House Bill hb0109c2

    Florida House of Representatives - 2001           CS/CS/HB 109

        By the Council for Smarter Government and Committee on
    Banking and Representative Cantens





  1                      A bill to be entitled

  2         An act relating to consumer collection

  3         practices; amending s. 559.72, F.S.; specifying

  4         additional prohibited practices in collecting

  5         consumer debts; providing penalties; amending

  6         s. 559.77, F.S.; revising civil remedies;

  7         providing for increased statutory damages under

  8         certain circumstances; providing for absence of

  9         liability under certain circumstances;

10         specifying a time certain for bringing certain

11         actions; specifying application of federal

12         precedent regarding corresponding federal law;

13         providing an effective date.

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15  Be It Enacted by the Legislature of the State of Florida:

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17         Section 1.  Subsections (16) and (17) of section

18  559.72, Florida Statutes, are amended, and subsections (18)

19  and (19) are added to said section, to read:

20         559.72  Prohibited practices generally.--In collecting

21  consumer debts, no person shall:

22         (16)  Mail any communication to a debtor in an envelope

23  or postcard with words typed, written, or printed on the

24  outside of the envelope or postcard calculated to embarrass

25  the debtor.  An example of this would be an envelope addressed

26  to "Deadbeat, Jane Doe" or "Deadbeat, John Doe"; or

27         (17)  Communicate with the debtor between the hours of

28  9 p.m. and 8 a.m. in the debtor's time zone without the prior

29  consent of the debtor;.

30         (18)  Communicate with a debtor if the person knows the

31  debtor is represented by an attorney with respect to such debt

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  1  and has knowledge of, or can readily ascertain, such

  2  attorney's name and address, unless the debtor's attorney

  3  fails to respond within a reasonable period of time to a

  4  communication from the person, unless the debtor's attorney

  5  consents to direct communication with the debtor, or unless

  6  the debtor initiates the communication; or

  7         (19)  Cause charges to be made to any debtor for

  8  communications by concealment of the true purpose of the

  9  communication, including collect telephone calls and telegram

10  fees.

11         Section 2.  Section 559.77, Florida Statutes, is

12  amended to read:

13         559.77  Civil remedies.--

14         (1)  A debtor may bring a civil action against a person

15  violating the provisions of s. 559.72 in a court of competent

16  jurisdiction of the county in which the alleged violator

17  resides or has his or her principal place of business or in

18  the county wherein the alleged violation occurred.

19         (2)  Upon adverse adjudication, the defendant shall be

20  liable for actual damages and for additional statutory damages

21  of up to $1,000 or $500, whichever is greater, together with

22  court costs and reasonable attorney's fees incurred by the

23  plaintiff. In determining the defendant's liability for any

24  additional statutory damages, the court shall consider the

25  nature of the defendant's noncompliance with s. 559.72, the

26  frequency and persistence of such noncompliance, and the

27  extent to which such noncompliance was intentional. In any

28  class action lawsuit brought under this section, the court may

29  award additional statutory damages of up to $1,000 for each

30  named plaintiff, and an aggregate award of additional

31  statutory damages not to exceed the lesser of $500,000 or 1

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  1  percent of the defendant's net worth for all remaining class

  2  members, but in no event may this aggregate award provide an

  3  individual class member with additional statutory damages in

  4  excess of $1,000. The court may, in its discretion, award

  5  punitive damages and may provide such equitable relief as it

  6  deems necessary or proper, including enjoining the defendant

  7  from further violations of this part.  If the court finds that

  8  the suit fails to raise a justiciable issue of law or fact,

  9  the plaintiff shall be liable for court costs and reasonable

10  attorney's fees incurred by the defendant.

11         (3)  A person shall not be held liable in any action

12  brought under this section if the person shows by a

13  preponderance of the evidence that the violation was not

14  intentional and resulted from a bona fide error

15  notwithstanding the maintenance of procedures reasonably

16  adapted to avoid any such error.

17         (4)  An action brought under this section must be

18  commenced within 2 years after the date on which the alleged

19  violation occurred.

20         (5)  In applying and construing this section, due

21  consideration and great weight shall be given to the

22  interpretations of the Federal Trade Commission and the

23  federal courts relating to the federal Fair Debt Collection

24  Practices Act.

25         Section 3.  This act shall take effect July 1, 2001,

26  and applies to any cause of action accruing on or after that

27  date.

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