Centerbar v. Credit One Bank, N.A. et al

Filing 28

DECISION AND ORDER awarding the plaintiff, Alison Centerbar, $20,000 in actual damages, in addition to the $1,000 in statutory damages already awarded, for a total of $21,000 in damages. She also is awarded an additional $750.83, for a total of $1445.83, in costs. The Court reserves decision on attorneys' fees, as specified. SO ORDERED. Signed by Hon. Lawrence J. Vilardo on 7/9/2018. (CMD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

Alison Centerbar,
Plaintiff,
v.

16-CV-896
Decision and Order

Esser James & Associates, LLC
Rebecca Steward, Jane Doe, a/k/a
“Susan Murphy,” and John Doe, a/k/a
“John Carter”,
Defendants.

On November 5, 2016, the plaintiff, Alison Centerbar, filed a complaint alleging
violations of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692.
Docket Item 1. After the defendants failed to appear or otherwise defend the action, the
Clerk of Court entered a default on February 16, 2017. Docket Item 10. This Court
entered default judgment on March 13, 2018, awarding the plaintiff $7,560: (1) $1,000 in
statutory damages; (2) $5,865 in attorneys’ fees; and (3) $695 in litigation costs. Docket
Item 15.
Centerbar also requested $50,000 in actual damages, and the Court therefore
scheduled a hearing to determine the extent of the plaintiff’s actual damages. Id. On
June 19, 2018, the actual damages hearing was held, and the Court reserved judgment.
Docket Item 25. At that time, the Court also granted plaintiff’s counsel the opportunity to
submit documentation for additional attorney’s fees.

BACKGROUND
I.

FACTS
Centerbar incurred a personal debt of about $700, owed to an entity doing

business as “Credit One.” Docket Item 1 at 4. The defendants sought to collect this
debt, but Centerbar alleges that they did so unlawfully. Id. at 4-7. For example,
Centerbar claims that the defendants—who failed to identify themselves as debt
collectors—called her place of employment, threatened legal action, gave the false
impression that they were attorneys with a law firm, and threatened forcible recovery.
See id.; Docket Item 15 at 2.
In her motion for default judgment, Centerbar claims that these unlawful debt
collection activities caused her great emotional distress. Docket Item 12-1. Specifically,
she claims that the call to her office made her fear that she would lose her job; that the
threat of forcible recovery caused her to fear physical harm to her and her daughter;
and that collectively this anxiety and stress aggravated her pre-existing Post Traumatic
Stress Disorder (“PTSD”), a diagnosis stemming from her time as a combat veteran. Id.
At the damages hearing, the plaintiff further explained the extent of the stress and
trauma she experienced. Docket Item 26.
II.

FINDINGS FROM THE DAMAGES HEARING
Based on the plaintiff’s testimony at the hearing conducted on June 19, 2018,

this Court makes the following findings of fact. The plaintiff, a single mother who is a
veteran with PTSD, became anxious and paranoid when she received phone calls to
her cell phone threatening forcible recovery of the debt that she owed. Docket Item 26
at 8-9. The collection behavior escalated from calls to Centerbar’s cell phone, to calls to
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her place of employment, a financial firm, disclosing to the office manager that
Centerbar owed a debt. Id. at 7-8. That caused Centerbar to worry about her job and
further exacerbated her PTSD.
What is more, the callers concealed their identity as debt collectors, instead
insinuating that they were attorneys. Id. So Centerbar feared not just the manner by
which the debt would be collected, but also that she might face legal consequences. Id.
According to Centerbar, “at this point, the anxiety started to really kick in because it felt
like [the debt collection calls] were never going to stop. Not only am I being threatened
with lawsuits, but now I’m being . . . verbally harassed.” Id. at 13. The calls took place
four to five times and over a period of a few months. Although Centerbar claims that the
stress from these calls aggravated her PTSD, she did not incur any out-of-pocket
expenses—no additional security measures were installed; no additional counseling
services were sought; and no additional medications were purchased. Id. at 21. That
said, it is clear that Centerbar suffered significant emotional stress directly resulting from
the debt collectors’ actions.
I had an ongoing panic attack for a few months . . . and I felt like a lost a
sense of stability that I had been gaining . . . you know, maybe to some
people it sounds ridiculous, it wasn’t just the threats that bothered me, it just
was the fear . . . my life could possibly be ruined.
See id. at 22.
DISCUSSION
Under the FDCPA, a plaintiff may recover damages—including actual damages,
statutory damages, attorney’s fees, and the costs of litigation—for a debt collector’s
unlawful practices. 15 U.S.C. § 1692k(a). Actual damages may be awarded only for

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actual injury. Clayson v Rubin & Rothman, 2010 WL 547476 (Feb. 11, 2010,
W.D.N.Y.). And in a default judgment proceeding, such as this one, the court must
have sufficient evidence and be reasonably certain of the amount it enters. Credit
Lyonnais Securities v. Alcantara, 183 F.3d 151, 154-55 (2d Cir. 1999).
I.

