Attorney's fees under the FCCPA

The Florida Consumer Collection Practices Act, Section 559.77(2) of the Florida Statutes, provides, among other things, that "upon adverse adjudication, the defendant shall be liable for actual damages and for additional statutory damages of up to $1,000, together with court costs and reasonable attorney's fees incurred by the plaintiff." Occasionally, fee shifting statutes such as this one can produce unexpected non-economic results where the attorneys' fee award greatly exceeds that recovery for the client. This problem also appears to exist with statutory fees awarded in personal injury protection ("PIP") lawsuits. See, e.g., Progressive Express Ins. Co. v. Schultz , 948 So. 2d 1027 (Fla. 5th DCA 2007) where the disputed PIP benefit at issue amounted to $1,315.30 and the lodestar attorneys’ fees amounted to $77,500. However, as the Court pointed out in the case discussed below, the cause for this unbalanced result is not to be placed at the feet of the plaintiff and his/her counsel. In addressing this point, the court noted that: "We are not prepared to place blame for this noneconomic outcome on any party. If there is blame, there is surely enough to spread among many participants." In the FCCPA case that dramatically illustrates this point, the plaintiff sued DISH Network for being billed after he terminated his service prior to the end of the contract term. His complaint alleged that DISH violated the Florida Consumer Collection Practices Act (FCCPA) by (1) willfully engaging in conduct that reasonably could be expected to abuse or harass the plaintiff or a member of his family, and (2) attempting to collect a debt that it knew was illegitimate. Plaintiff sought monetary relief from DISH claiming that suffered from post traumatic stress disorder and depression as a result of his mistreatment. After a 2 day trial, the jury found for the plaintiff on the second theory and awarded him only $5,000, apparently rejecting his claim for psychological damages. Plaintiff's attorney sought to establish a lodestar attorneys' fee amount of $89,000,based primarily on 250 hours of time at an hourly rate of about $350. The trial court accepted the lodestar amount and applied a contingency fee multiplier resulting in an award of 176,992.64. While the appellate court reversed the trial court's application of the contingency fee multiplier, and disallowed some travel time, the final judgment was affirmed in all other respects. Dish Network Serv. L.L.C. v. Myers, 87 So. 3d 72 (2nd DCA 2012)

Florida Consumer Collection Practices Act

In 1993, the Florida Legislature enacted the Florida Consumer Collection Practices Act ("FCCPA") which law targets unfair debt collection tactics, including those inflicted upon residential mortgage customers. The statute proscribes a broad range of deceptive, harassing, and abusive practices. It also provides a right to bring litigation against wrongdoers and to recover actual damages, costs, and attorney fees.

The following are some of the most common possible violations of the FCCPA:

    • Harassment - frequent phone calls to alleged debtors, their family and friends, repeated calls with no messages, hang-ups, lies, misleading comments, speaking in a belittling manner, embarrassing, argumentative and rude conduct are examples of harassing conduct.

    • Collecting money not owed - if an alleged debtor doesn’t owe the money it is a violation of the law for a collector to try and force the alleged debtor to pay the money. • Threats - creating a “false sense of urgency” or suggesting arrest, criminal prosecution, jail.

    • Calls at work - calls to the workplace, especially after a collector is told not to call, such as speaking to or leaving messages with a receptionist, calling the cell phone while alleged debtor is at work or calling alleged debtors direct line, is a violation.

    • Contacting 3rd parties - collectors may not contact any party about a debt without the express permission of the alleged debtor, including the spouse or any other family member, neighbors, friends, or co-workers.

    • Contact after attorney representation - once a collector is told a individual is represented by all conversations, messages, letters or any other communication must immediately stop.