the person knows that the debtor
is represented by an attorney with respect to such debt and has
knowledge of, or can readily ascertain, such attorney's name and
address .... Fla. Stat. 559.72(18) (emphasis added). The FCCPA
also prohibits willfully engag[ing] in ...conduct which can
reasonably be expected to abuse or harass the debtor ....
(2)
The FCCPA contains a bona fide error defense substantially
similar to 15 U.S.C. 1692k(c). See Fla. Stat. 559.77(3).
Bacelli v. MFP, Inc., 729 F.Supp.2d 1328, 1333 (MD Fla. 2010).
(3)
Mistakes or ignorance of law should not be a defense. It is a
cornerstone legal principle that all citizens are presumed to know
the law. Hart v. Hart, 377 So. 2d 51, 52 (Fla. 2d. DCA 1979).

(4)

(5)

iv.

v.

Under this maxim, [i]gnorance of the law is not an excuse. This

maxim holds particularly true for lawyers The Florida Bar v.
Dubow, 636 So. 2d 1287, 1288 (Fla. 1994); Although this may
not seem fair, [a]ll parties are equally charged with knowing the
law in Florida Motor v. Citrus County School Bd., 856 So. 2d
1054, 1056 (Fla. 5th DCA 2003) citing Schopler v. Smilovits, 689
So.2d 1189 (Fla. 4th DCA 1997).
Knowledge or intent can be inferred where there is an entire want
of care which would raise the presumption of a conscious
indifference to consequences, or which shows ... reckless
indifference to the rights of others which is equivalent to an
intentional violation of them. Bank of America, N.A. v. Pate, 159
So.3d 383 (Fla. 1st DCA 2015) citing Estate of Despain v. Avante
Group, Inc., 900 So.2d 637, 640 (Fla. 5th DCA 2005) citing White
Constr. Co. v. Dupont, 455 So.2d 1026, 1029 (Fla.1984).
[W]hile the knowledge of the agent is imputed to the principal,
the converse is not true. Schmitt v. FMA Alliance, 398 F. 3d 99,
997 (8th Cir. 2005)

Setoff
(1)
If debt collectors are permitted to assert a setoff defense, there
would likely be no incentive to file FDCPA and FCCPA actions
where there would be no net recovery. Courts have found that a
setoff defense would thwart the FCCPA's goal of deterring
abusive debt collection practices. In re Runyan, 530 B.R. 801, 803
(MD Fla. 2015)
(2)
Setoff will not apply to actions against parties who do not own the
debt, such as lawyers, law firms, and collection agencies.
Technical Violation
(1)
View 1: The law [FDCPA] would be best served by challenging
clear violations rather than scanning for technical missteps that
bring minimal relief to the individual debtor but a possible windfall
for the attorney. Bailey v. Security National Servicing Corp., 154
F. 3d 384 (7th Cir. 1998); Guillaume v. Federal Nat. Mortg. Ass'n,
928 F. Supp. 2d 1337, 1341 (SD Fla. 2013); Miller v. Javitch,
Block & Rathbone, 561 F.3d 588, 596 (6th Cir.2009) (concluding
that a false but non-material statement is not actionable under
1692e); Wahl v. Midland Credit Mgmt., Inc., 556 F.3d 643, 646
(7th Cir.2009) (If a statement would not mislead the
unsophisticated consumer, it does not violate the [Act] even if it
is false in some technical sense.); Donohue v. Quick Collect, Inc.,
592 F. 3d 1027, 1033 (9th Cir 2010)
(2)
View 2: [T]he FDCPA is a strict-liability statute, and a consumer
is entitled to sue to enforce its provisions, even the highly
technical ones. Anderson v. Credit Bureau Collection Servs.,
Inc., 422 Fed.Appx. 534, 538-39 (7th Cir.2011); The FDCPA [ ]

vi.

vii.

is a strict liability statute, and debt collectors whose conduct falls

short of its requirements are liable irrespective of their intentions.
Ruth v. Triumph P'ships, 577 F.3d 790, 805 (7th Cir. 2009); A
consumer seeking only statutory damages did not have to prove
that the recipient of the letter was misled; All that is required is
proof that the statute was violated. Bartlett v. Heibl, 128 F.3d 497,
499 (7th Cir. 1997); Manrique v. Wells Fargo Bank NA, 116 F.
Supp. 3d 1320, 1323-24 (SD 2015); .
(3)
View 3: Technical violations of the FDCPA are excusable only
when they fit within the bona fide error defense, such as factual
mistakes or clerical errors. See Jerman v. Carlisle, McNellie, Rini,
Kramer, 130 S. Ct. 1605 (2010), esp. Scalias concurrence.
Florida Offer of Judgment Statute
(1)
The FDCPA preempts Floridas offer of judgment statute because
it is contrary to the FDCPAs one-sided attorneys fee provision.
Clayton v. Bryan, 753 So.2d 632 (Fla. 5th DCA 2000).
(2)
The logic in Clayton may mean that the FDCPA preempts other
state attorneys fees statutes, such as Fla. Stat. 57.105.
Exemptions:
(1)
Defendants in FDCPA and FCCPA actions often look for
exemptions to argue that the statues do not apply to them. A
common claimed exemption is the foreclosure exemption, or an
exemption for national banks.
(2)
FDCPA coverage is not defeated by clever arguments for
technical loopholes that seek to devour the protections Congress
intended. Bridge v. Ocwen Fed. Bank, FSB, 681 F.3d 355, 361
(6th Cir. 2012)

