15 U.S.C. § 1692k - Civil liability
(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; or
(
in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs.
(b) Factors considered by court
In determining the amount of liability in any action under subsection (a) of this section, the court shall consider, among other relevant factors--
(1) in any individual action under subsection (a)(2)(A) of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or
(2) in any class action under subsection (a)(2)(
of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collector's noncompliance was intentional.
(c) Intent
A debt collector may not be held liable in any action brought under this subchapter if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.
(d) Jurisdiction
An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.
(e) Advisory opinions of Commission
No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Commission, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason.
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NOTES OF DECISIONS
Accrual of action 31
Actual damages 2, 3
Actual damages - Generally 2
Actual damages - Mental distress 3
Additional or statutory damages 4
Appointment of counsel 27
Attorney fees 10
Burden of proof 22
Class actions 14
Collateral estoppel 16a
Complaint 15
Continuing violation 33
Costs 11
Counterclaims 30
Defenses 18
Dunning letters 8
Equitable relief 21
Evidence 23
Intent 6
Jurisdiction 12
Legal action on debt 9
Limitations 19
Limitations on liability 5
Mental distress 3
Mootness 28
New trial 25
Number of violations 7
Persons liable 17
Question for court 4b
Res judicata 16b
Review 26
Sanctions 32
Settlement 29
Standard of conduct 1
Standing to sue 16
Summary judgment 24
Trial by jury 20
Unjust enrichment 4a
Venue 13
1. Standard of conduct
In determining whether debt collector has violated Fair Debt Collection Practices Act (FDCPA), court applies objective standard measured by how least sophisticated consumer would interpret communication. Cavallaro v. Law Office of Shapiro & Kreisman, E.D.N.Y.1996, 933 F.Supp. 1148. Consumer Protection 10
For purposes of this subchapter, standard of ability and conduct to which debtor is held is on the low end of the spectrum of the reasonable person. Bingham v. Collection Bureau, Inc., D.C.N.D.1981, 505 F.Supp. 864. Consumer Protection 10
2. Actual damages--Generally
Maximum recovery for plaintiff in action under the Fair Debt Collection Practices Act (FDCPA) who did not allege any actual damages and requested only that she be awarded statutory damages was $1,000, plus costs of the suit and a reasonable attorney's fee. Greif v. Wilson, Elser, Moskowitz, Edelman & ****er LLP, E.D.N.Y.2003, 258 F.Supp.2d 157. Consumer Protection 40
Consumer-debtor was not entitled to recover costs and attorney fees under the Fair Debt Collection Practices Act (FDCPA), notwithstanding that he demonstrated collection agency's technical violation of the FDCPA, where debtor was unable to demonstrate that he had sustained any actual damages as result of this violation, consisting of debt collector's brief communication with third party regarding debt in advising person who had answered debtor's telephone that he was calling about debtor's bounced check, and where he obtained judgment of only $.01. O'Connor v. Check Rite, Ltd., D.Colo.1997, 973 F.Supp. 1010. Consumer Protection 42
Award of statutory damages under Fair Debt Collection Practices Act (FDCPA) does not require proof of actual damages. Woolfolk v. Van Ru Credit Corp., D.Conn.1990, 783 F.Supp. 724. Consumer Protection 40
$1,000 per action limitation under this section does not defeat purpose of this subchapter and is consistent with its provisions, since a plaintiff may always recover any actual damage sustained as well as attorney fees and costs; intent of Congress was that in aggravated case of persistent and illegal practices, full $1,000 would be awarded while in other cases court has discretion to award any amount less than that or nothing at all in addition to actual damages. Harvey v. United Adjusters, D.C.Or.1981, 509 F.Supp. 1218. Consumer Protection 40; Consumer Protection 42
Although debtor asserted that named class members were entitled to share of class award, offer of judgment of $1,000 plus costs and fees by debt collection service was valid, since it equaled maximum amount of damages to which debtor could have been entitled under Fair Debt Collection Practices Act (FDCPA). Jones v. CBE Group, Inc., D.Minn.2003, 215 F.R.D. 558. Federal Civil Procedure 2725
Debtor was entitled to damages in the amount of $300 for violations of this subchapter by collection bureau, where several violations attached to each of the once-a-week notices sent to the debtor, violations partook of the less egregious and harmful debt collector abuses addressed by this subchapter, notices were knowingly sent with prior knowledge of their exact contents, and this subchapter had been effective for a sufficient time to allow counsel to conform notices to statutory requirements. In re Scrimpsher, Bkrtcy.N.D.N.Y.1982, 17 B.R. 999. Consumer Protection 40
3. ---- Mental distress
Under Federal Fair Debt Collection Practices Act (FDCPA), debt collection agency and its employees that falsely represented to debtor that there was emergency family crisis in China and that Marshal was about to execute on judgment, "pop the lock" to his home, and remove his furniture, were liable to debtor for $1,000 in actual damages for emotional distress, additional statutory damages of $1,000, and reasonable attorney fees and costs. Teng v. Metropolitan Retail Recovery Inc., E.D.N.Y.1994, 851 F.Supp. 61. Consumer Protection 40; Consumer Protection 42
Debt collector was liable to debtor for debtor's emotional distress and anguish, if any, due to debt collector's violation of § 1692c of this title for contacting debtor after being notified to cease further communication since, treating the action as a cause of action for intentional infliction of mental distress, debtor would have been entitled to recover under applicable Georgia law. Carrigan v. Central Adjustment Bureau, Inc., N.D.Ga.1980, 502 F.Supp. 468. Damages 50.20
Where debt collector threatened debtors, was orally abusive, and attempted to collect interest not owed to underlying creditor, there was sufficient evidence of extreme and outrageous conduct to justify award of damages for emotional distress. Venes v. Professional Service Bureau, Inc., Minn.App.1984, 353 N.W.2d 671. Damages 192
4. Additional or statutory damages
Offer of judgment in suit for violation of Fair Debt Collection Practices Act (FDCPA), which agreed to statutory damages but left amount of additional "actual damages" to later agreement of attorneys, was invalid for failure to properly quantify damages. Basha v. Mitsubishi Motor Credit of America, Inc., C.A.5 (La.) 2003, 336 F.3d 451. Federal Civil Procedure 2725
As used in provision of Fair Debt Collection Practices Act (FDCPA) restricting recovery in class actions to lesser of $500,000 or 1 per centum of debt collector's net worth, term "net worth" referred to debt collector's book value net worth, or balance sheet net worth, rather than its fair market net worth, and thus did not include debt collector's goodwill. Sanders v. Jackson, C.A.7 (Ill.) 2000, 209 F.3d 998, 178 A.L.R. Fed. 649. Consumer Protection 40
To be entitled to award of attorney fees under the Fair Debt Collection Practices Act (FDCPA), as having successfully brought action to enforce defendant's liability under the FDCPA, it is not enough that plaintiff proves a technical violation of the FDCPA by defendant if violation will not support award of actual or additional damages in plaintiff's favor; prerequisite to award of attorney fees against FDCPA defendant is recovery of actual or additional damages from that defendant. Johnson v. Eaton, C.A.5 (La.) 1996, 80 F.3d 148, on remand 958 F.Supp. 261. Consumer Protection 42
Section of the Fair Debt Collection Practices Act (FDCPA) limits plaintiff's additional damages, beyond actual damages, to $1,000 "per proceeding" rather than "per violation." Wright v. Finance Service of Norwalk, Inc., C.A.6 (Ohio) 1994, 22 F.3d 647. Consumer Protection 40
Award of $1,000 in "additional damages" against attorney in Fair Debt Collection Practices Act (FDCPA) action brought by debtor was warranted; although collection letter bore attorney's name and facsimile of his signature, attorney did not review letter or file of debtor to whom letters were sent, thereby violating FDCPA provision prohibiting false or misleading representations. Clomon v. Jackson, C.A.2 (Conn.) 1993, 988 F.2d 1314. Consumer Protection 40
Fair Debt Collection Practices Act provided for maximum additional damages of $1,000 per action, not $1,000 per violation of Act, $1,000 per improper communication or $1,000 per alleged debt. Harper v. Better Business Services, Inc., C.A.11 (Ga.) 1992, 961 F.2d 1561. Consumer Protection 10
Attorney's egregious noncompliance with Fair Debt Collection Practices Act in sending letter to 68-year-old widow, which falsely implied that foreclosure on her home for failure to pay $297 debt was imminent, supported imposition of statutory maximum of $1,000 in additional damages, even though letter was sent less than a month after Act was amended to eliminate exemption for attorneys. Crossley v. Lieberman, C.A.3 (Pa.) 1989, 868 F.2d 566. Consumer Protection 50
Word "court" as used in this section providing for damages "in such amount as the court may allow" refers to the trial by both judge and jury and not only to trial by judge alone. Sibley v. Fulton DeKalb Collection Service, C.A.11 (Ga.) 1982, 677 F.2d 830. Consumer Protection 36.1
Debtor was entitled to statutory damages plus award of attorney fees arising out of debt collection company's violations of this subchapter, despite absence of adequate proof of actual damages. Baker v. G. C. Services Corp., C.A.9 (Or.) 1982, 677 F.2d 775. Consumer Protection 40
Term "net worth," as used in Fair Debt Collection Practices Act (FDCPA) section providing for damages in class actions of up to 1% of debt collector's net worth, meant fair market value, not book value. Scott v. Universal Fidelity Corp., N.D.Ill.1999, 42 F.Supp.2d 837. Consumer Protection 40
District court would not exercise whatever discretion it had, if any, to award "additional damages" to consumer debtor who, while able to demonstrate a violation of the Fair Debt Collection Practices Act (FDCPA), was unable to show that he sustained any damages as result, where violation was merely technical and was neither frequent, persistent nor intentional, consisting of debt collector's brief communication with third party regarding debt in advising person who had answered debtor's telephone that he was calling about debtor's bounced check. O'Connor v. Check Rite, Ltd., D.Colo.1997, 973 F.Supp. 1010. Consumer Protection 40
Fair Debt Collection Practices Act (FDCPA) section setting out amount of damages in action by individual limits statutory damages for successful plaintiff to $1,000 for each proceeding rather than $1,000 for each violation of statute. Barber v. National Revenue Corp., W.D.Wis.1996, 932 F.Supp. 1153. Consumer Protection 10
Mere fact that consumer debtor's wife was allegedly liable, pursuant to Wisconsin marital property law, for any debt which husband incurred during their marriage did not permit debtor's wife to recover statutory damages under the Fair Debt Collection Practices Act (FDCPA) based on improper letter which debt collector had mailed to the marital home to collect debt from husband, even absent any proof that wife ever saw letter or experienced any injury thereby. Dewey v. Associated Collectors, Inc., W.D.Wis.1996, 927 F.Supp. 1172. Consumer Protection 40
Under the Fair Debt Collection Practices Act (FDCPA), statutory damages of $500,000 or one percent of debt collector's net worth are only available in class actions. Whayne v. U.S. Dept. of Educ., D.Kan.1996, 915 F.Supp. 1143. Consumer Protection 40
Consumer was entitled only to award of $350 in statutory damages for debt collector's multiple violations of Fair Debt Collection Practices Act (FDCPA), where consumer had neither pled nor proved any actual damages. Wiener v. Bloomfield, S.D.N.Y.1995, 901 F.Supp. 771. Consumer Protection 40
Deficiencies in debt collection agency's choice of layout for debt collection letters, along with its choice of how to convey required notices on its letter, justified conclusion that there was at least some motive to draw consumer's attention away from required statutory notices, and therefore judgment would be entered against agency in the amount of $500 on each of two claims for violation of Fair Debt Collection Practices Act (FDCPA). Rabideau v. Management Adjustment Bureau, W.D.N.Y.1992, 805 F.Supp. 1086. Consumer Protection 10
Award of $250 in statutory damages was warranted against attorney who improperly sought attorney fees in addition to the underlying debt in action filed against debtor and who apparently sent the debtor a form letter reciting that debtor was liable for attorney fees when suit is brought on dishonored check, even though no check had been written. Strange v. Wexler, N.D.Ill.1992, 796 F.Supp. 1117. Consumer Protection 40
Statutory damages of $1,000 were warranted by attorney's violation of Fair Debt Collection Practices Act in several respects and continued use of offending demand letter after impropriety was brought to attention by debtors' memorandum in the suit; letter failed to provide the mandatory notice, grossly overstated amount owed, misrepresented consequences of start of litigation, and misrepresented intention as to commencement of suit. Cacace v. Lucas, D.Conn.1990, 775 F.Supp. 502. Consumer Protection 40
In action under Fair Debt Collection Practices Act (FDCPA), award of $1,000 statutory maximum applied to action as whole and not to each violation of FDCPA. Harper v. Better Business Services, Inc., N.D.Ga.1991, 768 F.Supp. 817, affirmed 961 F.2d 1561. Consumer Protection 40
In action under Fair Debt Collection Practices Act, plaintiff consumers were entitled to single award of statutory damages per consumer per lawsuit, rather than award of statutory damages for each violation of Act proved. Beattie v. D.M. Collections, Inc., D.Del.1991, 764 F.Supp. 925. Consumer Protection 40
Statutory damages under the Fair Debt Collection Practices Act are not allowed per violation but, rather, per action, so that $1,000 is the statutory maximum in a single action involving more than one violation. Masuda v. Thomas Richards & Co., C.D.Cal.1991, 759 F.Supp. 1456.
