CEB Prac. Guide § 2A.51 -- Liability -- Penalties and Punitive Damages

In Hill v. Asset Acceptance, LLC, 2014 WL 3014945 (S.D.Cal. 2014), Magistrate Judge Major granted in part and denied in part Rosenthal Act discovery in a class action, some rulings for which are highlighted below. The facts were as follows: Plaintiff seeks actual damages, statutory damages, attorneys fees, and costs for the alleged violations. Id. at 9. The alleged violations… Read More

In Davis v. Hollins Law, --- F.Supp.2d ----, 2014 WL 2619651 (E.D.Cal. 2014), Judge Karlton held a bench trial and awarded $250 in statutory penalty under the FDCPA, but nothing under the Rosenthal Act, due to the difference in statutory language between the two statutes.  Judge Karlton awarded, however, $35,813.30 in attorneys’ fees to Plaintiffs’ counsel as the prevailing party… Read More

In Varnado v. Midland Funding LLC, --- F.Supp.2d ----, 2014 WL 1994622 (N.D.Cal. 2014), Judge Ryu found that the Plaintiff stated no claim for negligent infliction of emotional distress against a debt collector nor any claim for punitive damages.  Judge Ryu found, however, that a claim for intrustion on seclusion was stated.  Judge Ryu found that debt collectors do not… Read More

In Polk v. Legal Recovery Law Offices--- F.R.D. ----, 2013 WL 3147728 (S.D.Cal. 2013), Judge Whelan refused to apply the Iqbal/Twombly pleading standard to affirmative defenses.  Although Judge Whelan ultimately found the affirmative defense not adequately pleaded factually, Judge Whelan found that 'good faith' could be an affirmative defense to a Rosenthal Act claim -- unlike the FDPCA. A good faith defense… Read More

It was largely a run-of-the-mill letter case, regarding whether the Defendant complied with Camacho’s validation notice requirements (it didn’t).  But, Judge Koh took time from her busy schedule in the Apple v. Samsung mega-trial to find that California’s elder-abuse statute allowed trebling of a statutory penalty under the Rosenthal Act.  (Johnson v. CFS II, Inc., 2013 WL 1809081 (N.D.Cal. 2013)… Read More

The West Virginia Supreme Court of Appeals in Vanderbilt Mortg. and Finance, Inc. v. Cole, --- S.E.2d ----, 2013 WL 870442 (W.Va. 2013), recently synced the West Virginia state-law version of the FDCPA with the federal FDCPA in finding that the state-law FDCPA did not require proof of actual damages in order to obtain a statutory penalty.  The Supreme Court… Read More

In LaRocque ex rel. Spang v. TRS Recovery Services, Inc. 2013 WL 30055 (D.Me. 2013), Judge Hornby declined to expand a state-wide class action into a federal one to protect the FDCPA defendant against multiple $500,000 penalties under the Act. The defendants' central premise is that the Maine-limited scope of Class One “circumvent[s] the statutory cap on damages set forth in the… Read More

In Young v. LVNV Funding, LLC, 2012 WL 5508407 (E.D.Mo. 2012), Judge Fleissig held that a consumer need not plead that a CRA informed the furnisher of the dispute in order to state a FCRA claim. Courts differ on whether a plaintiff must plead with certainty that notice was given by the CRA to the furnisher and the Eighth Circuit… 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 Dunn v. Advanced Credit Recovery Inc., 2012 WL 676350 (S.D.N.Y. 2012), Judge Kott confirmed that the FDCPA penalty is “per lawsuit”, not “per violation”. Judge Kott explained, “Dunn seeks a total of $5,000, asserting entitlement to the maximum statutory damage award of $1,000 for five separate violations. However, the case law limits recovery to $1,000 per action, not per… Read More

In Makreas v. Moore Law Group, A.P.C., 2012 WL 359710 (N.D.Cal. 2012), Judge Chesney found that the Plaintiff stated certain claims against a debt collection attorney, but not against the creditor whose debt the attorney was collecting.  In the context of evaluating a previous Rule 68 offer, the District Court confirmed that the Rosenthal Act and FDCPA penalties are “per… Read More

In Gonzales v. Arrow Financial Services, LLC, --- F.3d ----, 2011 WL 4430844 (9th Cir. 2011), the Court of Appeals for the Ninth Circuit found that a debt collector’s dunning letters violated the FDCPA, and that recovery could be awarded under both the Rosenthal Act and the FDCPA.    In 2002, Arrow purchased a portfolio of debts owed to health… Read More

In Marshall v. Bonded Adjustment Co., 2011 WL 3882284 (E.D.Wash. 2011), Judge Peterson granted a protective order against discovery targeted towards an FDCPA defendant’s net worth in an FDCPA class action – until a class was actually certified.   Bonded argues that the court should issue a protective order preventing discovery of Bonded's net worth information unless and until a… Read More

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… Read More

In Martinez v. CACH, LLC, 2011 WL 2560251 (S.D.Cal. 2011), Judge Sabraw rejected a debt collector’s Rooker-Feldman argument.  Further, Judge Sabraw rejected the argument that a Rule 68 offer mooted the class-action proceedings because the net worth requirement of a class-action under the FDCPA was not met due to alter ego allegations.    Plaintiff is alleged to have incurred debt… Read More

In Scott v. Federal Bond and Collection Service, Inc., 2011 WL 176846 (N.D.Cal. 2011), Judge Koh found that a Rule 68 offer made in an FDCPA case might deprive a federal court of jurisdiction to hear the matter due to the absence of a case or controversy.  Judge Koh explained:   In support of their 12(b)(1) motion, Defendants rely on… Read More

In Marseglia v. JP Morgan Chase Bank, --- F.Supp.2d ----, 2010 WL 4595549 (S.D.Cal. 2010), Judge Houston put to rest questions about the common law torts of invasion of privacy and “tort-in-se”, as well as the question regarding whether the Rosenthal Act provides multiple penalties for debt collection torts.    As to the invasion of privacy claim deriving from purportedly… Read More

In Hamberg v. JP Morgan Chase Bank, 2010 WL 2523947 (S.D.Cal. 2010), Judge Huff refused to strike the Plaintiff’s claim for damages under the Rosenthal Act which sought a “per violation” penalty rather than a “per suit”.  Judge Huff explained:   Plaintiffs' SAC seeks statutory damages of $1,000 per violation of the Rosenthal Act. (SAC, prayer for relief.) The Rosenthal… 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 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