10th Mar 2010
Think An Fdcpa Violation Is An Automatic $1,000? Think Again!
Think an FDCPA Violation is an Automatic 1K?
Think Again!
?
It is a common misconception perpetuated on many internet discussion forums that when a debt collector violates, it equates to an automatic violation which is $1,000.00. The Fair Debt Collection Practices Act, which is codified at 15 U.S.C. 1692 et seq. does call for statutory damages as well as actual damages should a debt collector be found in violation of the Fair Debt Collection Practices Act. In an effort to provide accurate information to the masses, Credit Info Resource has decided to start a series of articles on the Fair Debt Collection Practices Act. The first article will discuss violation(s) of the Fair Debt Collection Practices Act, and the effects thereof.
First let’s look at the relevant part of the FDCPA which deals with violations, which is 15 U.S.C. 1692k:
(a) Amount of damages
Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of—
(1) any actual damage sustained by such person as a result of such failure;
(2)
(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000;
As shown above the statute is clear on the matter. Many internet discussion forums pass on incorrect information to unknowing debtors, that if a debt collector violates, than such a violation no matter the significance of it entitles that debtor to an automatic $1,000. The provision permits Courts to award any person affected by debt collector non compliance statutory damages of up to $1,000.00.
Statutory damages are not discretionary according to a Senate report, which supports that view. “A debt collector who violates the Act is liable for any additional damages the court deems appropriate, not exceeding $1,000. In assessing damages, the court must take into account the nature of the violation, the degree of willfulness, and the debt collectors persistence.”[1] One District Court issued an Opinion in which it stated: “One purpose of the statutory damages is to create an incentive to obey the law.” [2]
Unfortunately the legislative history of the FDCPA provision is unclear and inconsistent. It does suggest, however, that Congress did not intend for the statutory award to be discretionary unless the violation triggering it was minor.[3] Further, the legislative history also suggests that individual statutory damages need not be awarded or may be nominal in amount only if the violation is technical.[4]
Now the Act requires courts to consider four factors in determining the amount of statutory liability in an individual action.[5] It also allows the courts to consider other relevant factors when determining the statutory violation(s) amount. The four factors in which a court must consider are the following:
Intent;
Frequency;
Persistence; and
Nature of the collector’s noncompliance.
In the courts determining statutory damages, such determination should involve considerable discretion until all courts develop specific criteria applying the four factors they are required to consider. Fundamental questions need to be answered, such as, is the maximum $1,000 award reserved for the most egregious case or is it appropriate when a single violation occurs?[6]
So you have to ask yourself, first what part of the FDCPA did the debt collector violate? If you determine that the debt collector possibly violated a provision of the FDCPA, was such a violation a mere technical violation? Recently a case in the Western District of Michigan[7] found here http://www.websupp.org/data/WDMI/1:07-cv-00081-58-WDMI.pdf, involved a debtor who sued a debt collector and its employee’s for using “unavailable” on the caller ID when they telephoned the debtor. The court, specifically The Hon. Ellen S. Carmody stated:
“Plaintiff asserts that CSI acted to prevent its telephone number from appearing on his caller ID device. As a result, when Defendant telephoned Plaintiff, Plaintiff’s caller ID device allegedly displayed “unavailable” rather than Defendant’s telephone number. Even accepting as true Plaintiff’s allegations, the Court fails to discern how such is “false” or “deceptive.” To the contrary, the display in Plaintiff’s caller ID device of the word “unavailable” was entirely accurate. Defendant allegedly acted to make its telephone number unavailable to the caller ID devices of the individuals it telephoned. Such was accurately communicated to Plaintiff when his caller ID device displayed the word “unavailable.” The Court discerns nothing false or deceptive about Defendant’s actions.”
See Glover v. Client Services, Inc., et al WDMI No. 1:07-CV-81.
So when attempting to determine if there is a violation, one must also consider the extent of the violation. Further, a debtor who believes that he/she has been the victim of an FDCPA violation must also consider if it is just one violation, and what the possible statutory damages might be.
