Double Summary Judgment |[SD FLA]| Debtor brought a class action against a creditor claiming that the pre-recorded

telephone messages were a violation under the Fair Debt Collection Practices Act (³FDCPA´) and the Florida Consumer Collections Practices Act (³FCCPA´). Both parties moved for a summary judgment verdict. Debtor claimed that the telephone messages failed to properly identify the creditor as a ³debt collector´, and that the creditor failed to take preventive steps to avoid calling the wrong telephone number. The creditor used the affirmative defense of ³bona fide error´, explaining that any violation under the FDCPA or FCCPA was an unintentional mistake. In DROSSIN v. NAT¶L ACTION FINANCIAL SERVICES, INC., 641 F.Supp.2d 1314 (S.D. Fla. 2009), the court granted in part and denied in part both motions for summary judgment. ³Where multiple parties move for a summary judgment, a court must evaluate each party¶s motion on its own merits.´ The court found that summary judgment was appropriate in favor for the debtor regarding the improper identification of the creditor. The court stated that merely saying the creditor¶s name (National Action Financial Services) is not sufficient for communication to a consumer. The message must disclose that the agency is a ³debt collector´ in all communication pertinent to a consumer¶s account. Voicemails are considered communication under the FDCPA. The court used the FDCPA¶s strict liability standard to establish the violation. All the debtor had to show was a violation, regardless of the intent. In the FCCPA claim, the debtor failed to establish the elements necessary for relief and the claim was dismissed. The court stated that the debtor tried to assert a legal right that did not exist against the creditor. The court rejected the creditor¶s affirmative defense of ³bona fide error´. The creditor had to prove by a preponderance of the evidence that preventive procedures were in place to avoid mistakes and errors. The court found that no procedures were ³in place to avoid numbers being erroneously entered and called by the auto-dialer.´ In addition, messages that did not meet the current standards under the FDCPA were not erased and were still being used at the time of the violation. The creditor claimed that use of non-compliant messages ³was an unintentional error.´ The court explained that mere mistake was not an adequate defense. In determining the damages involved, the court agreed with the creditor that the number of individuals affected was uncertain. The damages involved issues that were not appropriate for summary judgment. The court stated that a jury trial should be used to determine damages. BLB311rmc Ryan McLearen