FDCPA per action or per violation [fdcpa violations] [finance serv]

In an effort to gain more leverage for FDCPA violations, my studies have taken me through the following maze of information:
Only 2 U.S. Courts of Appeals that I know of have ever ruled on this issue: 6th and 11th.
6th Circuit
In Wright v. Finance Serv. of Norwalk Inc, the 6th Circuit (MI, OH, KY, TN) rejected the construction that statutory damages exceeding $1k were available in a suit engaging multiple violations of the FDCPA. Wright actually first tried her case in the Northern District of Ohio where she proved 14 FDCPA violations.
6th Circuit Summary
1. Plainly stated. The court found the language to be plain, in favor of a per action award.
2. Congress certainly knows how to write statutes that make each separate violation subject to a separate penalty, or even that make each separate day of a violation a separate offense subject to a separate penalty.
3. Parallels to TILA 1640(a)(2)(A)(i) and the Clean Water Act 1319d.
4. Other sections of FDCPA support conclusion–namely 1692kb1.
5. Per violation creates egregious anamoly. "an individual plaintiff could recover more in damages than a similarly situated plaintiff representing a class of claimants."
11th Circuit
The 11th Circuit (AL, GA, FL) ruled the same in Harper v. Better Bus. Servs., Inc. Here, Harper actually had 7 violations that were first tried in the Northern District of Georgia, but didn't claim any actual damages. Harper argued that the FDCPA authorizes additional damages of either $1,000 per violation of the statute, or $1,000 per improper communication, or $1,000 per alleged debt.
Harper cited 3 cases. Kaschak v. Raritan Valley Collection, Civil No. 88-3763 (D.N.J. 1989); Ewing v. Messerli, Civil No. 87-5036 (D.S.D. 1988), and Florence v. National Systems, Civil No. C82-2020A (N.D.Ga. Shoob, J. 1983). The court stated, "Harper has failed to make the required clear showing that the legislature intended anything other than a $1,000 per action limitation." The court ruling repeated the importance of legislative intent twice. Apparently, if Harper had argued in more depth how legislative intent allowed for per violation award of statutory damages, Harper may have won.
11th Circuit Summary
1. Plainly stated–"The FDCPA does not on its face authorize additional statutory damages of $1,000 per violation of the statute, of $1,000 per improper communication, or of $1,000 per alleged debt."
2. Congress would have plainly stated per violation award–"If Congress had intended such limitations, it could have used that terminology."
my editorial
So I found that the 6th Circuit went into more detail than the 11th in it's decision. However, I did find that in the 6th Circuit, Judge Nathaniel Jones dissented.
Judge Nathaniel Jones' "Distinguishing Clause" Argument Summary
1) Quotes 1692k(a)
2) How majority interpret language of 1692ka2a
3) How to divine the true meaning of a statute
A. CONTEXT KEY–language must not be read in isolation, but in context furnished
B. Oates v. Oates, 866 F. 2d. 203, 206 (6th Cir.)
C. 490 U.S. 1109, 109 S.Ct. 3163,104 L.Ed. 2d. 1025 (1989)
4) How to correctly interpret 1692k(a)(2)(A)in context
A. Distinguishing Clause. "is actually nothing more than a distinguishing clause meant to set off individual actions from class actions."
B. 1692k(a) covers civil liability in TWO contexts: individual actions and class actions.
C. Individual Actions under 1692k(a)(2)(A)
D. Class Actions under 1692k(a)(2)(
E. Differentiation Key to Understanding Phrase, "in the case of any action by an individual". The phrase is there to distinguish between individual and class actions.
F. Introductory Language of 1692K(a) important in context–language imposes liability on collector for violationsof act.
5)Legislative History Supports Conclusion
A. States Purpose of FDCPA to prevent abusive debt collection practices
B. The legislative history reveals a similarly broad desire to remedy debt collection abuse, which is a "widespread and serious national problem." S.Rep. No. 382, 95th Cong., 1st Sess. 2 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1696. Reading the statutory language to apply a per violation limit of $1000 would best serve these broad goals. However, the majority's holding today will likely achieve an opposite result.
Because Congress has designated consumers as the primary watchdogs over FDCPA violations, a per proceeding limit of $1000 unwisely frustrates the FDCPA's broadly stated goals. The meager financial benefit for bringing suits that the majority's holding imposes will discourage consumers from expending the energy necessary to pursue FDCPA claims.
Moreover, the majority's holding in the instant case invites an even greater harm. The majority's refusal to apply the $1000 limit to each violation illogically rewards unscrupulous collectors who, having engaged in an initial violation during attempts to collect on a particular debt, continue with their abusive practices. Applying a flat $1000 ceiling to any one proceeding, regardless of the number of violations involved, means that as the number of violations increases the cost per violation to the collector decreases. I cannot agree that this is a correct result; accordingly, I respectfully dissent.
Hope you guys didn't get too bored by all this. If any of you have circuit law I missed, please let me know. Thanks.
Now WHO will go on and use the Judge's argument?

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Best Answer: Film & Movie Finance.
ha ha ha
4 months free rent….and you want repairs…..
ha ha…ha
falling off my chair laughing………
maybe another 2 months free rent and you will see the humor…….
ha ha ha…..
you asking how long the landlord will give you free rent before he evicts you………
ha ha ha…….
it's how i read it..
so say.. (4 months x 1000 assumed rent = $4k)
ha ha ha…………..
and when your evicted….he will have to fix this stuff anyhow……..
know what..if that guy fixes this stuff and lets you stay……..you should really thank him…and stop calling him names..you got ap. $4,000 in free rent so far………
you will probably get another 2 or 3 more months rent..
my thought is the landlord is going to do a tear down..or rebuild..
be prepared for an eviction (it really isn't about the money for the landlord he will probably let you walk with the money..for being there for 13 years..just an opinion ) so keep the money..but be prepared…to move.
now how much longer…he will be making up his mind in the next 2 months…
so calm down…and don't try to force him..and you will probably be able to keep the already 4 months of rent..and maybe another 2 or 3..

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Finance Stress
Reply:stt…thanks

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How to buy owner financed homes
Reply:
I only can wish that MY $1000.00 was worth that much!!!!

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Personal Finance Software by Parcus Group
Reply:Ok, I really like the judges reasoning…Why wouldn't I?
The think here is to find a Federal Statute that is worded the same as the FDCPA "in the case of any action by an individual" and look up case law for that statute and see if it supports the judges opinion regarding the FDCPA

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Reply:Someone please give me some feedback here. I know I could be off the beaten path here and could really be off my rocker, but it's worth some thought (or so it seems).
I'm trying to state this argument as clearly as possible.
Argument as to why FDCPA is per violation as opposed to per action
1. The key statute of dispute is 1692k(a)(2)(A) with reference to the phrase, "in the case of any action by an individual." This is the statute that generates the debate, "per action, or per violation?"
2. 1692k(a)(2)(A) is really a DISTINGUISHING CLAUSE that separates the issues of individual versus class actions.
3. The context is key to propery interpretation of the statute. So first, get the bird's eye view and then sweep in for a more detailed exploration of the issue.
1692k deals with civil liability. It has five sections.
a) Amount of damages
b. Factors considered by court
c) Intent
d) Jurisdiction
e) Advisory opinions of the commission
4. Subsection (a) is divided into three sections. Section one is for any actual damages that occur as a result of,"any debt collector who fails to comply with ANY provision of this subchapter.". Section two is for the amount of those damages. Section two talks about how much the awards should be when, "any debt collector who fails to comply with any provision of this subchapter." is sued. Section two is divided into two sections. The first is 1692k(a)(2)(A) which addresses individual actions and the second section is 1692k(a)(2)B which addresses class actions.
The umbrella under which the word "action" in 1692k is defined originates in the words in 1692k(a), "any debt collector who fails to comply with any provision of this title with respect to any person is liable to such person…" Specifically the words, "any provision" open the interpretation to include multiple provisions and therefore multiple possible violations of multiple provisions. Since the word "action" in 1692k(a)(2)(A) modifies the phrase ,"any debt collector who fails to comply with any provision of this title with respect to any person is liable to such person…" in 1692k(a), it goes to follow that the word "action" as used in the context of individaul proceedings is meant to modify the violation of "any provision" in 1692k(a). Thus, each action is actually an "action" against a particular statutory violation.
Further, if you look at section C on Intent, you will see that the word "action" in the beginning of the section is modified by the singular use of the word "violation" in the end of the section.
So we have two arguments here. My belief is that if I can form a good argument as to why the interpretation of the FDCPA lends itself to a "per violation" as opposed to a "per action" basis, I could really leverage myself against a couple of CA's. They are already off my CR's, but their violations are still within the one year FDCPA sol. And if I add in some other arguments about how the purchasing power of 1K in 1977 is equal to $3165 in 2005 perhaps I can strengthen the argument. See this calculator as provided by the Federal Bureau of Labor Statistics
http://data.bls.gov/cgi-bin/cpicalc.pl
Additionally and more importantly, I still have to put together how legislative history supports the "per violation" argument as opposed to the "per action" argument.

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Tennis Bully: Deadly Tennis Serves System 2.0
Reply:Interesting, I can't retrieve it at West Law either–even with a credit card account. Got to try some other options later.

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Creative Financing Secrets.
Reply:
In your sig line, you refer to the West Capital Financial Services Corp. case. Do you have a copy of it? It has been removed from the Lexis database, but I would like to read it…

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Reply:
You can get it here

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Guerrilla Finance Quick Reference Guide
Reply:Wow Creditech,
Where did you get the case law information?

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Reply:Important stuff. Funny how the "tough on crime" gang is lining up to take a bite outta this kinda crime.
The FDCPA $1000.00 dollar amount has been eaten away by inflation.
Kinda paralells the contractor bond amounts here in California.
Guys are building very expensive houses with only a $10,000. performance bond.
Back when that amount was set it may have met something…not anymore.
*Hope I didn't say anything controversial(again). LOL

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