A District Court judge in Florida has granted a plaintiff’s motion for default judgment in a Fair Debt Collection Practices Act case after the defendant replied to a cease communication text message with an inquiry about the plaintiff’s ability to make a partial payment. The plaintiff is seeking almost $5,000 in damages and attorney’s fees.
The Background: Back in February, the defendant sent a text message to the plaintiff to recover an unpaid debt. The plaintiff responded the same day, saying, “I have no money so I decline to pay.” The next day, the defendant allegedly responded to the plaintiff with a message saying, “Understood. Are you able to make a partial payment? Any amount would help in order to give you payment options.”
- Two days later, the plaintiff filed suit, alleging the defendant violated Section 1692c(c) of the FDCPA by communicating with the plaintiff after the plaintiff had refused to pay the debt.
- The defendant failed to appear or file a response to the complaint as of May 3, when the plaintiff moved for default judgment. The plaintiff is seeking $1,000 in damages and $3,864.49 in fees and costs and judgment interest.
The Ruling: While the term “in writing” is not defined in the FDCPA, Judge William F. Jung of the District Court for the Middle District of Florida agreed with precedent and commentary from regulators that “the term ‘in writing’ can encompass ‘a medium of electronic communication through which a debt collector accepts electronic communications from consumers.’ ”
- Because the defendant initiated and continued the discussion via text message, Judge Jung ruled the court could infer that the defendant accepts electronic communications from consumers, which meant the cease request from the plaintiff was made “in writing.”
- The response from the defendant was not one of the three exceptions allowed under the FDCPA to communicate with a consumer after a cease request has been made. Those are:
- to advise the consumer that the debt collector’s further efforts are being terminated;
- to notify the consumer that the debt collector or creditor may invoke specified remedies which are ordinarily invoked by such debt collector or creditor; or
- where applicable, to notify the consumer that the debt collector or creditor intends to invoke a specified remedy.
Because the plaintiff did not provide any evidence or argument why he should be entitled to the maximum amount of damages, Judge Jung awarded him $500. With respect to the attorney’s fees, the itemization that was provided was missing information so the judge asked the plaintiff to refile an affidavit.
