Wright v. Finance Service of Norwalk, Inc.

• Decision Date: 19 April 1994
• Docket Number: 92-3004,Nos. 91-4156,s. 91-4156
• Citation: 22 F.3d 647
• Parties: Betty WRIGHT, Plaintiff-Appellant, Cross-Appellee, v. FINANCE SERVICE OF NORWALK, INC., Defendant-Appellee, Cross-Appellant. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 647

22 F.3d 647

62 USLW 2659

Betty WRIGHT, Plaintiff-Appellant, Cross-Appellee, v. FINANCE SERVICE OF NORWALK, INC., Defendant-Appellee, Cross-Appellant.

Nos. 91-4156, 92-3004.

United States Court of Appeals Sixth Circuit.

Reargued Dec. 8, 1993.

Decided April 19, 1994.

Dennis B. Trimboli, UAW Legal Services Plan, Sandusky, OH (briefed), Louis Rosenberg, UAW Legal Services Plan, Indianapolis, IN (argued and briefed), O. Randolph Bragg, UAW-GM Legal Service Plan, Newark, DE (briefed), for Betty Wright.

Harland M. Britz, Britz & Zemmelman, Toledo, OH (argued and briefed), for Finance Service of Norwalk, Inc.

Before: MERRITT, Chief Judge; and KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, and DAUGHTREY, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which MERRITT, C.J., MARTIN, MILBURN, GUY, RYAN, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, and DAUGHTREY, JJ., joined. KENNEDY, J., delivered a separate opinion concurring in part and dissenting in part, in which NELSON, J., joined. JONES, J., delivered a separate dissenting opinion, in which KEITH, J., joined.

BOGGS, Circuit Judge.

Betty Wright, executrix for the estate of Gladys Finch, contends that she may collect $1,000 for every violation of the Fair Debt Collection Practices Act that Finance Service of Norwalk committed in its attempt to collect $112 from the deceased Finch. We hold that Wright has standing to bring this suit and that her recovery for additional damages is limited to $1,000 per proceeding, rather than $1,000 per violation of the Act. We therefore affirm the district court's judgment.

I

Gladys Finch, who lived with her daughter, Betty Wright, died in October 1989. Wright was appointed executrix of her mother's estate in April 1990. After Finch's death, the defendant, Finance Service of Norwalk ("Finance Service"), a debt-collection agency, sent fourteen letters addressed to Finch. Each of these letters was an attempt to collect $112 from Finch for an allegedly overdue medical bill. Wright, acting as executrix for Finch's estate, opened the letters. Finance Service stopped sending the letters after Wright informed the agency that Finch had died.

Wright filed a complaint against Finance Service, pursuant to the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. Secs. 1692 to 1692o. Wright alleged that each of the letters contained at least one violation of the FDCPA. In September 1991, each party moved for partial summary judgment. Wright moved for partial summary judgment on the thirty alleged FDCPA violations contained in the letters. Finance Service moved for partial summary judgment on the issue of Wright's standing to sue on the basis of letters sent to Finch. Finance Service also requested an in limine ruling that would limit Wright's recovery to $1,000 for damages beyond her actual losses, costs, and attorney's fees.

The district court partially granted Wright's motion for summary judgment, finding that Finance Service was liable on fourteen of the thirty alleged FDCPA violations. The district court denied Finance Service's motion for summary judgment on the issue of standing. The district court, however, granted Finance Service's motion in limine, finding that Wright could only recover statutory damages up to $1,000 per proceeding, in addition to any actual damages.

Wright appealed the district court's decision to limit her damages and Finance Service cross-appealed the district court's determination that Wright had standing to bring this suit. A divided panel of this court affirmed the district court's decision on Wright's standing, but reversed the district court's determination that Wright's additional damages were limited to $1,000 per proceeding. The panel's decision was vacated and a rehearing en banc was granted by order of September 15, 1993. 996 F.2d 827.

II

We first address Finance Service's cross-appeal on the issue of Wright's standing to bring this suit. The panel held that Wright had standing to bring this suit, and Finance Service did not contest this issue during the rehearing en banc. Thus we dispose of it briefly.

