What Are “Actual Damages” Under the FCCPA and the FDCPA?
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The Florida Consumer Collection Practices Act (FCCPA) and the Fair Debt Collection Practices Act (FDCPA) are two pro-consumer statutes. Businesses should be aware of each statute and how to defend against such claims. Many times, consumer lawyers bring claims for technical violations of the statutes, or even when there has not been a clear violation of the statutes, in an effort to recover attorneys’ fees from the business similar to a shake-down situation. When that happens, businesses need to be aware of their rights and the potential exposure under the FCCPA and the FDCPA.
One of my prior articles provided a general overview of the difference between the FCCPA and the FDCPA. See What is the Difference Between the FDCPA and the FCCPA? | Jimerson Birr (jimersonfirm.com). This article seeks to further explore the damages available under the FCCPA and the FDCPA.
What damages are available under the FCCPA and the FDCPA?
Both the FCCPA and the FDCPA provide for the same or similar elements of damages for a violation of the statute. Specifically, a successful plaintiff is entitled to recover: 1) actual damages; 2) statutory damages up to $1,000.00; and 3) attorneys’ fees and costs. §559.77(2), Fla. Stat.; 15 U.S.C. § 1692l(a). Injunctive relief and punitive damages are also potential elements of damages under the FCCPA. §559.77(2), Fla. Stat.
This article seeks to explore what constitutes “actual damages” under the FCCPA and the FDCPA. My next article will explore what constitutes “statutory damages” under the FCCPA and the FDCPA.
What are “actual damages” under the FCCPA and the FDCPA?
“Actual damages” include damages for humiliation, fear, anxiety, emotional distress, stress, and sleeplessness. Goodin v. Bank of America, N.A., 114 F. Supp. 3d 1197, 1211 (M.D. Fla. 2015) (holding a plaintiff may recover actual damages for emotional distress, including stress, anxiety, and sleeplessness under the FDCPA and FCCPA); Fini v. Dish Network L.L.C., 955 F. Supp. 2d 1288, 1299 (M.D. Fla. 2013) (finding a plaintiff can recover damages for emotional distress under the FCCPA); Barker v. Tomlinson, No. 8:05-CV-1390-T-27EAJ, 2006 WL 1679645, at *3 (M.D. Fla. June 7, 2006) (awarding actual damages of $10,000 under both the FCCPA and the FDCPA for fear, anxiety, embarrassment, and emotional distress caused by the defendant); Rodriguez v. Florida First Fin. Grp., Inc., No. 6:06-CV-1678-ORL-28DAB, 2009 WL 535980, at *6 (M.D. Fla. Mar. 3, 2009) (awarding $1,000 in actual damages where the plaintiff suffered three panic attacks after the defendant threatened that she could go to jail, threatened to send a deputy to her house, and told her daughter that her mom would be arrested).
Proving “actual damages” under the FCCPA and the FDCPA
In order to recover actual damages under the FDCPA or the FCCPA, the burden is on the plaintiff to prove such damages. See Baumann v. Prober & Raphael, No. 6:15-CV-1951-ORL-40GJK, 2017 WL 10350673, at *3 (M.D. Fla. May 17, 2017) (holding plaintiff was not entitled to actual damages for “physical or emotional pain and suffering, loss of consortium, loss of reputation, hedonic damages or loss of enjoyment of life” because plaintiff provided no evidence or any other explanation showing where his alleged damages came from, how they were calculated, or how they were caused by the defendant’s conduct); Titus v. Commercial Recovery Sys., No. 8:13-CV-00567-T-27AEP, 2014 WL 55016, at *2 (M.D. Fla. Jan. 7, 2014) (holding plaintiff was not entitled to actual damages for mental anguish because she failed to supply any competent evidence, such as medical records or expert testimony, that would support her claim).
“Emotional distress must have a severe impact on the sufferer to justify an award of actual damages.” Alecca v. AMG Managing Partners, LLC, No. 3:13-CV-163-J-39PDB, 2014 WL 2987702, at *2 (M.D. Fla. July 2, 2014). As such, a number of courts have declined to award damages for emotional distress where the plaintiff’s testimony was not supported by medical bills. See, e.g., Lane v. Accredited Collection Agency Inc., No. 6:13-CV-530-ORL-18, 2014 WL 1685677, at *8 (M.D. Fla. Apr. 28, 2014) (adopting a report and recommendation recommending no actual damages despite testimony that the plaintiff suffered nervousness, anxiety, and sleeplessness); Marchman v. Credit Solutions Corp., No. 6:010-CV-226-ORL-31, 2011 WL 1560647, at *10 (M.D. Fla. Apr. 5, 2011) report and recommendation adopted, No. 6:10-CV-226-ORL-31, 2011 WL 1557853 (M.D. Fla. Apr. 25, 2011) (awarding no actual damages where the plaintiff testified that she spent nights awake with worry and was withdrawn and depressed but did not provide evidence she required medical or professional services).
