Tallying Up Statutory Damage Amounts

[brokeinok]

Here is the portion of the Consumer Protection Act:

B. The commission of any act or practice declared to be a violation of the Consumer Protection Act, if such act or practice is also found to be unconscionable, shall render the violator liable to the aggrieved customer for the payment of a civil penalty, recoverable in an individual action only, in a sum set by the court of not more than Two Thousand Dollars ($2,000.00) for each violation. In determining whether an act or practice is unconscionable the following circumstances shall be taken into consideration by the court: (1) whether the violator knowingly or with reason to know, took advantage of a consumer reasonably unable to protect his or her interests because of his or her age, physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factor

__________________________________________

I have thirty seven separate violations of the FDCPA, including false and deceptive means, deceptive trade practices, and unconscionable actions under each of my causes of action.

Each of these three things are mentioned in different areas of the Consumer Protection Act as violations. What I'm having difficulty in determining is how to arrive at a figure for statutory damages? If a specific violation of the FDCPA falls under all three of those separate issues, then is that $6,000 because they violated three separate clauses of the Consumer Protection Act at $2,000 per violation?

In several of my causes of actions, they sent multiple letters during the DV period, demanding contact and payment, violating the FDCPA. So since there were multiple letters violating is it $6000 per letter for violations of the CPA or just a blanket $6000 for that one cause of action.

I think my answers, defenses and counterclaims are very good but this section at the end about the damages has me stymied.

[cjtx]

Statutory damages under FDCPA are $1,000 no matter if you have one or one thousand violations. The more violations you have the higher your chance to get $1,000 despite the judge.

If your state law is more protective than FDCPA, then your claims should be under state law only, provided they are not preempted by FCRA.

[brokeinok]

I know that, I'm not asking about the FDCPA. This is a state Consumer Protection Statute.

[cjtx]

You need to look at case law to see how the courts have interpreted that statute.

To me, it reads that it's meant to protect someone in a very clear disadvantage such as a minor, someone ill, ignorant or illiterate. The standard of "knowingly" makes it even harder, because even if someone qualified, you still have to prove that they had knowledge of it.

Maybe I'm wrong, but I don't think it's that easy to just claim I'm not a lawyer so I didn't understand the legalese and they took advantage of me....

[brokeinok]

I would think that 37 blatant and totally provable violations of Federal and State law probably falls under the term "knowingly". Besides, I can also argue the point that since collection work is all they do, they should know the laws and cannot claim "simple error" or some other defense in not following the FDCPA.

The consumer protection act isn't designed to protect people from not understanding legalese, there is a provision in the FDCPA for that. This law is designed to protect consumers from people like this law firm who use unfair, deceptive and illegal practices. Violating the FDCPA is illegal, their violations and the way they went about them were deceptive and a blatant attempt to deny my rights under the FDCPA. I've got phone logs, affidavits from third party witnesses, written correspondence and taped telephone conversations. It will be very difficult for ANY judge to ignore it.

I just need to know how everyone else interprets that statute with regard to the violations. It is per violation, not per action like the FDCPA, so I need to know how to tally them up.

[cjtx]

In determining whether an act or practice is unconscionable the following circumstances shall be taken into consideration by the court: (1) whether the violator knowingly or with reason to know, took advantage of a consumer reasonably unable to protect his or her interests because of his or her age, physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factor

Believe it or not, I'm on your side. But again, the way it reads, in order to prove the "practice is unconscionable" you have to prove that they knew you were in disadvantage. It's not about knowing they were breaking the law.

I had to read the OK Consumer Protection Act to see what you were talking about. You can make an argument that each violation of FDCPA is a deceptive trade practice, but that's not enough to show it was an unconscionable action. Unconscionable is a higher standard than mere breaking of the law.

[Rick9972]

If your state law is more protective than FDCPA, then your claims should be under state law only, provided they are not preempted by FCRA.

I was under the impression that the preemption offered by FCRA was not available for Debt collectors?

[brokeinok]

Unconscionable is a higher standard than mere breaking of the law.

So exactly what is the standard for unconscionable that you are referring to?

[cjtx]

So exactly what is the standard for unconscionable that you are referring to?

You need to prove they did one of the things on the list:

(1) whether the violator knowingly or with reason to know, took advantage of a consumer reasonably unable to protect his or her interests because of his or her age, physical infirmity, ignorance, illiteracy, inability to understand the language of an agreement or similar factor; (2) whether, at the time the consumer transaction was entered into, the violator knew or had reason to know that price grossly exceeded the price at which similar property or services were readily obtainable in similar transactions by like consumers; (3) whether, at the time the consumer transaction was entered into, the violator knew or had reason to know that there was no reasonable probability of payment of the obligation in full by the consumer; (4) whether the violator knew or had reason to know that the transaction he or she induced the consumer to enter into was excessively one sided in favor of the violator.