Failure of 48-hour, follow-up notice by debt collector to state that collector was attempting to collect debt and that information must be used for that purpose entitled consumer to statutory damages of $100. Young v. Credit Bureau of Lockport, Inc., W.D.N.Y.1989, 729 F.Supp. 1421. Consumer Protection 40
A plaintiff need not show actual pecuniary damages in order for the court to award statutory damages under this section since to require that pecuniary damages be suffered as prerequisite to award of statutory damages would reduce effectiveness of this subchapter. Harvey v. United Adjusters, D.C.Or.1981, 509 F.Supp. 1218. Consumer Protection 40
In addition to other damages awarded debtors in suit against collector for violating this subchapter, debtors were entitled to award of $400 because of false statements in notices and harassing telephone calls which were intentional. Bingham v. Collection Bureau, Inc., D.C.N.D.1981, 505 F.Supp. 864. Consumer Protection 40
In light of fact that debt collector's violation of § 1692c of this title prohibiting it to contact debtor after being notified to cease further communication occurred within first year that section was effective, absence of specific intent on part of collector to injure debtor, limited nature of the contact, and fact that collector was a multistate organization with legal advice as its ready disposal, debtor was entitled to $250 as "additional damages" to the $100 award for debtor's "actual damage." Carrigan v. Central Adjustment Bureau, Inc., N.D.Ga.1980, 502 F.Supp. 468. Consumer Protection 40
Egregiousness of a violation of this subchapter is a factor to be considered in awarding statutory damages. Rutyna v. Collection Accounts Terminal, Inc., N.D.Ill.1979, 478 F.Supp. 980. Consumer Protection 40
On non-core claim for violation of Fair Debt Collection Practices Act (FDCPA), bankruptcy court would recommend that, as sanction for debt collector's false or misleading statement in suggesting that it was somehow affiliated with federal and state governments, district court require collection agency to pay emotional distress damages of $500 and maximum statutory damages of $1,000. In re Faust, Bkrtcy.M.D.Ga.1998, 270 B.R. 310. Bankruptcy 2104
Law firm that violated the Fair Debt Collection Practices Act's (FDCPA's) notice provisions was liable for the maximum amount of statutory damages, $1,000.00, as well as costs and reasonable attorney fees incurred by debtor in prosecution of action; firm ordinarily and regularly violated the FDCPA by including in its initial communications with consumers a validation notice in the same form as that found defective in the instant case, nature of firm's noncompliance was moderate, in that firm provided the notice required by statute, but it failed to meet the hypothetical least sophisticated consumer standard because the notice was overshadowed by other information, and violation was, if not intentional, then measured, given abundance of case law clearly setting forth the standard upon which a debt collector must operate. In re Martinez, Bkrtcy.S.D.Fla.2001, 266 B.R. 523, entered 2001 WL 1175504, affirmed 271 B.R. 696, affirmed 311 F.3d 1272. Consumer Protection 40; Consumer Protection 42
There was no abuse of discretion in awarding $500 civil penalty against a debt collector under the federal Fair Debt Collection Practices Act, based on violations of the Act in the instant case as well as debt collector's involvement in prior lawsuits. Clark's Jewelers v. Humble, Kan.App.1991, 823 P.2d 818, 16 Kan.App.2d 366. Consumer Protection 40
Court would approve award of $4,000, to class representative in class action of debtors against collection agency, claiming that dunning letter violated Fair Debt Collection Practices Act (FDCPA), when $1,000 was statutory damages and remainder represented compensation for her efforts in securing net settlement of $22,000, or $77.46 per class member. Bonett v. Education Debt Services, Inc., E.D.Pa.2003, 2003 WL 21658267, Unreported. Federal Civil Procedure 2736
4A. Unjust enrichment
Debtors who prevailed on their Fair Debt Collection Practices Act (FDCPA) claims were not entitled to recover, on "unjust enrichment" theory, sums over and above amount of underlying indebtedness, which debt collector had collected as its fee; damages provision of the FDCPA did not authorize prevailing plaintiffs to recover equitable relief by way of unjust enrichment. Schimmel v. Slaughter, M.D.Ga.1997, 975 F.Supp. 1481. Consumer Protection 40
4B. Question for court
Fair Debt Collection Practices Act (FDCPA) did not mandate that court, rather than jury, determine statutory damage award against debt collector for Act violations; provision making debt collector violating Act liable, in addition to actual damages, for "such additional damages as the court may allow" was properly read to include trial by both judge and jury. Kobs v. Arrow Service Bureau, Inc., C.A.7 (Wis.) 1998, 134 F.3d 893. Consumer Protection 40
5. Limitations on liability
In making "lodestar" calculation, for purposes of determining reasonable attorney fee award in litigation under the Fair Debt Collection Practices Act (FDCPA), court would allow consumer 1.4 hours for time spent obtaining copy of state court default judgment, where debt collector never provided him with copy of state court default judgment before levying on his bank account; however, because task could have been performed by paralegal or clerk, time would be awarded only at paralegal's hourly rate of $65.00. Kapoor v. Rosenthal, S.D.N.Y.2003, 269 F.Supp.2d 408. Consumer Protection 42
Statutory damages under Fair Debt Collection Practices Act (FDCPA) are limited to $1,000 per proceeding, rather than $1,000 per individual statutory violation. White v. Bruck, W.D.Wis.1996, 927 F.Supp. 1168. Consumer Protection 40
Informal letters of Federal Trade Commission (FTC) staff outlining current enforcement position of staff do not limit liability for violations of Fair Debt Collection Practices Act. Cortright v. Thompson, N.D.Ill.1992, 812 F.Supp. 772. Consumer Protection 10
6. Intent
Absent existence of procedures reasonably adapted to avoid errors during transfer of accounts from one office to another, debt collector did not establish that its actions fell under bona fide error exception to Fair Debt Collection Practices Act (FDCPA). Fox v. Citicorp Credit Services, Inc., C.A.9 (Ariz.) 1994, 15 F.3d 1507. Consumer Protection 39
Collection agency ceased collection activities after receipt of consumer's cease and desist letter, and therefore its second collection letter did not violate Fair Debt Collection Practices Act (FDCPA), where second letter resulted from bona fide error. Smith v. Transworld Systems, Inc., C.A.6 (Ohio) 1992, 953 F.2d 1025. Consumer Protection 10
Extent of a debtor's deception is relevant to damages under the Fair Debt Collection Practices Act. Jeter v. Credit Bureau, Inc., C.A.11 (Ga.) 1985, 760 F.2d 1168. Consumer Protection 40
Reliance on advice of counsel or mistake about law is insufficient by itself to raise bona fide error defense under this section. Baker v. G. C. Services Corp., C.A.9 (Or.) 1982, 677 F.2d 775. Consumer Protection 10
Fair Debt Collection Practices Act (FDCPA) is strict liability statute and, thus, does not require showing of intentional conduct on part of debt collector. Cavallaro v. Law Office of Shapiro & Kreisman, E.D.N.Y.1996, 933 F.Supp. 1148. Consumer Protection 10; Consumer Protection 34
Bona fide "error," within meaning of provision of federal Fair Debt Collection Practices Act (FDCPA) allowing debt collectors to avoid liability for misrepresentations if violations resulted from bona fide error, notwithstanding maintenance of procedures reasonably adopted to avoid such error, does not include mistakes of law; generally, "error" is limited to clerical mistakes, such as minor numerical mistake in transposing numbers. Patzka v. Viterbo College, W.D.Wis.1996, 917 F.Supp. 654. Consumer Protection 10
Debt collector failed to show that its unlicensed collection activities within state of Louisiana were result of unintentional, "bona fide error," which occurred despite good faith efforts to comply with law and creation of maintenance procedures and policies designed to avoid occurrence of such error, as required to avoid liability for its violation of FDCPA in failing to obtain license in state of Louisiana; fact that debt collector asked its outside counsel twice in space of 10 months to check whether it was required to be licensed in states in which it operated was not evidence of procedures reasonably adapted to avoid such error but rather evidence of error itself, and debt collector presented no evidence that it had system in place to protect it from errors in legal advice. Sibley v. Firstcollect, Inc., M.D.La.1995, 913 F.Supp. 469. Consumer Protection 10
Attorney's collection letters violated Fair Debt Collection Practices Act by failing to disclose that letters were attempts to collect debt and that all information would be used for that purpose and by overstating amount of debt; attorney made no attempt to show by preponderance of evidence that overstatement of amount was unintentional and resulted from bona fide error notwithstanding procedures reasonably adapted to avoid error. Cacace v. Lucas, D.Conn.1990, 775 F.Supp. 502. Consumer Protection 10
Error in including a validation notice giving debtor 30 days to dispute the debt in a letter which also threatened suit if payment was not received within ten days was not excused under the bona fide error defense despite claim that the notice was sent on an old form which had been inadvertently kept in the office and used after it had been intended to be discarded. Graziano v. Harrison, D.N.J.1991, 763 F.Supp. 1269, reversed in part, vacated in part 950 F.2d 107. Consumer Protection 10
Even if employee of debt collector had represented to debtor that 75% of wages could be garnished, employee swore that if he made such statement, it was completely unintended and that he knew that legal limit for wage garnishment was 25%, as he had been educated in wage garnishment restrictions, and thus, such "misstatement" was protected by Act. Bieber v. Associated Collection Services, Inc., D.Kan.1986, 631 F.Supp. 1410. Consumer Protection 10
Where debt collector established that violations of this subchapter was not intentional but did not establish that violations resulted from bona fide errors of its agent, collector was liable. Bingham v. Collection Bureau, Inc., D.C.N.D.1981, 505 F.Supp. 864. Consumer Protection 34
Fact that employee of collection agency which made telephone call to consumer had not seen letter in which consumer directed collection agency to cease any further telephone communications with him did not establish that telephone call was a bona fide error for purposes of this section for reason that there was no showing that collection agency maintained procedures reasonably adopted to avoid such an error. Carrigan v. Central Adjustment Bureau, Inc., N.D.Ga.1980, 494 F.Supp. 824. Consumer Protection 10
Fair Debt Collection Practices Act provision prohibiting debt collectors from using false, deceptive, or misleading representation or means in connection with the collection of any debt was not intended to penalize debt collectors for their failure to discover debtor's prior bankruptcy; provision was intended to prohibit only knowing or intentional conduct by debt collectors. Hubbard v. National Bond and Collection Associates, Inc., D.Del.1991, 126 B.R. 422, affirmed 947 F.2d 935. Consumer Protection 10