Getting your foot in the door: What you need for an FDCPA or FCCPA action
1.
Consumer Debt
a.
Consumer is defined as any natural person obligated or allegedly obligated to
pay any debt Fla. Stat. 559.55(2) and 15 U.S.C. 1692a(3)
b.
Debt or Consumer debt is defined as any obligation or alleged obligation of
a consumer to pay money arising out of a transaction in which the money,
property, insurance, or services which are the subject of the transaction are
primarily for personal, family, or household purposes, whether or not such
obligation has been reduced to judgment. Fla. Stat. 559.55(1) and 15 USC
1692a.
c.
Transaction: As long as the transaction creates an obligation to pay, a debt is
created. Brown v. Budget RentACar Sys. Inc., 119 F.3d 922, 924 (11th
Cir.1997); Oppenheim v. I.C. System, Inc., 627 F.3d 833 (11th Cir. 2010)
d.
Primarily for Personal, Family, or Household Purposes:
e.
Consumer debt is construed broadly to accomplish the remedial purpose of the
FDCPA and FCCPA:
f.
Consumer debts include:

i.
ii.

g.

Most credit card debts for personal and household expenses.

Mortgage loans on a primary or vacation residence. Reese v. Ellis, Painter,
Ratterree & Adams, LLP, 678 F.3d 1211 (11th Cir. 2012).; Freire v.
Aldridge Connors, LLP, 994 F. Supp. 2d 1284, 1288 (SD Fla. 2014);
Birster v. Am. Home Mortg. Servicing, Inc., 481 Fed.Appx. 579, 581-83
(11th Cir.2012); Battle v. Gladstone Law Group, P.A., 951 F.Supp.2d
1310, 1316 (S.D Fla. 2013); Gann v. BAC Home Loans Servicing LP, 145
So. 3d 906 (Fla. 2d DCA 2014); Deutsche Bank National Trust Company
v. Hagstrom, citation pending, Case No. 2D14-5254 (Fla. 2d DCA July 20,
2016).
iii.
Auto loans
iv.
Rent for residential property. Romea v. Heiberger & Associates, 163 F.3d
111 (2d Cir.1998)
v.
Association Assessments. Fuller v. Becker & Poliakoff, P.A., 192
F.Supp.2d 1361 (M.D. Fla. 2002); Williams v. Edelman, 408 F.Supp.2d
1261 (M.D. Fla. 2005); Ladick v. Van Gemert, 146 F.3d 1205 (10th Cir.),
cert. denied, 525 U.S. 1002, 119 S.Ct. 511, 142 L.Ed.2d 424 (1998);
Newman v. Boehm, Pearlstein and Bright, Ltd., 119 F.3d 477, 482 (7th
Cir.1997); But see Bryan v. Clayton, 698 So. 2d 1236 (Fla. 5th DCA 1997).
Bryan is of questionable value, since it declined to consider association
assessments consumer debts before federal courts reached a consensus
that assessments are consumer debts. The Court in Malowney v. Bush
Ross, 2009 WL 38016 (M.D. Fla. 2009) explained that the Florida
Supreme Court would disapprove of Bryan today.
vi.
Medical debt. Bacelli v. MFP, Inc., 729 F.Supp.2d 1328 (MD Fla. 2010)
vii.
Attorneys fees incurred in a personal matter. Morgan v. Wilkins, 74 So.3d
179 (Fla. 1st DCA 2011)
viii. Non-interest bearing oral loan for a personal matter. Heard v. Mathis, 344
So.2d 651 (Fla. 1st DCA 1977).
ix.
Student loans. Kort v. Diversified Collection Servs., Inc.., 270 F. Supp. 2d
1017 (ND Ill. 2003); Arroyo v. Solomon & Solomon, P.C. 2001 U.S. Dist.
LEXIS 21908 (E.D.N.Y. Nov. 7, 2001).
x.
utility bills, phone bills, cell phones. Police v. Natl Tax Funding, L.P.
2225 F.3d 379 (3d Cir. 2000) (finding liability for collection practices
involving a municipal water bill).
xi.
payday loans
xii.
rent-to-own
Consumer debts do not include:
i.
Investment and business debt.
ii.
Government fines, parking tickets, taxes
iii.
Uninsured accident damages/tort claims
iv.
Civil judgments that do not involve a consumer debt. Antoine v. State
Farm Mut. Auto. Ins. Co., 662 F.Supp.2d 1318 (MD Fla. 2009).

Differences between the FDCPA and FCCPA

FDCPA

FCCPA

Regulates debt collectors attempting to

collect a consumer debt.

