As a result of the struggling economy, many Americans have fallen behind on one bill or another in the past several years. It’s particularly easy to get bogged down by credit card debt considering how readily available credit has become to most consumers.
The economic downturn has not gone unnoticed by creditors, who have ramped up their collection efforts to collect every dime they can in a desperate attempt to keep their bottom line from tanking. As a result, we hear all kinds of crazy stories about creditors using underhanded tactics to collect on a debt.
Some of the more outrageous debt collection stories include creditors threatening to have a debtor jailed for non-payment (which they can’t do), creditors threatening to report a financed vehicle as stolen (which is illegal), and creditors demanding debtors appear at fake court proceedings and tricking debtors into thinking they’ve had a money judgment entered against them (which is super illegal)!
One Jacksonville collection agent went so far as to use a dating website to lure a debtor into a date that ended with the agent demanding the debtor pay her debts! If you’ve been reading our blog, you know that both state and federal laws prohibit debt collectors from engaging in certain activities in pursuit of the almighty dollar.
The Florida Consumer Collection Practices Act (FCCPA) and the Fair Debt Collection Practices Act (FDCPA) outline all the things debt collectors aren’t allowed to do. The respective Legislatures specifically drafted these collection acts to allow for a debtor to sue a creditor if it engages in any of the prohibited activities. The interesting thing about the FCCPA as compared to its Federal counterpart, however, is that the FCCPA includes a section that allows a successful plaintiff (the debtor) in an FCCPA lawsuit to recover its attorney’s fees from the defendant (the creditor).
The FCCPA contains no reciprocal provision allowing for a prevailing defendant to recover attorney’s fees from the plaintiff. You may be thinking, “so what’s the big deal about that?” It’s actually a very big deal! In most lawsuits, the prevailing party, whether plaintiff or defendant, is entitled to recover the costs of litigation, including attorney’s fees, from the losing party.
Likewise, in most lawsuits, either party may file a formal demand for judgment and proposal for settlement on the other party. A party that rejects such a proposal makes itself very vulnerable to pay certain costs and fees in the event it does not prevail at trial. The point is that the legislature drafts most laws to encourage settling lawsuits, thus avoiding unnecessary burdens on the judicial system. However, in FCCPA claims, the legislature did not include any provision for a creditor to recover attorney’s fees if a debtor sues unsuccessfully.
The risk of potentially having to pay for the opponent’s attorney’s fees is a heavy consideration for potential plaintiffs in most lawsuits; after all, it’s bad enough to have to pay your own attorney if you lose – now you have to pay the other side’s attorney too?! Such risk is completely removed from FCCPA lawsuits, thereby highly encouraging debtors to file suit against offending creditors.
The Hillsborough County Court recently recognized the legislature’s intent to encourage FCCPA suits in the case of Hall v. W.S. Badcock Corp., in which it said: “[T]he purpose of [Florida Statute] section 768.79 [regarding proposals for settlement] is clearly to discourage litigation and to encourage settlements by exposing litigants to the possibility of liability for the opposing party’s attorney’s fees if they refuse what turns out to have been a reasonable settlement offer. [. . .] In contrast, the FCCPA includes [Florida Statute] section 559.77 that provides attorney’s fees and statutory damages to prevailing plaintiffs, and is clearly intended to encourage litigation.”
So if you’re being harassed by creditors, don’t be afraid to litigate – the legislature and the courts hate abusive credit collection acts as much as you do. Give us a call if you think someone is using illegal tactics to collect a debt from you. We’re here to help you enforce your rights!