Don't get mad, get even

Posted by observer (205.188.208.41) on June 12, 2003 at 23:06:04:

Start documenting FDCPA violations and then lawyer up. You may only win a $1000 but, the FDCPA allows your lawyer to recover his/her fees as the collection agency learned the hard way in this case.

http://www.law.com/jsp/article.jsp?id=1036630505741

Small-Print Caveat on Dunning Notice Warrants Attorney Fee Award
Charles Toutant
New Jersey Law Journal
12-02-2002

The Federal Debt Collections Practices Act permits award of attorneys fees even without a showing that a defendant is liable for actual or additional damages, a federal judge ruled Nov. 14.

U.S. District Judge John Bissell in Newark, N.J., assessed $16,257 in counsel fees against DRL Associates, a Hackensack debt collector that had sent out a dunning notice on which mandatory debtor-rights language was printed in a typeface so small that it was "virtually unreadable." In an earlier ruling, Bissell found that the letter violated the act, 15 U.S.C. 1692.

The lawyer for the collector, Scott Piekarsky, a partner at Wayne's DeYoe, Heissenbuttel & Piekarsky, claimed in court papers that counsel fees may not be awarded under the act unless the defendant is liable for the plaintiff's actual damages on top of the statutory amount. The debtor-plaintiff, Frank Garatina, did not seek actual damages.

Bissell found that argument unconvincing and contrary to Third Circuit precedent. He quoted from Graziano v. Harrison, 950 F. 2d 107 (1991), which observed that "attorney's fees should not be construed as a special or discretionary remedy; rather, the Act mandates an award of attorney's fees as a means of fulfilling Congress's intent that the Act should be enforced by debtors acting as private attorneys general."

Using the lodestar method, Bissell awarded $16,257 of the $19,000 sought by Garatina's lawyer, Nicholas Fitgerald of Jersey City's Fitzgerald & Associates.

In addition, Bissell found Garatina was entitled to the maximum statutory damages of $1,000 provided under 15 U.S.C. 1692k, finding that DRL's violations had been "frequent, intentional and persistent." On that point, DRL was hoisted by its own petard, since it admitted sending Garatina not one but four letters and also submitted as exhibits identical letters sent to other debtors.

Bissell said he wasn't persuaded by DRL lawyer Piekarsky's argument that the violation of the act was technical and unintentional, saying, "rather, it appears to have been defendants' regular business practices, at least for the duration of the instant litigation."

The letter to Garatina, which sought recovery on the unpaid dental bill, contained wording in large print urging him to act in 10 days. The statute mandates that collection letters advise debtors they have 30 days to act, and that portion of the letter was in miniscule type, says Susan Weiswasser, a New York solo practitioner who assisted Fitzgerald on the Garatina brief. Courts have held that such conflicting statements could confuse the average person and therefore violate the act, says Weiswasser.

Neither Piekarsky nor Fitzgerald returned calls requesting comment.

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