Regulates persons (i.e. everybody) who

attempts to collect a consumer debt. Fla. Stat.
559.72; Bentley v. Bank of America, N.A.,
773 F.Supp.2d 1367 (SD Fla. 2011); Craig v.
Park Financial of Broward County, Inc., 390
F.Supp.2d 1150 (SD Fla. 2005); Morgan v.
Wilkins, 74 So.3d 179 (Fla. 1st DCA 2011)
The FCCPA is intended to regulate a broader
set of conduct than the FDCPA. Craig v. Park
Financial of Broward County, Inc., 390
F.Supp.2d 1150 (MD Fla. 2005) (The FCCPA
provides greater protection to consumers
than the Fair Debt Collection Practices Act.

Not subject to Floridas litigation privilege.

Dyer v. Choice Legal Group PA, Case No.
5:15-cv-69-Oc-30PRL (MD Fla. 2015); Battle
v. Gladstone Law Group, P.A., 951
F.Supp.2d 1310, 1316 (SD Fla. 2013); Hall v.
MLG, PA, 981 F. Supp. 2d 1267, 1270 (SD
Fla. 2013). This means the FDCPA can apply
to the litigating acts of debt-collecting
attorneys. Sayyed v. Wolpoff & Abramson,
485 F.3d 226, 228, 230-32 (4th Cir.2007);
McCollough v. Johnson, Rodenburg &
Lauinger, LLC, 637 F. 3d 939, 952 (9th Cir.
2011); Miljkovic v. Shafritz and Dinkin, PA,
791 F. 3d 1291, 1299 (11th Cir. 2015)

Subject to Floridas litigation privilege

(probably). Echevarria, McCalla, Raymer,
Barrett & Frappier v. Cole, 950 So.2d 380
(Fla. 2007); But see North Star Capital
Acquisitions, LLC v. Krig, 611 F. Supp. 2d
1324 (MD Fla. 2009).

Statute of limitations: Action must be brought

within one year from the date on which the
violation occurs. 15 USC 1692k(d)

Statute of limitations: Action must be brought

within 2 years after the date on which the
alleged violation occurred. Fla. Stat.
559.77.

No injunctive relief.

Injunctive relief permitted. Fla. Stat.

559.77(2). This permits Circuit Court
jurisdiction. Fla. Stat. 26.012(3). Case law
on injunctive relief under the FCCPA is
sparse, but case law under the FDUTPA may
be instructive: Section 501.211(1), Florida
Statutes[,] is broadly worded to authorize
declaratory and injunctive relief even if those
remedies might not benefit the individual
consumers who filed the suit. Davis v.
Powertel, Inc., 776 So.2d 971, 975 (Fla. 1st
DCA 2000). The FDUTPA "is designed to
protect not only the rights of litigants, but also
the rights of the consuming public at large."
Id. Any attempt to limit FDUTPA liability is
contrary to public policy. Rollins, Inc. v.
Heller, 454 So.2d 580 (Fla. 3d DCA 1984).
"[A]n individual cannot waive the protection
of a statute that is designed to protect both the
public and the individual." Coastal Caisson
Drill Co. v. Am. Cas. Co., 523 So.2d 791, 793
(Fla. 2d DCA 1988), approved, 542 So.2d
957 (Fla.1989)

Who is a debt collector?

1.
debt collector means any person who uses any instrumentality of interstate commerce
or the mails in any business the principal purpose of which is the collection of any debts,
or who regularly collects or attempts to collect, directly or indirectly, debts owed or due
or asserted to be owed or due another. 15 USC 1692a(6)
2.
Test for debt collector
a.
Regularly attempts to collect debts
i.
A person may regularly render debt collection services, even if these
services are not a principal purpose of his business. Indeed, if the volume
of a person's debt collection services is great enough, it is irrelevant that
these services only amount to a small fraction of his total business
activity; the person still renders them regularly. Garrett v. Derbes, 110
F.3d 317, 318 (5th Cir.1997); Goldstein v. Hutton, Ingram, Yuzek, Gainen,
Carroll & Bertolotti, 374 F.3d 56 (2d Cir. 2004)
b.
Owed or Due
i.
The debt should be in default. Eke v. FirstBank Florida, 779 F.Supp.2d
1354 (SD Fla. 2011);
ii.
OR The debt is not owed or not valid. Bridge v. Ocwen Fed. Bank, FSB,
681 F.3d 355, 359 (6th Cir. 2012); Dunham v. Portfolio Recoveyr
Associates, LLC, 663 F.3d 997, 1001 (8th Cir. 2011);
c.
To another

i.

3.

4.

5.