Indeed, both courts and juries have rejected claims for emotional distress in cases involving serious FDCPA violations. See Montgomery v. Florida First Fin. Grp., Inc., No. 6:06–CV–1639-ORL-31KR, 2008 WL 3540374, at *9 (M.D. Fla. Aug. 12, 2008) (adopting a report and recommendation recommending no actual damages despite the defendant threatening six times, to plaintiff, plaintiff’s daughter, and plaintiff’s mother, that the defendant would have plaintiff arrested, and despite plaintiff’s testimony she was scared and struggled to sleep for fear that she would be arrested); Jordan v. Collection Services, Inc., Case No. 97-600-CA-01, 2001 WL 959031 (Fla. 1st Cir. Ct. April 5, 2001) (jury awarded no damages despite defendant’s debt collection calls that threatened, amongst other consequences, that a hospital would refuse to admit plaintiffs’ ill child if they did not pay their debt).
Examples of where “actual damages” were awarded
Additionally, it should be noted that the majority of cases where actual damages are awarded include gross allegations of harassment, threats, and what may shock the conscious of many people. These cases do not typically involve what could be characterized as a technical or ticky-tack violation of the FCCPA or the FDCPA.
For example, in Goodin v. Bank of America, N.A., 114 F. Supp. 3d 1197, 1213 (M.D. Fla. 2015), the plaintiffs were each entitled to $50,000 in actual damages for emotional distress for the defendant’s violations of the FDCPA and the FCCPA. Critically, the Court provided that the plaintiffs must prove the damages they suffered as a result of the alleged FCCPA and FDCPA violations and not relating to any other aspects of the Bank’s improper servicing of the plaintiffs’ account. Id. The plaintiffs alleged that the defendant sent statements misstating the balance of the loan, falsely represented the amount of the debt in connection with the collection activity, falsely represented that the plaintiffs owed foreclosure fees on the debt, and sent a number of letters alleging overdue payments. Id. at 1206. The plaintiffs sought $500,000 each in actual damages to compensate for their emotional distress. Id. at 1211. The court found that the plaintiffs suffered for over two-and-a-half-years with stress, anxiety, and sleeplessness as a result of the defendant’s misrepresentations regarding the amount of debt owed, which peaked when the defendant filed a foreclosure action. Id. Although the plaintiffs did not present evidence from an expert or a doctor, and did not seek medical attention, the court found the plaintiff’s testimony credible and were entitled to actual damages of $50,000 for emotional distress. Id.
In Barker v. Tomlinson, No. 8:05-CV-1390-T-27EAJ, 2006 WL 1679645, at *3 (M.D. Fla. June 7, 2006), the plaintiff was entitled to $10,000 in actual damages for fear, anxiety, embarrassment, and emotional distress for the defendant’s violations of the FDCPA and the FCCPA. The plaintiff alleged that the defendant called her workplace to demand payment for a debt that was not legitimate, threatened her with arrest if she did not pay, and faxed a request for an arrest warrant to her workplace. Id. at *2-3. The plaintiff sought actual damages of $10,000-$15,000 based on being humiliated at her workplace due to fear of arrest, anxiety at answering the phone, concern for her children, and emotional distress for a period of two months. Id. at *3. The court found the plaintiff’s testimony credible and demonstrated a genuine fear of arrest, anxiety for her children’s well-being, embarrassment at her workplace, and emotional distress upon answering the phone for two months, caused by the defendant’s actions. Id. The court held that the preponderance of credible evidence demonstrated that the plaintiff should be awarded actual damages of $10,000 under both the FDCPA and FCCPA for fear, anxiety, embarrassment, and emotional distress. Id.
However, in Titus v. Commercial Recovery Sys., No. 8:13-CV-00567-T-27AEP, 2014 WL 55016, at *2 (M.D. Fla. Jan. 7, 2014), the plaintiff was not entitled to any actual damages for the mental anguish she purportedly endured because of the defendant’s actions. The plaintiff alleged that the defendant repeatedly called her and her family members regarding collection of a consumer debt, and the defendant threatened her with both civil litigation and garnishment of her social security income and Medicare if the debt was not paid. Id. The plaintiff alleged that as a result of the defendant’s conduct, she “suffered actual damages in the form of mental anguish from fear that her social security income would be garnished leaving her with an inability to support herself.” Id. The court found that “[o]utside of her blanket statement that she suffered mental anguish as a result of [the] [d]efendant’s actions, [the] [p]laintiff failed to supply any competent evidence, such as medical records or expert testimony, that would support her claim for actual damages for mental anguish or emotional distress or even provide an elaboration as to the negative effects she experienced as a result of [d]efendant’s actions.” Id. The court held that “without more,” the record does not establish a basis for compensating the plaintiff for any actual damages. Id.
In sum, in order to recover actual damages such as from emotional distress, fear, anxiety, and embarrassment, there must be credible testimony supporting such damages. In fact, there must be more than a blanket statement of the emotional distress the person allegedly suffered as a result of the alleged violation of the FCCPA or the FDCPA in order to establish a basis for compensation for any actual damages.
A successful plaintiff who proves that there was a violation of the FCCPA or the FDCPA may be entitled to recover actual damages, which may include damages for humiliation, fear, anxiety, emotional distress, stress, and sleeplessness. However, a successful plaintiff will have the burden of proving these damages.
Businesses that are confronted with alleged FCCPA or FDCPA violations need to be aware of the risk and potential exposure for actual damages and need to perform an analysis on the likelihood of being liable for any actual damages.
About the Author: Austin T. Hamilton, Esq. is board certified in business litigation by the Florida Bar and practices in the firm’s banking and financial services industry team. Austin advises businesses regarding potential consumer violations under various Florida and federal consumer protection statutes and is experienced in defending businesses against alleged violations of consumer protection statutes.