Collection Practices

FLORIDA STATUE CONSUMER COLLECTION PRACTICES

559.55 Definitions
559.72 Prohibited practices generally
559.77 Civil remedies
559.78 Judicial enforcement

559.55 DEFINITIONS- The following terms shall, unless the contex otherwise indicates, have the following meanings for the purpose of this part:

(1) “Claim” or “consumer claim” means any obligations for the payment of money or its equivalent arising out of a transaction wherein credit has been offered or extended to a natural person, and the money property, or service which was the subject of the transaction was primarily for personal, family, or household purposes. The term includes an obligation of a natural person who is a comaker, endorser, guarantor, or surety as well as the natural person to whom such credit was originally extended.

(2) “Debtor” or “consumer” means any natural person who owes, or who is alleged to owe, a consumer claim.

(3) “Creditor” means any person to whom a consumer claim is owed, due, or alleged to be owed or due.

559.72 PROHIBITED PRACTICES GENERALLY- In collecting consumer claims, no person shall:

(1) Simulate in any manner a law enforcement officer or a representative of any governmental agency;

(2) Use or threaten force or violence;

(3) Tell a debtor who disputes a consumer claim that he or any person employing him will disclose to another, orally or in writing, directly or indirectly, information affecting the debtor’s reputation for credit worthiness without also informing the debtor that the existence of the dispute will also be disclosed as required by subjection (6) ;

(4) Communicate or threaten to communicate with a debtor’s employer prior to obtaining final judgment against the debtor, unless the debtor gives his permission in writing to contact the employer or acknowledges in writing the existence of the debt has been placed for collection, but this shall not prohibit a person from telling the debtor that his employer will be contacted if a final judgment is obtained ;

(5) Disclose to a person other than the debtor or his family information affecting the debtor’s reputation, whether or not for credit worthiness, with knowledge or reason to know that the other person does not have a legitimate business need for the information or that the information is false ;

(6) Disclose information concerning the existence of a debt known to be reasonably disputed by the debtor without disclosing that fact. If a disclosure is made prior to such reasonable dispute having been asserted and written notice is received from the debtor that any part of the claim is disputed and if such dispute is reasonable, the person who made the original disclosure shall reveal upon the request of the debtor within 30 days the details of the dispute to each person to whom disclosure of the debt without notice of the dispute was made within the proceeding 90 days ;

(7) Willfully communicate with the debtor or any member of his family with such frequency as can reasonably be expected to harass the debtor or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of his family ;

(8) Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of his family ;

(9) Claim, attempt, or threaten to enforce a consumer claim when such person knows that the claim is not legitimate or some other legal right when such person knows that the right does not exist.

(10) Use a communication which simulates in any manner legal or judicial process or which gives the appearance of being authorized, issued or approved by a government, governmental agency, or attorney-at-law, when it is not ;

(11) Communicate with a debtor under the fuise of an attorney by using the stationery of an attorney or forms or instruments which only attorneys are authorized to prepare ;

(12) Orally communicate with a debtor in such a manner as to give the false impression or appearance that such person is or is associated with an attorney ;

(13) Advertise or threaten to advertise for sale any claim as a means to enforce payment except under court order or when acting as assignee for the benefit of a creditor ;

(14) Publish or post, threaten to publish or post, or cause to be published or posted before the general public individual names or any list of names of consumers, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer claims ;

(15) Refuse to provide adequate identification of himself or his employer or other entity whom he represents when requested to do so by a debtor from whom he is collecting or attempting to collect a consumer claim ; or

(16) Mail any communication to a debtor in an envelope or post card with words typed, written, or printed on the outside on the envelope or post card calculated to embarrass the debtor. An example of this would be an envelope addressed to “Deadbeat, John Doe.”

559.77 CIVIL REMEDIES- A debtor may bring a civil action against a person violating the provisions of this part in the circuit court of the county in which the alleged violator resides or has his principle place of business or in the county wherein the alleged violation occurred. Upon adverse adjudication, the defendant shall be liable for actual damages or $500, whichever is greater, together with court cost and reasonable attorney’s fees incurred by the plaintiff. The court may, in its discretion, award punitive damages and may provide such equitable relief as it deems necessary or proper, including enjoining the defendant from further violations of this part. If it appears to the court that the suit brought by the plaintiff was ill-founded or brought for purposes of harassment, the plaintiff shall be liable for court cost and reasonable attorney’s fees incurred by the defendant.

