Question on Damages...

[1stStep]

So after being singled out by a CA for "special" treatment -which involved a complete steamrolling of my consumer rights, I am about to fire back...

I was wondering if there are any rights to private damages under the CROA... in one of ther "nice" letters, they wrote that if I made a payment, "my credit would improve and I could easily obtain a nice place to live, pay low insurance premiums, etc."

In my case, I am asking for declaratory judgment that they violated with that statement, but can I ask for money???

BTW - Colt, I will send you a copy of it soon...

[BrunoTheJDBkiller]

Credit Repair Organizations Act

SEC. 409. CIVIL LIABILITY.(13)

(a) Liability Established.--Any person who fails to comply with any provision of this title with respect to any other person shall be liable to such person in an amount equal to the sum of the amounts determined under each of the following paragraphs:

(1) Actual damages.--The greater of--

(A) the amount of any actual damage sustained by such person as a result of such failure; or

( any amount paid by the person to the credit repair organization.

(2) Punitive damages.--

(A) Individual actions.--In the case of any action by an individual, such additional amount as the court may allow.

( Class actions.--In the case of a class action, the sum of--

(i) the aggregate of the amount which the court may allow for each named plaintiff; and

(ii) the aggregate of the amount which the court may allow for each other class member, without regard to any minimum individual recovery.

(3) Attorneys' fees.--In the case of any successful action to enforce any liability under paragraph (1) or (2), the costs of the action, together with reasonable attorneys' fees.

( Factors to Be Considered in Awarding Punitive Damages.--In determining the amount of any liability of any credit repair organization under subsection (a)(2), the court shall consider, among other relevant factors--

(1) the frequency and persistence of noncompliance by the credit repair organization;

(2) the nature of the noncompliance;

(3) the extent to which such noncompliance was intentional; and

(4) in the case of any class action, the number of consumers adversely affected.

[1stStep]

Hmm... so what's a good dollar amount?

I was thinking of just asking for the declaratory damages and leave it at that since I am asking for FDCPA damages, FCRA damages and TCPA damages --totaling about $5k...

[BrunoTheJDBkiller]

In most cases like this there aren't really any extensive "actual damages." I would pursue the punitive damages angle and try to build a case based on their past behavior, which can be considered under ( 1 above. Punitive damages are designed to teach them a lesson so as to prevent them from doing this to somebody else. I'd request $100,000 just to get their attention. Oh, and in discovery see if they have liability insurance and how much.

I could easily obtain a nice place to live

So you're insinuating that I live in a dump, and giving you my money will magically allow me to improve my social status? How demeaning and insulting.

[1stStep]

I see where you're going Bruno - I would like enough to maybe get a date with Jesse Jane...

But on a serious note, these are my thoughts:

-ask for $9,990 in total damages... this keeps them from involving their insurance company (since their deductible is probably $10k) and the insurance company lawyers. That way, they feel the most pain - since this all comes out of pocket.

-ask for putative damages over and above statutory damages - my thinking is anywhere between $100k to $250k. This is going to require some work to prove.

Edited November 17, 2012 by 1stStep

[BrunoTheJDBkiller]

Yup, you're going to have to do some research on this bunch and see how many times they've been sued privately and / or by the FTC. That should be easy to find. I'm kinda partial to Phyllisha Anne LLC myself.

[BTO429]

Wherfore the Plaintiff prays for punitive damages and any actual or other damages as the court sees fit.