One view is that an owner of a debt cannot be a debt collector even if

that party purchases the debt after it is in default. Davidson v. Capital One
Bank (USA), NA, 797 F. 3d 1309 (11th Cir. 2015) and Henson v. Santander
Consumer USA, Inc., 817 F.3d 131, 13637 (4th Cir. 2016)
ii.
Another is that purchaser of a defaulted consumer debt did so to collect a
debt owed to another (i.e., the debt seller). Bentley v. Bank of America,
N.A., 773 F.Supp.2d 1367 (SD Fla. 2011); Bridge v. Ocwen Fed. Bank,
FSB, 681 F.3d 355, 359 (6th Cir. 2012); Ruth v. Triumph Pships, 577
F.3d 790, 796 (7th Cir. 2009); Pollice v. National Tax Funding, LP, 225 F.
3d 379, 404 (3d Cir. 2000).
Example: In Goldstein v. Hutton, 374 F.3d 56 (2d Cir. 2004), the Court listed the
following factors as a case by case determination of debt collector:
(1)
the absolute number of debt collection communications issued,
and/or collection-related litigation matters pursued, over the
relevant period(s)
(2)
the frequency of such communications and/or litigation activity,
including whether any patterns of such activity are discernable
(3)
whether the entity has personnel specifically assigned to work on
debt collection activity
(4)
whether the entity has systems or contractors in place to facilitate
such activity
(5)
whether the activity is undertaken in connection with ongoing
client relationships with entities that have retained the lawyer or
firm to assist in the collection of outstanding consumer debt
obligations
(6)
Facts relating to the role debt collection work plays in the practice
as a whole should also be considered to the extent they bear on the
question of regularity of debt collection activity (debt collection
constituting 1% of the overall work or revenues of a very large
entity may, for instance, suggest regularity, whereas such work
constituting 1% of an individual lawyer's practice might not)
(7)
Whether the law practice seeks debt collection business by
marketing itself as having debt collection expertise may also be an
indicator of the regularity of collection as a part of the practice
An entity may be a debt collector if ithad specific information regarding [the debt].
Battle v. Gladstone Law Group, P.A., 951 F.Supp.2d 1310, 1313 (SD Fla. 2013) citing
Mellentine v. Ameriquest Mortg. Co., 515 Fed. Appx. 419, 424 (6th Cir.2013)
ATTORNEYS AND LAW FIRMS ARE OFTEN CONSIDERED DEBT COLLECTORS
a.
The Act applies to attorneys if they regularly engage in consumer-debt-collection
activity, even when that activity consists of litigation. Heintz v. Jenkins, 514 U.S.
291, 299, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995).
b.
Further, It is now beyond dispute that a law firm may be a debt collector under
the FDCPA. Freire v. Aldridge Connors, LLP, 994 F. Supp. 2d 1284, 1288 (SD
Fla.2014) citing Reese v. Ellis, Painter, Ratterree & Adams, LLP, 678 F.3d 1211,
1218 (11th Cir. 2012).

c.

The dividing line: When is an attorney a debt collector?

i.
Littles v. Lieberman, 90 B.R. 700 (ED Pa. 1988); Crossley v. Lieberman,
90 BR 682 (ED Pa. 1988). Affd, 868 F.2d 566 (3d Cir. 1989). - Attorney
in general practice is covered by the FDCPA where that practice included
a minor but regular debt collection practice.
ii.
Stojanovski v. Strobl & Manoogian, 783 F. Supp. 319 (ED Mich. 1992)Law firm which collected debts only 4% of the time was a debt collector
because such activity was regular.
iii.
Mertes v. Devitt, 734 F.Supp. 872, 874 (WD Wis. 1990) - Attorney was
not a debt collector where the debt collecting practice made up less than
1% of the attorneys total practice and he collected less than two times a
year over ten years.

Who is not a debt collector?

1.
Creditors
a.
Usually, this is the original party to whom the debt is owed, or the owner of the
debt prior to default.
b.
The term creditor means any person who offers or extends credit creating a debt
or to whom a debt is owed, but such term does not include any person to the
extent that he receives an assignment or transfer of a debt in default solely for the
purpose of facilitating collection of such debt for another. 15 USC 1692a(4)
2.
Some agents of a creditor. 15 USC 1692a(6)
a.
Examples:
i.
Employees of a creditor. 15 U.S.C. 1692a(6)(A).
ii.
Servicers (if they did not take over the servicing obligation after a default)
iii.
Property Managers
iv.
Community Association Managers. Angela Harris v. Liberty Community
Management, Inc., 702 F. 3d 1298 (11th Cir. 2012).
b.
Agents may become debt collectors if they obtain the agency relationship after a
default. 15 USC 1692a(6)(F)(iii). Bentley v. Bank of America, N.A., 773
F.Supp.2d 1367 (SD Fla. 2011)
3.
False Name Exception. A creditor can become a debt collector by using a name
other than the creditors true business name to collect a debt. Maguire v. Citicorp Retail
Services, Inc., 147 F.3d 232 (2d Cir. 1998); Larson v. Evanston Northwestern Healthcare
Corp., Not Reported in F.Supp.2d, No. 98 C 0005 (ND Ill. 1999)
What is in connection with the debt?
1.
View 1: The animating purpose test. To fall within the purview of the FDCPA the
violation must have an animating purpose to induce payment by the debtor. Estep v.
Manley Deas Kochalski, LLC, 552 Fed.Appx. 502 (6th Cir. 2014). See also Grden v.
Leikin Ingber & Winters PC, 643 F.3d 169, 173 (6th Cir. 2011) and Gburek v. Litton
Loan Servicing LP, 614 F.3d 380, 384-85 (7th Cir. 2010) (adopting this animating
purpose test).
2.
View 2: A plain language reading. Tocco v. Real Time Resolutions, Inc., 48 F. Supp. 3d
535, 540 (SD NY 2014) (In connection with is synonymous with the phrases related