Fair Debt Collection Practices Act will not be enforced when there is preponderance of evidence that violation was unintentional or resulted from bona fide error. Mendez v. Apple Bank for Sav., N.Y.City Civ.Ct.1989, 541 N.Y.S.2d 920, 143 Misc.2d 915. Consumer Protection 34
Collection agency was liable to debtor under Fair Debt Collection Practices Act for attempting to collect more from debtor than was permitted either by agreement or by law, despite agency's allegation that amount of demand was clerical error, where agency did not present any evidence showing that it had adopted reasonable procedures to preclude such error. Johnson v. Statewide Collections, Inc., Wyo.1989, 778 P.2d 93. Consumer Protection 10
7. Number of violations
Single violation of Fair Debt Collection Practices Act (FDCPA) is sufficient to establish civil liability. Cavallaro v. Law Office of Shapiro & Kreisman, E.D.N.Y.1996, 933 F.Supp. 1148. Consumer Protection 10
8. Dunning letters
Consumer was entitled to award of $525 additional damages under the Fair Debt Collection Practices Act against individual who sent two collection notices to consumer for payment on $18.94 debt, even though there was insufficient evidence to indicate that the individual's violations of the Act were intentionally designed to deceive the consumer; individual utilized extremely small print for mandated portions of notice while utilizing larger print for surplusage, and printed most of mandated information on reverse side. Donahue v. NFS, Inc., W.D.N.Y.1991, 781 F.Supp. 188. Consumer Protection 40
Violation of Fair Debt Collection Practices Act occurs when offending letter is received, not when it is sent. Anthes v. Transworld Systems, Inc., D.Del.1991, 765 F.Supp. 162. Consumer Protection 10
Portion of collection letter, that permitted debtor to pay off or dispute debt within 30 days of date of letter which started adverse credit reporting clock, did not confuse, mislead, overshadow or in any way diminish clarity of Fair Debt Collection Practices Act (FDCPA) validation notice, although those provisions appeared in separate paragraphs in letter. Jones v. CBE Group, Inc., D.Minn.2003, 215 F.R.D. 558. Consumer Protection 10
9. Legal action on debt
Injunction preventing sheriff's sale of home for failure to pay water assessment, on basis that law firm which attempted to collect delinquent assessment from homeowner for municipality violated Fair Debt Collection Practices Act (FDCPA), was proper under "necessary in aid of its jurisdiction" exception to Anti-Injunction Act; if sheriff's sale proceeded, state court proceeding would have presented threat to federal action in that homeowner would have lost her home even though fees and costs assessed against her property were unlawful under FDCPA. Piper v. Portnoff Law Associates, E.D.Pa.2003, 262 F.Supp.2d 520. Courts 508(3)
Filing of two affidavits for wage deduction orders constituted "legal action on debt," for purposes of provision of Fair Debt Collection Practices Act (FDCPA) requiring action to enforce liability under FDCPA to be brought within one year from date on which violation of FDCPA occurred. Blakemore v. Pekay, N.D.Ill.1995, 895 F.Supp. 972. Limitation Of Actions 58(1)
10. Attorney fees
District court's finding, that offer of judgment by Fair Debt Collection Practices Act (FDCPA) defendant included attorney fees, was not clearly erroneous; though offer did not expressly address fees, surrounding circumstances strongly suggested that parties intended to settle all claims. Basha v. Mitsubishi Motor Credit of America, Inc., C.A.5 (La.) 2003, 336 F.3d 451. Federal Civil Procedure 2725
Fair Debt Collection Practices (FDCPA) action in which debtor had prevailed on summary judgment on three of her four asserted claims, and in which she had colorable argument as to claim on which she ultimately did not prevail, was not one that debtor brought in "bad faith," as required for award of attorney fees to debt collector based on his success in successfully defending against fourth claim. Horkey v. J.V.D.B. & Associates, Inc., C.A.7 (Ill.) 2003, 333 F.3d 769, certiorari denied 124 S.Ct. 489, 2003 WL 22204160. Consumer Protection 42
Refusal to award attorney fees to debtors who brought successful action against debt collection agency and its sole shareholders under Fair Debt Collection Practices Act (FDCPA) was abuse of discretion, inasmuch as award of reasonable attorney fees to debtors was mandatory. Zagorski v. Midwest Billing Services, Inc., C.A.7 (Wis.) 1997, 128 F.3d 1164. Consumer Protection 42
Award of attorney fees in debtor's action under Fair Debt Collection Practices Act that excluded fees for work performed after debt collector made offer to confess judgment was proper, in that alleged violation of Act was at most purely technical one, offer would have allowed debtor, who did not suffer actual damages, to recover maximum statutory damages, and offer provided for reasonable estimated attorney fees; it was unreasonable for attorney to continue to perform legal services after offer was made. Lee v. Thomas & Thomas, C.A.6 (Ohio) 1997, 109 F.3d 302. Consumer Protection 42
Defendant who had been found to have violated provisions of the Fair Debt Collection Practices Act (FDCPA) could not be regarded as "prevailing" party, such as might be entitled to award of prevailing party attorney fees under attorney fee provisions of the FDCPA, merely because district court determined that her technical violations of the FDCPA were not sufficient to support award of actual or additional damages against her. Johnson v. Eaton, C.A.5 (La.) 1996, 80 F.3d 148, on remand 958 F.Supp. 261. Consumer Protection 42
Award of $500 in attorney fees to debtor under Fair Debt Collection Practices Act was not abuse of discretion, even though amount was not equal to lodestar amount; debtor received only $50 in statutory damages at close of underlying litigation, which was five percent of amount she initially sought, debtor voluntarily abandoned her claim for emotional distress damages, and debt collector-law firm's single violation of notice provision of FDCPA was merely technical. Carroll v. Wolpoff & Abramson, C.A.4 (Md.) 1995, 53 F.3d 626, 132 A.L.R. Fed. 765. Consumer Protection 42
District court could award attorneys' fees to plaintiff in action brought under Fair Debt Collection Practices Act based upon prevailing market rate rather than basing award on actual costs, even though plaintiff was represented by attorney employed by union legal services plan and notwithstanding contention that award in excess of actual costs to plaintiff would result in inappropriate economic benefit to union; plan was employee welfare benefit plan for prepaid legal services, governed by ERISA, that plan was separate legal entity from union, and, thus, any economic benefit derived would not be shared by union. Hollis v. Roberts, C.A.11 (Ga.) 1993, 984 F.2d 1159. Federal Civil Procedure 2737.5
District court properly limited attorney fee awarded to debtor in action under Fair Debt Collection Practices Act to cost of providing his legal services where debtor was represented by attorney who worked for legal services organization of debtor's union, and where debtor offered no evidence that any recovered fees would not directly benefit union and would not result in unethical fee-splitting. Harper v. Better Business Services, Inc., C.A.11 (Ga.) 1992, 961 F.2d 1561. Consumer Protection 42
No attorney fee award could be made for cocounsel's time unsuccessfully spent in arguing that he should have been paid for work on merits of plaintiffs' case against credit bureau for violations of Truth in Lending Act, Fair Credit Reporting Act, and Fair Debt Collection Practices Act. Mares v. Credit Bureau of Raton, C.A.10 (N.M.) 1986, 801 F.2d 1197. Consumer Credit 67; Consumer Protection 42; Credit Reporting Agencies 4
In suit by purchasers against, inter alia, mortgage servicing company and its assignee following purchasers' discovery that their property encroached a utility easement, district court did not abuse discretion in concluding that an award of attorney fees in favor of those defendants would be inequitable and unreasonable, where, although purchasers did not prevail ultimately on their claim against those defendants under the Fair Debt Collection Practices Act, they raised sufficient questions of fact for the jury on the Texas Debt Collection Act claim. Perry v. Stewart Title Co., C.A.5 (Tex.) 1985, 756 F.2d 1197, rehearing granted in part 761 F.2d 237. Federal Civil Procedure 2737.5
In making a "lodestar" calculation for purposes of determining reasonable attorney fee award in litigation under the Fair Debt Collection Practices Act (FDCPA), court would allow recovery by consumer's attorneys, one of whom was principal attorney at consumer advocacy center in Chicago and the other of whom had been practicing for more than ten years with recent focus in consumer rights litigation, at hourly rates of no more than $225, and not at rates of $320 and $250 requested by attorneys, in light of rates charged by comparable practitioners and Consumer Price Index. Kapoor v. Rosenthal, S.D.N.Y.2003, 269 F.Supp.2d 408. Consumer Protection 42
Award of attorney fees of $55,000 in proposed class action settlement in action for violations of Fair Debt Collection Practices Act (FDCPA), Pennsylvania Fair Credit Extension Uniformity Act, and Pennsylvania Unfair Trade Practices and Consumer Protection Law was not excessive, even though award to class was only $20,000, where records reflected reasonable amount of hours spent in litigating class action, there was no evidence of any conflicts between financial incentives of counsel and interests of class, and settlement provided generous award to class members, considering weakness of proving liability and actual damages and limits on statutory damages. Oslan v. Law Offices Of Mitchell N. Kay, E.D.Pa.2002, 232 F.Supp.2d 436. Federal Civil Procedure 2737.13
Although debt collector's statement that he would collect attorney fees if purported debtors contested debt was technically not false or deceptive, it violated provision of Fair Debt Collection Practices Act (FDCPA) forbidding use of false representation or deceptive means to collect or attempt to collect debt, inasmuch as statement failed to note that fees were only available if purported debtors contested debt collectors' collection methods by filing action under FDCPA and court determined that action was frivolous, and least sophisticated debtor would interpret statement as implying that attorney fees were real and immediate consequence for any refusal or delay in paying debt. Van Westrienen v. Americontinental Collection Corp., D.Or.2000, 94 F.Supp.2d 1087. Consumer Protection 10
Attorney fees could not be assessed against library patron's parents, pursuant to a provision of the Fair Debt Collection Practices Act (FDCPA) permitting fee award against any party that brings FDCPA action in bad faith or for purpose of harassment, when parents unsuccessfully sued under the FDCPA for abusive collection practices in which library allegedly engaged in attempting to recover fine assessed for patron's failure to return library book; while district court ultimately determined that fine did not give rise to any "debt" under the FDCPA, parents' claims were not absurd under the case law existing when suit was filed, and threatening settlement demands made by parents' attorney did not establish that lawsuit was brought in bad faith or for purpose of harassment. Riebe v. Juergensmeyer and Associates, N.D.Ill.1997, 979 F.Supp. 1218. Consumer Protection 42
