In Clements v. HSBC Auto Finance, Inc., 2011 WL 2976558 (S.D.W.Va. 2011), Judge Berger rendered an award based largely on statutory penalties under the West Virginia state-law version of the FDCPA.  Upon the following facts, the Court awarded $5,000 in compensatory damages. 


On August 12, 2006, Defendant loaned Plaintiffs, Mr. and Mrs. Clements, $16,252.92, to be paid over seventy-two (72) months at $398.71 per month, for the purpose of purchasing a 2002 Chevy Trailblazer. Plaintiffs are retired and Mr. Clements suffers from Post Traumatic Stress Syndrome as a result of his service in the Vietnam War. They care for Mrs. Clements’ mother and their two grandchildren. Plaintiffs made timely payments from September 2006 through December 2006, but became thirty days past due in January 2007. After that, Plaintiffs began working with Defendant to get extensions on the loan and pay double the amount of the monthly payment to catch up on late payments. At least one of Plaintiffs’ checks was invalid. Plaintiffs were only current on their payments three (3) times between December 2006 and the time their complaint was filed in January 2009.  As Plaintiffs became delinquent, they received communication from Defendant regarding their debt. According to the testimony, when a customer informs Defendant of the name of his or her attorney, it is Defendant’s policy to document that information and route the customer’s account to a manager, who would confirm the information and then block the customer’s number from future calls. ¶   On May 20, 2008, Mr. Clements contacted Defendant and informed Defendant’s agent that he and his wife had retained an attorney. He gave the agent the attorney’s name, Paul Roop, and his telephone number. Defendant’s agent noted this information in the “comments” section of the call log for May 20, 2008.  Defendant continued to contact Plaintiffs and did not communicate with their attorney, despite the May 20, 2008, notice. Defendant began regularly contacting Plaintiffs regarding their debt on May 21, 2008. Between May 2008 and January 2009, Defendants dialed Plaintiff’s cellular and home phone numbers eight hundred eighty-five (885) times and sent them written or electronic correspondence fourteen (14) times. Only thirteen (13) of the dialings resulted in actual contact between Defendant and Plaintiffs. Twenty-four (24) of the calls failed to go through as a result of an incorrect or out-of-service number or a busy signal. During this period of time, Plaintiffs made several attempts to work out a payment arrangement with Defendant that would bring them current on their payments, but Defendant continued its attempts to contact them by phone.    Although Plaintiffs were not always in the home when the home phone rang, they always had their cellular phones with them and they were able to see missed calls from Defendant on their Caller ID. Plaintiffs answered the calls periodically. Mrs. Clements testified that when she picked up the phone, the nature of the calls was in relation to their loan. From that information, the Plaintiffs were able to deduce that the unanswered and missed calls from Defendant were also related to their loan. Occasionally, Plaintiffs were on their phone, but because of their call waiting service, they were aware when another call came in. Plaintiffs testified that often they let the phone ring without picking it up, and occasionally when they picked up the phone no one was on the other line. Defendant’s records reveal that calls to Plaintiffs averaged three (3) to four (4) per day.  The largest number of calls on one day was twenty-one (21) with the mode being five (5) calls per day. None of the calls occurred before 8:00 A.M., or after 9:00 P.M.  Linda Vrazel, Defendant’s representative, testified about the strategy for making phone calls to debtors. Defendant utilized an automatic dialer to initiate calls to customers. The timing and frequency of the calls depend on the customers’ delinquency, what time the customers had been reached in the past and other information noted in the customers’ account notes. If the dialer called a customer and the customer did not answer, the dialer was programmed to continue calling the customer throughout the day. If the contact was unsuccessful, it was Defendant’s policy to leave a message at the end of the day, but not before. After a message was left, no more calls would be made to the customer on that day. There was no limit on the number of times a customer could be dialed in one day. Ms. Vrazel testified that the intent of these calls was “to collect on the debt … and help the customer.” ¶  The phone calls from Defendant caused Plaintiffs annoyance and irritation. They testified that the calls were frustrating, invasive and nerve-wracking, and that they caused a strain on their family’s relationships. Neither Plaintiff sought medical attention or treatment for this stress. Mrs. Clements testified that she informed Defendant on multiple occasions that she had an attorney, but the calls continued. Ms. Vrazel also testified that the Plaintiffs expressed that they were represented by an attorney on at least two occasions.


As to statutory penalty, the Court awarded($204,625.00 based on a sliding-scale penalty.  Judge Berger explained: 


Plaintiffs also have the right in an action to recover from Defendant a “penalty in an amount determined by the court not less than one hundred dollars nor more than one thousand dollars.” W.Va.Code § 46A–5–101(1). Giving effect to the Court’s earlier ruling on October 18, 2010, and its ruling in Stover v. Fingerhut Direct Marketing, Inc., Case No. 5:09–cv–00152, Docket 69, 2010 WL 1050426 (March 17, 2010), each violation is subject to a statutory penalty. Because the violations of the two different sections of the WVCCPA arise out of the same conduct, the Court will not award double penalties for a single phone call. Although, two separate statutory provisions are at issue here, given the facts of this case, the evidence establishing the violations of these provisions is very much intertwined. For instance, although the evidence of eight hundred seventy-five (875) communications after notification of legal representation establishes a violation of 46A–2–128(e), that same evidence of eight hundred seventy-five (875) communications after notification is relevant to the Court’s finding of the intent necessary to establish violation of 46A–2–125(d). So, after careful con-sideration, the Court finds that the Defendant is subject to penalties for a maximum of eight hundred seventy-five (875) violations—eight hundred sixty-one (861) calls and fourteen(14) written communications. The fact that eight hundred twenty-one (821) of the communications violate two separate provisions of the WVCCPA does not necessitate two separate penalties, particularly in light of the facts of this case.    In determining the proper penalties, the Court is mindful that the eight hundred seventy-fifth (875th) violation should not carry the same penalty as the first violation. The amount of a penalty should have a direct relationship to the egregiousness of the violation, and each repeated violation is more egregious than the last. Given the Court’s finding that, unlike the last eight hundred twenty-one (821) calls, the evidence does not clearly establish that the first forty (40) calls (which violate 46A–2–128(e)) were made with the intent to annoy, abuse and oppress, the Court assigns the minimum penalty of one hundred dollars ($100) to those calls. After that, the remaining eight hundred thirty-five (835) communications are subject to a penalty between one hundred dollars ($100) and one thousand dollars ($1000). The Court is mindful of the nature of the violations in this case, and the possibility of more extreme or reprehensible violations (e.g. actual threats and verbal harassment), and accordingly, assigns the maximum penalty only to the final twenty-five (25) communications, finding those communications the most persistent and egregious of the violations. The rest of the violations carry increasing penalties, because as the communications continued, the intent and egregiousness of them increased.