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Fair Debt Collection: 11.8.6.4 No Proof Required for Dollar Value of Mental Suffering

While testimony regarding the value of some types of claimed injuries, such as lost wages, is essential, evidence of the value of pain or mental suffering is not required; the jury is guided in its determination by its own experience, testimony of witnesses on the existence, cause, and extent of the injury, the arguments of counsel, and the instruction of the judge.727 Again, conclusory, general testimony is not sufficient to establish an amount of damages for claimed emotional distress.728 A nu

Fair Debt Collection: 11.8.7 Standards of Causation

The FDCPA’s language “sustained . . . as a result of” in § 1692k(a)(1) implies that causation in fact (a showing that the injury suffered was in fact caused by the violation proved) must be established by direct connection to the violation.732 One issue is that families having difficulties paying their bills may be experiencing emotional stress related to other debt collectors, the inability to pay for needed goods or services, or for other unrelated causes such as illness, marital problems, or loss of employment.

Fair Debt Collection: 11.8.8 Relation Between FDCPA Actual Damages and Other Awards

Because actual damages are compensatory, the consumer cannot recover actual damages more than once for the same injury, even if there were multiple violations and recovery can be had under multiple causes of action.738 Actual damages can, however, be awarded in addition to statutory damages under the FDCPA,739 and in addition to statutory or punitive damages under state law.740

Fair Debt Collection: 11.9.1 Overview

(a) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum—

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Fair Debt Collection: 11.9.4 Actual Damages Not a Prerequisite

FDCPA statutory damages are awarded in addition to actual damages, but an award of actual damages is not a prerequisite to the recovery of FDCPA statutory damages.776 The FDCPA’s civil liability provisions in individual cases were modeled on similar provisions in the Truth in Lending Act (TILA),777 and courts at the time (and also since then) refused to make actual damages a precondition for statutory awards in TILA cases.778 (Actual damages are a

Fair Debt Collection: 11.9.5 Enhancing Statutory Damages

Courts in early FDCPA cases awarded higher amounts when they viewed the violation as aggravated or egregious786 and lower amounts when the violation was considered less serious.787 As the real value of the maximum $1000 statutory damage award has declined with inflation,788 awards of $1000 have become the norm.789 Thus, in those early cases statutory damages were often only $100 or $200 where the viol

Fair Debt Collection: 11.9.8.1 Where There Are Multiple Plaintiffs

The FDCPA provides that “any debt collector who fails to comply with any provision of this subchapter is liable to such person in an amount equal to . . . in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1000.”825 The $1000 cap is part of the liability “to such person . . .

Fair Debt Collection: 11.9.8.3 Where There Are Multiple Wrongful Acts

The vast majority of courts provide that each collector’s liability to each consumer for statutory damages is capped at $1000, no matter how many violations are established in the FDCPA lawsuit.831 If the debt collector violates the FDCPA again after an FDCPA suit was filed, there is precedent allowing a follow-up suit for a new statutory damage award without regard to the amount awarded in the prior suit.832 However, one court held that a violation occurring before the first FDCPA suit could no

Fair Debt Collection: 11.10.1 FDCPA Punitive Damages May Be Unavailable

A number of decisions reject the availability of punitive damages under the FDCPA,837 and no reported decision has authorized such damages. The Act itself is silent about the availability of punitive damages, although there is no evidence in the congressional history of an intent to prohibit punitive damages.

Fair Debt Collection: 11.10.2 Fair Credit Reporting Act Punitive Damages Claims Against Debt Collectors

The Fair Credit Reporting Act (FCRA) explicitly authorizes punitive damages for willful FCRA violations,849 and certain FCRA provisions apply to debt collectors and debt buyers. For example, Brim v. Midland Credit Management, Inc.,850 involves a debt buyer misreporting a debt to a consumer reporting agency. A jury awarded $623,180 in punitive damages for the debt buyer’s failure to meet its FCRA reinvestigation obligations.

Fair Debt Collection: 11.11.1 Practical Considerations

Class actions are frequently the best method to enforce compliance with consumer protection laws because the awards in an individual case are usually too small to encourage an individual consumer to file suit.858 Where the FDCPA action arises from the collector’s standardized forms or practices, class action treatment may be appropriate.859

Fair Debt Collection: 11.11.2.2.1 Introduction

No class may be certified unless it meets all four requirements of Rule 23(a): numerosity, commonality, typicality, and adequacy. These are discussed in turn below in the context of FDCPA class actions.885 Plaintiff has the burden of establishing these elements by a preponderance of the evidence,886 as well as showing that one of the three criteria required under Rule 23(b) is also met.

Fair Debt Collection: 11.11.2.2.2 Numerosity

Federal Rule of Civil Procedure 23(a)(1) requires that “the class is so numerous that joinder of all members is impracticable.” Something over one hundred members is preferable, but there is no set minimum.887 A “[c]ourt does not need evidence of exact class size or identity of class . . .

Fair Debt Collection: 11.11.2.2.5 Adequacy of representation

Federal Rule of Civil Procedure 23(a)(4) requires that the class representative have no interests antagonistic to the other members of the class.934 The named plaintiff must be both interested in the case and reasonably conscientious,935 and the class attorney must be qualified, experienced, and generally able to conduct the litigation vigorously.

Fair Debt Collection: 11.11.2.3.2 Rule 23(b)(1)

Consumer class actions of any kind are rarely certified under Rule 23(b)(1). Nevertheless, at least one FDCPA action has been certified under this subsection, where the court found that the prosecution of separate actions based upon the same conduct by the defendant could lead to inconsistent legal adjudications.952