Do you send your customers debt collection communications between the hours of 8 a.m. to 9 p.m.? Do you believe that by sending these communications only within this timeframe, your organization is safe from claims under the Florida Consumer Collection Practices Act (§ 559.55 et seq.) (“FCCPA”), which prohibits collection communications between 9 p.m. and 8 a.m.? Think again - a recent opinion from the Southern District of Florida found that when a consumer reads the debt collection communication can determine the debt collector’s liability.
The FCCPA is intended to protect consumers from legitimately burdensome or harassing collection “communications.” To this end, the FCCPA prohibits a debt collector from communicating with a debtor regarding a consumer debt between the hours of 9 p.m. and 8 a.m. The Florida Legislature modeled the FCCPA after a federal statute, the Fair Debt Collection Practices Act (15 USC 1692 et seq.), which was enacted, in part, to prevent “telephone calls at unreasonable hours.” Senate Report No. 95-382.
But in today’s world of email and text communications, how does a debt collector know whether they are violating the FCCPA in contacting a debtor? The Consumer Financial Protection Bureau (the “CFPB”), interpreting federal law, determined that “an electronic communication occurs when the debt collector sends it, not, for example, when the consumer receives or views it.” See CFPB, “Official Interpretation of Paragraph 6(b)(1)(i),” https://www.consumerfinance.gov/rules-policy/regulations/1006/6/ (Apr. 19, 2023) (emphasis added). The same common sense standard may not apply to the FCCPA.
In Quinn-Davis v. TrueAccord Corp., the Southern District of Florida, interpreting the FCCPA, held that a “communication” occurs only after an electronic message is sent, received, and read by a debtor. No. 1:23-cv-23590-LEIBOWITZ/REID, 2024 WL 4851344, at *6 (S.D. Fla. Nov. 20, 2024). In that case, the message was sent during permissible hours, received during impermissible hours, but read by the debtor during permissible hours.
The court’s holding, however, contradicts the CFPB’s well-reasoned interpretation of when an electronic communication occurs. It further (likely unintentionally) places the debt collector’s compliance with the FCCPA within the hands of the debtor—who can determine when they read a debt collection communication. Under such a holding, any debtor who receives a debt collection message during the day could wait until 9:01 p.m. each night to read his or her emails or text messages and impose liability on the debt collector even though the collector sent the message during daytime hours.
This is a significant issue because the FCCPA provides for statutory damages of up to $1,000 per communication (plus actual damages) and attorneys’ fees. This is to say nothing of the expense and burden of what could be a bet-the-company class action if your company has thousands of customers and sends thousands of debt collection emails or text messages.
So, what’s a well-intended company to do? Here are some practical tips. First, if using email or text message to communicate, do your best to send these communications in the morning. This way, there exists a better chance that the communication will be delivered and read by the debtor during permissible daytime hours. Don’t forget that your customers may be located in a time zone different from you. Second, companies should consider adding language to their customer agreements to mitigate the risk of a statutory violation where the debt collection communication is sent during daytime hours, but delivered and read by the debtor during prohibited hours. You should consult with an attorney before employing such language as waivers of certain statutory consumer protections are often unenforceable as a violation of public policy. Lastly, if you are threatened with litigation, or merely receive a demand letter, engage counsel immediately – when a nuisance value settlement, or an outright dismissal, may still be viable.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
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