Stating an Amount for Actual Damages

[Coltfan1972]

Trying to cover all my bases here. In my suit I listed for actual damages, amount proven at trial.

The only amount I ask for with a specific number is 1K in statutory damages. In the unlikely event the Defendant does not answer and I win by default. Would I not be limited to the 1K.

I don't want to look like a nut and pray for a million dollars, but would it be smart to list an amount that I know I would never get at trial or settlement, like 20K in the even there is a default.

In reading the rules, it states that after no answer by the Defendant the Plaintiff would have to file a new pleading for relief and then again serve the pleading on the Defendant.

I know this will probably not come into play but just thinking if I was getting sued and it only listed 1K, I might just default and that would make sure 1K was all that was awarded.

Thanks to anybody with advice on this issue.

[BV80]

I don't know if this helps, but if you're referring to punitive damages, here's an excerpt from Loftis v. CREDIT ACCEPTANCE CORPORATION, Dist. Court, ED Arkansas 2011:

H. Punitive Damages

CAC and Hosto argue that Loftis's claim for punitive damages must be dismissed because: (1) the recovery of punitive damages relies on the recovery of actual damages, and Loftis has not sufficiently alleged actual damages; and (2) Loftis has not met the requirements for the recovery of punitive damages under the Civil Justice Reform Act of 2003 ("CJRA"), Ark. Code Ann. § 16-55-206. As stated above, Loftis has sufficiently alleged actual damages. Therefore, the only issue is whether the amended complaint adequately sets forth grounds to meet the requirements for recovery under the CJRA.

To recover punitive damages, the CJRA requires not only that the plaintiff prove actual damages, but also that one or both of the following aggravating factors is present:

(1) The defendant knew or ought to have known, in light of the surrounding circumstances, that his or her conduct would naturally and probably result in injury or damages and that he or she continued the conduct with malice or in reckless disregard of the consequences, from which malice may be inferred; or

(2) The defendant intentionally pursued a course of conduct for the purpose of causing injury or damage.

Ark. Code Ann. § 16-55-206.

Loftis responds that dismissal of his claim for punitive damages would be premature because it is up to a jury to determine if aggravating factors are present. In his amended complaint, Loftis states "n addition to the compensatory damages for the actual losses sustained by Loftis because of the conduct of the Collectors, were intentional, willful, wanton, reckless and done with conscious indifference to the consequences, thereby entitling Loftis to punitive damages." Amended complaint, ¶ 99. Loftis has not sufficiently pled punitive damages. His claim for such is therefore dismissed.

[Coltfan1972]

No, I'm not arguing punitive damages, but I'm arguing actual damages. I know I can't pull off punitive damages. However, thank you for taking the time to find that case and post it. I know it was probably not something you just had handy, thanks for your time.

[BTO429]

For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.

Be extremely subtle, even to the point of formlessness. Be extremely mysterious, even to the point of soundlessness. Thereby you can be the director of the opponent's fate.

victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.

If your enemy is secure at all points, be prepared for him. If he is in superior strength, evade him. If your opponent is temperamental, seek to irritate him. Pretend to be weak, that he may grow arrogant. If he is taking his ease, give him no rest. If his forces are united, separate them. If sovereign and subject are in accord, put division between them. Attack him where he is unprepared, appear where you are not expected.

Some words of wisdom

Edited March 30, 2012 by BTO429

[legaleagle]

Actual damages usually means real money you lost as a result of the conduct. Having someone file a frivolouus lawsuit won't fly unless it cost you a bunch of money to defend it. I don't see where the statute you are using provides for punitive damages as it is already punitive in nature. I think you want to milk this for a bit more than it is worth, which I understand, but a judge will view it differently. Also, is there a link established in law for this? We discussed this before. I can visualize them arguing that the underlying bais of your complaint is that they are not licensed as debt collectors in your state, therefore they have no legal right to attempt collections, which is the FDCPA violation we discussed. They may say that you are invoking a state law to enforce a federal statute which contains no licensing language and therefore, your suit is improper and has no private right of action attached. I'm with you on this, I just want to play devil's advocate and make sure we have all the bases covered. Here, you'd have a lot of fun with this, it is a clear violation of the unfair trade practices act. Yours covers advertising only and is only enforceable in conjunction with the AG.

[Coltfan1972]

You guys are confusing actual damages with punitive damages. I know I can't get punitive damages, in fact, I've not even asked for puntive damages. Actual damages include emotional distress.

All I'm trying to avoid is them just taking a default so they can save all their money and just cut a check for 1K. I know this is not a gold mine. I'm doing most of it for sport.

