FLORIDA COURT DISMISSES FCCPA CLAIM FINDING THE ACT DOES NOT APPLY TO EMAIL COMMUNICATIONS

A Hillsborough County judge recently entered summary judgment in favor of creditor, Afterpay US Services (“Afterpay”), dismissing the action filed by Daneshka Balestier Diaz (“Diaz”) finding Diaz lacked standing and Florida’s Consumer Collections Practices Act (“the Act” or “FCCPA”) was inapplicable. Diaz v. Afterpay US Services, Hillsborough County Case No. 24-CC-054641 (May 22, 2025). Diaz sued Afterpay based on an email Afterpay sent regarding Diaz’s upcoming payment on a short-term installment loan.

Afterpay offered a point-of-sale “buy now pay later platform” for funding in-store and online low-dollar transactions. Diaz first became a customer of Afterpay in 2020 at which time she agreed to Afterpay’s “Terms of Service” including consent to receive electronic communications. Diaz used Afterpay for five different purchases each time signing an additional consent to receive electronic communications. In October 2023, Diaz used Afterpay’s point-of-sale extension of credit to purchase $100 worth of products from Shein US Services, LLC.

As part of the installment payment process, Afterpay sent Diaz a “friendly reminder” email indicating that a payment of $25.11 was due in four days and was scheduled to be paid by Diaz’s Mastercard. Despite Diaz’s clear consent to receive electronic communications from Afterpay, she alleged in a lawsuit against Afterpay that the “friendly reminder” email violated the FCCPA’s prohibition against communications to collect a debt between 9 p.m. and 8 a.m. Diaz claimed the email caused her “annoyance, aggravation and stress.”

Afterpay moved for summary disposition which the court granted on four grounds. Firstly, the court pointed out that Diaz lacked standing to sue Afterpay because she suffered no injury. The court, relying on other cases with similar procedural-based violations, surmised that Diaz’s alleged injuries of “annoyance, aggravation and stress,” were not sufficiently concrete to confer jurisdiction on the court. Secondly, the court concluded that the email simply communicated information and was not an attempt to collect a debt, so it did not fall under the FCCPA prohibitions.

Thirdly, the court found that the FCCPA applied only to telephone calls, not email communications which, the court pointed out, were an “easily ignored, passive form of communication” unlike a phone call. The court relied on sections within the FCCPA which specifically referenced telephone calls and telephone numbers to support its conclusion that the legislature intended the Act to apply only to telephone calls.

Lastly, the court explained that Diaz “expressly consented” to receive emails when she opened her account and when she “obtained the payment plan at issue” and that such consent was part of the “bargained-for exchange.” All-in-all the court provided four well-founded and legally supported reasons for dismissing the debtor’s claims against Afterpay. Although this county court decision is of no precedential value, it will prove helpful in defending against similar claims in other matters.

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