[1stStep]

Here's the prayer for relief from my soon to be filed complaint:

WHEREFORE, Plaintiff, 1ststep, respectfully requests judgment be entered against the Defendant, NATIONAL CREDIT SYSTEMS, INC. for the following:

AS TO COUNT I

53. Declaratory judgment that the Defendant’s conduct violated the Fair Debt Collection Practices Act;

54. Statutory damages in the amount of $1,000.00 pursuant to 15 USC 1692k.

AS TO COUNT II

55. Declaratory judgment that the Defendant’s conduct violated the Fair Credit Reporting Act;

56. Statutory damages in the amount of $1,000.00 pursuant to 15 USC 1688

AS TO COUNT III

57. Declaratory judgment that the Defendant’s conduct violated the Telephone Consumer Protection Act;

58. Statutory damages in the amount of $500.00 per phone call, pursuant to the Telephone Consumer Protection Act, 47 USC 227;

59. A finding that each phone call made to the Plaintiff shall be subject to treble damages, pursuant to 47 USC 227((l)(.

AS TO COUNT IV

60. Declaratory judgment that the Defendant’s conduct violated the Credit Repair Organization Act;

61. Having trouble calculating damages here

AS TO ALL COUNTS

62. Actual damages to be proven at trial;

63. Putative damages in the amount of $#### (I can't decide, but I want it to shock)

64. Costs pursuant to the Fair Debt Collection Practices Act, 15 USC 1692k;

65. Any other relief the Honorable Court deem just and appropriate.

[BrunoTheJDBkiller]

Anything with six figures usually breaks out the bong and the JD. You really want to retire on these bums, don't you. Can't say I blame you.

[BrunoTheJDBkiller]

Gee, looky here. These guys are VERY popular.

"NATIONAL CREDIT SYSTEMS, INC." - Google Scholar

[1stStep]

So I've had these guys messing with me for several months now... they've pulled all the stops since I disputed their alleged debt and won't roll over and pay.

This is the CA that gave me the title of "litigious consumer" when I filed a complaint with their state regulator.

I'm leaning towards $250k.... which allows me to head off to may Latin America Retirement Palace at an age younger than 40. On the other hand, if I ask for damages less than their insurance deductible, they can't go running off and getting that help...

[Rivertime]

-ask for $9,990 in total damages... this keeps them from involving their insurance company (since their deductible is probably $10k) and the insurance company lawyers. That way, they feel the most pain - since this all comes out of pocket.

Well, sort of...

I know someone who was involved with this situation on the other side. It was a truly bogus wrongful termination issue that their x-employee's attorney was threatening to sue them. They had coverage for the issue and the deductible was in fact 10K. The other side started out at 110K and my friend told them to go pound sand. The offers to NOT file suit kept going down.

This is kind of a long way of getting around to letting you know that the insurance company kept pressuring my friend to settle and he kept refusing all the wile knowing that the first 10K was coming out of his pocket. Well, here's the nugget, the insurance company felt so strongly to settle at what they called a "nuisance" value which if I recall correctly was in the 15 to 30K area, you know, to make it go away, that if my friend continued to refuse to settle they (the insurance company) may enact what they affectionately called the "nuclear" option. What that meant was that if their client (my friend) continued to refuse the advice of their counsel and not settle, they had the option of walking away from the entire matter without any exposure. That would have left my friend to not only pay for the entire defense himself, but also pay any award that may have been handed out. So getting the insurance company involved could be a very good thing.

Just an fyi, hope it helps,

rt

[1stStep]

Ah - I see your point there too... so I guess I should go for the gold on this then? Maybe ask for $250k, settle for $30k and head off into the sunset?

[BTO429]

I was taught in school to ask at least twice what you think you can get.

[Rivertime]

Ah - I see your point there too... so I guess I should go for the gold on this then? Maybe ask for $250k, settle for $30k and head off into the sunset?

That would be the Florida sunset...

By the way, in the above described scenario, there wasn't even a case filed yet. This all happened under the threat of filing a wrongful termination case.

Just so you know the end of the story, I just know y'all are dieing to know how it turned out, my friend continued to tell them to go pound sand and they eventually went away.

[BV80]

Did you utilize the services of a credit repair organization? That's the purpose of the act. It's not about collection agencies.

