11.5 Remedies

• Library: Enforcement of Liens and Judgments in Virginia (Virginia CLE) (2019 Ed.)

11.5 REMEDIES

11.501 Civil Liability.

A. Individual Actions. The FDCPA provides substantial penalties for violations of its provisions. These include actual damages, ¹⁵⁰ "additional damages" of up to $1,000, ¹⁵¹ and costs and attorney fees. ¹⁵²

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As noted above, there has developed an interesting, if ominous, split of authority in the courts as to whether a shareholder, officer, or employee of a corporate debt collector may be held personally liable without meeting the requirements necessary to pierce the corporate veil. ¹⁵³

B. Class Actions. In addition, the FDCPA provides for damages in a class action of (i) $1,000 per plaintiff and (ii) "such amount as the court may allow for all other class members . . . not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector." ¹⁵⁴

C. Strict Liability. The FDCPA is a strict liability statute. Subject to the available defenses discussed in paragraph 4.6 below, a consumer need not show intentional conduct by the debt collector to be entitled to recover damages. ¹⁵⁵

D. Recovery of Costs by Prevailing Defendant. The Supreme Court resolved a split in the circuit courts in 2013, holding that a prevailing defendant in an FDCPA case may be awarded costs, even where the lawsuit

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was not brought in bad faith and for the purpose of harassment, under Federal Rule of Civil Procedure 54(d)(1). ¹⁵⁶

11.502 Administrative Enforcement. Administrative enforcement of the FDCPA is by the Federal Trade Commission and other agencies (including, since 2010, the Consumer Financial Protection Bureau) ¹⁵⁷ as defined in 15 U.S.C. § 1692 l.

11.503 Equitable Relief. Equitable relief under the FDCPA, including injunctive relief, is not available to individuals ¹⁵⁸ but is available to the Federal Trade Commission and to the Consumer Financial Protection Bureau. ¹⁵⁹

11.504 Setoff. Where the debt collector and the creditor are the same entity, the liability arising from a claim under the FDCPA appears to meet the requirement for "setoff" as that term has been defined by the Supreme Court of Virginia. ¹⁶⁰ Setoff does not apply where the debt collector and the creditor are not the same, because the liability under the FDCPA is the debt collector's, not the creditor's.

11.505 Jurisdiction.

A. Federal Question. The FDCPA is enforceable in the United States district courts under federal question jurisdiction or "in any other court of competent jurisdiction." ¹⁶¹

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B. Concurrent State Jurisdiction. The FDCPA is regularly raised as a defense in state court. In the few states where state court jurisdiction has been litigated, the result has been to find concurrent state court jurisdiction to enforce the FDCPA. ¹⁶² The Ninth Circuit held that the FDCPA did not preempt state law and, further, upheld an award of duplicate damages to class action plaintiffs under the FDCPA and a corresponding California statute. ¹⁶³

C. Bankruptcy Court Jurisdiction. In bankruptcy cases, actions to enforce the FDCPA are not "core" proceedings under 28 U.S.C. § 157(b)(2) but are "related" proceedings under 28 U.S.C. § 157(c)(1). ¹⁶⁴ The Ninth Circuit has held that, for conduct regulated by the Bankruptcy Code, the Code is the exclusive remedy for debtors. ¹⁶⁵ Preclusion likely does not apply to post-petition actions not regulated by the Bankruptcy Code. The Seventh Circuit has held that a debtor can make an FDCPA claim for a creditor's alleged violations of the discharge injunction. ¹⁶⁶

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11.506 Standing. Standing for a claim for violation of the FDCPA is personal or as a class representative, as discussed above. "Constitutional standing" requires that the plaintiff demonstrate that

(1) it has suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. ¹⁶⁷

11.507 Right to Jury Trial. In Kobs v. Arrow Service Bureau, Inc., ¹⁶⁸ the court held that the Seventh Amendment guarantees a jury trial to a debtor who brings an action under the FDCPA. The Eighth Circuit has held that a debt collector may enforce an arbitration clause in a credit card agreement. ¹⁶⁹

11.508 Statute of Limitations. The statute of limitations for civil actions is one year, ¹⁷⁰ but there is an exception for a trustee or debtor in possession in a bankruptcy case. ¹⁷¹

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Notes:

^[150] 15 U.S.C. § 1692k(a)(1). "Actual damages" may include emotional distress. Lodge v. Kondaur Capital Corp., 750 F.3d 1263 (11th Cir. 2014) (citing Fleet Mortg. Grp., Inc. v. Kaneb, 196 F.3d 265, 269-70 (1st Cir. 1999) (applicable to a violation of the automatic stay in bankruptcy); Young v. Repine (In re Repine), 536 F.3d 512, 521-22 (5th Cir. 2008); Dawson v. Washington Mut. Bank, F.A. (In re Dawson), 390...