The Florida Consumer Collection Practices Act, Florida Statutes §559.55 et seq. (“FCCPA”) is a state law analog to the federal Fair Debt Collection Practices Act, 15 U.S.C. §1692 et seq. (“FDCPA”). Both statutes are intended to protect consumers from unfair and deceptive debt collection activities, and provide for both regulatory enforcement as well as private causes of action. The statutes are sufficiently similar that federal interpretations of the FDCPA are given “due consideration and great weight” by Florida courts interpreting the FCCPA. 2010 Fla. Sess. L. Serv. at § 559.77(5). The definitions sections of both Acts are markedly similar. Until recently, the FCCPA was considered to be narrower in scope than the FDCPA. Recent decisions, however, expose lenders and creditors to greater liability under the FCCPA than under the federal Act.
Both statutes have similar definitions for a “debt collector” and exclude from this definition entities that originated a consumer loan and entities that acquired such a loan when it is not in default. 15 U.S.C. §1692a(6)(F); Florida Statutes §559.55(6)(a), (f). An element of a civil claim for violations of the FDCPA that must be pled and proven is that the defendant is a debt collector as defined in that statute. As a result, a consumer’s creditors, a mortgage servicing company, or an assignee of a debt are not considered debt collectors, and are not liable under the FDCPA, as long as the debt is not in default at the time it is assigned or acquired. Servicers who acquire a debt when it is in default, however, are debt collectors under the statute. Also, service providers, such as attorneys, that are retained after the debt is in default are not exempted from the definition of a debt collector under the FDCPA.
Notwithstanding the fact that the Florida Act’s definition of “debt collector” exempts originating lenders and creditors that acquire a debt before default, Florida courts have declined to include the requirement that a defendant must be a debt collector as an element of a civil claim under the FDCPA. Gann v. BAC Home Loans Servicing, LP, 145 So.3d 906, 910 (Fla. 2d DCA 2014). This interpretation results from language in the Prohibited Practices section of the statute that states “In collecting consumer debts, no person shall… [commit specified prohibited acts]. Florida Statutes §559.72 (emphasis added). Thus, liability under the FCCPA is not predicated upon a defendant being a “debt collector” but rather upon being a “person” that is attempting to collect a consumer debt and commits a prohibited practice. Gann v. BAC Home Loans Servicing, LP, 145 So.3d at 910. The distinction drawn between the FCCPA and the FDCPA by Florida courts has been cited by a federal court as well. Williams v. Educational Credit Management Corp., __ F.Supp. __, Case No. 8:14-cv-1254, 2015 WL 847381 (M.D. Fla. Feb. 26, 2015).
As a result, an originating lender or a person acquiring the debt before default may be held liable for violations of the FCCPA even though the same entity would fall outside of the definition of a debt collector and not be liable under the FDCPA. This significant departure from federal law, which greatly expands the potential liability of lenders and creditors, has not yet been reviewed by the Florida Supreme Court.
