Escolar Documentos
Profissional Documentos
Cultura Documentos
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.
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.
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.
FCCPA
No injunctive relief.
i.
3.
4.
5.
c.
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.
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.
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).
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).