Third party debt purchasers play a vital role in our nation’s economy. Without third party debt collectors, many consumers would not have access to credit and our nation’s economy would be impacted. See economic impact of third party debt collection http://www.acainternational.org/economicimpact.aspx. That being said, Florida is a consumer friendly state and there are certain aspects of Florida law that third-party debt collectors must be aware of when engaged in Florida debt collection.
1. Registration Requirement
Section 559.553(1), Fla. Stat. states that: “A person may not engage in business in this state as a consumer collection agency without first registering .., and thereafter maintaining a valid registration. Section 559.55(3) defines a “consumer collection agency” as “any debt collector or business entity engaged in the business of soliciting consumer debts for collection or of collecting consumer debts, …” Failure to register as a consumer collection agency could result in fines, sanctions, and/or potential lawsuits.
2. Notice Requirement Before Filing Lawsuits
Section 559.715, Fla. Stat., states in pertinent part that: “[A]n assignee must give the debtor written notice of assignment as soon as practical after the assignment is made, but at least 30 days before any action to collection the debt….” Case law dictates that the written notice of assignment has to be in a different format than what is sent to debtors, pursuant to 11 U.S.C.S. 1692(g) of the Fair Debt Collections Practices Act, prior to commencing a lawsuit. To find out what a South Florida federal judge determined to be an acceptable Section 559.715 Notice, please click on this link.
3. Florida Law Permits Judges to Award Defendants’ Attorneys’ Fees
Florida law allows judges to award defendants’ attorneys’ fees. For more information about Florida’s reciprocal attorneys’ fees provision, please click on this article.
4. Florida Has A Strict Interpretation When It Comes To Admitting Business Records
Florida has a strict interpretation when it comes to the admission of business courts. See article about business records in this link. While Florida does not require a witness from the original creditor to testify at trial, the witness is held to a higher standard and should show that (1) the records are trustworthy; (2) the records were integrated into the debt collector’s records and relied upon in its day-to-day operations; and (3) the debt collector independently confirmed the accuracy of the business records.
5. Florida Has Many Exemptions to Garnishment and/or Attachment
It is challenging and requires special skill and knowledge to collect on a consumer judgment in Florida. For example, the most common exemption to garnishment in Florida is referred to as Head of Family. Under Florida’s Head of Family rule, unless a judgment debtor who has dependents has more than $750.00 per week in disposable earnings and consents in writing to having his earnings garnished, a judgment creditor is not allowed to attach the judgment debtor’s bank account or wages.
Nevertheless, the onus is on the judgment debtor to prove that they are Head of Family and oftentimes these hearings become full blown evidentiary hearings to determine if a judgment debtor qualifies as Head of Family.
Gill Law Firm has been in business almost twenty (20) years and is a strong advocate for third party creditors. The firm offers a client-driven, cost-efficient approach to collections. To find out how Gill Law Firm can help your business to collect its receivables, please contact Wayne Gill via email at firstname.lastname@example.org, Michael Nixon at email@example.com or by phone at (561) 454-0301.