For purposes of awarding attorney fees to prevailing plaintiff under Fair Debt Collection Practices Act (FDCPA), attorney's hourly rate provided reasonable basis to calculate lodestar amount, even though attorney's affidavit did not state that $175 per hour was his usual or customary rate for legal services or that he routinely charged clients that rate, where attorney submitted evidence that standard billing rate was $175 per hour in those instances where work had been undertaken on hourly basis. Edwards v. National Business Factors, Inc., D.Nev.1995, 897 F.Supp. 458. Consumer Protection 42
Consumer suing debt collector for violations of Fair Debt Collection Practices Act (FDCPA) was "prevailing party," entitled to attorney fee award, where trial court entered summary judgment against debt collector on issue of liability for violations of Act and entered judgment on jury verdict against debt collector for $500 in additional damages, even though jury returned verdict finding that conduct of debt collector was not legal cause of any actual damages to consumer. Johnson v. Eaton, M.D.La.1995, 884 F.Supp. 1068, affirmed in part, reversed in part 80 F.3d 148, on remand 958 F.Supp. 261. Consumer Protection 42
Total hours claimed by attorneys for successfully suing to recover statutory damages of $300 in lawsuit under the Fair Debt Collection Practices Act (FDCPA) would be reduced, from the 95.8 hours claimed by attorneys to total of just 40 hours, based on excessive time spent by attorneys for performing relatively simple tasks in straightforward and uncomplicated case and on duplication of efforts in having two attorneys prepare for and attend same deposition. Altergott v. Modern Collection Techniques, Inc., N.D.Ill.1994, 864 F.Supp. 778. Consumer Protection 42
Collection agency would not be awarded attorney fees and costs, though it had prevailed in debtor's action for violation of Fair Debt Collection Act, absent showing that plaintiff had brought action in bad faith or for purpose of harassment. Latimer v. Transworld Systems, Inc., E.D.Mich.1993, 842 F.Supp. 274. Consumer Protection 42
Insurer's declaratory judgment action against investor under Fair Debt Collection Practices Act (FDCPA) was sufficiently related to insurer's action to enforce note and indemnity agreement to entitle insurer to award of attorney fees expended in the FDCPA action pursuant to judgment entered in action on note and indemnity agreement; insurer sought declaration that action against investor did not violate FDCPA and was brought after investor's counsel threatened to institute class action against insurer for violating that statute. National Union Fire Ins. Co. of Pittsburgh, Pa. v. Hartel, S.D.N.Y.1992, 782 F.Supp. 22, affirmed 972 F.2d 1328. Consumer Protection 42
Reasonable billing rate for attorney bringing action under Fair Debt Collection Practices Act (FDCPA) is $95, and thus attorney's fees awardable to plaintiff who prevailed on claims under the FDCPA would be awarded at rate of $95 per hour. Donahue v. NFS, Inc., W.D.N.Y.1991, 781 F.Supp. 188. Consumer Protection 42
Consumer successful in suit under Fair Debt Collection Practices Act (FDCPA) was entitled to recover attorney fees limited to costs incurred in providing legal services; fee award based on prevailing market rates to counsel provided by consumer's union would have resulted in inappropriate economic benefit to union, which would in turn create ethical problems. Harper v. Better Business Services, Inc., N.D.Ga.1991, 768 F.Supp. 817, affirmed 961 F.2d 1561. Consumer Protection 42
Debtor who proved statutory violation in that debt collector threatened to file suit within ten days if payment were not made even though collector did not intend to do so was entitled to nominal award of statutory damages and attorney fees in the amount of $50 in view of the fact that the bulk of the complaint was without merit. Graziano v. Harrison, D.N.J.1991, 763 F.Supp. 1269, reversed in part, vacated in part 950 F.2d 107. Consumer Protection 40; Consumer Protection 42
Plaintiffs were prevailing parties and entitled to award of attorney fees under the Fair Debt Collection Practices Act, with respect to costs incurred in defending a motion for new trial, which resulted in an order of remittitur reducing their actual damage award from $15,000 to $3,000; even if they had not agreed to the remittitur, new trial would have been confined to the issues of damages and they would have retained their right to relief and their status as prevailing parties. Smith v. Law Offices of Mitchell N. Kay, D.Del.1991, 762 F.Supp. 82. Consumer Protection 42
Plaintiff was not barred from recovering reasonable attorney fees under Fair Debt Collection Practices Act merely because he was member of legal services plan and services rendered on his behalf might have been provided without charge. Perez v. Perkiss, D.Del.1990, 742 F.Supp. 883. Consumer Protection 42
Defendants in action brought under Fair Debt Collection Practices Act could not seek award of attorney's fees based on claim that action was filed in bad faith by filing counterclaim, but rather were required to file motion for attorneys' fees if court determined that action was brought in bad faith. Hardin v. Folger, W.D.N.Y.1988, 704 F.Supp. 355. Consumer Credit 67
Evidence in suit by debtors against debt collector warranted award to wife of $1000 and $100 to husband together with attorney fees. Bingham v. Collection Bureau, Inc., D.C.N.D.1981, 505 F.Supp. 864. Consumer Protection 40; Consumer Protection 42
For purposes of awarding fees under the Fair Debt Collection Practices Act (FDCPA), reasonable billing rate for debtor's attorney was $200 per hour; debtor's expert opined that an hourly rate between $250 and $325 was reasonable, defendant's expert testified that FDCPA lawyers charged between $195 and $225 per hour, debtor's attorney had limited experience in FDCPA cases, a more experienced FDCPA attorney could have accomplished many of the billed-for tasks in less time, the law at issue was not excessively complex, and the standard business practice of debtor's attorney was to charge clients $185 per hour. In re Martinez, Bkrtcy.S.D.Fla.2001, 266 B.R. 523, entered 2001 WL 1175504, affirmed 271 B.R. 696, affirmed 311 F.3d 1272. Bankruptcy 3196; Consumer Protection 42
For court to award attorney fees to successful defendant in action brought under Fair Debt Collection Practices Act it is not enough that plaintiff's case is ultimately dismissed. Mendez v. Apple Bank for Sav., N.Y.City Civ.Ct.1989, 541 N.Y.S.2d 920, 143 Misc.2d 915. Consumer Protection 42
Attorney fees for prior action establishing violation of Fair Debt Collection Practices Act was proper element of actual damages in a later suit under the Act, and debtors did not waive right to collect such fees by not seeking them in the prior action. Venes v. Professional Service Bureau, Inc., Minn.App.1984, 353 N.W.2d 671. Consumer Protection 42
Evidence in suit under the federal Fair Debt Collection Practices Act supported award of attorney fees to debtors, against debt collector found to have violated the Act, in amount of $100 per hour for 40 hours of work. Clark's Jewelers v. Humble, Kan.App.1991, 823 P.2d 818, 16 Kan.App.2d 366. Consumer Protection 42
Attorney fees of $69,000, in class action netting each class $22,000, would be approved in class action of debtors against collection agency, claiming that dunning letter violated Fair Debt Collection Practices Act (FDCPA); fees were consistent with fees charged and approved in other class action litigation. Bonett v. Education Debt Services, Inc., E.D.Pa.2003, 2003 WL 21658267, Unreported. Attorney And Client 155
11. Costs
Sums spent by consumer's attorneys for postage and messenger services were part of attorneys' overhead, which could not be assessed as costs under the Fair Debt Collection Practices Act (FDCPA). Altergott v. Modern Collection Techniques, Inc., N.D.Ill.1994, 864 F.Supp. 778. Consumer Protection 42
12. Jurisdiction
Claim for damages under this subchapter was not compulsory counterclaim in state action to collect underlying debt as while debt claim and counterclaim under this subchapter might arise from same loan transaction, two claims bore no logical relation to one another and, thus, prior state actions would not effectively preclude federal jurisdiction. Peterson v. United Accounts, Inc., C.A.8 (N.D.) 1981, 638 F.2d 1134. Courts 493(3)
Court would not exercise pendent jurisdiction over plaintiff's claims under the Ohio Consumer Sales Practices Act following dismissal, for failure to state claim upon which relief could be granted, of plaintiff's federal claims under the Fair Debt Collection Practices Act (FDCPA). Shorts v. Palmer, S.D.Ohio 1994, 155 F.R.D. 172. Federal Courts 18
District court was without jurisdiction to grant injunctive relief to consumer aggrieved by debt collector's failure to comply with requirements of this subchapter. Duran v. Credit Bureau of Yuma, Inc., D.C.Ariz.1982, 93 F.R.D. 607. Consumer Protection 41
Bankruptcy court did not have jurisdiction to hear or adjudicate Chapter 7 debtors' Fair Debt Collection Practices Act (FDCPA) claims arising from creditor's alleged fraudulent collection activity where factual scenario that was alleged occurred long after debtors' discharge was entered and their bankruptcy case closed, and the FDCPA claims stood alone, separate from the underlying bankruptcy proceeding, and could have been asserted by debtors regardless of their bankruptcy case. In re Vogt, Bkrtcy.D.Colo.2000, 257 B.R. 65. Bankruptcy 2057
This section allowing enforcement action in district court or state court is a concurrent grant of jurisdiction to United States district and state courts. In re Scrimpsher, Bkrtcy.N.D.N.Y.1982, 17 B.R. 999. Courts 489(1)
In action by debtors against bank for allegedly violating Fair Debt Collection Practices Act, 42 Pa.C.S.A. § 931, Court of Common Pleas had subject matter jurisdiction under 42 Pa.C.S.A. § 931 governing jurisdiction, since section supported suit in either state or federal court. Itri v. Equibank, N.A., Pa.Super.1983, 464 A.2d 1336, 318 Pa.Super. 268. Courts 489(1)
Debtor had no right of action against creditor under this subchapter where debtor failed to show the requisite jurisdictional fact that creditor had used a name other than its own, even if use of term "Priority Dispatch" on envelope and letter and use of post-office box were misleading. Lane v. Marine Midland Bank, N. A., N.Y.Sup.1982, 446 N.Y.S.2d 873, 112 Misc.2d 200. Consumer Protection 10
13. Venue
Venue was proper in debtor's action under Fair Debt Collection Practices Act in Western District of New York, in which debtor resided and to which Pennsylvania bill collector's demand for payment was forwarded; receipt of collection notice, which was substantial part of events giving rise to claim, occurred in New York, even though collection agency did not deliberately direct notice to New York. Bates v. C & S Adjusters, Inc., C.A.2 (N.Y.) 1992, 980 F.2d 865. Federal Courts 88