3.

to, associated with, and with respect to. It is expansive. It covers communications
that convey, directly or indirectly, any information relating to a debt.)
View 3: Case by case. Demands for payment are usually made in connection with debt
collection, but a court can consider other factors such as the nature of the parties
relationship, or the context of the communications. Gburek v. Litton Loan Servicing LP,
614 F.3d 380 (7th Cir. 2010)

Damages
1.
Actual Damages
a.
Overpayment
b.
Breaches of Contract. See 15 USC 1692f(1), which prohibits the collection of
amounts not authorized by the agreement creating the debt or permitted by law.
c.
Emotional Damages. Johnson v. Eaton, 80 F.3d 148 (5th Cir. 1996); McCollough
v. Johnson, Rodenburg & Lauinger, L.L.C., 637 F.3d 939 (9th Cir. 2011); Crespo
v. Brachfeld Law Group, 2011 WL 4527804 (S.D. Fla. Sept. 28, 2011). Nelson v.
Equifax Information Services, LLC, 522 F.Supp.2d 1222 (CD Ca. 2007); Boris v.
Choicepoint Services, Inc., 249 F.Supp.2d 851 (WD Ky. 2003); Davis v. Creditors
Interchange Receivable Management, LLC, 585 F.Supp.2d 968 (WD Ohio 2008);
Fausto v. Credigy Services Corp., 598 F.Supp.2d 1049 (ND Ca. 2009)
2.
Statutory Damages
a.
The FDCPA does not require proof of actual damages as a precursor to the
recovery of statutory damages Keele v. Wexler, 149 F.3d 589, 593 (7th Cir.
1998); Also Laughlin v. Household Bank, Ltd., 969 So.2d 509, 513 (Fla. 1st DCA
2007).
b.
The statutory damages to the consumer are designed as part of the private
attorney general concept of the FDCPA and FCCPA. See In re Jones, 494 BR
569 (MD Fla. 2013). The FDCPA and FCCPA permit public and private
enforcement. The drafters recognized that the government lacked resources to
prosecute every violation of these statutes, so they provided the statutory damages
as a financial incentive for private individuals to enforce these laws. The statutory
damages are both a finders fee for the consumer, and a penalty for the targeted
defendant.
c.
Statutory damages under the FDCPA are limited to $1,000 per claim, not $1,000
per violation. Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1178
(9th Cir. 2006); Harper v. Better Business Services, Inc., 961 F. 2d 1561, 1563
(11th Cir. 1992). Fla. Stat. 559.77(2) and 15 USC 1692k.
d.
Although statutory damages are limited to $1000 per claim but not per
violation, this does not mean that there is a $1000 claim per lawsuit. The
FDCPA and FCCPA statutory damages a measured on a per defendant and per
plaintiff basis. Dowling v. Kucker Kraus & Bruh, LLP, No. 99 Civ. 11958, 2005
WL 1337442, at *3 (S.D.N.Y. Jun. 6, 2005) (holding that the maximum statutory
damages available to Plaintiffs under [the FDCPA] is limited to $1,000.00 per
plaintiff per proceeding); Marseglia v. JP Morgan Chase Bank, 750 F.Supp.2d
1171, 1180 (S.D.Cal.2010); Tacoronte v. Tate & Kirlin Associates, Case No.
6:13-cv-331-Orl-37DAB, (MD Fla. Nov. 8, 2013) (The FCCPA also authorizes a

e.

f.

statutory award of $1,000 per plaintiff in a class actionnot per violation);

Beeders v. Gulf Coast Collection Bureau, 632 F. Supp. 2d 1125, 1130 (MD Fla.
2009) (Recovery of statutory damages under the FCCPA is limited to $1,000 per
defendant per adverse adjudication.); Gamboa v. Carruthers, Case No.
8:10-cv-1473-T-24-MAP (MD Fla. Nov. 19, 2010).
Example: If a series of violations of the FDCPA and FCCPA occurred involving
a debt collector (named A) and two agents (named B and C), with a
husband and wife who are jointly and severally liable under a consumer debt, you
may have 12 claims, broken down in the following way:
i.
Husband v. A for violations of the FDCPA.
ii.
Husband v. B for violations of the FDCPA.
iii.
Husband v. C for violations of the FDCPA.
iv.
Wife v. A for violations of the FDCPA.
v.
Wife v. B for violations of the FDCPA.
vi.
Wife v. C for violations of the FDCPA.
vii.
Husband v. A for violations of the FCCPA.
viii. Husband v. B for violations of the FCCPA.
ix.
Husband v. C for violations of the FCCPA.
x.
Wife v. A for violations of the FCCPA.
xi.
Wife v. B for violations of the FCCPA.
xii.
Wife v. C for violations of the FCCPA.
Punitive Damages
i.
A litigant will likely not recover punitive damages under the FDCPA.
Thomas v. Law Firm of Simpson & Cybak, 244 Fed. Appx. 741 (7th Cir.
2007); Randolph v. IMBS, Inc., 368 F.3d 726, 728 (7th Cir. 2004).
However, the litigant may be able to recover punitive damages under a tort
claim or under FDUTPA.

