Lassiter v. Pinnacle Financial Group Incorporated

Filing 77

ORDER: $150.00 in damages pursuant to 15 U.S.C. § 1692k(a)(2)(A) areawarded against defendant Integrity Solution Services, Inc. and in favor of plaintiff Phebe Lassiter. This case is CLOSED. By Judge Philip A. Brimmer on 5/15/2014. (klyon, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer

Civil Action No. 13-cv-00268-PAB-MJW
PHEBE LASSITER,
Plaintiff,
v.
INTEGRITY SOLUTION SERVICES, INC., a Missouri corporation,
formerly known as Pinnacle Financial Group Incorporated, a Minnesota corporation,
Defendant.

ORDER

This matter is before the Court on Defendant’s Brief Regarding Statutory
Damages [Docket No. 74] filed by defendant Integrity Solution Services, Inc. and
Plaintiff’s Brief Regarding Statutory Damages [Docket No. 75] filed by plaintiff Phebe
Lassiter. This matter arises out of plaintiff’s claim against defendant for violating the
Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq.
On March 18, 2014, the Court granted plaintiff’s motion for partial summary
judgment [Docket No. 42], finding no material dispute of fact as to defendant’s liability
under the statute. Docket No. 69. The Court found that defendant violated 15 U.S.C.
§ 1692c(c) by sending plaintiff a letter attempting to collect on a debt after defendant
received notice that (1) plaintiff was represented by counsel on the account in question
and (2) plaintiff wanted defendant to cease direct communications with her. Id. at 10.
The Court found that the letter was not sent as the result of a bona fide error. Id. at 13-

14. The parties waived their right to a jury trial and consented to the Court determining
an award of statutory damages based on the parties’ briefing. Docket No. 72.
The FDCPA provides for statutory damages in an amount “as the court may
allow, but not exceeding $1,000.” 15 U.S.C. § 1692k(a)(2)(A). In determining the
amount of statutory damages to award, courts are to consider the debt collector’s
conduct, specifically “the frequency and persistence of noncompliance by the debt
collector, the nature of such noncompliance, and the extent to which such
noncompliance was intentional.” 15 U.S.C. § 1692k(b)(1).
Courts have denied an award of statutory damages in cases where the violation
is isolated, non-threatening, and unintentional. See, e.g., Pipiles v. Credit Bureau of
Lockport, Inc., 886 F.2d 22, 28 (2d Cir. 1989); Emanuel v. Am. Credit Exchange, 870
F.2d 805, 809 (2d Cir. 1989); Obenauf v. Frontier Fin. Grp., Inc., 785 F. Supp. 2d 1188,
1199 (D.N.M. 2011) (“Because FFG’s liability is based on a single telephone call in the
middle of the day, the Court awards no statutory fees.”); O’Connor v. Check Rite, Ltd.,
973 F. Supp. 1010, 1020 (D. Colo. 1997). In other cases, courts have awarded up to
the full $1000 where debt collectors violated the FDCPA by sending one or more letters
that did not contain required disclosures or were otherwise false or misleading. See,
e.g., Weiss v. Zwicker & Assocs., P.C., 664 F. Supp. 2d 214, 218 (E.D.N.Y. 2009)
(awarding $500 where the defendant violated the FDCPA by sending one letter that
was “not threatening in tone” and there was “no evidence that the violation was
intentional”); Francis v. Snyder, 2006 WL 1236052, at *1 (N.D. Ill. May 4, 2006)
(awarding $1000 in statutory damages where debt collector sent letter threatening

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baseless lawsuit); Rabideau v. Mgmt. Adjustment Bureau, 805 F. Supp. 1086
(W.D.N.Y. 1992) (awarding $1000 in statutory damages where debt collector sent two
letters that did not sufficiently display required disclosures and where demand for
immediate payment overshadowed the validation notice).
Plaintiff argues that the Court should award the full amount of statutory damages
available because this is the second time that plaintiff has sued defendant for an
FDCPA violation and because defendant does not have policies or procedures in place
to prevent this type of violation. Docket No. 75 at 6-7. Defendant argues that the Court
should award no statutory damages because defendant’s violation consisted of sending
a single letter that did not contain abusive language, did not cause mental or emotional
distress, and was sent despite defendant’s efforts to comply with the FDCPA.1 Docket
No. 74.
The Court finds the reasoning in Sterling v. Am. Credit & Collections, LLC, No.
11-cv-03113-DME-BNB, 2012 WL 3553757 (D. Colo. Aug. 16, 2012), to be applicable
in this case. “[M]aximum statutory damages under 15 U.S.C. § 1692k(a)(2)(A) should