Debt collection company's garnishment action against garnishee, which was judgment debtor's employer, was not brought against a "consumer," and thus, garnishment action could not have violated the venue provision of the Fair Debt Collection Practices Act (FDCPA), which requires that a garnishment action be brought in district in which "consumer" resides or in which "consumer" signed contract. Pickens v. Collection Services of Athens, Inc., M.D.Ga.2001, 165 F.Supp.2d 1376, affirmed 273 F.3d 1121. Consumer Protection 1; Consumer Protection 10
Although both of defendants resided in the Northern District of Ohio, where claim made under this subchapter arose in the Southern District, and where communications alleged to have violated this subchapter were made to plaintiff in the Southern District, venue of action was proper in Southern District of Ohio, Western Division. Murphy v. Allen County Claims & Adjustments, Inc., S.D.Ohio 1982, 550 F.Supp. 128. Federal Courts 88
Where card was issued to cardholder while she lived in Louisiana and where she then moved to Ohio and made purchases before losing the card, and where she thereafter sued the issuer for violations of this subchapter and the Fair Credit Billing Act, § 1666 et seq. of this title, as a result of a dispute over allegedly unauthorized charges, the causes of action arose in Ohio for venue purposes. Lachman v. Bank of Louisiana in New Orleans, N.D.Ohio 1981, 510 F.Supp. 753. Federal Courts 74
14. Class actions
"Third strike" statute, imposing mandatory life imprisonment for third serious violent-felony conviction, does not violate due process clause by giving judge too little power over sentence; statute does not specify mandatory sentence for crime, but rather sets minimum sentence for combination of serious crime and repeat violent offender. U.S. v. Washington, C.A.7 (Ill.) 1997, 109 F.3d 335, certiorari denied 118 S.Ct. 134, 522 U.S. 847, 139 L.Ed.2d 82, post- conviction relief denied 1999 WL 59974, reconsideration denied 2001 WL 1105124. Constitutional Law 270(4); Sentencing And Punishment 1210
Right of plaintiff in action under the Fair Debt Collection Practices Act (FDCPA) to prosecute the case as a class action was governed by procedural rule governing class actions rather than by the FDCPA, and thus, dismissal of the case as moot after plaintiff failed to respond to defendant's offer of judgment and failed to move for class certification would not violate provision of the Rules Enabling Act which states that the federal rules shall not abridge, enlarge or modify any substantive right. Greif v. Wilson, Elser, Moskowitz, Edelman & ****er LLP, E.D.N.Y.2003, 258 F.Supp.2d 157. Federal Civil Procedure 39; Federal Courts 13
Proposed settlement of class action against law firm for violations of Fair Debt Collection Practices Act (FDCPA), Pennsylvania Fair Credit Extension Uniformity Act, and Pennsylvania Unfair Trade Practices and Consumer Protection Law was reasonable; litigation was sufficiently complex that trial would have been relatively expensive and lengthy, only one class member opted out of class and no class members objected to proposed settlement, both sides were able to make informed judgment about settlement based on likelihood of success on merits, class faced at least some risk of establishing liability, ability of firm to withstand greater judgment was uncertain, award exceeded statutory award under FDCPA, and it might take years to conclude and secure recovery if class was successful at trial. Oslan v. Law Offices Of Mitchell N. Kay, E.D.Pa.2002, 232 F.Supp.2d 436. Compromise And Settlement 61
Under New York law, state court determination that property owners owned only portions of underground mine and subterranean lake that lay beneath their property, rather than entire underground mine and lake, had preclusive effect on issue of owners' ownership interest in subterranean caves and lakes at issue in owners' federal court action against city for effecting taking by contaminating lake as result of storm water management system at adjacent city business park. Knaust v. City of Kingston, N.D.N.Y.2002, 193 F.Supp.2d 536. Judgment 828.20(3)
The term "net worth," as used in the Fair Debt Collection Practices Act (FDCPA) section providing for class action damages up to 1% of the debt collector's net worth, means the difference between assets and liabilities as determined in accordance with generally accepted accounting principles (GAAP), which is the stockholders' equity, and not fair market value; thus, goodwill would not be included as an asset in calculating net worth. Sanders v. Jackson, N.D.Ill.1998, 33 F.Supp.2d 693, affirmed 209 F.3d 998, 178 A.L.R. Fed. 649. Consumer Protection 40
In lawsuit under Fair Debt Collection Practices Act (FDCPA), potential class of 50,666 persons who received collection letter was sufficiently numerous to satisfy numerosity requirement of class action rule. Jones v. CBE Group, Inc., D.Minn.2003, 215 F.R.D. 558. Federal Civil Procedure 182.5
Although debtor asserted that named class members were entitled to share of class award, offer of judgment of $1,000 plus costs and fees by debt collection service was valid, since it equaled maximum amount of damages to which debtor could have been entitled under Fair Debt Collection Practices Act (FDCPA). Jones v. CBE Group, Inc., D.Minn.2003, 215 F.R.D. 558. Federal Civil Procedure 2725
Commonality requirement was satisfied for class certification in suit brought under Fair Debt Collection Practices Act (FDCPA), in which plaintiffs alleged that collection bureau's chief executive officer (CEO) violated FDCPA by holding himself out as independent attorney for bureau, since liability was common to all class members, which included those persons actually receiving letter from CEO by which he held himself out as attorney for bureau in collection efforts, and FDCPA was strict liability statute, so that liability in all cases would be measured not by whether individual class member was actually duped, but rather by "least sophisticated consumer" standard. Stewart v. Slaughter, M.D.Ga.1996, 165 F.R.D. 696. Federal Civil Procedure 182.5
Speculation that some class members might prefer to bring individual actions for statutory damages was insufficient to warrant denial of class certification request in action brought under the Fair Debt Collection Practices Act (FDCPA). Gammon v. GC Services Ltd. Partnership, N.D.Ill.1995, 162 F.R.D. 313. Federal Civil Procedure 182.5
Requirements for class action certification, that common issues predominate over individual and that class action be shown as superior means of proceeding with suit, were satisfied in proposed class action of debtors against collection agency, claiming that dunning letter violated Fair Debt Collection Practices Act (FDCPA); unlawfulness of letter was dominant issue in all claims, and individual amounts were too small to warrant individual litigation. Bonett v. Education Debt Services, Inc., E.D.Pa.2003, 2003 WL 21658267, Unreported. Federal Civil Procedure 182.5
Claim of debtor, that was predicated on debt collector's alleged practice of altering or failing to provide charge off date and naming itself as original creditor, and that such practice was false, deceptive, and misleading in violation of Fair Debt Collection Practices Act (FDCPA), was sufficiently common to all 2.2 million debtors in prospective class to satisfy commonality requirement of class action rule. Thomas v. NCO Financial Systems, Inc., E.D.Pa.2002, 2002 WL 1773035, Unreported. Federal Civil Procedure 182.5
15. Complaint
Allegations in plaintiff's complaint, that attorney to whom plaintiff's dishonored check was transferred for collection had engaged in certain abusive, deceptive or unfair practices in attempting to recover thereon, did not sufficiently allege that attorney was attempting to recover on "debt," as that term was defined under the Fair Debt Collection Practices Act (FDCPA), to state claim against attorney for allegedly violating the FDCPA; plaintiff's complaint did not allege facts sufficient to show that his check to bowling alley was proffered in connection with transaction involving offer or extension of credit that was undertaken primarily for personal, family, or household purposes. Cederstrand v. Landberg, D.Minn.1996, 933 F.Supp. 804. Consumer Protection 38
Mortgage applicants whose application was allegedly denied due to false statement on credit report that they had delinquent account with creditor failed to adequately allege that creditor was "debt collector" under Fair Debt Collection Practices Act; creditor submitted sworn testimony that its principal business was not collection of debts, that it did not regularly collect or attempt to collect debts owed or due, and that its principal business was not enforcement of security interests, and applicants' only response to that testimony was that collection of delinquent debts was "not that far" from being heart of what creditor did. Mirocha v. TRW, Inc., S.D.Ind.1992, 805 F.Supp. 663. Consumer Protection 39
To the extent that complaint based on an allegedly tortious letter sent by bank to plaintiff's employer alleged that the bank was collecting debts asserted to be owed or due credit card organization it stated a cause of action under this subchapter. Challen v. Town and Country Charge, N.D.Ill.1982, 545 F.Supp. 1014. Consumer Protection 38
16. Standing to sue
Executrix of estate of debtor had standing to sue debt collection agency under the Fair Debt Collection Practices Act (FDCPA) in connection with letters sent by agency to decedent, which were opened by executrix; statutory phrase "with respect to any person" includes more than only addressee of offending letters, but includes those persons who "stand in the shoes" of debtor or have same authority as debtor to open and read letters of debtor. Wright v. Finance Service of Norwalk, Inc., C.A.6 (Ohio) 1994, 22 F.3d 647. Consumer Protection 32
Debtor has standing to complain of violations of this subchapter regardless of whether valid debt exists. Baker v. G. C. Services Corp., C.A.9 (Or.) 1982, 677 F.2d 775. Consumer Protection 32
Consumer debtor's wife could not recover statutory damages under the Fair Debt Collection Practices Act (FDCPA) based upon her alleged review of abusive debt collection letter, where letter was addressed solely to debtor-husband to recover debt from him. Dewey v. Associated Collectors, Inc., W.D.Wis.1996, 927 F.Supp. 1172. Consumer Protection 1
Though debtor's mother, who received debt collector's demand failing to reveal that the amount demanded from debtor included a service charge, was not a "consumer" for purposes of section 1692a of this title, mother was entitled to recover against collector for violation of section 1692e of this title prohibiting misrepresenting the amount of debt and misrepresenting the compensation which could be lawfully received for collection of debt. West v. Costen, W.D.Va.1983, 558 F.Supp. 564. Consumer Protection 32
Within this subchapter providing that any debt collector who fails to comply with any provisions of this subchapter with respect to any person is liable to such person, "any person" includes persons who claim they are harmed by proscribed debt collection practices, directed to collection of another person's debt; thus, debtor's parents who claimed that collection agency's agent threatened them over the phone had standing to bring action against the agency. Whatley v. Universal Collection Bureau Inc. (Florida), N.D.Ga.1981, 525 F.Supp. 1204. Consumer Protection 10; Consumer Protection 32