Vicarious liability and issues of agency

1.
The principal (as long as it is a debt collector) is vicariously liable for the acts of its agent.
Fox v. Citicorp Credit Services, Inc., 15 F.3d 1507, 1516 (9th Cir. 1994); Pettit v.
Retrieval Masters Creditor Bureau, Inc., 211 F.3d 1057, 1059 (7th Cir. 2000); Wadlington
v. Credit Acceptance Corp., 76 F.3d 103, 108 (6th Cir.1996); Pollice v. National Tax
Funding, L.P., 225 F.3d 379 (3d Cir.2000).
2.
Individuals who control the practices of a collection firm can be personally liable, even if
they act under the auspices of a corporate entity. Alozynski v. Rubin & Debski, P.A., 2010
WL 1849081 (M.D. Fla, May 7, 2010).
3.
Corporate officers and employees can be vicariously liable for the acts of the business
entity where they have affirmatively acted. Williams v. Collection Team, Inc., Not
Reported in F.Supp., No. 976645CIVRYSKAMP (SD Fla. 1997); Belin v. Litton
Loan Serv., L.P., 2006 WL 1992410 (M.D. Fla. July 14, 2006); Krapf v. Profl Collection
Servs., Inc., 525 Supp. 2d 3324 (E.D.N.Y. 2007); Ohlson v. Cadle Co. 2006 WL 721505
(E.D.N.Y. Mar 21, 2006); Reade-Alvarez v. Eltman, Eltman & Cooper, P.C., 369 F.
Supp. 2d 353 (E.D.N.Y. 2005); Kistner v. Law Offices of Michael P. Margelefsky, L.L.C.,
518 F.3d 433 (6th Cir. 2008).

4.

5.

6.

Partners of a debt collector limited partnership may be held jointly and severally liable for
the partnerships conduct regardless of whether they violated the FDCPA and whether or
not they are debt collectors. LeBlanc v. Unifund CCR Partners, 601 F.3d 1185 (11th Cir.
2010); Also Peter v. G.C. Servs. L.P., 310 F.3d 344 (5th Cir. 2002)
The law firms president, with duties of supervision and overall responsibility, and the
attorney who signed letters, could both be liable under the FDCPA. Albanese v. Portnoff
Law Assocs., Ltd., 301 F. Supp 2d 389 (S.D. Pa. 2004).
Issues of agency provide a possibility to multiply the statutory damages. See the section
on statutory damages, above.

Jury trial
1.
View 1: A contractual jury trial waiver does not apply to non-parties to the contract.
Hamid v. Ocwen Loan Servicing, LLC, No. 13-62821-CIV (S.D. Fla. Feb. 26, 2014);
Williams v. Wells Fargo Bank, N.A., No. 11-21233-CIV (S.D. Fla. Oct. 14, 2011);
Omega v. Deutsche Bank Trust Co. Ams., 920 F. Supp. 2d 1298 (S.D. Fla. 2013);
Thompson v. Caliber Home Loans, Inc., Case No. 15-21616 (SD Fla. Jan. 22, 2016)
Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1166 (9th Cir. 1996);
Hulsey v. West, 966 F.2d 579, 581 (10th Cir. 1992)
2.
View 2: The servicer, as the agent of the mortgage holder, can enforce provisions of the
contract, including the jury trial waiver. Ferraro v. Wells Fargo N.A., No.
2:13-CV-632-FTM-38, at *1 (M.D. Fla. Sept. 24, 2013); Paschette v. Wells Fargo Bank,
N.A., No. 6:11-cv-442-Orl-31 GJK, at *4-5 (M.D. Fla. June 21, 2011)
3.
View 3: The servicer, as the holder of the note, can enforce the jury trial waiver. 37 Fla.
Jur.2d Mortgages 519 (2007)(mortgage security follows the note); Lindsey v. Wells
Fargo Bank, NA, 139 So. 3d 903, 907 (Fla. 1st DCA 2013) (the mortgage follows the
note).
Preemption
1.
When the FDCPA conflicts with a state law, the FDCPA trumps the state law. 15 USC
1692n
a.
Examples:
i.
Floridas litigation privilege does not apply to the FDCPA
ii.
Floridas offer of judgment statute does not apply to the FDCPA.
iii.
Floridas 3-day pre-suit notice requirement in Fla. Stat. 83.56 will likely
not trump the FDCPAs requirement to provide the consumer with 30 days
to dispute the debt under 15 U.S.C. 1692(g). See Romea v. Heiberger &
Associates, 163 F. 3d 111 (2d Cir. 1998). The lesson here is that the
creditor (i.e., the landlord or property manager) should give the 3 day
notice, not attorneys.
iv.
Denying a consumers exemption from garnishment in compliance with
Fla. Stat. 77.041 and 222.12 may be actionable under the FDCPA if
false. Chalik v. Westport Recovery Corp., 677 F. Supp. 2d 1322 (S.D. Fla.
2009).