We read statutory terms in light of their plain meaning. Baum v. Madigan, 979 F.2d 438, 441 (6th Cir.1992). " 'Statutory words are uniformly presumed, unless the contrary appears, to be used in their ordinary and usual sense, and with the meaning commonly attributed to them.' " Ibid. (quoting Caminetti v. United States, 242 U.S. 470, 486, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917)).

In this case, the district court found that Finance Service violated 15 U.S.C. Sec. 1692e, which prohibits a debt collector from using "any false, deceptive, or misleading representation ... in connection with the collection of any debt." Unlike other sections of the act where relief is limited to "consumers", ¹ under Sec. 1692e a debt collection practice need not offend the alleged debtor before there is a violation of the provision.

The enforcement provision, Sec. 1692k(a), governs who may enforce provisions of FDCPA. That section provides that "any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person...." (Emphasis added.) We agree with the court in Riveria v. MAB Collections, Inc., 682 F.Supp. 174 (W.D.N.Y.1988), which found that this "liability section is couched in the broadest possible language." Id. at 175. Consequently, absent a limitation in the substantive provisions, the ordinary and common understanding of Sec. 1692k is that any aggrieved party may bring an action under Sec. 1692e.

We believe that the purpose of the FDCPA and the legislative history of the act also support this conclusion. The FDCPA's purpose is "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. Sec. 1692(e). In outlining the need for passage of the FDCPA, the Senate declared that debt collection abuse was "a widespread and serious national problem." S.Rep. No. 382, 95th Cong., 1st Sess. 2 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1696. Congress, however, chose to leave enforcement to private, not governmental, means. S.Rep. No. 382 at 5, reprinted in 1977 U.S.C.C.A.N. at 1699.

Given the broad language of the FDCPA, the purpose of the statute, and Congress's intent to make the statute self-enforcing, we find that, at least in this case, the phrase "with respect to any person" includes more than just the addressee of the offending letters. We conclude that the phrase, at a minimum, includes those persons, such as Wright, who "stand in the shoes" of the debtor or have the same authority as the debtor to open and read the letters of the debtor. Otherwise, a debt collector's liability would depend upon fortuities such as an alleged debtor's death. Such a result is inconsistent with the broad scope of the FDCPA, and we decline to so limit the act.

Accordingly, we affirm the district court's holding that Wright, as the executrix of the estate, has standing to sue Finance Service under the FDCPA.

III

The second issue is whether the district court erred by limiting Wright's additional statutory damages to $1,000. The FDCPA provides, in pertinent part:

(a) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this subchapter with respect to any person is liable to such person in an amount equal to the sum of--

(1) any actual damages sustained by such person as a result of such failure;

(2)(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1000; or

(B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and

(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court.

15 U.S.C. Sec. 1692k(a) (emphasis added).

As noted above, the rules of statutory construction require us first to consider the plain language of the statute. Madigan, supra. We give effect to Congress's intent, and where that intent has been expressed in plain terms, we ordinarily regard the language as conclusive. Id. at 442.

In this case, we find that the language of the statute is reasonably plain. The words of 15 U.S.C. Sec. 1692k(a)(2)(A) simply state that damages, above and beyond all actual damages, may not exceed $1,000 "in the case of any action by an individual." Congress certainly knows how to write statutes that make each separate violation subject to a separate penalty, or even that make each separate day of a violation a separate offense subject to a separate penalty. See, e.g., 15 U.S.C. Sec. 1640(a)(2)(A)(i) (Truth In Lending Act requires statutory damages be computed on a "per transaction" basis); 33 U.S.C. Sec. 1319(d) (Clean Water Act allows a $25,000 "per day" fine for violations of the act). There is no such intimation, however, anywhere in the actual language of 15 U.S.C. Sec. 1692k(a)(2)(A), elsewhere in the act, or in any of the surrounding legislative history. Thus, even were we to need to consult legislative history, this absence of an intent contrary to the plain meaning of the words indicates that Congress intended to limit "other damages" to $1,000 per proceeding, not to $1,000 per violation.

Other sections of the FDCPA support this conclusion. For example, the statute provides, in part, that "[i]n determining the amount of liability in...