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Are Count I, Count II, Count II separate actions in one action?


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I have a case where the NACA attornies are using the "count" system as a separate cause of action for each violation by a JDB. The damages collectively add up to over $10,000.

I'm going to let them run with it as they would not be wasting their time if they didn't think they could accomplish something. I don't have to pay them a thing unless they win, and if they win their wages come from the FDCPA, not me.

Has anyone heard of using the "count" method for separate causes of action to break the $1,000 threshold? I haven't, but these NACA attorneys wouldn't be shooting wild, would they?

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Well, no, these violation are all FDCPA violations. I guess I didn't specify.

The point is the $1,000 limit of the FDCPA per action was first used way back in the 70's when $1,000 might have meant a little something. There's been some discussion that damages for this day and age should be more like $5,000. This doesn't seem to be materializing so people seem to be trying their own methods of adjusting the damages for inflation.

There has been at least one case where the consumer bluntly asked for $1,000 for each violation and that idea was shot down pretty quickly. There has been some success in claiming violations against multiple debt collectors and damages for multiple consumers (Plaintiffs).

There's also been some talk about filing a separate action for each violation. The problem here is that the judge would tire quickly seeing the same consumer against the same debt collector multiple times.

So now these NACA attorney's, who have a personal stake in the outcome, come along and use the "count" system to list each violation as a separate cause of action. So my question is,"When the FDCPA limits the $1,000 to 'per action', does this also include 'cause of action'"?

And, the same as you can have mulitiiple Plaintiffs in one action where each individual Plaintiff involves a separate action, can you have multiple counts in one action where each individual count is one action/cause of action?

Can this work?

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Isn't the purpose of a "count" system to list several causes of action in one action?

I do have case law where two, or more, plaintiffs are two, or more, actions when applied to the FDCPA. It should not be hard to draw from this case that more than one action can be couched inside of any action. We do this sort of thing all the time to save time, effort, and money. Res judicata demands that we put every conceivable claim inside of an action else loose the right to any claim we might leave out.

I think the problem is with the wording of the FDCPA. The FDCPA states that:

(B) In determining the amount of liability in any action under subsection (a), the court shall consider, among other relevant factors --

(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

Frequency and persistence of noncompliance...does not work with a single violation in a single action as there would be no "frequency or persistence". The collector violated once.

However, there is "frequency and persistence" if there are several counts.

You know what, I just reread the complaint and the "counts" are not for each violation, they are for each section of the FDCPA and my state's debt collection statute that the collector violated.

This changes things as there now is "frequency and persistence". Take for example 20 or 30 phone calls. If a consumer told the collector that it was "inconvenient" for the collector to call them then the collector violated 15 U.S.C. § 1692c(a)(1) by communicating with Plaintiffs at times or places which were known or should have been known to be inconvenient for Plaintiffs 20 or 30 times.

Then the collector could also have violated 15 U.S.C. § 1692d(6) by failing to disclose their true corporate or business name in the same 20 to 30 telephone calls.

If there was a cease communications in effect, for another example, then the same 20 to 30 phone calls would be more violations and another "count".

I have not seen this tried before but it's beginning to make sense. I will be contacting the attorneys shortly but I wanted to run this by you guys first to hear what any of you had to say.

I think it can work. What does anyone else think?

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Guest usctrojanalum

Won't work. FDCPA clearly states statutory damages are capped at 1k per action. That does not mean the lawsuit only has to allege one violation.

The lawsuit can allege multiple violations, and show a pattern of non-compliance. However that will not change the calculation of statutory damages.

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But, isn't each "count" an action? As I said, I do have case law where it was decided that two Plaintiffs equal two actions and I believe the same violations were were applied to each Plaintiff.

For example, a phone call to Mr and Mrs consumer would be a call to either Mr or Mrs. consumer. If Mr consumer had issued a CC Order, the FDCPA states that this would also include Mrs consumer.

Now, Mr and Mrs consumer could file separate actions for the 20 or 30 calls to their residence but the court would probably put the two actions together. However, they would still be two separate actions.

I inadvertently started this thread by stating the "counts" were for each violation. I then reread the complaint and they are not for each violation but for each each section of the statute the collector violated. So, instead of having 20 or 30 "counts" for the 20 or 30 violations there is only one "count" for the 20 or 30 violations.

The thing is, the collector has violated more than one statute concerning those same 20 or 30 calls. Thus, another count.

In my case, there are hundreds of individual violations but only about a dozen counts. If I were to be asking for $1,000 for each violation then the damages would conceivably be hundreds of thousands of dollars. This is not the case.

What the attorneys have done is corralled and divided the hundreds of violations into appropriate "counts". I personally would have thought that they would have gone for the emotional stress angle but they chose to use the "count" system instead.

You have to understand the hundreds of violations for this to make sense. A few violations would not work in this situation. Hundreds would.

I think it will work as if it does not the NACA attorneys don't get a cent. It's rare where any attorney would pursue a contingency case they don't think they can win.