Common Violations
2.
Attorneys filing complaints or signing documents without meaningful attorney review.
Consumer Fin'l Protection Bureau v. Frederick J. Hanna & Associates, P.C., 114 F.
Supp. 3d 1342 (N.D. Ga. 2015); Diaz v. Portfolio Recovery Associates, LLC, No. 10 CV
3920 (ED NY Feb. 28, 2012).
3.
Seeking pre-judgment attorneys fees and costs. Veach v. Sheeks, 316 F. 3d 690 (7th Cir.
2003); Singer v. Pierce & Associates, PC, 383 F. 3d 596 - (7th Cir. 2004); Fields v.
Wilber Law Firm, PC, 383 F. 3d 562 (7th Cir. 2004);
4.
False or misleading representations, especially with regard to the amount of the debt
claimed to be owed. Fla. Stat. 559.72(9); 15 USC 1692e
5.
Sending communications to the consumer when he or she is represented by an attorney.
Fla. Stat. 559.72(18); 15 USC 1692c(a)(1)
6.
Failure to provide identification information after demand. Fla. Stat. 559.72(15);
7.
Failure to provide the FDCPA Maxi Miranda under 15 USC 1692g(a):
a.
Within five days after the initial communication with a consumer in connection
with the collection of any debt, a debt collector shall, unless the following
information is contained in the initial communication or the consumer has paid
the debt, send the consumer a written notice containing
(1)
the amount of the debt;
(2)
the name of the creditor to whom the debt is owed;
(3)
a statement that unless the consumer, within thirty days after
receipt of the notice, disputes the validity of the debt, or any
portion thereof, the debt will be assumed to be valid by the debt
collector;
(4)
a statement that if the consumer notifies the debt collector in
writing within the thirty-day period that the debt, or any portion
thereof, is disputed, the debt collector will obtain verification of
the debt or a copy of a judgment against the consumer and a copy
of such verification or judgment will be mailed to the consumer by
the debt collector; and
(5)
a statement that, upon the consumer's written request within the
thirty-day period, the debt collector will provide the consumer with
the name and address of the original creditor, if different from the
current creditor.
b.
Legal pleadings are not initial communications that trigger a duty to provide
FDCPA Miranda warnings. 15 USC 1692g(d). However, misrepresentations or
other violations in the course of litigation can be actionable under the FDCPA.
Goldman v. Cohen, 445 F.3d 152 (2d Cir. 2006) (Holding that a legal pleading
was a communication under the FDCPA).
c.
A debt collector attorney violates the FDCPA where the initial communication
occurred in the attorneys post-judgment collection letter to the consumer. Frey v.
Gangswish, 970 F.2d 1516 (6th Cir. 1992).
8.
Failure to provide the FDCPA Mini Miranda
a.
In the initial communication, the debt collector must state that the debt collector
is attempting to collect a debt and that any information obtained will be used for

9.
10.

11.

that purpose15 USC 1692e(11)

b.
In any subsequent communication, the debt collector state that the
communication is from a debt collector. 15 USC 1692e(11)
Overshadowing or contradicting the rights in the Maxi Miranda under 15 USC 1692g.
Gaalswyk-Knetze v. Receivable Mgmt. Servs. Corp., 2008 Lexis 44152 (MD Fla. 2008).
Failure to verify the debt. 15 U.S.C. 1692g(b)
a.
View 1: [V]erification of a debt involves nothing more than the debt collector
confirming in writing that the amount being demanded is what the creditor is
claiming is owed; the debt collector is not required to keep detailed files of the
alleged debt. Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir.1999); Also
Mahon v. Credit Bureau of Placer County Inc., 171 F.3d 1197 (9th Cir. 1999)
b.
View 2: [T]he baseline for verification is to enable the consumer to
sufficiently dispute the payment obligation Although the answer to that question
depends on the facts of a particular situation, the cases reflect that an itemized
accounting detailing the transactions in an account that have led to the debt is
often the best means of accomplishing that objective. Haddad v. Alexander,
Zelmanski, Danner & Fioritto, 758 F. 3d 777, 785 (6th Cir. 2014).
c.
NOTE: Dont count on getting a judgment due to a failure to sufficiently verify
the debt under 15 U.S.C. 1692g(b). Instead, the verification requirement is
often a good technique to uncover or demonstrate violations where the collector
has demanded amounts that are not owed in violation of 15 U.S.C. 1692e and
Fla. Stat. 559.72(9). If the collector reduces amounts that are not owed through
the verification process, it is admitting that its previous letter sought illegal
amounts. If the collector refuses correct the incorrect amounts, that can be used to
show a willful violation of the statutes, and can undermine a bona fide error
defense.
Failure to cease collection until the debt is verified. 15 U.S.C. 1692g(b); Shimek v.
Forbes, 374 F.3d 1011 (11th Cir. 2004); Bartlett v. Heibl, 128 F.3d 497 (7th Cir. 1997);
McDaniel v. South & Assocs., P.C., 325 F. Supp. 2d 1210 (D. Kan. 2004) (collector
violated FDCPA by initiating judicial foreclosure action seeking money judgment as well
as foreclosure after receiving timely verification request but before responding to it);
Levin v. Kluever & Platt, L.L.C., 2003 WL 22757763 (N.D. Ill. Nov. 19, 2003) (may not
seek default judgment); Lietz v. Mikel M. Boley Attorney at Law, 2006 WL 335854 (D.
Utah Feb. 14, 2006) (claim was stated where defendant filed complaint and summons
after verification was requested and before it had been provided); Recker v. Cent.
Collection Bureau, Inc., 2005 WL 2654222 (S.D. Ind. Oct. 17, 2005) (attaching
verification of debt to small claims complaint was improper); Frey v. Satter, Beyer &
Spires, 1999 WL 301650 (N.D. Ill. May 3, 1999) (verification notice should also state
that if debt verification was requested, suit would be paused until verification was
provided); Taylor v. Fink, 1994 WL 669605 (N.D. Ill. Nov. 25, 1994).
a.
An untimely demand for validation does not trigger a duty to cease collection.
Moore v. Blatt, Hasenmiller, Leibsker and Moore, L.L.C., 2006 WL 1806195
(C.D. Ill. June 29, 2006); Mumma v. Burton & Neil Assocs., P.C., 2006 WL
1094548 (M.D. Pa. Apr. 24, 2006). See also Campbell v. Credit Bureau Sys. Inc.,
655 F. Supp. 2d 732 (E.D. Ky. 2009).