For (1), one way to prove that OC took advantage of a consumer would be to show that OC received information in advance regarding the consumer was a minor or was otherwise impaired to enter a legal contract.

For (4), an example would be that OC abused the forum and brought suit in a place that is not close to the consumer (which is sanctioned under FDCPA) AND it did not serve the consumer with citation so a default judgment was rendered in their favor.

[brokeinok]

Well, before they started screwing with me and I found CIC, I was ignorant of the law. I had no idea that their threats of garnishment couldn't be carried out, when they said they'd take my furniture and sell it?... I didn't know. Up until the point the bottom fell out of everything, I had perfect credit, over 700 fico's and staggering credit limits at an interest rate that now makes me want to cry when I see my cc bills. I didn't understand the DV process or even know there was a FDCPA, I had no need to know, I was ignorant. They didn't answer my requests for proof (not put into the form of a DV, but I was at least smart enough to ask for proof), they called, harrassed, threatened, cussed, discussed with third parties, sent multiple demands for payment, and never did send that damned proof until seven months later, when I found CIC and realized their was a FDCPA.

So, I don't think they are just talking about minors or people who are mentally challenged. It's broad and open and I think the "average" judge is going to see this mountain of evidence and look at the CA attorney and think, "are you are moron or what?"

[brokeinok]

So we've gone WAY OFF on a tangent with this thread and my original question seems to have gotten lost.....

[cjtx]

In several of my causes of actions, they sent multiple letters during the DV period, demanding contact and payment, violating the FDCPA. So since there were multiple letters violating is it $6000 per letter for violations of the CPA or just a blanket $6000 for that one cause of action.

Each violation on each letter is a separate cause of action. So provided you can show they were unconscionable, you can ask for $6,000 per letter.

[Recovering Attorney]

Just ask for "stautory damages as allowed by the statute, and forget an amount, as it has to be set by the judge. He coudl give you 37 bucks, too.

I don't think a judge will find any FDCPA violation, especially letters, phone calls or idle threats unconscionable. Did they hoodwink you into paying them something they weren't entitled to? I hope I am wrong

[brokeinok]

Not hoodwinked, but nearly drove to the loony bin.

I'm thinking maybe the judge might consider the sheer VOLUME of violations unconscionable. I mean this is their entire practice so surely at some point at least one of them maybe scanned through a copy of the FDCPA????

Anyway, I've put in that statute allows the $2,000 for statutory in the state code and the $1,000 per action in the federal stuff. So under my prayer for relief, I'll just put statutory damages to be determine by the court, punitive damages to be determined by the court and let the chips fall.

I'm not trying to get rich, I just want to be treated fairly, given a chance and fix my credit.

(and a manicure... I really need a manicure!

[brokeinok]

Would third party disclosure push them up into unconscionable in the eyes of the judge?

[Rick9972]

Let me try to explain my understanding of unconscionable and one of the others can correct me.

Unconscionable is actually a old business contract term that has been carried over into Consumer protection. The old common law meaning basically means "Without benefit". The business law application has devolved into "Someone with a huge advantage forceing a weaker person to enter into a contract that has no benefit to the weaker person." The Consumer protection definition is very slowly developing to be "CA's who negatively impact a consumer who is unable to grasp the concepts of being able to defend themselves from the illegal tactics being used."

So the question of can you prove unconscionable intent really depends on the judge you get. If you get a old school judge he is going to look at your case, see that you had enough understanding to file a Pro Se or to hire an attorney and thus was reasonably able to defend yourself and will rule against you. A more liberal judge will try to determine if the CA "thought" you were unable to defend yourself and picked the wrong person to harass.

Hope that explains my thinking on the matter. In my case, I am trying to get unconscionable intent also. I built my case around the fact that the CA has gotten away with violations for over 5 years, thus held the belief that they could get away with the new ones also. It was just a serious of fortunate events that allowed me to discover what they were doing. *shrugs* May work, May not it all depends on the judge.

[brokeinok]

Well, if it goes to the point where I have to argue before a judge, I plan on making sure he understands that just because I'm well informed now, doesn't mean I was when all this was taking place.

I will do discovery on every case of this type that they have done and make them produce everything to show a pattern of abuse. I've already started working on my interrogs and disc requests should it come to that. They do not have a copy of my answers and counterclaims yet since I requested a 30 day extension to file them. It is my hope that we will reach a settlement on this and I can move on.

I'm reading myself blind on case law defining "consumer", "uninformed" and anything else of that variety that I can get my hands on.

[cjtx]

Add "unsophisticated consumer" to your list.