The 13th Judicial Circuit in Hillsborough County recently considered whether the Florida Consumer Collection Practices Act (Fla. Stat. Â§ 559.77 et seq.) (â€œFCCPAâ€) prohibits those harassing phone calls for delinquent mortgages.
The FCCPA sets forth certain illegal debt-collection techniques. Several Florida district courts of appeal have ruled that the FCCPA applies to any person who unlawfully attempts to collect a consumer debt, not just those who meet the definition of â€œdebt collectorâ€ as defined by Fla. Stat. Â§ 559.55(6).
The deeper matter in the Hillsborough County case was whether creditor phone calls pertaining to allegedly past due mortgage payments constitute attempts to enforce a security interest and thus fall outside the scope of the kinds of practices prohibited by the FCCPA. Sidestepping the issue of whether these attempts are even covered by the consumer collection practices legislation, the court distinguished efforts to collect a past due payment on a secured debt and attempts to enforce a security interest. A distinction must be made, the court held, between communications ancillary to a foreclosure action and communications that were not necessary to a foreclosure action, such as the debt-collection calls in question.
Telephone calls alone do not constitute enforcement of a security interest, and thus do not constitute an attempt to enforce a security interest. Further, because these calls aimed to collect payment on a debt, theyâ€™re debt-collection attempts and, consequently, fall within the purview of the practices barred by the FCCPA.
So know the next time you answer the phone and hear that harassing spiel about past due mortgage payments, you may be on the other end of an illegal call.
Please be advised that this article does not constitute legal advice nor does it provide any basis to form an attorney-client relationship. Nothing in this article should be copied without the express permission of the author.
Mr. Hounchell has a law degree from The University of Florida College of Law and he is a principal in The Law Offices Charles A. Hounchell, P.A., in Tampa, Florida. Mr. Hounchell earned his undergraduate degree from The George Washington University in Washington D.C. and he obtained his MBA in International Management from the American Graduate School of International Management (â€œThunderbirdâ€) in Glendale, Arizona.
Mr. Hounchell is a licensed title insurance agent and a real estate agent with Smith and Associates, Inc. http://www.smithandassociates.com/; http://www.livecasanova.com/. He has lived in many different countries, including Spain, Brazil, Argentina, Mexico and Germany and he speaks Spanish and Portuguese. A significant portion of Mr. Hounchellâ€™s law practice is concentrated on Real Estate Law. He can be reached at 813-230-3376 or firstname.lastname@example.org.