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Fair Debt Collection: 2.6.2.2.3 Medical conditions arising from debt collection abuses

Medical conditions are also related to debt collection abuses, such as loss of appetite, nausea, vomiting, sensitive stomach, loss of weight, tooth pain where debt collector took funds saved for dental work, ulcers, diabetic flare-ups, miscarriage, heart attack, heart palpitations, angina, chest constrictions, becoming bedridden, pain and suffering, shortness of breath, headaches, dizziness, fainting, blacking out, skin eruptions and great pain from shingles, aggravated existing illness, and extended illness.

Fair Debt Collection: 2.6.2.2.4 Out-of-pocket losses

Section 11.8.4, infra, sets out a discussion and court decisions regarding various types of out-of-pocket losses caused by debt collection violations, including loss of job, income, work time or leave from a job; impairment of job advancement; medical or counseling expenses; medication or special diet; telephone charges; payments on an invalid claim or a debt barred by a statute of limitations; transportat

Fair Debt Collection: 2.6.2.2.5 Injuries to personal relations

Section 11.8.5, infra, sets out various case decisions awarding damages for injury to the following type of relations: injury to reputation; harm to credit rating, loss of access to credit and to employment; loss of privacy; loss of consortium; strain to marriage; strain with family; demotion by employer; and humiliation.

Fair Debt Collection: 2.6.3 Evidence Establishing an Injury’s Existence, Cause and Value

A key question in recovering actual damages is how extensive the evidence of consumer injury must be. There are different standards as to adequate proof that there is an injury and the dollar value of that injury. In fact, evidence of the dollar value of the injury is often unnecessary. The trier of fact may attach dollar amounts to some injuries (nausea, headaches, or anxiety, for example), without any proof of their value.

Fair Debt Collection: 2.5.7.1 Importance of State Claims

State claims may offer punitive,73 multiple, or statutory damages in addition to the relief offered by the FDCPA. Even when the FDCPA applies to a case, local law may supplement it or be more favorable to the consumer.74 For example, a collector may violate a state law for which the FDCPA does not provide a parallel prohibition.

Fair Debt Collection: 2.5.7.2 Choice of Federal or State Court

The choice of filing in federal or state court is dominated by local considerations. In some locales, there is little reason to prefer federal judges over state judges, either for judicial ability or for sympathy in actions against debt collectors. State discovery and procedural rules are often so similar to federal rules as to eliminate this as a consideration. The relative backlog of cases on federal and state dockets varies greatly from locale to locale. Choice of forum will affect the rules and practice for drafting pleadings.76

Fair Debt Collection: 2.5.7.3 Specificity of Pleading

In pleading an FDCPA claim, the consumer attorney should consider two separate requirements. One is to establish concrete harm or injury in fact sufficient to meet the Article III federal court standing requirement. This requirement is discussed in detail at § 11.15, infra.

Fair Debt Collection: 2.5.7.4 Avoiding Dismissal

Failure to state a cause of action will result in the dismissal of the complaint and, when the court deems the claim entirely frivolous, sanctions.77 Failure to join an indispensable party may also result in the dismissal of the litigation.78 Section 11.6.1, infra, provides an analysis of the specificity of p

Fair Debt Collection: 2.5.7.5.2 FDCPA as a counterclaim

Consumers may decide that the better strategy is to raise their fair debt collection claim defensively as a counterclaim to a suit on the debt filed by the creditor or its collector.81 One advantage of this approach is that it may create more leverage in negotiating a reduced amount of the debt. Disadvantages may include that the FDCPA claims will not apply to the creditor and a state court judge may not be familiar with the FDCPA.

Fair Debt Collection: 2.5.7.5.4 Filing an FDCPA class action

The decision to file a complaint as a class action is often faced most squarely after the initial investigation and research are completed.82 If a class action is consistent with the client’s objectives and the program’s or firm’s priorities, additional inquiry should be made to determine if adequate legal and financial resources are available for the particular case. A lawyer without the necessary resources may need to bring in another firm to meet that need.

Fair Debt Collection: 2.6.5 Causation Is an Important Element in the Proof of Damages

Issues of causation must be considered in seeking actual damages in debt collection cases. Consumers suffering from abusive debt collection tactics are often in a financially distressed position which is stressful in itself. Injuries may have resulted from another traumatic event, such as illness, marital problems, or loss of employment.

Fair Debt Collection: 2.6.7 Establishing Deception

The Seventh Circuit has uniquely imposed a burden on consumers of proving deception by expert testimony, preferably supported by consumer survey testimony. Difficulties with conducting surveys are discussed at § 11.6.3, infra. Recent Seventh Circuit decisions have retreated from the survey requirement, and other Circuits have different views.

Fair Debt Collection: 2.7.1 Overview

While punitive damages awards may be unavailable for FDCPA violations, they are available in most states for certain tort claims. Such claims have special applicability to debt collection harassment and are considered at § 11.10.3, infra.

Fair Debt Collection: 2.11 Injunctions, Administrative Agency Complaints, and Community Education

There are situations involving debt collection abuse in which an action for damages is not appropriate. This may be because the consumer suffered no actionable damages or because the difficulty of establishing damages makes the probability of recovery slight. It may be that individual actions for damages are not among a program’s or lawyer’s priorities and successful referral to another lawyer is unlikely. The client may be unwilling to pursue damages. An award of damages may not seem likely to deter what appears to be a pattern of community-wide abuse.