Ayala files a counterclaim against a lender for violation of the FL Consumer Collection Practices Act (FCCPA) in the context of a foreclosure action against its client. The Florida Consumer Collection Practices Act (โFCCPAโ) provides in pertinent part:
In collecting consumer debts, no person shall: . . . (9) [c]laim, 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.
ยง 559.72(9), Fla. Stat.
In the case, Ayalaโs client was forced to maintain a second flood insurance in clear violation of the terms of the promissory Note. Ayalaโs client alleges that at all times pertinent he maintained flood insurance with the Florida Farm Bureau and has made such payments to the holder of the First mortgage in the property. Thereforeโthe counter claim allegesโCounter-Defendant had no authority to withhold acceptance of payments pursuant.
The defendant now counterclaimant had attempted multiple times to make payments pursuant to the mortgage, but the lender refused to accept these payments on the ground that Ayalaโs client had not obtained flood insurance. This rendered Ayalaโs client performance of his obligation of payment impossible.
The counterclaim alleges that any debt assessed to Ayalaโs client, was the result of Counter-Defendantโs refusal to accept payment when it had no legal right to do so, therefore Counter Defendant knew that this debt was not legitimate. Despite knowing that this debt was not legitimate, Counter-Defendant has chosen to claim, attempt, or threaten to enforce this debt by instituting an action against Ayalaโs client for Foreclosure and Equitable subrogation, in violation of the FCCPA.
The FCCPA also provides that โ[a]ny person who fails to comply with any provision of s. 599.72 is liable for actual damages and for additional statutory damages as the court may allow, but not exceeding $1,000, together with court costs and reasonable attorneyโs fees incurred by the plaintiff.โ ยง 559.77(2), Fla. Stat.
For more information about the FCCPA contact a debt collection attorney in Miami at 305-570-2208 or email attorney Eduardo A. Maura at eduardo@ayalalawpa.com.
