When you are behind on your mortgage and facing foreclosure in Florida, the calls can feel relentless. Whether you are dealing with your original servicer, a transferred servicer, or a debt buyer, two federal and state laws give you real protections: the Fair Debt Collection Practices Act (FDCPA), 15 USC 1692 et seq., and the Florida Consumer Collection Practices Act (FCCPA), Florida Statute 559.55 et seq. Understanding which applies to your situation -- and what you can do about violations -- is critical.
Who Is a "Debt Collector" Under the FDCPA?
The FDCPA is not a blanket rule covering all mortgage servicers. It applies specifically to "debt collectors" -- entities whose principal business is collecting debts, or who regularly collect debts owed to another. The critical distinction:
- NOT a debt collector: The company that originated your mortgage, or any servicer that was handling your loan before you defaulted. Servicers that took over current loans are not debt collectors under the FDCPA even if the loan later goes into default.
- IS a debt collector: A third-party servicer or debt buyer that acquired or began servicing your mortgage when it was already in default. If you received a notice that your loan was transferred to a new servicer and you were already behind on payments at the time of transfer, the new servicer is likely an FDCPA debt collector.
Courts have also held that law firms filing foreclosure lawsuits on behalf of lenders are subject to the FDCPA when they regularly engage in debt collection activity. This means foreclosure attorneys must include required FDCPA disclosures in their communications with you.
Florida FCCPA: Broader Protection
Florida's FCCPA (F.S. 559.55) fills the gap the FDCPA leaves. The FCCPA applies to "any person" collecting a consumer debt in Florida -- including original creditors, servicers that have been servicing your loan from origination, and third-party collectors alike. This means:
- Even if your servicer is not an FDCPA debt collector, it is subject to the FCCPA
- The FCCPA prohibits harassment, abuse, false representations, and unfair practices by any collector in Florida
- The FCCPA allows recovery of actual damages, statutory damages up to $1,000, and attorney fees -- just like the FDCPA
Florida courts allow homeowners to bring both FDCPA and FCCPA claims simultaneously when both apply, potentially doubling the statutory damages for a single violation.
Prohibited Debt Collection Practices
Under both the FDCPA and FCCPA, collectors are prohibited from:
- Harassment and abuse: Calling repeatedly with intent to annoy or harass, using obscene language, making threats of violence, or publishing lists of debtors
- False or misleading representations: Misrepresenting the amount owed, falsely claiming to be an attorney, threatening legal action they do not intend to take, or threatening consequences that are not legally permitted
- Unfair practices: Collecting amounts not authorized by the agreement or permitted by law, depositing post-dated checks prematurely, or threatening to take the home in ways that misrepresent the actual foreclosure timeline
- Contacting third parties: Discussing your debt with family, neighbors, or your employer (except as permitted to locate you)
- Calling at inconvenient times: The FDCPA prohibits calls before 8 a.m. or after 9 p.m. in your time zone without your consent
Document every contact that might be a violation: date, time, caller name, what was said. Keep copies of all written communications. This documentation is your evidence. Check your Florida foreclosure checklist for other records you should be maintaining during this process.
Your Rights: Cease-and-Desist and Debt Validation
The FDCPA gives you two powerful tools:
- Cease-and-desist letter: Under 15 USC 1692c(c), you can send a written request that the collector stop contacting you. After receiving the letter, the collector may only contact you to acknowledge the request, to notify you of a specific action they intend to take (such as filing a lawsuit), or in response to legal proceedings. Send by certified mail so you have proof of receipt.
- Debt validation request: Within 30 days of the first collection communication, you can demand written verification of the debt, the amount, and the name of the original creditor. The collector must stop collection activity until verification is provided. This can be particularly useful if your loan has been transferred multiple times and you are uncertain who actually owns the debt.
Note that a cease-and-desist letter does not stop the foreclosure lawsuit. The lender can still file and proceed with the court case. The letter only stops direct contact with you outside of the legal process. For stopping the foreclosure itself, see our stop foreclosure guide.
FDCPA in the Foreclosure Complaint
If your loan was transferred to a debt collector before the foreclosure was filed, the foreclosure complaint itself must contain an FDCPA disclosure stating that it is an attempt to collect a debt. Failure to include this notice is an FDCPA violation -- even if the debt is valid and the foreclosure is otherwise proper. Courts in Florida have upheld FDCPA claims based on procedural deficiencies in foreclosure filings.
A foreclosure defense attorney can review the complaint for FDCPA compliance as part of evaluating your overall defenses. FDCPA violations in the foreclosure complaint do not stop the foreclosure, but they can result in counterclaims for damages and attorney fees.
Loss Mitigation and CFPB Protections
Beyond the FDCPA and FCCPA, your servicer has separate obligations under CFPB Regulation X (12 CFR 1024.41). These include the duty to review a complete loss mitigation application before initiating or continuing foreclosure, and the prohibition on dual tracking (pursuing foreclosure while a complete application is pending).
If your servicer violates Regulation X by foreclosing while your application is pending, you may have a private right of action for actual damages, pattern-or-practice statutory damages, and attorney fees. This is a separate claim from the FDCPA but can be pursued simultaneously.
Florida homeowners also have protections under the breach letter requirement -- the servicer must send a notice of default before accelerating the loan, giving you a chance to cure. Failure to send this notice is a defense in the foreclosure case.
Filing Complaints and Finding an Attorney
If you believe your rights have been violated, you can:
- File a complaint with the CFPB at consumerfinance.gov -- the CFPB supervises large mortgage servicers and can take enforcement action
- File a complaint with the Florida Office of Financial Regulation (flofr.gov) under the FCCPA
- Consult an FDCPA/FCCPA attorney -- most take these cases on contingency because the law provides for attorney fee recovery from violators
Barrett Henry, a REALTOR with 23+ years of real estate experience and Broker Associate at REMAX Collective, helps Florida homeowners evaluate their full situation, including connecting them with appropriate legal resources when consumer protection violations are occurring alongside the foreclosure. Addressing FDCPA violations and exploring pre-foreclosure sale options or a short sale can proceed simultaneously.
Dealing with harassment or violations during Florida foreclosure? Contact us today for a free consultation.
