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 Post subject: Irwin v. Mascott
PostPosted: Tue Aug 01, 2006 2:51 am 
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Irwin v. Mascott
112 F.Supp.2d 937
N.D.Cal.,2000.
August 31, 2000

For violations of the FDCPA, CEA is liable for actual damages consisting of foreseeable out-of-pocket expenses incurred by check writers in responding to CEA's demands, including the amount which CEA collected above the face amount of each check, plus pre-judgment interest, for all payments demanded or made on or after January 1, 1994, 15 U.S.C. § 1692k(a)(1) provides:
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 of-
(1) any actual damage sustained by such person as a result of such failure;
15 U.S.C. § 1692(a)(2) provides for additional statutory damages. Plaintiffs do not yet seek a ruling on the amount of statutory damages.
[37] [38] Plaintiffs also claim entitlement to restitution, in the form of disgorgement by CEA of its illegally-obtained profits. This is authorized by the CUBPA. Indeed, it also authorizes an order of restitution of any money which a trial court finds may have been acquired by means of any illegal practice. (Emphasis added). Bank of the West v. Superior Court, 2 Cal.4th 1254, 1267, 10 Cal.Rptr.2d 538, 833 P.2d 545 (1992). A court may order restitution without individualized proof of deception, reliance and injury, if necessary to prevent the use of an unfair practice. Id. Plaintiffs seek an order refunding to class members all money collected by CEA beyond what it was lawfully entitled to collect.FN21

FN21. Plaintiffs do not seek a double recovery for those who may be entitled to both restitution under state law and damages under federal law.


[39] [40] In the case at bar, Plaintiffs do not seek a determination of the actual *956 amount of damages, only a finding of law that such damages are due under the applicable statutes. Restitution of any money which the court finds may have been acquired as a result of the unfair practice is justified as a deterrent to future violations. Bank of the West v. Superior Court, 2 Cal.4th 1254, 1267, 10 Cal.Rptr.2d 538, 833 P.2d 545 (1992); Fletcher v. Security Pacific National Bank, 23 Cal.3d 442, 451, 153 Cal.Rptr. 28, 591 P.2d 51 (1979). Prejudgement interest is also due on money paid as restitution. Cal. Civ.Code § 3287(a) provides, in pertinent part:
Every person who is entitled to recover damages certain, or capable of being made certain by calculation and the right to recover which is vested in him upon a particular day, is entitled also to recover interest thereon from that day, except during such time as the debtor is prevented by law, or by the act of the creditor from paying the debt···
[41] Damages is defined broadly to include any compensatory monetary recovery, as provided in Cal. Civil Code § 3281, which provides:
Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.
Cal. Civil Code § 3287 has been consistently applied to require the award of prejudgment interest where the judgment is for money owed or to be refunded pursuant to a statutory obligation. Tripp v. Swoap, 17 Cal.3d 671, 681, 131 Cal.Rptr. 789, 552 P.2d 749 (1976).
[42] 2. For violation of the California Unfair Business Practices Act, CEA is liable to class members who paid a service charge, plus pre-judgment interest, for all payments demanded or made on or after January 1, 1994. The rationale is that plaintiffs were deprived of the use of any money they paid to CEA and should be made whole by being compensated for interest they would have been paid, in order to prevent unjust enrichment of CEA by its having the use of Plaintiff's money. Id.


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