I had the offer to be the class representative to go class action with this. So if I was looking to stay out of court, I'd just let that law firm handle it. I actually want them to fight, I'm looking for ways to force them into the courtroom and not just get out cheap.

I understand an FDCPA case on a licensing issue is not a huge money maker, but I don't want them getting out for a quick 1K. Plus I want a court record and I also want that declatory ruling. On a side note, I have three other FDCPA stand alone violations that have zero to do with state laws, so all my eggs are not in the licensing issue basket. However, it is my main argument.

I'm just wondering if I should list an amount under actual damages, like 10K, in the unlikely event they don't answer.

Edited March 30, 2012 by Coltfan1972

[admin]

I think you're going to have to prove pain and suffering - not sure how you would do this. Putting a price tag on these kinds of intangibles is tricky.

[Coltfan1972]

I think you're going to have to prove pain and suffering - not sure how you would do this. Putting a price tag on these kinds of intangibles is tricky.

I know, I know, I'm just wondering if I should list an amount. I know how to go about proving the claims. I've got that taken care of. I know the price tag is tricky and the exact reason I listed damages "As proven at trial."

However, if there is no trial because they don't answer the suit? That is where I'm wondering if I should throw in an amount. The flip side is what you just posted. If I do, then I open myself up to "how did you get to this amount." Which is not a huge deal, but I like the unknown. In other words, let's roll the dice and have a trial. Let's let a jury set the price tag.

[usagi555]

I would think that you could set the amount of damages in your motion for default judgment if they fail to respond, but I haven't looked into this much myself.

[bad98roadster]

There's some amounts awarded in the cases listed below. Perhaps you could list similar amounts based on those precedents.

http://www.edcombs.com/CM/Custom/8art.new_4.pdf

E. 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).

The amount of a valid debt does not constitute actual damages. Wiginton v. Pacific Credit Corp., 2 Haw. App. 435, 634 P.2d 111, 118 (1981). However, if it is time-barred it is actual damages. Gervais v. O’Connell, Harris & Assoc., 297 F.Supp.2d 435 (D.Conn. 2003).

Actual damages include emotional distress. The debt collector may be held "liable for any mental and emotional stress, embarrassment, and humiliation caused" by improper debt collection activities. Kleczy v. First Federal Credit Control, Inc., 21 Ohio App.3d 56, 486 N.E.2d 204, 207 (1984); Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671 (Minn. Ct. App. 1984);Baez-Martinez v. PMS, 95-1409(CC), 1997 U.S. Dist. LEXIS 3314 (D.P.R. 1997); McGrady v.Nissan Motor Accep. Corp., 40 F.Supp. 2d 1323 (M.D.Ala. 1998); Carrigan v. Central Adjustment Bureau, 502 F.Supp. 468 (N.D. Ga. 1980); Rawlings v. Dovenmuehle Mtge, Inc., 64 F.Supp.2d 1156 (M.D.Ala. 1999).

State law requirements regarding the proof of intentional or negligent infliction of emotional distress are not applicable to actual damages under the FDCPA. Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182, 185 (D.Del. 1991); Howze v. Romano, 92-644, 1994 WL 827162, 1994 U.S. Dist. LEXIS 20547 (D.Del. Dec. 9, 1994); Crossley v. Lieberman, 90 B.R. 682 (E.D.Pa.1988), aff'd, 868 F.2d 566 (3d Cir. 1989); Teng v. Metropolitan Retail Recovery, 851 F.Supp. 61, 68-9 (E.D.N.Y. 1994); Donahue v. NFS, Inc., 781 F.Supp. 188, 193-4 (W.D.N.Y. 1991).

Awards in harassment cases:

1. Panahiasl v. Gurney, 04-4479, 2007 U.S.Dist. LEXIS 17269 (N.D.Cal.,March 8, 2007): $50,000 to one plaintiff and $10,000 to another for repeated telephone abuse, upon testimony of embarrassment, fear, anger, panic,humiliation, nervousness, crying fits, difficulty eating and sleeping, and diarrhea.

2. Robertson v. Horton Bros. Recovery, 02-1656, 2007 U.S.Dist. LEXIS 48602 D.Del. July 3, 2007). $75,000 actual damages awarded for receipt of threatening and vulgar calls, visits.

3. Southern Siding Co. v. Raymond, 703 So.2d 44 (La.App. 1997) ($5,000 actual and $2,000 statutory damages awarded to husband and wife under FDCPA for emotional distress upon proof of undue street, anxiety, sleeplessness, and depression after receipt of threatening letter).

