Payment disputes between contractors and homeowners are not uncommon. But in Florida, how you attempt to collect payment from a homeowner could be subject to Florida’s Consumer Collection Practices Act, which can turn a simple attempt to get paid into a nightmare.
In Affordable Roofing & Gutters v. Garcia, et. al., the Circuit Court in Lee County was determining whether a homeowner had brought its counterclaim for violations of Florida’s Consumer Collection Practices Act within the statute of limitations. While the court ultimately determined that the homeowner’s claim was barred by the statute of limitations, it illustrates a trend of homeowners countersuing contractors for their collection practices.
In Florida, attempts to collect a debt that was incurred for primarily personal, family or household purposes are governed by the Florida Consumer Collection Practices Act (“FCCPA”) found in Chapter 559, Florida Statutes. Under the FCCPA the following practices are prohibited:
(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 debt that she or he or any person employing her or 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 subsection (6).
(4) Communicate or threaten to communicate with a debtor’s employer before obtaining final judgment against the debtor, unless the debtor gives her or his permission in writing to contact her or his employer or acknowledges in writing the existence of the debt after the debt has been placed for collection. However, this does not prohibit a person from telling the debtor that her or his employer will be contacted if a final judgment is obtained.
(5) Disclose to a person other than the debtor or her 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 before such dispute has been asserted and written notice is received from the debtor that any part of the debt is disputed, and if such dispute is reasonable, the person who made the original disclosure must 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 preceding 90 days.
(7) Willfully communicate with the debtor or any member of her or his family with such frequency as can reasonably be expected to harass the debtor or her or his family, or willfully engage in other conduct which can reasonably be expected to abuse or harass the debtor or any member of her or his family.
(8) Use profane, obscene, vulgar, or willfully abusive language in communicating with the debtor or any member of her or his family.
(9) Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate, or assert the existence of some other legal right when such person knows that the right does not exist.
(10) Use a communication that simulates in any manner legal or judicial process or that 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 guise of an attorney by using the stationery of an attorney or forms or instruments that only attorneys are authorized to prepare.
(12) Orally communicate with a debtor in a manner that gives the false impression or appearance that such person is or is associated with an attorney.
(13) Advertise or threaten to advertise for sale any debt as a means to enforce payment except under court order or when acting as an 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 debtors, commonly known as a deadbeat list, for the purpose of enforcing or attempting to enforce collection of consumer debts.
(15) Refuse to provide adequate identification of herself or himself or her or his employer or other entity whom she or he represents if requested to do so by a debtor from whom she or he is collecting or attempting to collect a consumer debt.
(16) Mail any communication to a debtor in an envelope or postcard with words typed, written, or printed on the outside of the envelope or postcard calculated to embarrass the debtor. An example of this would be an envelope addressed to “Deadbeat, Jane Doe” or “Deadbeat, John Doe.”
(17) Communicate with the debtor between the hours of 9 p.m. and 8 a.m. in the debtor’s time zone without the prior consent of the debtor.
(18) Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the debtor’s attorney fails to respond within 30 days to a communication from the person, unless the debtor’s attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication.
(19) Cause a debtor to be charged for communications by concealing the true purpose of the communication, including collect telephone calls and telegram fees.
A contractor committing any of these violations can subject a contractor to damages, statutory damages of $1,000.00, plus the homeowner’s attorneys’ fees and costs.
Repeatedly calling or texting a homeowner about payment, making threats, or posting about someone not paying their bills online can all constitute violations of this statute. Further, they can take a straightforward claim or lawsuit about payment for construction work and turn it into a significant litigation whether both sides can claim damages and attorneys’ fees. This may wipe out any payment a contractor could be entitled to.
Florida law already requires contractors to pay attention to deadlines and to cross their t’s and dot there i’s when it comes to notices to owner, liens, and other documents. Your emails or phone calls to collect past due amounts from homeowners are no different. Bear in mind, this statute does not apply to debts between businesses (e.g. between a contractor and subcontractor or a contract and a business), so it generally will only apply where you are dealing with a residential homeowner. By ensuring you are complying with the FCCPA you can make more certain that you will be paid on a project.