Consumer whose credit card account was owned by Chapter 11 debtor only for brief period of time, more than one year prior to debtor's bankruptcy filing, did not have any claim against debtor under the Fair Debt Collection Practices Act (FDCPA) of kind sufficient to confer "creditor" standing on consumer and to enable consumer to participate in bankruptcy case, given complete lack of evidence that debtor, which sold account back to prior owner after it was informed of the latter's collection activity, had engaged in any conduct prohibited by the FDCPA or, even if it had, that any FDCPA claim was not time- barred. In re Commercial Financial Services, Inc., Bkrtcy.N.D.Okla.1999, 238 B.R. 479. Bankruptcy 2205
Standing is afforded an aggrieved consumer to proceed under Fair Debt Collection Practices Act as long as collector was purporting to attempt to collect alleged debt. Johnson v. Statewide Collections, Inc., Wyo.1989, 778 P.2d 93. Consumer Protection 10
16A. Collateral estoppel
State court default judgment obtained by creditor did not preclude, under New Jersey's "entire controversy" doctrine, debtor's subsequent federal action for violation of Fair Debt Collection Practices Act (FDCPA); claims arose from different controversy and different sets of core facts. Ekinici v. GNOC. Corp., E.D.N.Y.2002, 2002 WL 31956011, Unreported. Judgment 828.15(2)
16B. Res judicata
Under Maryland law, default judgment entered in debt collector's prior state court action against borrower to collect on promissory note executed in settlement of lender's claim to recover deficiency on automobile loan barred, under doctrine of res judicata, borrower's subsequent action alleging that lender and debt collector failed to provide her proper notice following voluntary repossession of her motor vehicle, in violation of Fair Debt Collection Practices Act (FDCPA) and state law; both suits related to deficiency owed to lender following voluntary repossession of vehicle, and borrower could have raised claims regarding insufficient notice in state court action. Sheahy v. Primus Automotive Financial Services, Inc., D.Md.2003, 284 F.Supp.2d 278. Judgment 828.15(1)
17. Persons liable
Creditor that qualified as debt collector under Fair Debt Collection Practices Act (FDCPA), based on its conduct in issuing debt collection letters under attorney's name, thereby giving debtors the false impression that attorney, as third party, was involved in collecting debt, shared attorney's liability for misleading nature of collection letters under FDCPA provisions prohibiting debt collectors from making false representation or implication that communication was from attorney and prohibiting use of false representation or deceptive means to collect debt. Nielsen v. ****erson, C.A.7 (Ill.) 2002, 307 F.3d 623. Consumer Protection 10
Company that was not a debt collector under Fair Debt Collection Practices Act (FDCPA) would not be held vicariously liable for collection suit that was filed in improper jurisdiction in violation of the FDCPA by its attorney who was a debt collector under FDCPA; FDCPA imposes liability only on a debt collector, not on nondebt collectors. Wadlington v. Credit Acceptance Corp., C.A.6 (Mich.) 1996, 76 F.3d 103. Consumer Protection 35
Although purchasers' "everything but the kitchen sink" approach to litigation arising out of their discovery that their property encroached utility easement was not approved, district court did not abuse its discretion in finding that purchasers were not in bad faith, and thus were not liable for an award of attorney fees under the Fair Debt Collection Practices Act. Perry v. Stewart Title Co., C.A.5 (Tex.) 1985, 756 F.2d 1197, rehearing granted in part 761 F.2d 237. Consumer Protection 42
"Government employee" exemption to requirements of the Fair Debt Collection Practices Act (FDCPA) did not extend to law firm which, in attempting to collect delinquent water fees on behalf of municipality, was not acting as municipal actor but as private entity in mere contractual relationship with municipality. Piper v. Portnoff Law Associates, E.D.Pa.2003, 274 F.Supp.2d 681. Consumer Protection 10
Debt collector's attempt to collect debts under false name, in violation of Fair Debt Collection Practices Act (FDCPA), was not type of error which could be subject to bona fide error defense; collector's mistaken belief that it was performing creditor's in-house billing services and that accounts it handled were not in default, was one of law, not fact and, in any event, there was no evidence that it had in place relevant procedures reasonably designed to avoid these so-called errors. Hartman v. Meridian Financial Services, Inc., W.D.Wis.2002, 191 F.Supp.2d 1031. Consumer Protection 10
Debt collector's Fair Debt Collection Practices Act (FDCPA) violations, in treating consumer debtors as if they were commercial debtors, were not result of bona fide error absent showing that he maintained procedures reasonably adapted to avoid that type of error; collector relied solely on his secretary to use correct forms, without double-checking her work. Edwards v. McCormick, S.D.Ohio 2001, 136 F.Supp.2d 795. Consumer Protection 10
Parent corporation cannot be liable for any Fair Debt Collection Practices Act (FDCPA) violation by subsidiary unless subsidiary is dominated by parent to extent that they constitute single economic enterprise, parent controlled almost all aspects of subsidiary's debt collection, or subsidiary was used as alias for parent. Harrison v. NBD Inc., E.D.N.Y.1997, 968 F.Supp. 837. Consumer Protection 35
Employee of corporation engaged in collection of delinquent debts could not avoid liability under the Fair Debt Collection Practices Act (FDCPA) for statutory violations he committed in attempting to recover past due debts, notwithstanding that he was merely following office procedure established by others; evidence was presented that employee had sent written communications apparently violative of FDCPA, had made false and misleading representations over the phone, and benefitted directly from inducement of settlements obtained in violation of the FDCPA. Newman v. Checkrite California, Inc., E.D.Cal.1995, 912 F.Supp. 1354. Consumer Protection 10
Debt collection agency was not responsible for alleged violations of Fair Debt Collection Practices Act found in content of attorney's dunning letter; attorney alone was responsible for content of letter sent from his office, on his stationery, and in his name. Anthes v. Transworld Systems, Inc., D.Del.1991, 765 F.Supp. 162. Consumer Protection 10
Fair Debt Collection Practices Act imposes civil liability only on debt collectors. Holmes v. Telecredit Service Corp., D.Del.1990, 736 F.Supp. 1289. Consumer Protection 10
Franchisor had such right of control over franchisee check collection company as to make franchisee its "agent" in regard to franchisee's acts giving rise to check drawer's action against franchisor for liability under Fair Credit Reporting Act and Fair Debt Collection Practices Act [Consumer Credit Protection Act, §§ 602-622, 802-817, as amended, 15 U.S.C.A. §§ 1681- 1681t, 1692-1692o ] where franchisee was given virtually no discretion in performing the operations giving rise to the action. Taylor v. Checkrite, Ltd., S.D.Ohio 1986, 627 F.Supp. 415. Principal And Agent 3(1); Principal And Agent 159(1)
Despite fact that corporate debt collector's president, who had owned 320 of the 500 authorized shares of stock, transferred 237 of his shares to his wife, he remained the corporation's dominant shareholder when IRS attribution rules were applied, and, thus, he could be held personally liable for corporation's violations of this subchapter if disregarding the corporate entity would be justified. West v. Costen, W.D.Va.1983, 558 F.Supp. 564. Corporations 1.6(4); Corporations 306
This subchapter had no application to debtor's suit against creditor, assignee of installment sales contract, to recover damages for allegedly prohibited debt collection practices. Kohler v. Ford Motor Credit Co., Inc., N.Y.Sup.1982, 447 N.Y.S.2d 215, 112 Misc.2d 480, modified 462 N.Y.S.2d 297, 93 A.D.2d 205. Consumer Credit 18; Consumer Protection 10
18. Defenses
Creditor could not avail itself of bona fide error defense under Fair Debt Collection Practices Act (FDCPA), even assuming legal mistake could qualify as bona fide error, and assuming that creditor could available itself of defense because it had no intent to violate FDCPA, despite deliberateness of its actions in sending debt collection letters found to be misleading, inasmuch as creditor's actions in using attorney to send debt collection letters, even though attorney did not exercise his professional judgment in performing that task, were in plain contravention of Court of Appeals' Avila decision, which had established that attorney had to have some professional involvement with debtor's file for presence of his name on delinquency letter not to be misleading under FDCPA. Nielsen v. ****erson, C.A.7 (Ill.) 2002, 307 F.3d 623. Consumer Protection 10
While attorney, in suing to recover an additional $250 penalty under the Utah shoplifting statute against customer who had written bad check, was seeking to recover debt in amount not "permitted by law" in violation of Fair Debt Collection Practices Act (FDCPA), case had to be remanded to district court for determination of whether attorney, whose demands were in accordance with default judgments previously entered by state trial judges, was entitled to "bona fide error" defense under the FDCPA based on his mistake of law. Johnson v. Riddle, C.A.10 (Utah) 2002, 305 F.3d 1107. Federal Courts 947
Debt collector waived bona fide error as affirmative defense in action under the Fair Debt Collection Practices Act (FDCPA) by not pressing this defense in its response to debtors' motion for partial summary judgment or in its memorandum in support of its own motion for summary judgment, and by later stipulating to liability for statutory damages without ever asserting possible application of bona fide error defense. Picht v. John R. Hawks, Ltd., C.A.8 (Minn.) 2001, 236 F.3d 446. Federal Courts 617
Fact that Federal Trade Commission (FTC) received copies of mass-produced debt collection letters bearing facsimile of attorney's signature and expressed no disapproval of them was not evidence that FTC authoritatively interpreted letters as lawful or even that FTC gave letters its tacit approval for purposes of determining whether additional damages should be awarded to debtor under Fair Debt Collection Practices Act (FDCPA) against attorney whose name and facsimile of his signature was on letters; as attorney responsible for ensuring compliance with laws enforced by FTC, attorney should have been familiar with FTC's well-established practice of receiving copies of debt collection letters without issuing statements evaluating letters' lawfulness and therefore, could not contend that he believed FTC's silence indicated approval of letters. Clomon v. Jackson, C.A.2 (Conn.) 1993, 988 F.2d 1314. Consumer Protection 40
Creditor's reliance on staff letter from attorney in Division of Credit Practices for Commission was no defense to civil action against creditor for violating disclosure provisions of section 1692e(11) of this title where the letter clearly indicated that it was informal in nature and not binding on the Commission and where creditor consciously chose to follow informal advice of staff attorney rather than clear language of the Act. Hulshizer v. Global Credit Services, Inc., C.A.8 (Neb.) 1984, 728 F.2d 1037.