4. Venes v. Professional Service Bureau, 353 N.W.671 (Minn. App. 1984) ($6,000 for stress caused by telephone harassment).

5. Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182 (D.Del. 1991) ($3,000 for emotional distress).

[Coltfan1972]

Thank you BadRoaster.

State law requirements regarding the proof of intentional or negligent infliction of emotional distress are not applicable to actual damages under the FDCPA. Smith v. Law Offices of Mitchell N. Kay, 124 B.R. 182, 185 (D.Del. 1991); Howze v. Romano, 92-644, 1994 WL 827162, 1994 U.S. Dist. LEXIS 20547 (D.Del. Dec. 9, 1994); Crossley v. Lieberman, 90 B.R. 682 (E.D.Pa.1988), aff'd, 868 F.2d 566 (3d Cir. 1989); Teng v. Metropolitan Retail Recovery, 851 F.Supp. 61, 68-9 (E.D.N.Y. 1994); Donahue v. NFS, Inc., 781 F.Supp. 188, 193-4 (W.D.N.Y. 1991).

This is 100% what I got the judge to overrule himself on when he granted summary judgment, in my last case, for emotional distress. My state law has this provision but the FDCPA does not require teh intentional aspect, in order to get emotional damages.

The judge reconsidered and issued a new order reinstating the emotional distress claim.

That is why I want to possibly put a figure so they don't try a cheap default and then try to just cut a 1K check. I know I won't get much more but I plan on driving them crazy in court for as long as they want to play.

[legaleagle]

I think that if you do include an amount, they will not roll over for a 1G default. They may not have that option. They can't pick and choose what damages they feel like paying. The other side of that is that at trial they will force you to prove your damages. You can force a trial by stating an amount, but it's like your theory of special defenses; you've just flipped the burden of proof to yourself. The case law Badroadster posted looks good, it may come down to what judge you get. Arn Anderson would be great, but I don't think he sits on the bench. You should read those cases above to see what the requirement was for the amount sought. I never looked at federal suits, but perhaps there is something like civil, where you simply state an amount above or below a certain threshold and leave it up to the court.

[Coltfan1972]

I don't plan on getting awarded emotional distress. I'm fine with that. I'm just looking for a way to make sure I can force them to fight me. They are going to look for a cheap way out. That is not happening.

The more I think about it, the request for the dec ruling should make them want to answer the suit. They are not going to want to default on a suit where I'm asking the court to rule they are in violation of a state collection law.

Thanks for the advice. I know my question is a little odd, in that I'm looking for ways to force them into a courtroom and forcing them to fight me.

[RockDaddy]

For to win one hundred victories in one hundred battles is not the acme of skill. To subdue the enemy without fighting is the acme of skill.

Be extremely subtle, even to the point of formlessness. Be extremely mysterious, even to the point of soundlessness. Thereby you can be the director of the opponent's fate.

victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.

If your enemy is secure at all points, be prepared for him. If he is in superior strength, evade him. If your opponent is temperamental, seek to irritate him. Pretend to be weak, that he may grow arrogant. If he is taking his ease, give him no rest. If his forces are united, separate them. If sovereign and subject are in accord, put division between them. Attack him where he is unprepared, appear where you are not expected.

Some words of wisdom

Gunny,

I should have figured you for a Sun Tzu fan.

Extra respect from this northern boy with the same mindset.

Check my signature.

Colt,

I'm with you on this; I like the unknown. In other words, let's roll the dice and have a trial. Let's let a jury set the price tag.

It's just getting them in the room ya know.

-RD

Edited March 31, 2012 by RockDaddy

[Coltfan1972]

It's just getting them in the room ya know.-RD

Yes, it sounds strange to look for ways to make them fight. They want to talk about all these things that will happen when they do this or that in court, or how the judge is going to do this or that and how much it will cost.

However, look at all the threads where when faced with opposition, they just tuck tail and run. I know a lot are not exaggerations, because I've seen the pleadings.

I want these jokers in the courtroom. I want to force them to trial, like I did about four years ago. I bullied them to the point where they were forced to trial.

Then the bomb dropped and made it all worth the time and effort. The most epic....

And all they (yes they as in more than one attorney to face a pro-se that never stepped foot in a law school) could do was stand there and do nothing about it. In other words, I'm going to beat the dog crap out of you and you can't do a damn thing about it, other than just sit there and watch. Try to stop me, it just makes it that much sweeter.

Also, if you don't believe me that I'm going to win. Just ask me, I'll be more than happy to tell you.

Edited March 31, 2012 by Coltfan1972