FCCPA (Florida)

Posted on September 14, 2016 by Neil Garfield

The FCCPA has a 2 year statute of limitations which gives one more  year of potential actions and it allows for more actions in violation of the statute. It is intended to be a state version of the FDCPA, and explicitly defers to interpretations of the FDCPA.

Any lawyer that does not see the potential for (a) helping their clients and (b) making a lot of money doing it is missing the train, which has already left the station. I have not emphasized this remedy because for the most part, the awards have been minimal. But there are an increasing number of cases in which the awards have been significant. Make sure you know what you are talking about, because there is a provision that says the Defendants are entitled to fees if the action was without merit.

The items in bold were my emphasis because these items in my opinion are the most common and constant in the everlasting quest for as many foreclosure judgments as the banks can muster.

Florida Statutes 559.72 and 559.77
559.72 Prohibited practices generally.—In collecting consumer debts, no person shall:

(1) Simulate in any manner a law enforcement officer or a representative of any governmental agency.
(2) Use or threaten force or violence.
(3) Tell a debtor who disputes a consumer debt that she or he or any person employing her or him will disclose to another, orally or in writing, directly or indirectly, information affecting the debtor’s reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed as required by subsection (6).
(4) Communicate or threaten to communicate with a debtor’s employer before obtaining final judgment against the debtor, unless the debtor gives her or his permission in writing to contact her or his employer or acknowledges in writing the existence of the debt after the debt has been placed for collection. However, this does not prohibit a person from telling the debtor that her or his employer will be contacted if a final judgment is obtained.
(5) Disclose to a person other than the debtor or her or his family information affecting the debtor’s reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false.
(6) Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact. If a disclosure is made before such dispute has been asserted and written notice is received from the debtor that any part of the debt is disputed, and if such dispute is reasonable, the person who made the original disclosure must reveal upon the request of the debtor within 30 days the details of the dispute to each person to whom disclosure of the debt without notice of the dispute was made within the preceding 90 days. [Editor’s note: I interpret this to mean that if the debt collector knew or shoudl have known that there were fatal defects in their claim and that they had no evidence to support their representations that they were acting for the benefit of a real creditor, they are liable for damages]
(7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family.
(8) Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of her or his family.
(9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.
(10) Use a communication that simulates in any manner legal or judicial process or that gives the appearance of being authorized, issued, or approved by a government, governmental agency, or attorney at law, when it is not. [e.g. HAMP or HARP] [Editor note: This pierces to the heart of what is happening out there. I have tested it and fully satisfied myself that the attorneys are working for the servicers, and many times even say as much — to the exclusion of working for the Plaintiff “Trustee” or “Trust.” The “advice” that the loan does not qualify under HAMP may be a representation that the speaker is working for an entity that somehow is operating under government control. In fact they are not and in my opinion there is virtually no occasion in which the loan is reviewed by an investor despite the constant references that the “investor rejected it.” It is time to press this point. If there is no evidence that the loan was referred for HAMP modification then the representation is false unless some authorized person working for an authorized entity actually reviewed the alleged loan with an eye towards how a HAMP modification could work in a given situation.]
(11) Communicate with a debtor under the guise of an attorney by using the stationery of an attorney or forms or instruments that only attorneys are authorized to prepare. [Editor note: I have noticed that the lawyer’s office is merely used to pass through information. This may be why the appearance at mediation is a farce — there is no person present representing the Plaintiff, there is no person with authority to do anything except hand the homeowner an application for loss mitigation. As I have learned over a dozen times, there is nobody present who is authorized to negotiate a cash payout, a short refi, a short sale or anything else. They have no authority to settle on any terms — even if the homeowner qualifies for modification under the internal policies of the servicer.]
(12) Orally communicate with a debtor in a manner that gives the false impression or appearance that such person is or is associated with an attorney.
(13) Advertise or threaten to advertise for sale any debt as a means to enforce payment except under court order or when acting as an assignee for the benefit of a creditor.
(14) Publish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts. [Editor’s note: perhaps the report to credit reporting agencies might be a constructive addition to the deadbeat list. Think about the foreclosures on the credit record caused by entities that were complete strangers to the alleged loan.]
(15) Refuse to provide adequate identification of herself or himself or her or his employer or other entity whom she or he represents if requested to do so by a debtor from whom she or he is collecting or attempting to collect a consumer debt. [Editor Note: It isn’t enough to identify yourself as the servicer. You must state the identity of the principal for whom you are servicing. Otherwise it is just a self-serving statement that anyone could make. ]
(16) Mail any communication to a debtor in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass the debtor. An example of this would be an envelope addressed to “Deadbeat, Jane Doe” or “Deadbeat, John Doe.”
(17) Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor’s time zone without the prior consent of the debtor.