SEC. 402. FINDINGS AND PURPOSES.(3)

(a) Findings.--The Congress makes the following findings:

(1) Consumers have a vital interest in establishing and maintaining their credit worthiness and credit standing in order to obtain and use credit. As a result, consumers who have experienced credit problems may seek assistance from credit repair organizations which offer to improve the credit standing of such consumers.

(2) Certain advertising and business practices of some companies engaged in the business of credit repair services have worked a financial hardship upon consumers, particularly those of limited economic means and who are inexperienced in credit matters.

( Purposes.--The purposes of this title are--

(1) to ensure that prospective buyers of the services of credit repair organizations are provided with the information necessary to make an informed decision regarding the purchase of such services; and

(2) to protect the public from unfair or deceptive advertising and business practices by credit repair organizations.

[Coltfan1972]

I got your complaint and sent you back an email.

I can tell you I just got disclosures in my federal suit and it is required by the federal rules to provide the insurance policy. Ten 10K is indeed the deductible in my case. However, the insurance had to approve the attorney the losers, I mean other side, is using.

It's like a 10K deductible but the losers are still calling the shots and when the losers feel they are going to risk more than 10K exposure they actually pay the insurance 10K to take over the handling. There was about a five page letter to the losers from the insurance company. A ton of reserving rights. The policy limit is 100K and the coverage is for everything other than punitive damages.

Obviously this is just one case and one policy but it was an interesting read. Naturally I need the whole policy not just a letter from their carrier. They are now in the process of getting it and forwarding it to me. Just trying to get along and work with the other side as usual.

Also first, ask for their internal notes in your collection file. I got them from the other side and they just hang them. That is going to be one of my strongest pieces of evidence. They actually have notations of "received refuse to pay letter because.... and wrote out the letter. Then a few weeks later have a notation of sent follow up collection letter a-3.1

I think these clowns are really thinking they are going to get off this case using unclean hands.

[1stStep]

@BV80- my thinking is that when they sent the nice letter, they exposed themselves as a CRO... they wrote that if i paid, my credit would improve and i could enjoy "good loan rates and have a nice place to live." Personally, i like my trailer in the desert...i sit on the porch, chew and drink beer - at least thats what i want them to believe...

@Colt- got your email and i am making edits...your info regarding the insurance is interesting, i will bet that my opponent has a similar policy, since theres only a few carriers that insure CAs.

[1stStep]

So here is what I am thinking...

For everything under the CROA - I will ask for declaratory judgment that the language in the letter violates. I won't ask for damages under it...

Instead I will ask for putative damages if $25k.

Thoughts anyone?

[BrunoTheJDBkiller]

I would ask for the limit of their policy. That may require an amendment to the complaint. BV80 made a good point....you know their first response will be that they are a collection agency and not a credit repair agency. Maybe you should add some other statutory violations that do apply to CAs.

Edited November 19, 2012 by BrunoTheJDBkiller

[1stStep]

I have not filed the complaint yet - I know that policies covering CAs often do not cover putative damages.

FDCPA/FCRA/TCPA and state violations are covered in those policies... putative ones come out of thier pocket directly.

[1stStep]

So the complaint is for:

1. Violation of the FDCPA (collecting after demand for validation, overshadowing, unfair means to collect, threatening to sue (even though they never sued in my county))

2. Violation of the FCRA (not marking their TL as disputed)

3. Violation of the TCPA (autodailed calls to my cell phone)

4. Violation of the CROA (in a letter, they write that if I pay them, my credit would improve - we all know that that is not the case)

So the CROA is more like a pasta allegation - throwing up and hoping it sticks. Plus it becomes one more per-se violation of the FDCPA (false and misleading since they don't know if my credit score improves if I pay).

[BrunoTheJDBkiller]

Well, like you said, put it all out there and see what happens. Hope you win, then you know who may just agree to accompany you to your new home. Watch where you go. It ain't as nice as they make it look. I would stay in the US.

[1stStep]

If I win, then I'd go on a vacation to Hawaii... send pics to the CEO and write "Thanks" on each of them...