| Think an FDCPA Violation is an Automatic 1K? | | | | considerable discretion until all courts develop specific |
| Think Again! | | | | criteria applying the four factors they are required to |
| It is a common misconception perpetuated on many | | | | consider. Fundamental questions need to be answered, |
| internet discussion forums that when a debt collector | | | | such as, is the maximum $1,000 award reserved for |
| violates, it equates to an automatic award of $1,000.00 | | | | the most egregious case or is it appropriate when a |
| to the victimized consumer. The Fair Debt Collection | | | | single technical violation occurs? |
| Practices Act (FDCPA), which is codified at 15 U.S.C. | | | | So you have to ask yourself, first what part of the |
| 1692 et seq. does call for Statutory damages awards | | | | FDCPA did the debt collector violate? If you determine |
| as well as actual damages should a debt collector be | | | | that the debt collector possibly violated a provision of |
| found in violation of the FDCPA; however, that doesn't | | | | the FDCPA, was such a violation a mere technical |
| mean it's always $1,000.00 or that it's all so easy. In an | | | | violation that may not even have been intentional, or |
| effort to provide more accurate information to the | | | | was it a blatant and intentional violation? Recently a |
| masses, Credit Info Resource will post a series of | | | | case in the Western District of Michigan, involved a |
| articles on the Fair Debt Collection Practices Act. The | | | | debtor who sued a debt collector and its employees |
| first article will discuss violation(s) of the Fair Debt | | | | for using "unavailable" on the caller ID when they |
| Collection Practices Act, and the effects thereof. | | | | telephoned the debtor. The court, specifically The Hon. |
| First let's look at the relevant part of the FDCPA which | | | | Ellen S. Carmody stated: |
| deals with violations, which is 15 U.S.C. 1692k: | | | | "Plaintiff asserts that CSI acted to prevent its |
| (a) Amount of damages | | | | telephone number from appearing on his caller ID |
| Except as otherwise provided by this section, any debt | | | | device. As a result, when Defendant telephoned |
| collector who fails to comply with any provision of this | | | | Plaintiff, Plaintiff's caller ID device allegedly displayed |
| subchapter with respect to any person is liable to such | | | | "unavailable" rather than Defendant's telephone |
| person in an amount equal to the sum of- | | | | number. Even accepting as true Plaintiff's allegations, |
| (1) any actual damage sustained by such person as a | | | | the Court fails to discern how such is "false" or |
| result of such failure; | | | | "deceptive." To the contrary, the display in Plaintiff's |
| (2) | | | | caller ID device of the word "unavailable" was entirely |
| (A) in the case of any action by an individual, such | | | | accurate. Defendant allegedly acted to make its |
| additional damages as the court may allow, but not | | | | telephone number unavailable to the caller ID devices |
| exceeding $1,000; | | | | of the individuals it telephoned. Such was accurately |
| As shown above the Statute is clear on the matter. | | | | communicated to Plaintiff when his caller ID device |
| However, many internet discussion forums pass on | | | | displayed the word "unavailable." The Court discerns |
| incorrect information to uneducated debtors, ie, if a | | | | nothing false or deceptive about Defendant's actions." |
| debt collector violates then such a violation entitles that | | | | See Glover v. Client Services, Inc., et al WDMI No. |
| debtor to an automatic $1,000 regardless of the nature | | | | 1:07-CV-81. |
| and number of violations. The correct reading is that | | | | So when attempting to determine if there is a violation, |
| the provision permits Courts to award any person | | | | one must also consider the seriousness of the violation. |
| affected by debt collector non-compliance statutory | | | | Further, a debtor who believes that he/she has been |
| damages of up to $1,000.00. | | | | the victim of an FDCPA violation must also consider if |
| Statutory damages are not discretionary according to | | | | it is just one violation, or if it's repetitive, and what the |
| a Senate report, which supports that view. "A debt | | | | possible statutory damages might be. |
| collector who violates the Act is liable for any additional | | | | Many internet discussion boards state that upon one |
| damages the court deems appropriate, not exceeding | | | | violation, no matter how minor, the debtor is entitled to |
| $1,000. In assessing damages, the court must take into | | | | $1,000.00. As shown above, and as we will elaborate |
| account the nature of the violation, the degree of | | | | more clearly below, that is simply not the case. A |
| willfulness, and the debt collector's persistence." One | | | | debtor does not want to be in a courtroom with a |
| District Court issued an Opinion in which it stated: "One | | | | Judge with only one violation unless it's egregious; the |
| purpose of the statutory damages is to create an | | | | courts do not appreciate people wasting their time. |
| incentive to obey the law." | | | | The additional factors mentioned by the courts as to |
| Unfortunately the legislative history of the FDCPA | | | | reducing the amount of statutory awards include: |
| provision is unclear and inconsistent. It does suggest, | | | | • A single violation; |
| however, that Congress did not intend for the | | | | • The Technical Nature of the Violation; |
| statutory award to be discretionary unless the violation | | | | • Cessation of the violation when first brought to |
| triggering it was minor. Further, the legislative history | | | | the collector's attention; |
| also suggests that individual statutory damages need | | | | • A collector seeking to comply by obtaining legal |
| not be awarded or may be nominal in amount only if | | | | advice; |
| the violation is technical. | | | | • Lack of persistent, frequent violations; |
| The Act requires courts to consider four factors in | | | | • The lack of consumer injury; and |
| determining the amount of statutory liability in an | | | | • The absence of intent to deceive or harass the |
| individual action. It also allows the courts to consider | | | | consumer. |
| other relevant factors when determining the statutory | | | | All of the above should be taken into consideration if |
| violation(s) amount. The four factors which a court | | | | and when you as a debtor decide to send an Intent to |
| must consider are the following: | | | | Sue letter, and/or initiate a lawsuit as a Pro Se litigant. |
| • Intent; | | | | Research what's stated in case law not just on |
| • Frequency; | | | | internet discussion forums. If the courts consider all |
| • Persistence; and | | | | these factors in deciding, why shouldn't you as a |
| • Nature of the collector's noncompliance. | | | | Plaintiff? |
| Determination of statutory damages may involve | | | | |