(a) The person may presume that the time a telephone call is received conforms to the local time zone assigned to the area code of the number called, unless the person reasonably believes that the debtor’s telephone is located in a different time zone.
(b) If, such as with toll-free numbers, an area code is not assigned to a specific geographic area, the person may presume that the time a telephone call is received conforms to the local time zone of the debtor’s last known place of residence, unless the person reasonably believes that the debtor’s telephone is located in a different time zone.
(18) Communicate 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, unless the debtor’s attorney fails to respond within 30 days to a communication from the person, unless the debtor’s attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication.
(19) Cause a debtor to be charged for communications by concealing the true purpose of the communication, including collect telephone calls and telegram fees.
History.—s. 18, ch. 72-81; s. 3, ch. 76-168; s. 1, ch. 77-457; ss. 1, 6, ch. 81-314; ss. 2, 3, ch. 81-318; ss. 1, 3, ch. 83-265; ss. 7, 13, ch. 93-275; s. 819, ch. 97-103; s. 1, ch. 2001-206; s. 4, ch. 2010-127.
559.77 Civil remedies.—

(1) A debtor may bring a civil action against a person violating the provisions of s. 559.72 in the county in which the alleged violator resides or has his or her principal place of business or in the county where the alleged violation occurred.

(2) Any person who fails to comply with any provision of s. 559.72 is liable for actual damages and for additional statutory damages as the court may allow, but not exceeding $1,000, together with court costs and reasonable attorney’s fees incurred by the plaintiff. In determining the defendant’s liability for any additional statutory damages, the court shall consider the nature of the defendant’s noncompliance with s. 559.72, the frequency and persistence of the noncompliance, and the extent to which the noncompliance was intentional. In a class action lawsuit brought under this section, the court may award additional statutory damages of up to $1,000 for each named plaintiff and an aggregate award of additional statutory damages up to the lesser of $500,000 or 1 percent of the defendant’s net worth for all remaining class members; however, the aggregate award may not provide an individual class member with additional statutory damages in excess of $1,000. The court may award punitive damages and may provide such equitable relief as it deems necessary or proper, including enjoining the defendant from further violations of this part. If the court finds that the suit fails to raise a justiciable issue of law or fact, the plaintiff is liable for court costs and reasonable attorney’s fees incurred by the defendant.

(3)  A person may not be held liable in any action brought under this section if the person shows by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error, notwithstanding the maintenance of procedures reasonably adapted to avoid such error.

(4) An action brought under this section must be commenced within 2 years after the date the alleged violation occurred.

(5)  In 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.

History.—s. 23, ch. 72-81; s. 3, ch. 76-168; s. 1, ch. 77-457; s. 9, ch. 78-95; ss. 3, 6, ch. 81-314; ss. 2, 3, ch. 81-318; ss. 1, 3, ch. 83-265; ss. 10, 13, ch. 93-275; s. 820, ch. 97-103; s. 2, ch. 2001-206; s. 9, ch. 2010-127.

 

559.552  Relationship of state and federal law.—Nothing in this part shall be construed to limit or restrict the continued applicability of the federal Fair Debt Collection Practices Act to consumer collection practices in this state. This part is in addition to the requirements and regulations of the federal act. In the event of any inconsistency between any provision of this part and any provision of the federal act, the provision which is more protective of the consumer or debtor shall prevail.

History.—ss. 5, 13, ch. 93-275.

 

559.715  Assignment of consumer debts.—This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interestand may bring an action to collect a debt that has been assigned to the assignee and is in default.

History.—s. 1, ch. 89-69; ss. 6, 13, ch. 93-275; s. 3, ch. 2010-127.

Filed under: foreclosure |

« »

3 Responses

  1. Shadowcat, on September 14, 2016 at 9:58 pm said:

    Questios to Servicer. ..”Who hired you”? “Who pays you?”

    Servicer Answer .. “Generally the title companies such as. 1st American Title”

    KC. .oh..the 1st American Title who monitors my husbands credit report?
    Or the 1st American Title Insurer on Our Policy?
    Perhaps the 1st American Title who endorses some of KC s paychecks?

    Semi-Retired
    No Subornation Rights

    Many Blessings to All

  2. StillFighting, on September 14, 2016 at 2:20 pm said:

    So, if the servicers, banks, and plaintiff attorneys have all conspired on numerous falsified Lost Note Affidavits and Mortgage Assignments, are they all culpable and liable for damages to the Defendant (me)?

  3. depatridge, on September 14, 2016 at 9:33 am said:

    Reblogged this on Matthews' Blog.

Leave a Reply

%d bloggers like this: