Actual Damages

[David A. Szwak]

ACTUAL DAMAGES

A debt collector who has violated any provision of the FDCPA is liable for actual damages. 15 U.S.C. 1692k(a)(1). In re Belile, 209 B.R. 658 (Bankr. E.D.Pa. 1997); Miele v. Sid Bailey, Inc., 192 B.R. 611 (U.S.D.C. S.D. N.Y. 1996). State law requirements regarding the proof of intentional or negligent infliction of emotional distress are not applicable to actual damages under the FDCPA.

[David A. Szwak]

In Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182, 185 (U.S.D.C. Del. 1991), the district court instructed the jury: First, actual damages may be awarded the plaintiff as result of the failure of defendants to comply with the Act. Actual damages not only include any out-of-pocket expenses, but also damages for personal humiliation, embarrassment, mental anguish or emotional distress. You must determine a fair and adequate award of these items through the exercise of your judgment and experience in the affairs of the world after considering all facts and circumstances presented during the trial of this case.

[David A. Szwak]

Although the consumers had no out-of-pocket losses, the jury awarded $15,000 as actual damages for the emotional distress of Mr. and Mrs. Smith, who testified to their suffering as a result of receiving the law firm's three collection letters. The court granted a remittitur to $3,000. Another district court awarded mental distress damages of $5,000, $10,000, and $12,500. Shoup v. Illiana Recovery Systems, Inc.. 2002 U.S. Dist. LEXIS 674 (U.S.D.C. W.D. Mich. 2002).

[David A. Szwak]

In Shoup v. Illiana Recovery Systems, Inc., 2002 U.S. Dist. LEXIS 674 (U.S.D.C. W.D. Mich. 2002), the district court entered judgment for damages of $53,000 too Jeffrey Shoup including $12,500 as mental distress, $10,000 to Richard Shoup for mental distress, and $5,000 to Charlotte Shoup for mental distress.

[David A. Szwak]

A district court has held that for violations of the FDCPA in a class action, damages were equal to all amounts collected above the face value of the dishonored checks plus pre-judgment interest. Ballard v. Equifax Check Servs., 158 F.Supp.2d 1163 (U.S.D.C. E.D. Cal. 2001).

[David A. Szwak]

Damages for Violation of the FDCPA Section 1692k outlines the damages for failure to comply with the provisions of theFDCPA.

A debt collector who violates this section is liable for actual damages, statutory damages of up to $1,000 and attorneys fees and costs.

Attorneys fees can be awarded to any successful plaintiff and are to be determined by the Court.

Additionally, a defendant may be awarded attorneys fees upon a finding by the Court that the defendants brought the action in bad faith or for the purpose of harassment. 15 U.S.C. § 1692k(a)(3).

In determining the amount of liability under the FDCPA the Courts must look at the frequency, nature and intent behind the noncompliance and, in a class action, the additional factors of resources of the debt collector and the number of persons adversely affected. 15 U.S.C. § 1692k(b).

A debt collector may avoid liability under the Act if he “shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid such error.â€