Press "Enter" to skip to content

Posts published in “FCCPA”

Fla. Court Holds Payment Statement Sent After Consent Foreclosure Violated FCCPA, Rejects ‘Competent Attorney’ Standard

The Appellate Division of the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County, Florida recently reversed summary judgment in favor of a mortgage loan servicer in a case filed by a borrower under the Florida Consumer Collections Practices Act (FCCPA), holding that: (a) the account statement at issue improperly attempted to collect a debt that was no longer owed, and was not preempted by the federal Truth in Lending Act (TILA); and (b) sending the statement to the borrower’s attorney did not avoid liability because the “competent lawyer” standard adopted by the Seventh Circuit does…

MD Fla. Holds Non-Foreclosure Collection on Time-Barred Debt Does Not Provide Basis for FDCPA or FCCPA Claim

The U.S. District Court for the Middle District of Florida recently granted in part a mortgage loan servicer’s motion to dismiss a consumer borrower’s claims under the federal Fair Debt Collection Practices Act (FDCPA), the Florida Consumer Collection Practices Act (FCCPA), the Real Estate Settlement Procedures Act (RESPA), the federal Fair Credit Reporting Act (FCRA), and the federal Declaratory Judgment Act (DJA), holding: (a) the borrower’s complaint stated claims under the FDCPA and FCCPA because the allegations raised a plausible inference that the servicer knew the borrower was represented by counsel; (b) the borrower’s allegations that the statute of limitations…

MD Fla. Holds Notice of Bankruptcy Sufficient for ‘Actual Knowledge’ of Representation by Counsel Under FCCPA

The U.S. District Court for the Middle District of Florida, Orlando Division recently ruled that debtors’ FCCPA and TCPA claims did not arise out of and were not related to their mortgage to fall under the jury waiver provisions in the mortgage where the claims arose out of attempts to enforce a debt that was discharged in bankruptcy. The Court also ruled the debtors sufficiently stated a claim under FCCPA by alleging the creditor received notice of the debtors’ bankruptcy case to constitute actual knowledge the debtors’ were represented by counsel. A copy of the opinion in Bray et al v.…

Fla. App. Court (4th DCA) Holds Victory Must Be Complete to Obtain Attorney’s Fees Under FDUTPA

The District Court of Appeal of Florida, Fourth District, recently held that in order to recover fees for prevailing on a Florida Deceptive and Unfair Trade Practices Act claim, a party must prevail not only on the FDUTPA claim but also on all pleaded legal theories such that it obtains a judgment in its favor on the entire case. A copy of the opinion in Banner v. Law Office of David J. Stern, P.A. is available at:  Link to Opinion. A borrower filed a lawsuit against a lender’s counsel, alleging that the lender’s counsel’s conduct violated FDUTPA and the Florida Consumer Collection…

Fla. App. Court Holds Florida ‘Notice of Assignment of Debt’ Not Applicable to Mortgage Lenders or Foreclosures

The District Court of Appeal of Florida, Second District, recently reversed a final summary judgment in borrowers’ favor, holding that section 559.715 of the Florida Consumer Collection Practices Act (FCCPA) does not apply to the holder of the note and is not an affirmative defense to foreclosure actions because it does not create a condition precedent to an action to foreclose the mortgage and enforce the note. A copy of the opinion in Deutsche Bank National Trust Company v. Hagstrom is available at:  Link to Opinion. A mortgagee filed a foreclosure action, attaching to the complaint a note and an allonge bearing…

11th Cir. Upholds Dismissal of FDCPA, FCCPA Complaint for Failure to State Claims

The U.S. Court of Appeals for the Eleventh Circuit recently upheld the district court’s dismissal of a borrower’s amended complaint against a loan servicer alleging claims under the Fair Debt Collection Practices Act (FDCPA)  and the Florida Consumer Collection Practices Act (FCCPA) for leaving a letter in the borrower’s mailbox, posting a letter to his front door, and sending a letter via registered mail offering the borrower various sums of financial assistance if he vacated the property. The Court held that the servicer’s actions did not constitute a demand for payment under the FDCPA and FCCPA and upheld the district…

Florida Court Holds Foreclosure Not Barred by Lack of FCCPA Notice of Assignment

The District Court of Appeal of Florida, Second District, recently held that a notice of assignment of a mortgage loan pursuant to the Florida Consumer Collection Practices Act (FCCPA) is not a condition precedent to filing a mortgage foreclosure action, but certified the question to the Florida Supreme Court for resolution as one of great public importance. A copy of the opinion in Brindise v. U.S. Bank National Association is available at:  Link to Opinion. Husband and wife borrowers obtained a mortgage loan in 2005, which was later transferred to a new holder via “blank endorsement,” which under section 673.205(2) of Florida’s…

Florida Court Holds FCCPA Preempts Florida’s Offer of Judgment Statute

The County Court of the 13th Judicial Circuit in and for Hillsborough County, Florida, recently struck a mortgagee’s and servicer’s offer of judgment in an action under the Florida Consumer Collection Practices Act, holding in a matter it deemed of great public importance that the FCCPA preempts Florida’s Offer of Judgment statute. A copy of the order in Hall, Harold v. Deutsche Bank National Trust Company is available here: Link to Order. In May 2013, a borrower filed a one-count complaint against defendants, a mortgagee and its loan servicer, alleging a violation of the FCCPA. The defendants filed an offer of judgment pursuant…

Bankruptcy Court Holds TCPA Revocation of Consent Must Be ‘Express and Clear’

The U.S. Bankruptcy Court for the Middle District of Florida recently held that: 1)  A bankruptcy trustee was entitled to recover $1,000 in statutory damages on behalf of each of the husband and wife debtors against a loan servicer for violating the Florida Consumer Collection Practices Act (FCCPA) by contacting the debtors after they were represented by counsel; and 2)  The servicer could not set off the $2,000 in FCCPA damages against the balance owed on the mortgage loan because, according to the Court, allowing a set off would thwart the FCCPA’s goal of deterring abusive debt collection practices; and…

Collector’s Sanctions Motion Backfires in Florida Federal Court

The U.S. District Court for the Middle District of Florida recently denied a debt collector’s motion for sanctions based on the plaintiff’s filing of allegedly frivolous consumer protection claims, which the plaintiff consumer voluntarily dismissed with prejudice after demand from the debt collector’s counsel, where the debt collector failed to show the claims met the Eleventh Circuit’s two-prong test for frivolity. A copy of the opinion in Claudet v. First Federal Credit Control, Inc., is available here: Link to Opinion. After the plaintiff consumer underwent a medical procedure with a medical imaging company, she allegedly informed the medical imaging company…

Florida Court Holds No Private Right of Action for Florida ‘Anti-Check Cashing Fee’ Statute

The Court of Appeal of the State of Florida, Fifth District, recently affirmed the dismissal of a check payee’s claims against the drawee bank for charging a fee to cash the check in person, holding that while section 655.85, Florida Statutes, prohibits the bank from charging such a fee, it does not create a private cause of action. However, the Court also held that federal law did not preempt the state “anti-check cashing fee” statute, even as applied to an out-of-state insured state bank. A copy of the opinion is available at: Link to Opinion. The payee of a check…