In Aitken v. Debt Management Partners, LLC, 2014 WL 5469876 (C.D.Ill. 2014), Magistrate Judge Hawley discussed the ‘sliding-scale’ applicable to determining recovery of emotional distress, and found that Plaintiff had created a triable issue of fact to defeat summary judgment. There was much else to this opinion on the parties’ motions and positions about various purported violations of the FDCPA, but we report here just on the emotional distress part of the decision.
The Plaintiff testified that he went out of his way to minimize the extent of his distress over the Cash Store debt so that his wife’s stress would not increase. The Plaintiff’s mother testified that when he finally confided in her, he expressed that he was feeling nervous, stressed, and worried about the situation involving his debt. The Plaintiff’s mail carrier, Robinson, testified that the Plaintiff looked nervous and scared and informed Robinson that he was really scared and nervous somebody was looking for him. ¶ In their Reply, the Defendants posit that the Plaintiff cites no authority to support his argument that his responsive conduct establishes the emotional distress he alleges and for which he seeks actual damages. That may be, but in doing so, the Plaintiff does more than just offer conclusory statements of his emotional distress. The Plaintiff certainly explained the circumstances of his alleged emotional injury in detail. See Denius, 330 F3d at 929 (explaining that when the injured party’s own testimony is the only proof of emotional damages, he must explain the circumstances of his injury in reasonable detail). Furthermore, if the facts underlying the case are , then the person can establish injury. Alston v. King, 231 F3d 383, 388 (7th Cir 2000). Here, assuming for purposes of the Defendants’ Motion for Summary Judgment that the August 3rd phone call took place, the Plaintiff was told that willingly defrauding the Cash Store of money was considered a Class I felony and that people go to jail for doing so. The suggestion of spending time in jail over the failure to pay one’s debts is evidence of conduct by the Defendants that was inherently degrading to the Plaintiff. Given the evidence in the record of the Plaintiff’s conduct in response to the Defendants’ phone calls and the threat of jail time, there is a dispute of material fact that precludes summary judgment on actual damages. ¶ Finally, the Plaintiff’s evidence of the content of the Defendants’ phone calls, his conduct in response to the Defendants’ phone calls, and his statements made to others are sufficient at the summary judgment stage to create a genuine issue as to whether the calls caused the Plaintiff’s alleged emotional distress. Thomas v. Law Firm of Simpson & Cybak, 244 F App’x 741, 743 (7th Cir 2007) (providing that only losses flowing from and FDCPA violation are recoverable as actual damages). Though the Defendants maintain that the Plaintiff caused his own emotional distress rather than their phone calls doing so, that is a question for the jury to consider in light of the evidence presented.