The U.S. District Court for the Middle District of Florida recently denied a motion to dismiss an amended complaint alleging that a time-share association violated the Florida Consumer Collection Practices Act ("FCCPA") and the federal Telephone Consumer Protection Act ("TCPA"), holding that:
1. A debtor need not use any precise language or magic word to notify a debt collector that the debtor is represented by legal counsel with respect to a debt;
2. A voicemail message merely asking the debtor to return the call to discuss the debt was a debt collection communication; and
3. Declaratory relief may be available under the TCPA.
A copy of the opinion is available at: Link to Opinion
A man and a woman owed time-share maintenance fees and retained counsel, who allegedly sent a letter to the time-share association requesting that any future communication regarding the debt be directed to counsel. The letter allegedly also revoked any prior consent to call the woman's cell phone and enclosed a limited power of attorney for the man.
The time-share association then supposedly sent to the man, over a period of four months, 13 e-mails trying to collect the debt, called his cell phone at least 8 times and called the woman's cell phone at least 5 times using an automatic telephone dialing system ("ATDS"). The association also supposedly sent a billing statement addressed to both the man and woman.
The plaintiffs sued, alleging violations of the Florida Consumer Collection Practices Act ("FCCPA") and the federal Telephone Consumer Protection Act ("TCPA"). The time-share association moved to dismiss.
The Court first addressed the FCCPA claims, noting that subsection 559.72(18) of the FCCPA "prohibits a debt collector from '[c]ommunicat[ing] 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.'"
The Court rejected the time-share association's "hypertechnical" argument that because the word "debt" did not appear in the attorney's letter, it did not put the time-share association on notice that plaintiffs were represented as to the debt.
The Court noted that the word "debt" was, in fact, mentioned in the letter, but even it was not, the Court reasoned that "there is no requirement that a debtor use any precise language or magic word to notify a debt collector that the debtor is represented by legal counsel with respect to a debt." The Court held that the language of the letter and context were enough under the circumstances to convey the message that the plaintiffs had counsel with respect to the debt.
The Court also found that the voicemail message left on the plaintiffs' cellular phones requesting that either the man or woman return the call to discuss the debt constituted prohibited "indirect communications" under both subsections of the FCCPA.
The Court then turned to whether the complaint stated a claim under FCCPA subsection 559.72(7), which "prohibits a debt collector from '[w]illfully communicat[ing] with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engag[ing] in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her of his family."
The Court rejected as meritless the time-share association's argument that the complaint failed to state a claim under subsection 559.72(7) of the FCCPA because only conduct specifically mentioned in section 1692d of the federal Fair Debt Collection Practices Act ("FDCPA") can form the basis for plaintiffs' claim and they did not allege any such conduct. The Court reasoned that "[a]lthough interpretations of the FDCPA are helpful where the statutes closely mirror one another, 'the laws are not identical, and this Court must be conscious of the differences between the two.'" Moreover, the FCCPA "intentionally left out any such list … [and] this list is not even exclusive under the FDCPA."
Based on the "twenty-seven specific contacts, plus many more of which they believe Defendant has evidence, in conjunction with Defendant willfully contacting Plaintiffs after they had retained legal representation," the Court found that the plaintiffs' allegations "are sufficient and supported by more than conclusory allegations" and, "[t]aking all inferences in favor of Plaintiffs, the Amended Complaint sufficiently states a claim under subsection 559.72(7)."
Turning to the TCPA claim, the Court noted that the Act imposes "[r]estrictions on use of automated telephone equipment … and provides a damages remedy for cellular-phone subscribers who receive autodialed phone calls without having given prior express consent to receive such calls."
The parties agreed that the male plaintiff gave his consent to call his cell phone. The issue was whether he sufficiently alleged revocation of consent. Relying on the Eleventh Circuit's decision in Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242 (11th Circ. 2014), the Court concluded that the amended complaint sufficiently alleged that the attorney's letter of representation revoked consent and that the plaintiffs "have also sufficiently stated a claim for a willful or knowing violation of the TCPA."
The Court rejected the time-share association's argument that "Plaintiffs cannot plead declaratory relief as a remedy but must instead plead it as a separate cause of action" because the "FCCPA expressly provides that declaratory relief may be pleaded as a remedy" and, as to the TCPA, "declaratory relief is available under 28 U.S.C. § 2201." Moreover, the Court noted that "[d]efendant has provided no authority supporting its argument that declaratory relief under the TCPA requires a separate cause of action."
Finally, the Court disagreed with the time-share association's argument that that even if the plaintiffs could plead declaratory relief as a remedy, they lacked standing because as a precondition to declaratory relief "a plaintiff must allege facts from which it appears there is a substantial likelihood that he will suffer injury in the future." The Court found that the plaintiffs had "sufficiently alleged likelihood of injury in the future…" because the amended complaint expressly alleged that the defendant "continues" to attempt to collect the debt, which is sufficient at the pleading stage to allege a likelihood of future injury.
The Court denied the defendant's motion to dismiss and motion to strike, and also denied the defendant's motion for leave to file a reply.
Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
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Chicago, Illinois 60602
Direct: (312) 551-9320
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Email: rwutscher@MauriceWutscher.com
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