12.

13.
14.
15.
16.
17.

18.

19.
20.

Reporting a disputed debt to a credit reporting agency before sending a verification of the
debt to the consumer following a dispute. Edeh v. Midland Credit Mgmt., Inc., 2010 WL
3893604 (D. Minn. Sept 29, 2010).
Reporting false information to credit bureaus. Davis v. Trans Union, L.L.C., 526 F. Supp.
2d 577 (WD NC 2007)
Failure to file a collection action where the contract was signed or where the consumer
resides. 15 USC 1692i
Communicating with third parties. 15 USC 1692c(b)
Failure to heed a demand to cease communication. 15 USC 1692c(c).
Violations in a communication to the debtors attorney are actionable under the FDCPA.
Allen ex rel. Martin v. LaSalle Bank, N.A., 629 F.3d 364, 368 (3d Cir.2011); Evory v.
RJM Acquisitions Funding L.L.C., 505 F.3d 769, 773-75 (7th Cir.2007); Sayyed v.
Wolpoff & Abramson, 485 F.3d 226, 232-33 (4th Cir.2007); Bishop v. Ross Earle &
Bonan, PA, 817 F. 3d 1268, 1272 (11th Cir. 2016).
Answering machine messages. Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350
(11th Cir. 2009) (finding that an answering machine message was a communication
subject to the FDCPA even though the message did not convey any specific information
about a debt); Ramirez v. Apex Fin. Mgmt., LLC, 567 F. Supp 2d 1035 (ND Ill. 2008)
a.
It may be impossible to formulate an FDCPA compliant message on a meddage
machine under 15 USC 1692e(11) and 1692c(b). Chalik v. Westport Recovery
Corp., 677 F. Supp. 2d 1322, 1328 (SD Fla. 2009).
Monthly Statements and Notices of Default are regulated by the FDCPA. Burdick v. Bank
of America, 140 F. Supp. 3d 1325 (SD Fla. 2015)
Requesting that the consumer admit to false or misleading requests for admissions.
McCollough v. Johnson, Rodenberg & Lauinger, 610 F. Supp. 2d 1247 (D. Mont. 2009).

Least Sophisticated Consumer

1.
Court apply an objective analysis to questions as to whether a communication is false or
misleading to the least sophisticated consumer. Jeter v. Credit Bureau, 760 F.2d 1168
(11th Cir. 1985)

Attorneys Fees
1.
The FDCPA and FCCPA have one-sided attorneys fees provisions, meaning that
consumers can collect their attorneys fees if they win, but defendants cannot usually
collect attorneys fees if the consumer does not prevail. 15 U.S. Code 1692k(3);
559.77(2).
2.
If the FDCPA/FCCPA claim fails to raise a justiciable issue of law or fact, then the
defendant can recover fees. . 15 U.S. Code 1692k(3); 559.77(2). This has some overlap
with Fla. Stat. 57.105, although there is no safe harbor provision, and there is no right to
recover fees from an attorney.
3.
Contingency Multiplier? Unlikely. Dish Network Service LLC v. Myers, 87 So. 3d 72
(Fla. 2d DCA 2012) (Declining to award a multiplier under the Courts interpretation of
federal law); In re Martinez, 266 BR 523 (MD Fla. 2001) (declining to award a
multiplier); Lee v. Javitch, Block & Rathbone, LLP, 568 F. Supp. 2d 870 (SD Ohio 2008)

(Awarding multiplier). However, the contingency risk may adjust the lodestar calculation
for the attorneys hourly rate. Carter v. Medicredit, Inc., Civil Action No.
2:11-CV-01272-WMA (SD Ala. 2012) (Comparing the hourly rates of contingent an noncontingent attorneys fees in an FDCPA case).