88 F. Supp. 3d 1338
M.D. Fla.2015Background
- Plaintiff Sandra Williams (who alleges she never took out student loans) received repeated debt-collection letters from ECMC and its agents (Performant, Pioneer) from 2010–2014 accusing her of default on a student loan in another person’s name.
- Plaintiff and third parties (LifeLock agent, her attorney) repeatedly informed ECMC and its agents that she was not the debtor and requested verification; ECMC continued collection efforts and asked for identity documents.
- Plaintiff sued under the Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. § 559.72 (multiple subsections), and the Fair Debt Collection Practices Act (FDCPA) against Performant; Pioneer was later dismissed.
- ECMC moved to dismiss, arguing (a) FCCPA does not apply to creditors, (b) the Higher Education Act (HEA) and its regulations preempt the relevant FCCPA claims, and (c) Plaintiff failed to state claims; ECMC also sought dismissal of claims against Performant (joined untimely).
- Court denied ECMC’s attempt to dismiss claims against Performant (ECMC cannot move to dismiss co‑defendant after the co‑defendant answered; Performant’s joinder was a nullity) and evaluated preemption and failure-to-state claims as to ECMC.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Properness of ECMC moving to dismiss Performant | Williams opposed; argued joinder irrelevant | ECMC sought dismissal of claims against Performant via joinder | Denied — ECMC cannot move to dismiss claims against a separate co‑defendant after that defendant answered; Performant’s joinder is a nullity |
| Whether FCCPA §559.72 applies to creditors | Williams: statute applies to any “person,” so it covers ECMC | ECMC: §559.72 applies only to debt collectors, not creditors | Denied — court: plain language and Florida precedent hold FCCPA covers any person, including creditors |
| Whether HEA/regulations preempt FCCPA generally | Williams: FCCPA provisions do not conflict with HEA and are not preempted | ECMC: HEA (and 34 C.F.R. §682.410) preempts state-law restrictions on pre‑litigation collection activity | Mixed — must analyze provision-by-provision; not all FCCPA claims are preempted |
| Preemption of §559.72(3) (disclosure of dispute) | Williams: state disclosure requirement is compatible with HEA notice requirements | ECMC: federal rule requires notice about reporting defaults that conflicts with §559.72(3) | Denied — no impossible dual compliance and no obstacle to federal objectives |
| Preemption of §559.72(7) (harassment / abusive frequency) | Williams: harassment prohibition applies even to guaranty agencies | ECMC: federal duty to pursue diligent, documented collection makes §559.72(7) an obstacle | Granted — §559.72(7) is preempted as it would chill/obstruct mandated collection efforts |
| Preemption and sufficiency re §559.72(9) (knowingly asserting invalid debt) | Williams: facts show multiple notifications giving rise to inference of actual knowledge | ECMC: HEA/regulations preempt and Plaintiff fails to plead actual knowledge | Denied — §559.72(9) not preempted; complaint plausibly alleges actual knowledge |
| Preemption of §559.72(18) (contact when represented by counsel) | Williams: she is not a borrower, so HEA doesn't preempt the counsel‑representation rule | ECMC: federal rules require direct borrower notices that conflict with §559.72(18) | Granted — impossible to comply with both and §559.72(18) is preempted |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standards; plausibility required)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (pleading standard requiring factual plausibility)
- Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 1113 (11th Cir.) (HEA preemption analysis; mandate to perform provision‑by‑provision review)
- Leonard v. Enterprise Rent a Car, 279 F.3d 967 (12th Cir.) (answering complaint waives Rule 12(b) motions — procedural rule on motion timeliness)
- Gann v. BAC Home Loans Servicing LP, 145 So.3d 906 (Fla. 2d DCA) (FCCPA applies to any “person,” not limited to debt collectors)
- Schauer v. General Motors Acceptance Corp., 819 So.2d 809 (Fla. 4th DCA) (FCCPA not restricted to debt collectors)