CEB Prac. Guide § 2A.49 -- Liability -- Actual Damages

Subscribe to Consumer Finance

Thank you for your desire to subscribe to Severson & Werson’s Consumer Finance Weblog. In order to subscribe, you must provide a valid name and e-mail address. This too will be retained on our server. When you push the “subscribe button”, we will send an electronic mail to the address that you provided asking you to confirm your subscription to our Weblog. By pushing the “subscribe button”, you represent and warrant that you are over the age of 18 years old, are the owner/authorized user of that e-mail address, and are entitled to receive e-mails at that address. Our weblog will retain your name and e-mail address on its server, or the server of its web host. However, we won’t share any of this information with anyone except the Firm’s employees and contractors, except under certain extraordinary circumstances described on our Privacy Policy and (About The Consumer Finance Blog/About the Appellate Tracker Weblog) Page. NOTICE AND AGREEMENT REGARDING E-MAILS AND CALLS/TEXT MESSAGES TO LAND-LINE AND WIRELESS TELEPHONES: By providing your contact information and confirming your subscription in response to the initial e-mail that we send you, you agree to receive e-mail messages from Severson & Werson from time-to-time and understand and agree that such messages are or may be sent by means of automated dialing technology. If you have your email forwarded to other electronic media, including text messages and cellular telephone by way of VoIP, internet, social media, or otherwise, you agree to receive my messages in that way. This may result in charges to you. Your agreement and consent also extend to any other agents, affiliates, or entities to whom our communications are forwarded. You agree that you will notify Severson & Werson in writing if you revoke this agreement and that your revocation will not be effective until you notify Severson & Werson in writing. You understand and agree that you will afford Severson & Werson a reasonable time to unsubscribe you from the website, that the ability to do so depends on Severson & Werson’s press of business and access to the weblog, and that you may still receive one or more emails or communications from weblog until we are able to unsubscribe you.

In In re Argon Credit Llc, Nos. 16-39654, 21-00048, 2022 Bankr. LEXIS 2543, at *8 (Bankr. N.D. Ill. Sep. 15, 2022), Judge Thorne found that a deceptive letter that causes a Plaintiff to pay sums that the Plaintiff otherwise would not owe (in this case, because the debts were void or discharged by bankrutpcy) confers standing. Plaintiffs next claim is… Read More

In Sykes v. Mel S. Harris and Associates LLC, --- F.3d ----, 2015 WL 525904 (2d Cir. 2015), the Court of Appeals for the Second Circuit certified a class against a debt collector who purported to operate a mill that resulted in illegal default judgments in New York City.  These default judgments, in the words of plaintiffs, are the result… Read More

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… Read More

In Alonso v. Blackstone Financial Group LLC, 2013 WL 3992122 (E.D.Cal. 2013), Magistrate Judge Boone found that payment of an otherwise legally owed obligation that was collected on by a means prohibited by the FDCPA was a “damage” under the FDCPA. Following the July 24, 2013 hearing, the parties were granted leave to file supplemental briefing regarding whether the $100… Read More

In Guajardo v. GC Services, LP, 2012 WL 5419505 (5th Cir. 2012), the Court of Appeals for the Fifth Circuit reversed a $120,000 FDCPA jury verdict, and issued a remittur in the amount of $4,500.  Plaintiff had testified that she was not claiming compensation for time off of work, out-of-pocket expenses, or mental anguish. The district court denied GC's motion. … Read More

In Roots v. American Marine Liquidators, Inc., 2012 WL 3136462 (D.S.C. 2012), Judge Anderson entered a default judgment against a marine financer for debt collection tactics employed in the collection of a debt secured by a boat. American Marine Liquidators, Inc. was found to be in default in this action on May 31, 2012 [Doc. 9];    American Marine Liquidators, Inc.,… Read More

