The Fair Debt Collections Practices Act (FDCPA) is a federal consumer rights law which prohibits debt collectors from engaging in deceptive, unfair, and abusive debt collection techniques. Violations of the Act provide for statutory damages of up to $1,000 and recovery of costs and attorneys fees. Since its inception it has been a powerful tool for consumers to use to keep savvy creditors from overstepping their bounds while attempting to collect debts.
While the FDCPA provides powerful protections for Florida consumers, it does not provide a defense to a debt collection lawsuit in Florida.
I can't tell you how many times pro se (self-represented) defendants and even some attorneys would raise alleged FDCPA violations at summary judgment hearings or even trial for the first time as a sort of defense to the underlying debt lawsuit.
I always liked when I would hear this, because it let me know that the other party didn't know what they were doing.
I know that sounds terrible, but it was true. Alleging FDCPA violations without them being properly plead is nothing more than a waste of time and a mark of inexperience with the Florida legal system. (not that there's anything inherently wrong with inexperience, but it always struck me as odd that someone would bring something up in a court of law without knowing what it was that they were talking about.)
Again, for emphasis, the FDCPA is not a defense to a debt collection lawsuit in Florida.
Even if the creditor (or a collection agency, attorney's office or any other entity trying to collect the debt) engages in the most shocking and egregious behavior you could imagine, it DOES NOT act to set off or otherwise extinguish the underlying debt. An FDCPA violation is an entirely separate and distinct legal issue.
In order to be able to properly argue alleged FDCPA violations you would first need to plead them adhering to the appropriate rules of procedure either in a counterclaim or a direct lawsuit. This is because of a legal principle we hold dear in our legal system, due process.
If potential FDCPA violations are properly plead then they will be handled separate and distinct from the debt collection issue even if they do become part of the same case. They are handled separately because they are separate legal issues.
Discussion about how to plead FDCPA violations in a court of law are well beyond the scope of this article. If you believe that your rights under the FDCPA have been violated, don't hesitate to contact me to discuss your situation.
In a future posts, I'll write about how you can focus your preparation to potentially have a meaningful impact on your case if you decide to defend your own debt collection lawsuit in Florida. In the meantime, keep in mind that in order to argue violations of the FDCPA in Florida courts you must first properly plead your case.
The Law Office of Alex McClure provides services in Lake Mary, Sanford, Longwood, Deltona, Deland and all of Seminole, Volusia, Orange, Brevard and Lake Counties.