Saturday, February 14, 2015

FYI: SD Fla Confirms Communications Sent Only to Debtor's Counsel Not Actionable Under FDCPA

The U.S. District Court for the Southern District of Florida recently dismissed with prejudice a borrower’s action under both the federal Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692(e)(2) and (f)(1) (“FDCPA”) and the Florida Consumer Collection Practices Act, Fla. Stat. § 559.72(9) (“FCCPA”), confirming that communications directly solely to a debtor’s attorney are not actionable.  A copy of the opinion is attached.


The borrower alleged that the defendant mortgage loan servicer violated both the FDCPA and FCCPA by sending a payoff statement to the borrower’s counsel, which showed both a total amount due and interest rate greater than what was reflected in the final judgment of foreclosure.


The borrower argued that the act of sending the payoff statement with allegedly incorrect information not reflected in the foreclosure judgment violated FDCPA subsection 1692e(2), which prohibits a debt collector from making a “false representation of … the character, amount, or legal status of any debt.”


In addition, the borrower argued that the payoff statement also violated subsection 1692f(1) of the FDCPA, which prohibits a debt collector from attempting to “collect any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.”


The Court noted that under the Eleventh Circuit’s “least sophisticated consumer” test, a communication might violate the FDCPA if the language used by the debt collector tends to mislead the least sophisticated recipients of a debt collector’s letters and telephone calls.


However, the Court held, when the communication at issue is sent not to a consumer, but rather only to his or her attorney, this test is not necessary in order to carry out the FDCPA’s purpose because the attorney is presumably not unsophisticated, but well trained and educated.


Agreeing with other courts that have not applied the “least sophisticated consumer” test when communications are directed to the consumer’s attorney, and instead have found that such communications are not actionable, the Court concluded that the communication at issue did not give rise to a violation of the FDCPA.


Turning to the state-law FCCPA claim, the Court held that because the FCCPA itself provides that great weight must be given to federal courts’ interpretation of the FDCPA, and the borrower’s FDCPA claim was not actionable, the FCCPA claim failed as well.



Ralph T. Wutscher
McGinnis Wutscher LLP
The Loop Center Building
105 W. Madison Street, 18th Floor
Chicago, Illinois 60602
Direct: (312) 551-9320
Fax: (312) 284-4751
Mobile: (312) 493-0874


Admitted to practice law in Illinois





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