Debt collector's argument that any error in their debt collection notice was a bona fide and unintentional error, so that it was not liable under Fair Debt Collection Practices Act (FDCPA), was a defense to debtor's asserted FDCPA action, not basis for dismissal for failure to state claim. McDowall v. Leschack & Grodensky, P.C., S.D.N.Y.2003, 279 F.Supp.2d 197. Consumer Protection 10
Debt collector and collection agency failed to demonstrate that they were entitled to bona fide error defense in action by debtor for alleged violations of Fair Debt Collection Practices Act (FDCPA); although collector and agency claimed that rules and procedures were used in training collectors and were enforced by periodic monitoring of telephone calls, that debtor's "wrong impressions" were "the result of bona fide error" that were "at most fabricated simply to generate" suit, and stated that collector did not intend to violate FDCPA, collector and agency did not address each and every alleged violation of the FDCPA. Caputo v. Professional Recovery Services, Inc., D.Kan.2003, 261 F.Supp.2d 1249. Consumer Protection 10
Debt collector who relied on information provided by creditor when sending letter to debtor's wife demanding payment of husband's debts was entitled to bona fide error defense to any liability under Fair Debt Collection Practices Act (FDCPA); collector demanded and received assurance from creditor that wife was in fact financially responsible for husband's debts before proceeding with collection action against her. Edwards v. McCormick, S.D.Ohio 2001, 136 F.Supp.2d 795. Consumer Protection 10
The bona fide error defense under the Fair Debt Collection Practices Act (FDCPA) is available to a lawyer who commits unintentional errors of law relating to the character, amount, or legal status of the debt and the debtor's liability for any interest, fee, charge or expense incidental to the principal obligation, and is not limited to clerical or administrative errors. Taylor v. Luper, Sheriff & Niedenthal Co., L.P.A., S.D.Ohio 1999, 74 F.Supp.2d 761. Consumer Protection 10
Attorney could not maintain bona fide error defense to liability under the Fair Debt Collection Practices Act (FDCPA), when debt collection agency mailed out dunning letters under attorney's letterhead to New Mexico debtor contrary to attorney's express instructions that agency could use his letterhead solely for purpose of dunning California debtors, given complete lack of evidence that attorney monitored collection agency's employees or implemented other procedures to prevent FDCPA violation; in fact, attorney gave agency employees free access to his stationary, and allowed them to send out collection letters as they saw fit. Bitah v. Global Collection Services, Inc., D.N.M.1997, 968 F.Supp. 618. Consumer Protection 10
Law firm could not assert bona fide good faith defense liability under the Fair Debt Collection Practices Act (FDCPA), for failing to advise consumer that any information that it obtained would be used for purpose of collecting debt, based solely upon the fact that one of its attorneys had attended class on the FDCPA and had posted reminder with his secretary that such an advisement should be included in any debt collection letter; such an isolated action in posting reminder with secretary was clearly insufficient to support "good faith" defense, absent any evidence that attorney proof read correspondence before it was sent to consumer. Adams v. Law Offices of Stuckert & Yates, E.D.Pa.1996, 926 F.Supp. 521. Consumer Protection 10
Question of fact as to whether procedures in place were reasonably adapted to avoid Fair Debt Collection Practices Act (FDCPA) venue violations precluded summary judgment for defendant creditors' representative on his bona fide error defense to consumer's FDCPA improper venue claim. Narwick v. Wexler, N.D.Ill.1995, 901 F.Supp. 1275. Federal Civil Procedure 2494.5
Unintentional violation by debt collector of Fair Debt Collection Practices Act will not result in liability where collector maintains extensive systems designed to prevent errors, but mere inadvertency is not sufficient to provide a defense, and collector has burden of demonstrating the maintenance of the required procedures. Dutton v. Wolhar, D.Del.1992, 809 F.Supp. 1130. Consumer Protection 10; Consumer Protection 39
"Debt collector," within meaning of Fair Debt Collection Practices Act (FDCPA), may not avail himself or herself of affirmative defense of bona fide error unless he or she knows that error was made notwithstanding procedures reasonably adapted to avoid any such error. Green v. Hocking, E.D.Mich.1992, 792 F.Supp. 1064, affirmed 9 F.3d 18. Consumer Protection 10
Debt collector which, by its own admission, demanded payment from residential mortgage borrower in amounts for which it had no documentary support (inasmuch as it lacked copy of mortgage note or history of borrower's payments), and which also attempted to collect post-maturity interest even though it had no way of determining, given its lack of information about borrower's loan, whether such interest was authorized by loan documents, was liable to borrower under Fair Debt Collection Practices Act (FDCPA) for demanding payments that borrower did not owe, and could not take advantage of safe harbor provided by the FDCPA's bona fide error exception; debt collector could not establish good faith clerical or computational error, since it lacked sufficient information to make any computation at all. In re Maxwell, Bkrtcy.D.Mass.2002, 281 B.R. 101. Consumer Protection 10
Violation of Fair Debt Collection Practices Act cannot be defended even by establishing that debt was long overdue and difficult to collect. Johnson v. Statewide Collections, Inc., Wyo.1989, 778 P.2d 93. Consumer Protection 10
19. Limitations
In the absence of a threat of litigation or actual litigation, no violation of the Fair Debt Collection Practices Act (FDCPA) has occurred when a debt collector attempts to collect on a potentially time-barred debt that is otherwise valid. Freyermuth v. Credit Bureau Services, Inc., C.A.8 (Neb.) 2001, 248 F.3d 767. Consumer Protection 10
One-year statute of limitations began to run on judgment debtors' Fair Debt Collection Practices Act (FDCPA) claim against judgment creditor and its attorneys as of filing of judgment creditor's complaint in state court debt collection suit, on which claim was based; filing of complaint was creditor's last opportunity to comply with FDCPA, and filing date was easily ascertainable. Naas v. Stolman, C.A.9 (Cal.) 1997, 130 F.3d 892. Limitation Of Actions 58(1)
For purposes of determining limitations period with regard to action under the Fair Debt Collection Practices Act (FDCPA), conduct of collectors was complete on date that collection letters were placed in mail rather than date when letters were received; date on which letters were mailed was last opportunity for collectors to comply with FDCPA, and, thus, mailing of letters triggered limitations period. Mattson v. U.S. West Communications, Inc., C.A.8 (S.D.) 1992, 967 F.2d 259. Limitation Of Actions 58(1)
Time limit for bringing suit under Fair Debt Collection Practices Act (FDCPA) was procedural, not jurisdictional, and thus statutory period could be extended by operation of procedural rule, where last day of statutory period fell on Saturday, and complaint was filed on following Monday. Clark v. Bonded Adjustment Co., E.D.Wash.2001, 176 F.Supp.2d 1062.
