Think an FDCPA Violation is an Automatic $1,000? Think Again!
Think an FDCPA Violation is an Automatic 1K? Think Again! It is a common misconception perpetuated on many internet discussion forums that when a debt collector violates, it equates to an automatic award of $1,000.
00 to the victimized consumer.
The Fair Debt Collection Practices Act (FDCPA), which is codified at 15 U.
S.
C.
1692 et seq.
does call for Statutory damages awards as well as actual damages should a debt collector be found in violation of the FDCPA; however, that doesn't mean it's always $1,000.
00 or that it's all so easy.
In an effort to provide more accurate information to the masses, Credit Info Resource will post a series of articles on the Fair Debt Collection Practices Act.
The first article will discuss violation(s) of the Fair Debt Collection Practices Act, and the effects thereof.
First let's look at the relevant part of the FDCPA which deals with violations, which is 15 U.
S.
C.
1692k: (a)Amount of damages Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of- (1) any actual damage sustained by such person as a result of such failure; (2) (A)in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; As shown above the Statute is clear on the matter.
However, many internet discussion forums pass on incorrect information to uneducated debtors, ie, if a debt collector violates then such a violation entitles that debtor to an automatic $1,000 regardless of the nature and number of violations.
The correct reading is that the provision permits Courts to award any person affected by debt collector non-compliance statutory damages of up to $1,000.
00.
Statutory damages are not discretionary according to a Senate report, which supports that view.
"A debt collector who violates the Act is liable for any additional damages the court deems appropriate, not exceeding $1,000.
In assessing damages, the court must take into account the nature of the violation, the degree of willfulness, and the debt collector's persistence.
" One District Court issued an Opinion in which it stated: "One purpose of the statutory damages is to create an incentive to obey the law.
" Unfortunately the legislative history of the FDCPA provision is unclear and inconsistent.
It does suggest, however, that Congress did not intend for the statutory award to be discretionary unless the violation triggering it was minor.
Further, the legislative history also suggests that individual statutory damages need not be awarded or may be nominal in amount only if the violation is technical.
The Act requires courts to consider four factors in determining the amount of statutory liability in an individual action.
It also allows the courts to consider other relevant factors when determining the statutory violation(s) amount.
The four factors which a court must consider are the following: •Intent; •Frequency; •Persistence; and •Nature of the collector's noncompliance.
Determination of statutory damages may involve considerable discretion until all courts develop specific criteria applying the four factors they are required to consider.
Fundamental questions need to be answered, such as, is the maximum $1,000 award reserved for the most egregious case or is it appropriate when a single technical violation occurs? So you have to ask yourself, first what part of the FDCPA did the debt collector violate? If you determine that the debt collector possibly violated a provision of the FDCPA, was such a violation a mere technical violation that may not even have been intentional, or was it a blatant and intentional violation? Recently a case in the Western District of Michigan, involved a debtor who sued a debt collector and its employees for using "unavailable" on the caller ID when they telephoned the debtor.
The court, specifically The Hon.
Ellen S.
Carmody stated: "Plaintiff asserts that CSI acted to prevent its telephone number from appearing on his caller ID device.
As a result, when Defendant telephoned Plaintiff, Plaintiff's caller ID device allegedly displayed "unavailable" rather than Defendant's telephone number.
Even accepting as true Plaintiff's allegations, the Court fails to discern how such is "false" or "deceptive.
" To the contrary, the display in Plaintiff's caller ID device of the word "unavailable" was entirely accurate.
Defendant allegedly acted to make its telephone number unavailable to the caller ID devices of the individuals it telephoned.
Such was accurately communicated to Plaintiff when his caller ID device displayed the word "unavailable.
" The Court discerns nothing false or deceptive about Defendant's actions.
" See Glover v.
Client Services, Inc.
, et al WDMI No.
1:07-CV-81.
So when attempting to determine if there is a violation, one must also consider the seriousness of the violation.
Further, a debtor who believes that he/she has been the victim of an FDCPA violation must also consider if it is just one violation, or if it's repetitive, and what the possible statutory damages might be.
Many internet discussion boards state that upon one violation, no matter how minor, the debtor is entitled to $1,000.
00.
As shown above, and as we will elaborate more clearly below, that is simply not the case.
A debtor does not want to be in a courtroom with a Judge with only one violation unless it's egregious; the courts do not appreciate people wasting their time.
The additional factors mentioned by the courts as to reducing the amount of statutory awards include: •A single violation; •The Technical Nature of the Violation; •Cessation of the violation when first brought to the collector's attention; •A collector seeking to comply by obtaining legal advice; •Lack of persistent, frequent violations; •The lack of consumer injury; and •The absence of intent to deceive or harass the consumer.
All of the above should be taken into consideration if and when you as a debtor decide to send an Intent to Sue letter, and/or initiate a lawsuit as a Pro Se litigant.