Many internet discussion boards state upon one violation, no matter how small the debtor is entitled to $1,000.00. As shown above and as we will elaborate more clearly below, that is simply not the case. A debtor does not want to be in a courtroom with a Judge with only one violation, the courts do not appreciate people wasting their time. The additional factors mentioned by the courts as to reducing the amount of statutory awards include:
A single violation;[8]
The Technical Nature of the Violation;[9]
Cessation of the violation when first brought to the collector’s attention;[10]
A collectors seeking to comply by obtaining legal advice;[11]
Lack of persistent, frequent violations;[12]
The lack of consumer injury;[13] and
The absence of intent to deceive or harass the consumer.[14]
The above all are things to take into consideration if and when you as a debtor decide to send Intent to Sue letter, and/or initiate a lawsuit as a Pro Se litigant. The reason to consider all the above is quite clear and relevant no matter what is stated on other discussion forums. If the courts consider all those factors in deciding why shouldn’t you as a Plaintiff?
[1] S. Rep. No. 382 at 5. Also See Evanauskas v. Strumpf, 2001 U.S. Dist. LEXIS 14326 (D. Conn. June 27, 2001)
[2] See Strange v. Wexler, 796 F. Supp. 117, 1120 (N.D. Ill. 1992).
[3] See NCLC Fair Debt Collection Practices Act Manual, 5th Edition, 6.4.2 supra.
[4] See Pipiles v. Credit Bureau, Inc., 886 F.2d 22 (2nd Cir. 1989); Clark v. Schwabe, Williamson, & Wyatt, Clearinghouse No. 44831 (D. Or. 1990).
[5] See Donahue v. NFS, Inc., 781 F. Supp. 188 (W.D.N.Y. 1991); Clark’s Jewelers v. Humble, 823 P.2d 818 (Kan. Ct. App. 1991); and Phillips v. Stokes & McAtee, Clearinghouse No. 47,747B (N.D. Ga. 1991).
[6] See Rutyna v. Collection Accounts Terminal, Inc., 478 F. Supp. 980, 982 (N.D. Ill. 1979).
[7] See Glover. v. Client Services, Inc. et al No. 1:07-CV-81.
[8] See Griswold v. J&R Anderson Bus. Servs, Inc., 1983 U.S. Dist LEXIS 20365 (D. Or. Oct 21, 1983); Zoeckler v. Credit Claims & Collections, Inc., 1983 U.S. Dist LEXIS 20363 (N.D. Ga. Feb 1, 1983); and Madonna v. Academy Collection Serv. Inc., 1997 WL 530101 (D. Conn. Aug 12, 1997).
[9] See Fasten v. Zager, 49 F. Supp. 2d 144 (E.D.N.Y. 1999); O’Connor v. Check Rite, 973 F. Supp. 1010 (D. Colo 1997).
[10] See Simmons v. Miller & Steeno, P.C., 2002 WL 31898324 (E.D. Mo. Dec 30, 2002).
[11] See Lambert v. National Credit Bureau, Inc., Clearinghouse No 32,760, 16 Clearinghouse Rev. 442 (D. Or. 1981).
[12] See Pipiles v. Credit Bureau, Inc., 886 F.2d 22 (2nd Cir. 1989); Laster v. Cole, 2000 U.S. Dist. LEXIS 3771 (E.D.N.Y. Mar. 20, 2000).
[13] See Kaschak v. Raritan Valley Collection Agency, 1989 U.S. Dist. LEXIS 19103 (D.N.J. May 22, 1989); Simmons v. Miller & Steeno, P.C., 2002 WL 31898324 (E.D. Mo. Dec 30, 2002).
[14] See Pipiles v. Credit Bureau, Inc., 886 F.2d 22 (2nd Cir. 1989); Boyce v. Attorney’s Dispatch Serv., 1999 U.S. Dist. LEXIS 1124 (S.D. Ohio Feb 2, 1999)
Linx04 has been a member of several internet consumer discussion forums. He started out this journey in late 2005 and has become a well established and respected member of the consumer board community. Linx04 has prosecuted over 30 lawsuits as a Pro Se litigant in Federal and State Court having settled or won all but one case. Linx04 is the administrator on various consumer forums including: http://creditinforesource.com and http://www.collectorsexposed.com
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