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Truth in Lending: 11.9.3.4 Statutory Damages in a Series of TILA Class Actions

TILA limits the maximum recovery of statutory damages in any class action “or series of class actions arising out of the same failure to comply by the same creditor.”1289 In other words, where a creditor is sued in two different class actions for the same violation, the total recovery of both actions added together is limited to the lesser of $500,000 (increased to $1 million by the Dodd-Frank Act1290) or one percent of the creditor’s net worth.

Truth in Lending: 11.9.3.5 Who Determines the Size of the Award—Court or Jury?

TILA specifies that class action damages shall be in “such amount as the court may allow,”1300 subject to the maximum limit discussed above. This statement indicates that the court, not a jury, makes the award. TILA does not make the same distinction for individual actions. Nevertheless, there may be a constitutional right to a jury trial for statutory damages in the class action context too since these are analogous to punitive damages, which are considered available through actions at law, not equity.

Truth in Lending: 11.10.1.2 Most Federal Court Fee Jurisprudence Is Applicable to TILA

The large body of federal court decisions interpreting the Civil Rights Attorney’s Fees Award Act1309 and other federal statutes providing attorney fees to prevailing plaintiffs establish a common framework of interpretation and application.1310 TILA is no exception.1311 For example, TILA cases adopt the now-dominant lodestar approach to calculating fees even though the lodestar theory was developed in civil rights and antitrust cases.

Truth in Lending: 11.10.2.1 Where the Consumer Successfully Concludes an Action

Consumers are awarded TILA attorney fees in “any successful action.”1316 The award is mandatory; while the court may exercise wide discretion over the size of the award, it has no discretion concerning whether an award may be made1317 except in the most extreme circumstances.1318 The award must be made whether the prevailing consumer is the plaintiff or is raising TILA violations as counterclaims to a collection action.

Truth in Lending: 11.10.2.2 Attorney Fees in Connection with Recoupment Claims

After TILA’s one-year limitations period has expired, consumers can still raise TILA claims by way of recoupment, i.e., as a defense to the creditor’s collection action. The TILA damage recovery can only offset and not exceed the creditor’s recovery.1340 However, most courts rule that a successful recoupment defense is a “successful action” requiring the award of attorney fees, even if the fee award exceeds the creditor’s recovery.1341

Truth in Lending: 11.10.2.3 Attorney Fees for Litigation of the Fee Award

Attorney fees must be awarded for time spent recovering fees through a fee application and related proceedings.1344 This well-established “fees-on-fees” rule is founded on the principle that “it would be inconsistent to dilute a fee award by refusing to compensate attorneys for the time they reasonably spent in establishing their rightful claim to the fee.”1345

Truth in Lending: 11.10.2.4 Attorney Fees for Appeals

Successfully defending or prosecuting a TILA appeal, like all postjudgment tasks, is subject to the same mandatory fee award standards.1349 Even if the consumer loses on appeal, so long as some TILA liability is found and upheld, the consumer is entitled to fees for the appeal.1350 A TILA defendant who takes an appeal does so at the risk of incurring all of the consumer’s attorney fees.1351 However, if a consumer’s appellate victory onl

Truth in Lending: 2.2.3 Closed-End vs. Open-End Credit

There are two basic categories of credit: closed-end and open-end. With closed-end credit, the amount borrowed is determined at the outset, while under open-end credit, borrowers have at least the theoretical possibility of borrowing additional sums under the same credit agreement.

Truth in Lending: 11.10.2.8 Fees After Acceptance of Rule 68 Offer of Judgment

Rule 68 of the Federal Rules of Civil Procedure allows any party to serve upon the adverse party an offer to allow judgment to be taken against the defending party in a certain amount. If the offeree rejects a Rule 68 offer of judgment and then recovers less at trial, then that party must pay the costs incurred after the making of the offer. The application of this rule to any given situation is exceedingly complex and may depend on minute differences in statutory language. This subsection analyzes just two aspects of Rule 68 offers in TILA cases.

Truth in Lending: 11.10.2.9 Fees for Work Performed Postjudgment

A consumer should also recover fees and expenses incurred in monitoring or enforcing a judgment, consent decree, or settlement agreement.1411 Reasonable attorney fees are always available for the time and effort spent collecting or executing on any judgment arising under fee shifting statutes, including therefore TILA.1412

Truth in Lending: 11.10.3.1.1 Award usually goes to the client

The Truth in Lending Act states that the creditor “is liable to such person [i.e., the consumer] in an amount equal to the sum of” the damage award and attorney fees.1413 Thus fees are usually paid directly to the consumer and not the consumer’s attorney,1414 allowing the consumer and his or her attorney to calculate the attorney’s compensation.

Truth in Lending: 11.10.3.1.2 As against third parties, award goes to attorney

The driving legislative force favoring fee awards is to benefit consumers by helping to ensure that attorneys will take on their claims—particularly in cases in which the consumer will be unable to pay the lawyer’s fee or in which the expected award is relatively small.1423 Where a third party seeks to lay claim to the fee, this policy might be frustrated if the award were to be considered the consumer’s property instead of belonging to the attorney.

Truth in Lending: 11.10.3.2 Fees for Nonprofit and Pro Bono Attorneys

Legal services offices, volunteer attorneys, prepaid legal services plans, law school clinics, and other nonprofit organizations have the same right under TILA to attorney fees as private attorneys, even if the consumer is not obligated to pay her attorney.1435 The Supreme Court’s opinion in Blum v.

HUD Housing Programs: Tenants’ Rights (The Green Book): 11.4.3.2 De Minimis or Harmless Violation

Even when the PHA establishes a violation, a voucher participant may still be able to avoid termination if the violation is technical or harmless or if termination is a disproportionate response.1329 For example, a failure to report change in household composition may be harmless to the PHA when the additional family member has no income.1330 Similarly, a tenant’s technical failure to provide the PHA with an eviction notice should not be enough for termination, unless the PHA has been unable

HUD Housing Programs: Tenants’ Rights (The Green Book): 11.4.3.6 Violence Against Women Act

Under the Violence Against Women Act (VAWA), an incident of actual or threatened domestic violence, dating violence, sexual assault, or stalking is not good cause for terminating a victim’s Voucher assistance; this includes “adverse factors” such as lease violations attributable to a tenant’s statuts as a survivor of gender-based violence. For more information, see the VAWA discussion infra

HUD Housing Programs: Tenants’ Rights (The Green Book): 11.4.3.7 Bankruptcy

A particpant facing termination for nonpayment of amounts owed to a PHA can potentially file bankruptcy as a defense strategy. Filing the petition imposes an automatic stay on any administrative actions against the debtor, including PHA termination proceedings.1345 The tenant can then seek a discharge of the delinquent amounts,1346 and the bankruptcy anti-discrimination provision should prohibit the PHA from terminating the Voucher.1347