Research what's stated in case law not just on internet discussion forums.
If the courts consider all these factors in deciding, why shouldn't you as a Plaintiff?
00 to the victimized consumer.
The Fair Debt Collection Practices Act (FDCPA), which is codified at 15 U.
S.
C.
1692 et seq.
does call for Statutory damages awards as well as actual damages should a debt collector be found in violation of the FDCPA; however, that doesn't mean it's always $1,000.
00 or that it's all so easy.
In an effort to provide more accurate information to the masses, Credit Info Resource will post a series of articles on the Fair Debt Collection Practices Act.
The first article will discuss violation(s) of the Fair Debt Collection Practices Act, and the effects thereof.
First let's look at the relevant part of the FDCPA which deals with violations, which is 15 U.
S.
C.
1692k: (a)Amount of damages Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of- (1) any actual damage sustained by such person as a result of such failure; (2) (A)in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; As shown above the Statute is clear on the matter.
However, many internet discussion forums pass on incorrect information to uneducated debtors, ie, if a debt collector violates then such a violation entitles that debtor to an automatic $1,000 regardless of the nature and number of violations.
The correct reading is that the provision permits Courts to award any person affected by debt collector non-compliance statutory damages of up to $1,000.
00.
Statutory damages are not discretionary according to a Senate report, which supports that view.
"A debt collector who violates the Act is liable for any additional damages the court deems appropriate, not exceeding $1,000.
In assessing damages, the court must take into account the nature of the violation, the degree of willfulness, and the debt collector's persistence.
" One District Court issued an Opinion in which it stated: "One purpose of the statutory damages is to create an incentive to obey the law.
" Unfortunately the legislative history of the FDCPA provision is unclear and inconsistent.
It does suggest, however, that Congress did not intend for the statutory award to be discretionary unless the violation triggering it was minor.
Further, the legislative history also suggests that individual statutory damages need not be awarded or may be nominal in amount only if the violation is technical.
The Act requires courts to consider four factors in determining the amount of statutory liability in an individual action.
It also allows the courts to consider other relevant factors when determining the statutory violation(s) amount.
The four factors which a court must consider are the following: •Intent; •Frequency; •Persistence; and •Nature of the collector's noncompliance.
Determination of statutory damages may involve considerable discretion until all courts develop specific criteria applying the four factors they are required to consider.
Fundamental questions need to be answered, such as, is the maximum $1,000 award reserved for the most egregious case or is it appropriate when a single technical violation occurs? So you have to ask yourself, first what part of the FDCPA did the debt collector violate? If you determine that the debt collector possibly violated a provision of the FDCPA, was such a violation a mere technical violation that may not even have been intentional, or was it a blatant and intentional violation? Recently a case in the Western District of Michigan, involved a debtor who sued a debt collector and its employees for using "unavailable" on the caller ID when they telephoned the debtor.
The court, specifically The Hon.
Ellen S.
Carmody stated: "Plaintiff asserts that CSI acted to prevent its telephone number from appearing on his caller ID device.
As a result, when Defendant telephoned Plaintiff, Plaintiff's caller ID device allegedly displayed "unavailable" rather than Defendant's telephone number.
Even accepting as true Plaintiff's allegations, the Court fails to discern how such is "false" or "deceptive.
" To the contrary, the display in Plaintiff's caller ID device of the word "unavailable" was entirely accurate.
Defendant allegedly acted to make its telephone number unavailable to the caller ID devices of the individuals it telephoned.
Such was accurately communicated to Plaintiff when his caller ID device displayed the word "unavailable.
" The Court discerns nothing false or deceptive about Defendant's actions.
" See Glover v.
Client Services, Inc.
, et al WDMI No.
1:07-CV-81.
So when attempting to determine if there is a violation, one must also consider the seriousness of the violation.
Further, a debtor who believes that he/she has been the victim of an FDCPA violation must also consider if it is just one violation, or if it's repetitive, and what the possible statutory damages might be.
Many internet discussion boards state that upon one violation, no matter how minor, the debtor is entitled to $1,000.
00.
As shown above, and as we will elaborate more clearly below, that is simply not the case.
A debtor does not want to be in a courtroom with a Judge with only one violation unless it's egregious; the courts do not appreciate people wasting their time.
The additional factors mentioned by the courts as to reducing the amount of statutory awards include: •A single violation; •The Technical Nature of the Violation; •Cessation of the violation when first brought to the collector's attention; •A collector seeking to comply by obtaining legal advice; •Lack of persistent, frequent violations; •The lack of consumer injury; and •The absence of intent to deceive or harass the consumer.
All of the above should be taken into consideration if and when you as a debtor decide to send an Intent to Sue letter, and/or initiate a lawsuit as a Pro Se litigant.
Research what's stated in case law not just on internet discussion forums.
If the courts consider all these factors in deciding, why shouldn't you as a Plaintiff?