Sixth Judicial Circuit Rules in Creditor's Favor on 559.72(18) Claim Under FCCPA
A recent opinion issued by the Sixth Judicial Circuit in and for Pasco County, Florida, sitting in its appellate capacity, provides further insight regarding what constitutes a violation of section 559.72(18) of the Florida Consumer Collection Practices Act ("FCCPA"). There, appellant James A. Hurtubise sought review of a summary judgment entered against him and in favor of PNC Bank, N.A. on his claim that PNC had violated the FCCPA by communicating with him in an attempt to collect a debt despite knowing that he was represented by counsel. PNC had instituted a foreclosure action against Hurtubise, who in turn retained counsel to represent him in the foreclosure. Hurtubise's counsel did not file an appearance in the foreclosure action, but sent two letters to PNC's attorneys, informing them that Hurtubise had retained him. It was undisputed that Hurtubise's counsel sent these letters to PNC's attorneys, but PNC maintained that it did not directly receive Hurtubise's lawyer's letters and did not have actual knowledge that Appellant had obtained counsel in the foreclosure action. After Hurtubise's lawyer sent the aforementioned letters, PNC sent two written communications to Hurtubise. The first was an advertisement for a locally sponsored workshop to assist homeowners in preservation of their property. The communication was generically addressed to "PNC Mortgage Customer," did not contain any specific information identifying Hurtubise or his account, and did not request payment. The second was a letter providing Hurtubise with PNC's contact information for questions relating to loss mitigation. This letter also did not request payment, and PNC contended that it was required to send the notice in order to comply with the federal Home Affordable Modification Program ("HAMP"). Hurtubise subsequently filed an action for violation of section 559.72(18), Florida Statutes, alleging that PNC had improperly communicated with him in an attempt to collect a debt despite having actual knowledge that he was represented by counsel. The county court disagreed that these communications constituted attempts to collect a debt and entered summary judgment in favor of PNC. The Sixth Judicial Circuit agreed that the trial court was able to make such a determination as a matter of law and affirmed, reasoning that the "animating purpose" of the communications was not to spur the consumer into making a payment, and thus the communications were not an "attempt to collect a debt." The court further noted that communications such as the "HAMP letter," which are required by federal law, do not violate the FCCPA. This seems somewhat contradictory to the Middle District of Florida's holding in Kelliher v. Target National Bank, 826 F. Supp. 2d 1324 (M.D. Fla. 2011), which provided that a notice sent pursuant to the Truth in Lending Act ("TILA") violated the FCCPA. However, the Kelliher court determined that the notice at issue contained additional language that was unnecessary under the requirements of TILA and thus constituted an attempt to collect a debt. Unfortunately, it is impossible to tell from the body of the Hurtubise decision whether the HAMP notice included any extraneous language that might otherwise be interpreted as an attempt to collect a debt, although the court did specify that the HAMP notice "did not include a request for payment." As a final point, the Sixth Judicial Circuit determined that Hurtubise had failed to demonstrate that PNC had actual notice that he was represented by an attorney. Although there was no question that Hurtubise's lawyer sent two letters to PNC's counsel, notifying counsel that Hurtubise was represented in the foreclosure case, PNC had not retained its counsel for debt collection purposes and had instructed Hurtubise to provide notice of attorney representation directly to it. The court held that because the statute employs an "actual knowledge" standard, it could not impute PNC's attorneys' knowledge to PNC. Accordingly, Hurtubise's FCCPA claim failed for two reasons-the communications at issue were not "attempts to collect a debt," and Hurtubise had failed meet his burden to demonstrate PNC's actual knowledge that he was represented by counsel. The Sixth Judicial Circuit further affirmed the trial court's order awarding attorneys' fees in PNC's favor pursuant to section 559.77(2), Florida Statutes, for Hurtubise's "failure to raise any justiciable issue of law or fact." Although PNC had not asserted a claim for attorneys' fees in a pleading, as is required, Hurtubise failed to give the trial court an opportunity to correct its error in awarding fees by filing a post-judgment motion pursuant to Rule 1.530, Florida Rules of Civil Procedure, and thus waived the issue. The Sixth Judicial Circuit therefore also granted PNC's motion for appellate attorneys' fees.