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Defendant also suggests that the Court should reduce the statutory damages
award because, by filing a separate action instead of moving to amend her complaint in
an earlier action filed against defendant, plaintiff “is seeking to double her damages and
fees and this should not be rewarded.” Docket No. 74 at 6. “Where, as here, the
subsequent action is not duplicative and would not be barred under the claim preclusion
doctrine, plaintiff may avail herself of the serendipity of an additional FDCPA violation
by the same defendant subsequent to initiation of a prior lawsuit and thereby avoid a
per action damages limitation, as is undoubtedly plaintiff's strategy here.” See Goins v.
JBC & Assocs., P.C., 352 F. Supp. 2d 262, 267 (D. Conn. 2005). Accordingly, the
Court will not deny an award of statutory damages on this basis.

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be reserved for egregious violations of the FDCPA,” for example, cases where the
defendant repeatedly uses abusive language, improperly threatens legal action or the
use of self-help, or aggressively intrudes on a consumer’s home, place of employment,
or piece of mind. Id. at *4; see also, e.g., Clomon v. Jackson, 988 F.2d 1314, 1316 (2d
Cir. 1993) (upholding award of $1000 in statutory damages where the defendant, an
attorney, “authorized the sending of debt collection letters bearing his name and a
facsimile of his signature without first reviewing the collection letters or the files of the
persons to whom the letters were sent”); Farmer v. Riverwalk Holdings, Ltd., 2014 WL
1745433, at *2-3 (E.D. Tenn. May 1, 2014) (awarding $1000 in statutory damages
where the defendant used a “false, deceptive and misleading warrant and affidavit to
collect a debt”); Risorto v. Malcolm S. Gerald & Assocs., Inc., No. 13-cv-02993-REBBNB, 2014 WL 1328524, at *3 (D. Colo. Apr. 2, 2014) (awarding $1000 where the
defendant “called the plaintiff daily for many months and on at least 140 different
occasions; failed to leave messages; and allowed calls to go to voicemail but would say
nothing, resulting in ‘dead air’ voicemails”); Rivera v. Nat’l Check Processing, LLC, 2011
WL 996340, at *2 (W.D. Tex. Mar. 17, 2011) (awarding $1000 in statutory damages
where the defendant “continuously” called the plaintiff’s home and work phones,
threatening “to have her arrested, bring charges against her, and to add attorney’s fees
to the debt”).
The sending of a single letter, as in this case, does not constitute a frequent or
persistent violation. See 15 U.S.C. § 1692k(b)(1). Plaintiff has not provided evidence
that the letter caused her distress or anxiety. Compare Sterling, 2012 WL 3553757, at

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*4 (“Plaintiff testified to the distress and anxiety that the letter caused her.”). The letter
“was not hostile in tone, and it did not threaten legal action or raise the specter of
criminal prosecution or incarceration.” See id.; see Docket No. 42-1. Furthermore, a
jury in plaintiff’s previous case against defendant found there was no violation of the
FDCPA, see Case No. 12-cv-02992-CMA-MJW, Docket Nos. 69 and 70, which means
that there is not a pattern of violations. However, although there is no evidence that the
violation was intentional, the undisputed facts indicate that defendant does not maintain
policies or procedures “reasonably adapted to avoid” the violation at issue in this case.
Docket No. 69 at 10-14. Accordingly, the Court finds that an award of $150.00 in
statutory damages is appropriate.
Wherefore, it is
ORDERED that $150.00 in damages pursuant to 15 U.S.C. § 1692k(a)(2)(A) are
awarded against defendant Integrity Solution Services, Inc. and in favor of plaintiff
Phebe Lassiter. It is further
ORDERED that this case is CLOSED.

DATED May 15, 2014.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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