Defense Digest

Florida Legislature Considers Changes To Debt Collection Law

The Florida Legislature is considering changes to the Florida Consumer Collection Practices Act (the "FCCPA"). These changes would appear to provide more protection for debtors and create additional hurdles for debt collectors.

Among the changes being considered is an expansion of the definition of "debt" to include "any unsatisfied obligation for payment of money arising out of any legal order." If the change passes, it would likely encompass any order or judgment of any court, creating an obligation on the part of any person to pay. The change would not effect the requirement that the obligation be related to personal rather than commercial matters.

However, it would potentially create a problem for a spouse attempting to collect unpaid amounts under a child support order. Such orders were generally considered exempt from the FCCPA; however, the proposed amendment appears to include such obligations within the FCCPA's purview. The end result could be that a former spouse would be subject to the requirements of the FCCPA in pursuing non-litigation tactics to collect from the non-paying former spouse. The same rationale would likely apply to all judicial orders or judgments. Unlike its federal counterpart, the FCCPA applies not only to third-party debt collectors, but to "any person" collecting a consumer debt.

Also on the agenda is an amendment that would allow Florida courts to rely on federal case law from any jurisdiction to interpret the FCCPA, notwithstanding Florida federal case law on the issue before the court. If the amendment passes, the courts would be allowed to disregard Florida federal case law favorable to a debt collector and rely instead on case law from any other federal court to render its opinion. Since federal courts are often widely divergent in their interpretations of the federal Fair Debt Collection Practices Act (the "FDCPA"), this amendment would create great uncertainty among debt collectors, creditors, and their attorneys regarding what conduct would be violative of the FCCPA.

The Legislature is also considering an amendment that would make it a per se violation of the FCCPA if the defendant violated the FDCPA. While the FCCPA and FDCPA are very similar in terms of prohibited conduct, there is one distinct difference. The FDCPA has consistently been held to be a strict liability statute. On the other hand, the FCCPA at §559.72(5) has a scienter requirement regarding the false assertion of a legal right or a debt owed. Stated another way, to prove a violation of the FDCPA under the aforementioned section, a debtor not only must prove that the debt collector committed a wrong, but must also prove the debt collector knew what it was doing was wrong. If the proposed amendment becomes law, it threatens to eviscerate the scienter requirement that currently exists under the FCCPA.

*Dale is a shareholder in our Tampa, FL office. He can be reached at (813) 472-7802 or dgolden@mdwcg.com.