ACTUAL DAMAGES
In an FDCPA case, actual damages can be based on emotional distress resulting

from the unlawful debt collection practice. Teng v. Metropolitan Retail Recovery, Inc.,
851 F. Supp. 61, 68-69 (E.D.N.Y. 1994) (“[V]iolations of the FDCPA, by their very nature
. . . are those kinds of actions which may be expected to cause emotional distress, and
therefore, the availability of damages for such distress is of paramount importance.”)
(internal quotation and citation omitted). To make out a claim based on emotional
distress under the FDCPA, a plaintiff need not meet the heightened requirements
necessary for a state tort claim of intentional infliction of emotional distress. See
Donahue v. NFS, Inc., 781 F. Supp. 188, 193 (W.D.N.Y. 1991).
Centerbar presented credible testimony of emotional distress and therefore has a
valid claim for actual damages. But she has requested $50,000, which is excessive.
First, she incurred no out-of-pocket expenses. Second, she sought no psychological,
psychiatric, or medical treatment other than that associated with her pre-existing PTSD.
Third, there were only four or five calls that violated the FDCPA over only a few months.
Docket Item 26 at 14.
Nevertheless, the plaintiff suffered an emotional injury over a period of “three to
four months.” Docket Item 26 at 25. Her recovery from PTSD was set back, and she
worried about her job, her daughter, and herself. Taking the plaintiff’s testimony into
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account and in light of all the pleadings, this Court awards $20,000 as reasonable
compensation for the actual damages that resulted from the defendant’s unlawful debt
collection calls.
II.

ADDITIONAL ATTORNEYS’ FEES
Under the FDCPA, the court also has the discretion to award reasonable

attorneys’ fees and litigation costs to successful litigants. 15 U.S.C. § 1692k(a)(3). On
March 13, 2018, this Court awarded $5865 in fees and $695 in costs, Docket Item 15 at
6, and on June 25, 2018, the plaintiff’s attorney filed an affirmation in support of
additional fees and costs in connection with the damages hearing, Docket Item 27.
The plaintiff has requested additional litigation costs in the amount of $750.83 in
connection with the damages hearing, based on the cost of traveling to Buffalo for the
hearing. Id. That request for costs is reasonable and is granted.
The Court also has reviewed the request for additional attorney fees, but that
review has not been so simple. In fact, the calculations seem to disadvantage counsel.
For example, it appears that the law clerk may have worked an additional three hours
and forty minutes, which, at $50 per hour, would amount to $183.33 in additional fees;
but counsel requests only $116.50 for additional law clerk work. Likewise, the time
sheets seem to show that plaintiff’s attorney worked an additional 16.9 hours in
connection with the hearing, which would amount to over $5,000 in additional fees; but
counsel requests only $3,750 in additional attorneys’ fees.
The Court does not want to shortchange counsel based on mathematical errors.
Therefore, no later than July 20, 2018, plaintiff’s counsel shall advise the Court whether
the amounts requested in the affirmation filed on June 25, 2018, Docket Item 27, are
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correct or whether a corrected request will be submitted. If a corrected request is
submitted, the request shall (1) clearly separate attorney time from law clerk time and
(2) include all time expended from the beginning of this case to its end, so that this
Court may make a single and final award of attorneys’ fees. Time expended in
connection with preparing a corrected request shall not be recoverable.

CONCLUSION
For the reasons stated above, the plaintiff, Alison Centerbar, is awarded $20,000
in actual damages, in addition to the $1,000 in statutory damages already awarded, for
a total of $21,000 in damages. She also is awarded an additional $750.83, for a total of
$1445.83, in costs. The Court reserves decision on attorneys’ fees as noted above.
SO ORDERED.
Dated:

July 9, 2018
Buffalo, New York

s/Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE

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