559.78 JUDICIAL ENFORCEMENT- In addition to other penalties provided in this part, state attorneys and their assistants are authorized to apply to the circuit court within their respective jurisdictions, upon the sworn affidavit of any person alleging a violation of any of the provisions of this part. Such court shall have jurisdiction, upon hearing and for cause shown, to grant a temporary or permanent injunction restraining any person from violation any provision of this part, whether or not there exists an adequate remedy at law; and such injunction, suspicion, or revocation shall issue without bond.

COMMUNICATION WITH DEBTOR AFTER JUDGMENT

TELEPHONE CALLS TO DEBTORS:

1. Identify yourself and your employer.

2. State the purpose of your call (judgment obtained on date , balance is $ , last payment made on date , when do they intend paying or how do they intend satisfying the judgment). DO NOT GIVE A BALANCE FIGURE WITHOUT FIRST OBTAINING SAME FROM MY OFFICE.

TELEPHONE CALLS TO DEBTOR’S EMPLOYER:

1. Identify yourself and your employer.

2. Verify debtor’s employment.

3. Judgment obtained on date , and can the employer be of any assistance in aiding in the collection of this debt.

4. EMPHASIZE TO EMPLOYER: THIS IS NOT TO CREATE PROBLEMS FOR DEBTOR, BUT, RATHER, TO ASSIST BY ARRANGING SOME PAY SCHEDULE IN ORDER TO SATISFY THE JUDGMENT.
LETTERS TO DEBTOR AND/OR EMPLOYER: Should reflect basically the same as phone calls, in that you may give the judgment information, date of last payment. Again, be very very careful when quoting a balance. It’s safer not to quote figures at all but, if you must, be certain they are obtained from my office.

COMMUNICATION NO-NOS :

1. Do NOT ask about assets. Take a deposition in aid of execution.

2. Do NOT state what action will be forthcoming: levy on vehicles, attachment of wages or bank accounts, service of subpoena for depo.

Both of the above simply put the debtor on the alert as to what action HE should take: putting his car in a relative’s name, taking a vacation, moving his bank account, avoiding service. Rather, simply state that further legal action will be forthcoming if satisfactory pay arrangements are not made, and that additional action will increase his balance due to the court costs involved.

3. Never, never, never give a settlement figure without authorization by credit manager and contact with me. The reason for notifying this office is so that I will be aware of such a figure should a realtor, loan company, mortgage company or other banking institution ask for a payoff figure. A favorite ploy of debtors is this: I will give a payoff to a realtor, etc., in a situation where our lien must be satisfied and we can collect 100%. The debtor learns of the payoff figure then goes to the store and offers a settlement or attempts to get a balance figure from the store (which does not reflect the true balance). Should he be successful we are bound by the figure given by the store, and could lose hundreds of dollars.

4. If a settlement figure IS given, in accordance with the above guidelines, never leave an open-end date. State that the settlement offer is good until a date certain. Otherwise, we could be bound by it forever.

CASE HISTORY

Information and documents received in attorney’s office
Complaint, together with plaintiff’s affidavit and copies of original contract (or tickets with signature), and statement are prepped and taken to County Court for filing.
Defendants’ copies of Complaint, etc., along with Summons (Notice to Appear) – prepared by Court – are taken to Sheriff’s office to be served upon defendants.
Defendants are served and copy of service sheet showing date and time served are sent to plaintiff’s attorney.
At Pre-Trial Conference:

1. Defendant appears, admits debt, wants to make payments: we set up Stipulation, which is filed in Court.
or
2. Defendant appears, admits debt, says he can’t pay anything: we file (1) Proof of Claim (2) Attorney’s fee affidavit (if called for in application) and Judgment is entered.
or
3. Defendant appears, denies debt, Judge sets trial date.
Or
4. Defendant DOES NOT APPEAR: We file: Non-military affidavit Affidavit of Non-payment Affidavit of suit expenses and Judgment is entered Proof of Claim Affidavit of attorney’s fees

*Original “Note” if credit union, Bank, any lending institution when Judgment is entered, copies are sent to plaintiff’s attorney and to each defendant. Plaintiff’s attorney request certified copy of Judgment ($3.00) and records it in Official Records ($10.00).

If defendant enters into a Stipulation (agrees to make certain payments on the account) the case remains open until paid out. If he stops paying, then we file (1) Proof of Claim with current principal owed
(2) Attorney’s fee affidavit
(3) Motion for Final Judgment showing that defendant did not keep Stipulation current. Judgment is then entered.

Cases with monetary amount above $5,000 differ from the above extent that there is no Pre-trial Conference. Defendant is given 20 days in which to file written defenses. Depending upon the written defense, the case is either set for trial or, if he admits the debt, a stipulation or consent to entry of judgment may be arranged. If no answer is filed, default judgment is entered upon the filing by this office of the instruments noted in #4 above plus Motion for Default and Motion for Final Judgment.