Where four of debt collection service's dunning letters to alleged debtor fell within the statutorily permitted time period, alleged debtor's FDCPA claim was not time-barred, even though collection service's first letter was filed outside the time period. Kaplan v. Assetcare, Inc., S.D.Fla.2000, 88 F.Supp.2d 1355. Limitation Of Actions 58(1)
Debtors' action alleging that creditor's attorneys violated Fair Debt Collection Practices Act (FDCPA) by improperly serving summons on debtors was untimely where debtors brought action over one year after date on which debtors received allegedly improper summons seeking to enforce debt. Prade v. Jackson & Kelly, N.D.W.Va.1996, 941 F.Supp. 596, mandamus denied 107 F.3d 867, affirmed 135 F.3d 770, certiorari denied 119 S.Ct. 220, 525 U.S. 896, 142 L.Ed.2d 181. Consumer Protection 37
Used car purchaser's Fair Debt Collection Practices Act (FDCPA) claim against collection company was barred by one-year jurisdictional limitations period, where it was brought over three years after alleged violations occurred. Chisolm v. Charlie Falk Auto Wholesalers, Inc., E.D.Va.1994, 851 F.Supp. 739, vacated 95 F.3d 331. Consumer Protection 37
Date of repossession of automobile, for purpose of one-year period of limitations under Fair Debt Collection Practices Act (FDCPA), was date on which repossession agent initially took automobile from public parking lot and retained possession of automobile for one hour before automobile owner physically attacked agent and agent abandoned vehicle, and not subsequent date on which repossession agent again took possession of car following his complaint to police and arrest of owner. James v. Ford Motor Credit Co., D.Minn.1994, 842 F.Supp. 1202, affirmed 47 F.3d 961. Limitation Of Actions 58(1)
One-year statute of limitations for claim under Fair Debt Collection Practices Act commenced at latest when creditor refunded monies wrongfully garnished; creditor could not be held liable for funds inadvertently retained by court clerk and not returned to debtor until later date. Brinson v. First American Bank of Georgia, Ga.App.1991, 409 S.E.2d 50, 200 Ga.App. 552. Limitation Of Actions 58(1)
20. Trial by jury
Upon timely demand, party is entitled to a jury trial in an action for damages under this subchapter. Sibley v. Fulton DeKalb Collection Service, C.A.11 (Ga.) 1982, 677 F.2d 830. Jury 14(1)
In action under this subchapter, court must interpret statute, if necessary, and determination of whether the defendant violated this subchapter must be resolved by the trier of fact. U.S. v. ACB Sales & Service, Inc., D.C.Ariz.1984, 590 F.Supp. 561. Consumer Protection 36.1
21. Equitable relief
Equitable relief is not available to an individual under this section. Sibley v. Fulton DeKalb Collection Service, C.A.11 (Ga.) 1982, 677 F.2d 830. Consumer Protection 36.1
No private right to seek injunctive relief was implied under federal Fair Debt Collection Practices Act; only Federal Trade Commission was authorized to seek such injunctive relief. Strong v. National Credit Management Co., E.D.Ark.1984, 600 F.Supp. 46. Consumer Protection 41
Injunctive class action was appropriate in suit alleging that parking lot collection agency violated the Fair Debt Collection Practices Act (FDCPA) by attempting to collect a fee for unpaid parking tickets greater than the underlying parking fee; although plaintiffs also sought damages, final injunctive relief or declaratory relief was appropriate for the class because of the uniformity of agency's actions in regard to all class members in issuing letters demanding a higher amount than the underlying parking charge. Hansen v. Ticket Track, Inc., W.D.Wash.2003, 213 F.R.D. 412. Federal Civil Procedure 182.5
Fair Debt Collection Practices Act does not authorize a private remedy of injunctive relief. Zanni v. Lippold, C.D.Ill.1988, 119 F.R.D. 32. Consumer Protection 41
22. Burden of proof
Bona fide error exception under Fair Debt Collection Practices Act (FDCPA) is affirmative defense for which debt collector has burden of proof at trial. Fox v. Citicorp Credit Services, Inc., C.A.9 (Ariz.) 1994, 15 F.3d 1507. Consumer Protection 39
Burden is on party petitioning for award under attorney fee provisions of the Fair Debt Collection Practices Act (FDCPA) to demonstrate that fees sought are reasonable. Altergott v. Modern Collection Techniques, Inc., N.D.Ill.1994, 864 F.Supp. 778. Consumer Protection 42
Actual damages for emotional distress under Fair Debt Collection Practices Act can be proved independently of state law requirements for tort action for intentional or negligent infliction of emotional distress. Smith v. Law Offices of Mitchell N. Kay, D.Del.1991, 124 B.R. 182. Damages 50.20
23. Evidence
Evidence was sufficient to demonstrate that collection agency violated Fair Debt Collection Practices Act, and that violations were so numerous they could not be dismissed as work of maverick collectors; testimony regarding 14 accounts, deposition testimony regarding another 29 accounts, deposition testimony concerning 17 maverick accounts, and further deposition testimony by nine former collectors and two former managers were sufficient to establish violations. U.S. v. ACB Sales & Service, Inc., D.Ariz.1987, 683 F.Supp. 734. Consumer Protection 50
Tax reporting forms for attorney who signed collection letter were not confidential, for purposes of discovery in Fair Debt Collection Practices Act (FDCPA) action, absent showing of good cause warranting protective order. Yancey v. Hooten, D.Conn.1998, 180 F.R.D. 203. Federal Civil Procedure 1603
In action to recover for alleged violations of this subchapter and of Fair Trade Commission order, facts set forth in 145 consumer complaints would be deemed established as a sanction for defendants' failure to produce their files relating to such complaints, in view of fact that a business generating millions of files could not be permitted to frustrate discovery by creating inadequate filing system and that it appeared that the destruction of files had been motivated more as an attempt to suppress evidence than from the need of additional space for new files. U. S. v. ACB Sales & Service, Inc., D.C.Ariz.1982, 95 F.R.D. 316. Federal Civil Procedure 1638
24. Summary judgment
Fact question as to whether attorney and law firm that provided attorney demand letter and creditor that sent letter to debtor were shielded from liability under FDCPA, because they were under common control and were working together to collect money, precluded summary judgment for creditor, attorney, and law firm in action brought under FDCPA. Taylor v. Perrin, Landry, deLaunay & Durand, C.A.5 (La.) 1997, 103 F.3d 1232. Federal Civil Procedure 2494.5
Collection agency could first raise bona fide error defense in its motion for partial summary judgment, where consumer failed to demonstrate prejudice. Smith v. Transworld Systems, Inc., C.A.6 (Ohio) 1992, 953 F.2d 1025. Federal Civil Procedure 2557
Borrowers alleging that lender violated Fair Debt Collection Practices Act and state law in connection with forbearance agreements were not entitled to conduct discovery in order to create genuine issue of material fact as to existence of oral reinstatement agreement, where lender provided evidence that bank officer explained terms by which borrowers' loan could be reinstated, and that borrower accepted those terms when he sent check for required amount to lender. Scott v. Fairbanks Capital Corp., S.D.Ohio 2003, 284 F.Supp.2d 880. Federal Civil Procedure 2553
Proof of one violation of one Fair Debt Collection Practices Act is sufficient to support summary judgment for plaintiff. Cacace v. Lucas, D.Conn.1990, 775 F.Supp. 502. Consumer Protection 10
Alleged existence of fact issue on question of whether debt collection agency had made harassing phone calls to debtors did not foreclose summary judgment on issue of whether letter sent by agency conformed with requirements of Fair Debt Collections Practices Act. Smith v. Financial Collection Agencies, D.Del.1991, 770 F.Supp. 232. Federal Civil Procedure 2494.5
Whether debt collector's letter, which stated that validity of debt was assumed to be valid, overshadowed otherwise valid notice of debtor's right to dispute debt during 30-day period was fact question which precluded summary judgment in action by debtor under Fair Debt Collection Practices Act since debtor may have received letter less than 30 days after she received validation notice. Anthes v. Transworld Systems, Inc., D.Del.1991, 765 F.Supp. 162. Federal Civil Procedure 2494.5
In action to recover for violations of this section, genuine issue of fact as to debt collection agent's reasons for calling a third person more than once in attempting to contact a debtor precluded partial summary judgment on the debtor's third-party contact claim against such agent and corporate debt collector. West v. Costen, W.D.Va.1983, 558 F.Supp. 564. Federal Civil Procedure 2492
Telephone message slip attached to affidavit appended to summary judgment motion, stating that notice of foreclosure was being served on co-worker's wife, and that worker told debt collector's employee that co-worker was unmarried, did not constitute hearsay, and, therefore, message slip could be used in evaluating merits of claim under this subchapter on motion for summary judgment; message was not being offered to prove that co-worker was married or that notice of foreclosure was being served on his wife, but was being offered to prove that improper information was conveyed to third person in violation of this subchapter. Committe v. Dennis Reimer Co., L.P.A., D.Vt.1993, 150 F.R.D. 495. Federal Civil Procedure 2545
In action to recover for alleged violations of this subchapter and Fair Trade Commission order, fact that facts alleged in 145 complaints were deemed established as discovery sanction did not establish that government was entitled to summary judgment as to each of such complaints, in view of fact that some of the complaints were merely conclusory and did not state the specific facts which would establish a violation of either the Act or the order and that the question of defendants' intention could not be taken as established on basis of the complaints. U. S. v. ACB Sales & Service, Inc., D.C.Ariz.1982, 95 F.R.D. 316. Federal Civil Procedure 2515
25. New trial
Jury's award of $15,000 in actual damages for emotional distress arising out of law firm's violation of Fair Debt Collection Practices Act was grossly excessive, not rationally related to evidence, and shocking to judicial conscience, thus requiring new trial unless debtors agreed to remit $12,000 of the excessive award, where debtors knew that automatic stay in their bankruptcy case protected them from law firm's collection efforts, debtors' frequent contact with lawyers and familiarity with legal process lessened likelihood that unenforceable threat to collect debt would cause them extreme emotional distress, and debtors' testimony revealed that their financial woes, uncertainty of their bankruptcy, debtor husband's disability, and debtor wife's pregnancy also caused debtors to be upset. Smith v. Law Offices of Mitchell N. Kay, D.Del.1991, 124 B.R. 182. Damages 130.1
26. Review
Court of Appeals reviews for clear error district court's finding on whether an action under the Fair Debt Collection Practices Act (FDCPA) was brought in "bad faith," so as to permit award of attorney fees, and reviews ultimate grant or denial of attorney fees for abuse of discretion. Horkey v. J.V.D.B. & Associates, Inc., C.A.7 (Ill.) 2003, 333 F.3d 769, certiorari denied 124 S.Ct. 489, 2003 WL 22204160. Federal Courts 830; Federal Courts 878
Abuse of discretion standard governs Court of Appeals' review of fee awards under Fair Debt Collection Practices Act, even though fee award is mandatory in all but most unusual circumstances. Carroll v. Wolpoff & Abramson, C.A.4 (Md.) 1995, 53 F.3d 626, 132 A.L.R. Fed. 765. Federal Courts 830
In action by debtors against bank for allegedly violating Fair Debt Collection Practices Act, 42 Pa.C.S.A. § 931, Superior Court, in light of its ruling that court of common pleas h