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Won't work. FDCPA clearly states statutory damages are capped at 1k per action. That does not mean the lawsuit only has to allege one violation.

The lawsuit can allege multiple violations, and show a pattern of non-compliance. However that will not change the calculation of statutory damages.

That's how it works - in my soon to be filed lawsuit, the CA violated 3 different ways - collection w/o validation, calling before 8am and using harassment in order to collect. The total amount of damages I will be awarded is $1k.

Now this same CA has added a few TCPA violations - now at $1,500 per call, that's where the damages add up.

It's all in how the statute is written and how it's interpreted -but most courts will probably cap damages at $1k per suit - no matter the number of violations.

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Guest usctrojanalum
But, isn't each "count" an action? As I said, I do have case law where it was decided that two Plaintiffs equal two actions and I believe the same violations were were applied to each Plaintiff.

Negative. Action = lawsuit.

Now, if there were state law violations that can change things. The State Law violations can be it's own separate cause of action (or separate count, they mean the same thing).

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I think it will work as if it does not the NACA attorneys don't get a cent. It's rare where any attorney would pursue a contingency case they don't think they can win.

Ehhh, this is not really true. While I do believe their complaint is defective on it's face, that does not mean you are not entitled to the statutory damage of 1k. You will probably still get the 1k.

The attorneys will get paid because the FDCPA allows for the attorneys of the plaintiff to be awarded reasonable attorneys fees. So your attorneys might get 10k in attorneys fees while you get 1k in statutory damages.

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That's how it works - in my soon to be filed lawsuit, the CA violated 3 different ways - collection w/o validation, calling before 8am and using harassment in order to collect.

You would also have 3 "counts" and several violation inside of each of those counts. The simple fact is, each "count" is a separate cause of action. If the collector has made several phone calls then they have several violations for each "count"/cause of action.

The $1,000 statutory limit has already been broken concerning two Plaintiffs in one action. In Dowling v Kucker Kraus & Bruh the court opined:

The plain language of the FDCPA indicates that additional damages "in the case of any action by an individual" shall not exceed $1,000.00. 15 U.S.C. ? 1692k(a)(2)(A) (emphasis added). Other federal courts have held that the $1,000.00 damage cap of ? 1692k(a)(2)(A) applies to the maximum award of statutory damages that each plaintiff may be awarded when more than one plaintiff is entitled to statutory damages. See Howze v. Romano, No. 92 Civ. 644 (SLR), 1994 WL 827162, at *4 (D. Del. 1994) (awarding "the maximum statutory award of $1,000.00 per plaintiff" for a total of "$2,000.00 in additional statutory damages"); Beattie v. D.M. Collections, Inc., 764 F. Supp. 925, 928 (D. Del. 1991) (holding that "when violations of the FDCPA have been proved, 15 U.S.C.A. ? 1692k(a)(2)(A) provides for a single recovery of statutory damages per plaintiff per lawsuit" (emphasis added)); Whatley v. Universal Collection Bureau, Inc. (Fla.), 525 F. Supp. 1204, 1205 (N.D. Ga. 1981) (holding that damages under ? 1692k(a)(2)(A) "are limited to $1,000 per plaintiff" (emphasis added)). Further, that Congress provided in ? 1692k(a)(2)(B) of the statute for statutory damages "in the case of a class action" to include $1.000.00 "for each named plaintiff" as well as up to"$500.000 or 1 per centum of net worth of the debt collector" for the other class members further indicates that Congress intended to award statutory damages per individual plaintiff per proceeding. See 15 U.S.C. ? 1692k(a)(2)(B).

So, my wife and I are entitled to $1,000 each for the same violations the collector committed. If the court awards full damages then we should collectively get $2,000.

Our case is a little egregious. The well known JDB has violated hundreds of times over several years. We just got tired of blocking the phone calls so we decided to sue. We don't have a handful of violations...we have a barrel full. The FDCPA offers no punitive damages but limits the damages to the maximum $1,000 per action.

A "count" is a separate cause of action which asks for it's own separate damages.

I've got an email into the attorneys about why they went this route. I'm hoping that they have some case law to support their use of the "counts" as separate actions.

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A count is not necessarily a separate cause of action, although it can be. It can simply be a separate violation of the statute being sued under. I think what they are doing is exactly that. They are listing each violation separately; in case they get a negative ruling on one, they can still prevail on the other dozen. You'll still get your grand. I don't think you'll each get a grand.

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Like I said, I've got an email into their office. Usually they are pretty quick to reply but this time I'm still waiting. It's possible that one of the junior members is trying something new.

It really does make sense to me but I don't have any legal references to support such an idea. However, the case law I just posted, which cites several other supporting cases, suggests that my wife and I should each get damages up to the $1,000 mark. The problem is that the claim does not specifically ask for dual damages. I'll be asking them about that one too.

Anyway, I'll let you guys know what happens as the whole lot of us suing folk could use the extra money if this thing pans out.

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