-> $1,000 Per Violation?

Any person found to have violated any of the FCRA requirements is liable to the consumer for actual damages sustained as a result of the noncompliance PLUS court costs, and atty. fees.

• §1681o (a)

Conspicuously absent from the above equation is the element of willfulness. Simple negligence, (being an idiot) does not give rise to "statutory" or "punitive" damages. But if they cause you actual damages then you may recover. Since willfulness is absent, so is the "statutory" and "punitive" awards components.

So, without the willfulness element;

• Actual Damages, plus Atty. Fees & Court Costs

If the violation is willful a consumer is entitled to actual damages, atty. fees, court costs, (all as described above) PLUS "statutory damages" ranging from $100 - $1,000.

• §1681n (a)

Additionally - any person who willfully fails to comply is liable for such "punitive" damages as a court/jury may allow.

• §1681n (a) (2)

So, with the willfulness element;

• Actual Damages, Atty. Fees, Court Costs
• Punitive Damages as the court may allow.
• Statutory Damages not to exceed $1,000 PER violation ***.
  EACH violation of the FCRA IS a separate violation, potentially entitling the consumer to MULTIPLE awards of statutory damages.***

BUT - the willfulness element is difficult to prove because it almost goes directly to "state of mind". That's why you see many times where one of us will go and apply for credit in order to be turned down. When that happens you HAVE actual damages.

• It is the "willfulness" element which introduces the Statutory & Punitive Damage components, as well as the multiplicity component of the statutory award. Without willfulness these components are absent.
  
  This is when you see large awards for punitive damages. Our recent Johnson v. MBNA comes to mind. $90,000+, upheld on appeal. Or the $5.3 Mil in Judy Thomas v. TU.

PRE 1996 amendment liability was limited to only the CRA's and Users. In the 96 amendment the language was changed to "any person". A "person", for legal purposes, includes both corporations AND natural persons. So liability was expanded by Congress.

During legislative debate over the language regarding statutory damages CRA's, Users, and DF's expressed concern that litigation would become overwhelming. In other words encourage unwarranted litigation. So Congress counterbalanced this concern by including that either defendant OR plaintiff could recover reasonable atty fees if the court determines that an unsuccessful pleading, motion or other paper was filed in bad faith.


Failure to provide accurate information to a CRA is NOT an actionable violation. Action is limited to the fed or state govâ??t. Your argument is ALWAYS "failure to follow reasonable procedures", blah.


Here's where the confusion enters the picture;

"IN THE CASE OF ANY SUCCESSFUL ACTION".

Well, each lawsuit is technically "an action", in it's singular tense.

• NEVER LET IT BE SAID THAT YOUR ADVERSARY WILL MISS THE OPPORTUNITY TO "HANG ON EVERY WORD", AND IT'S TENSE, (among other things). There's more going on here than simply "mincing words".

So some adversaries, (in fact it appears the majority) are successful at conning the court into believing Congress meant to limit liability to $1,000 no matter how nasty they get. This simply is NOT correct.

Although the statutory damage component may be limited to $1000 "per action" (in the case of negligence) don't forget all their other potential costs too. If the violation is willful, and you can demonstrate that, the award can go through the roof.

You should ALWAYS push your case "per violation", and allege willfulness. For one thing you may prevail. Or, you'd cost your adversary more money to fight that one component. Or, if you push element 1, 2, 3 & 4.

#3 may prevail, even while you lose on 1, 2 & 4.

Reading the FTC's consent decrees and settlement agreements you can easily see that EACH violation is considered separately.


Also â?? In determining the amount of liability in any action, the court shall consider, among other relevant factors â??

• FDCPA: § 813. Civil liability [15 USC 1692k]
  
  (1) in any individual action under subsection (a)(2)(A), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional;

Now I ask you, how can you expect to persuade the court to render maximum damage unless you assert the "intentional" component, frequency, and persistence? You don't. List each violation separately and demand maximum damage for each one.

See?


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• ***White v. Imperial Adjustment Corp., 2002 WL 1809084 (ED La. 8/6/2002).

 

Nuance:


Whether or not the "multiplicity" element of the statutory award is (or should) be separated by Willfulness is still under research. I believe my interpretation to be correct tho.

It would make perfect sense for our adversary to "borrow" the singularity element in simple negligence and "transpose" it to "willful" noncompliance as well.

What better way to limit their exposure no matter how pathetic their behavior?



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Bump 4 Lsmith

 

WOW!

A comment. lol


Thanks Kickman.

Right on.



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