Florida’s Consumer Credit Protection Act (FCCPA), like the Federal Fair Debt Collection Practices Act (FDCPA), protects consumers from abusive conduct by creditors attempting to collect a debt. This post discusses the frequency of telephone calls from creditors, and how many is too many. This discussion focuses on frequency of phone calls and not abusive conduct during a phone call. Abusive language or threats during a phone call is governed by a separate section of the FCCPA and can result in one call violating the law.
An important distinction between the FDCPA and the FCCPA is that the FDCPA does not apply to creditors seeking to collect their own debts but the FCCPA does. Therefore, if a creditor subjects a consumer to harrasing conduct the consumers avenue for redress is through the FCCPA not the FDCPA.
Section 559.72(7) Florida Statutes, the FCCPA, states as follows:
In collecting consumer debts, no person shall:
(7) Willfully communicate with the debtor or any member of the her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family[.]
In Story v. J.M. Fields, Inc., 343 So. 2d 675 (Fla. 1st DCA 1977), the Court discussed the standard to be applied in determining if telephone calls have been abusive. In addressing the statute, the Court stated that proof of numerous calls does not necessarily show harassment. The court acknowledged legitimate reasons for a creditor or debt collector to make contact with a consumer, which are to inform or remind the consumer of the existence of the debt, to determine the reasons for non-payment, or to negotiate or persuade the debtor to pay. Phone calls are considered harassment if they continue after the above legitmate purpose for contact have been exhausted, because the only purpose for continued contact would be to “exhaust the resisting debtor’s will”.
In Scott v. Florida Health Siences Center, Inc., 8:08-cv-1270-T-24-EAJ (M.D. Fla. 2008), the Court further expounded on what consititutes harassment under the FCCPA. The Court said:
Whether collection behavior is abusive or harassing is not a formulaic determination, but demands consideration of the frequency and tone of the contacts, “the legitimacy of the creditor’s claim, the plausibility of the debtor’s excuse…and all other circumstances that color the transaction.” Story, 343 So. 2d at 676-77. Where the nature of the collection attempts is ambiguous, evaluating the factual circumstances and determining whether they consitutue harassment or abuse becomes a question of fact…
In Story the consumer alleged that he received at least 100 calls over a period of five months. None of the calls were threatening. No phone calls were received after the consumer informed the creditor that he had a lawyer. However, in spite of the lack of overt abuse or harassment (the Court did not consider 100 calls by itself to be harassment) the Court determined that the creditor lacked a legitimate purpose to make this many phone calls and, therefore, decided that the facts alleged could show harassment under the FCCPA. The case was remanded to the trial court for this factual determination to be submitted to the jury.
In Scott the creditor contacted the consumer by phone seventeen times over eight months attempting to collect a debt. The telephone calls were made inspite of prior settlement of the debt by the consumers health insurance provider, and continued in spite of the fact that the consumer and the insurer repeatedly informing the creditor of the prior settlement. Several of the final communications threatened to report the failure to pay to credit bureaus. In this case it was determined that ninteen telephone calls over eight months (2-3 calls per month) states a legal claim for harassment, because the consumer clearly informed the creditor that the debt has been settled and to contact her insurer regarding the dispute. The lower Court’s Order dismissing the claim was reversed.
Story demonstrates that while the numer of calls made by a creditor in and of itself will not show harassment (100 in that case), continuing to call when there is no legitmate purpose for the calls tends to show the purpose of the calls was to harass the consumer. Along the same line Scott shows that as little as nineteen calls over eight months can constitute harassment when the consumer clearly indicates her position that debt has been paid and directs the creditor to take the issue up with her insurer. Following the reasoning in Story, once it was determined that the consumer believed that she paid and did not owe the claimed debt, the only reason for the creditor to continue to call was to harass in hopes of compelling payment.
If you believe you are being harassed by a creditor seeking to collect a debt, it may not be adequate to merely maintaion a log of call frequency (unless you are receiving numerous calls in the same day). It is important to document the content of the conservations to demonstrate that there is no purpose for the creditor to contact you other than to “exhaust your will”. When speaking to a creditor, once you have explained your reasons for non-payment, indicated that you do not intend to negotiate the debt, and that you do not intend to pay the debt, any future phone calls may be found by the Court to be harassment no matter how polite the caller is or how often he has called.