In a question of first impression in the U.S. Court of Appeals for the 11th Circuit (which has jurisdiction over Florida, Georgia and Alabama), the court was presented with the question of whether monthly mortgage statements were communications in connection with the collection of a debt under the Federal Fair Debt Collection Practices Act (FDCPA) and the Florida Consumer Collection Practices Act (FCCPA). In classic lawyer language, the answer is “it depends.” Although this seemingly equivocal response may leave lenders and their professionals to speculate as to a particular result, yet in this instance, the court determined that it may be subject to both statutes because the monthly mortgage statement stated it was an attempt to collect a debt, asked for payment, and threatened a late fee if not paid timely. Since many mortgage and other loan statements have all or part of this verbiage as standard “boiler plate” language, the decision needs to be a wake-up call for lenders and their attorneys.

The FDCPA is similar, but not identical, to the FCCPA. Both were enacted to protect consumers against perceptive and actual debt collection abuses. In fact, Section 559.77, Florida Statutes (applying the FCCPA) provides, “due consideration and great weight shall be given to the interpretations of the Federal Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices Act.” To further emphasize consumer protection, Section 559.552 provides “in the event of any inconsistency between any provision of this part and any provision of the federal act, the provision which is more protective of the consumer or debtor shall prevail.”