Recently, the Eleventh Circuit court vacated a dismissal of a mortgage borrower’s complaint. In Daniels v. Select Portfolio Servicing, the plaintiff argued that the mortgage lender violated both the Fair Debt Collection Practices Act (FDCPA) and the Florida Consumer Collection Practices Act (FCCPA). Daniels argued the lender was asking for an incorrect amount of debt to be paid. The court found that because there was certain language included in the statements sent by the mortgage lender, their collection practices were subject to both the FDCPA and the FCCPA.
The FDCPA and the FCCPA are two important laws that protect all borrowers throughout Florida. Although these two sets of laws are very similar, there are differences. Below, our Fort Lauderdale Broward County consumer debt defense lawyer explains what those are.
Protection for Borrowers Under the FDCPA
The FDCPA specifically outlines certain actions debt collectors can and cannot take when trying to recover debts from borrowers. For example, the Act prohibits debt collectors from using harassing or threatening tactics when trying to collect any debt, and they also cannot communicate with third parties about your debt, although there are some exceptions to this rule. Additionally, debt collectors are not allowed to contact your employer or call you at work if you have asked them not to. They also cannot call you at home at unreasonable hours, such as very early in the morning or very late at night.
The FDCPA is extensive and the above are just a few of the protections it provides for borrowers. Any time a debt collector violates the law, borrowers can file a lawsuit against them to collect damages.
Protection for Borrowers Under the FCCPA
The FCCPA largely mirrors the FDCPA, but it does offer more protection for borrowers in Broward County. Under the FDCPA, debt collectors and creditors are prohibited from using harassing, abusive, deceptive, fraudulent, or misleading tactics when collecting debts. Some of the other actions debt collectors and creditors are prohibited from taking according to the FCCPA are as follows:
- Fraudulently represent themselves as law enforcement, or as though they are working on behalf of a government agency
- Threaten to use or use violence or force
- Speak to, or threaten to speak to your employer about the debt, unless they have obtained a wage garnishment judgment against you
- Communicate with any third party, other than family members, in a manner that affects your reputation or creditworthiness, knowing the information is incorrect or that the third party does not have a valid business need for the information
- Report or threaten to report a disputed debt with any credit reporting bureau without also informing them of the nature of your dispute
- Call you before 8:00 am or after 9:00 pm
- Tell you that a lawyer is involved when that is not the case, or misrepresenting themselves as an attorney
- Send you notices, forms, or summons intended to look similar to a government document or attorney letter when the material is not of a legal or official nature
- Use profane, obscene, abusive, or vulgar language when speaking to you or any members of your family
- Attempt or threaten to enforce a debt against you when the debt is illegitimate
- Communicate with you directly knowing you have legal representation
- Mail you documentation that contains embarrassing phrases or words where they are visible to others
Who Do the Laws Apply To?
One of the biggest differences between federal law and state law is that the FDCPA applies to debt collectors and certain third-party debt buyers. Under the law, a debt buyer is defined as any person or entity that purchases debt from original creditors and tries to recover the amount owed by the borrower. The FDCPA is also applied to certain attorneys when they try to collect on a debt or represent an entity trying to collect a debt. The FDCPA does not typically apply to original creditors.
Fortunately for borrowers in Broward County, the FCCPA does apply to original creditors. It also applies to debt collectors and debt purchasers.
Damages Available Under the Law
If a creditor or debt collector violates either state or federal law when trying to recover a debt you owe, you do have the legal right to file a lawsuit against them. If you are successful with your lawsuit, you can recover certain damages, which include:
- Any actual damages you sustained as a result of the violation, such as lost income if you were fired after a debt collector phoned you repeatedly at work
- Statutory damages up to $1,000
Under the FCCPA, plaintiffs who are successful in their lawsuit can recover damages that include:
- Any actual damages you sustained as a result of the violation
- Statutory damages up to $1,000
- Court fees
- Attorney fees
- Injunctive relief
- Punitive damages, in some cases
Statute of Limitations on Debt Defense Lawsuits
When filing a lawsuit against a debt collector or creditor for violating the law, you only have a limited amount of time. This is another significant difference between the two sets of laws. Under the FDCPA, you have only one year from the date the violation occurred. If there were several violations, such as if a debt collector regularly called you late at night, the statute of limitations is one year from the date of the last violation.
The FCCPA provides borrowers additional protection in the statute of limitations, as well. Under this law, you must file a lawsuit against a debt collector or creditor within two years from the date of the last violation. Although the statute of limitations does differ between the two laws, one thing remains the same. If you allow the statute of limitations to expire, you will lose your right to claim any damages at all.
Our Consumer Debt Defense Lawyers in Broward County Can Help with Your Lawsuit
If a creditor or debt collector has violated the law while trying to collect a debt they allege you owe, our Broward County consumer debt defense lawyer can help. At Loan Lawyers, our seasoned attorneys have helped thousands of borrowers successfully fight back against creditors and debt collectors, and we want to help you, too. Call us now at (954) 523-4357 or reach out to us online to schedule a free consultation.
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Loan Lawyers is made up of experienced consumer rights attorneys who use every available resource to develop comprehensive debt solution strategies. Our goal is to take on those burdens, resolve those problems, and allow our clients to sleep soundly knowing they are on the path to a better future.
