Eleventh Circuit Holds FDCPA Private Right of Action May Be Premised on Violation of Corresponding State Law That Provides No Private Right of Action

On March 30, the U.S. Court of Appeals for the Eleventh Circuit held that a federal cause of action under the Fair Debt Collection Practices Act (FDCPA) is cognizable when premised upon a failure to comply with a state consumer protection statute, even where the state statute is analogous to the FDCPA and itself provides no private right of action. LeBlanc v. Unifund CCR Partners, No. 08-16031, 2010 WL 1200691 (11th Cir. Mar. 30, 2010). In LeBlanc, the plaintiff debtor ceased making payments on a credit card. The defendant debt collector purchased the charged-off account and endeavored to collect the debt by, among other things, sending a letter to the debtor advising that it "may refer this matter to an attorney in your area for legal consideration." The debt collector subsequently filed suit in state court to collect the debt. The debtor filed suit in federal court, alleging violations of the FDCPA and the Florida Consumer Collection Practices Act (CCPA). The district court granted partial summary judgment to the debtor, finding that the debt collector violated the FDCPA by failing to register as an "out-of-state consumer collection agency" with the State of Florida, as required by the CCPA, and therefore could not legally sue to collect the debt. Because the district court also viewed the letter as a threat to take legal action, it held that the debt collector violated the FDCPA’s prohibition on any "threat to take action that could not be legally taken" and for using "unfair or unconscionable means to collect a debt." On appeal, the debt collector argued that, because the CCPA provision requiring registration does not itself provide a private right of action, premising a federal cause of action upon the same conduct and legal theory under the FDCPA would undermine or circumvent the state’s consumer protection scheme. The Eleventh Circuit, however, found that (i) the CCPA’s goal of providing consumers with the most protection possible must favor enforcement in the event of any inconsistency between federal and state statutes; (ii) in deeming the CCPA’s remedies cumulative, the legislature contemplated dual enforcement; and (iii) the fact that a debt collector’s failure to register is a misdemeanor criminal act in Florida demonstrates the seriousness of CCPA violations. Therefore, the Eleventh Circuit held that a violation of the CCPA for failure to register may support a federal cause of action under the FDCPA for threatening to take an action not legally available. As to the merits of the claims, the court found that (i) whether the letter constituted a threat for purposes of Section 1692e(5) of the FDCPA and (ii) whether the letter constituted an unfair or unconscionable means to attempt to collect a debt presented genuine issues of material fact for resolution by a jury, and precluded summary judgment.