In Branco v. Credit Collection Services Inc., 2011 WL 3684503 (E.D.Cal. 2011), Judge Damrell ruled on a number FDPCA/Rosenthal Act claims.  The highlights related to the number of calls relevant to a harassment claim and to the standard applicable to proof of ‘actual damages’ under the Rosenthal Act.  As to the harassment claim, Judge Damrell held that:    In the… Read More

In Valero v. Bryant, LaFayette and Associates, LLC, 2011 WL 1438436 (E.D.Cal. 2011), Judge Austin set forth parameters for recovery of emotional distress damages under the FDCPA/Rosenthal Act within the context of a default prove-up hearing. This Court will apply the California IIED standard. See, Bolton v. Pentagroup Financial Services, LLC., 2009 WL 734038 at *10–11. Under California law, to… Read More

In Bailey v. Household Finance Corp. of California, 2010 WL 4569950 (S.D.Cal. 2010), Judge Hayes found that a Plaintiff stated a tort claim arising from defendant’s recording of their collection communications, explaining:   Plaintiff alleges that Defendants violated California's Invasion of Privacy Act, California Penal Code § 630, et seq. by using “a software system that enables [Defendants] to secretly… Read More

The U.S. District Court for the Eastern District of California entered default judgments against two debt collectors in separate cases, reaching the same conclusion on different facts as to sums recoverable on default for emotional distress under the FDCPA.  In Molina v. Creditors Specialty Services, Inc. 2010 WL 235042 (E.D. Cal. 2010), the District Court entered a default judgment against… Read More

In Fausto v. Credigy Services Corp., 598 F.Supp.2d 1049 (N.D.Cal. 2009), Judge Ware defined the quantum of proof necessary to recover “actual damages” under the FDCPA.    The FDCPA permits an award of actual damages for a defendant's violation of the statutory scheme. 15 U.S.C. § 1692k(a)(1). “Actual damages [under the FDCPA] not only include any out of pocket expenses,… Read More

In Basinger-Lopez v. Tracy Paul & Associates, 2009 WL 1948832 (N.D.Cal. 2009). Judge Armstrong refused to award emotional distress damages in an FDCPA case. Defendant failed to appear in the action, and Plaintiff sought to recover $10,000 in actual damages arising from emotional distress suffered due to the alleged collection activities of the defendant, which included threats of legal action,… Read More

In Hartung v. J.D. Byrider, Inc., 2009 WL 1876690 (E.D.Cal. 2009), Magistrate Judge Austin addressed the standard required for proof of emotional distress damages under the FDCPA, and found that a Plaintiff must meet the elements of a state court IIED claim.  Judge Austin addressed the following fact pattern pursuant to Plaintiff’s effort to prove-up a default judgment.   Anderson… Read More

In Riley v. Giguiere, 2009 WL 1748721 (E.D.Cal. 2009),  Judge Karlton addressed whether an attorney involved in an unlawful detainer action was a ‘debt collector’ under the FDCPA.  Judge Karlton held that the attorney was ‘regularly’ engaged in debt collection, explaining:   Briefly, a debt collector includes anyone who “regularly collects or attempts to collect, directly or indirectly, debts owed… Read More

In Piontek v. IC System, Inc. 2009 WL 1044596 (M.D.Pa. 2009), Judge Rambo held that a Plaintiff seeking emotional distress damages put at issue other lawsuits she had filed.    Here, Plaintiff's motivation for her actions giving rise to the suit, or for bringing the suit, are irrelevant to the issue of whether Defendants violated the FDCPA through their dealings… Read More

In Miller v. Midland Funding, LLC, 2008 WL 4093004 (C.D.Cal. 2008), Judge Otis Wright clarified the type of penalties and damages recoverable under the FDCPA.  As to the $1,000 penalty, Judge Wright explained: Defendants are correct that statutory damages are limited to $1,000 per action, not $1,000 per defendant.  Clark v. Capital Credit & Collection Services, Inc. 460 F.3d 1162, 1178 (9th… Read More