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.
Decided April 19, 1994.
Reargued Dec. 8, 1993.
22 F.3d 647
BOGGS, Circuit Judge.
III
CONCLUSION
After analyzing all the arguments advanced by each side, we conclude that the Convention does not preempt every other conceivable method of serving process on defendants residing in other signatory states. This conclusion does not necessarily imply the existence and availability of other methods of service that would be supportable and effective under domestic and international law. We simply hold that the Inter-American Convention on Letters Rogatory does not foreclose other methods of service among parties residing in different signatory nations, if otherwise proper and efficacious. We therefore remand the case to the district court with instructions to consider whether the only other method of service of process attempted by the plaintiffs—service under the Texas Long-Arm Statute—comports with principles of comity,
In connection with our instructions to the McAllen Division of the United States District Court for the Southern District of Texas, we emphasize that nothing in this opinion should be construed as authorizing Kreimerman et al. to institute any new or additional efforts to serve the defendants: The district court need only determine whether Kreimerman et al.‘s previous efforts to serve process under the Texas Long-Arm Statute were consistent with applicable legal principles—international and domestic.
Therefore, the judgment of the district court is AFFIRMED in part, REVERSED in part, and REMANDED to the Houston Division of the United States District Court for the Southern District of Texas, with instructions to transfer the case under
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.
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
The enforcement provision,
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.”
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.
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
Other sections of the FDCPA support this conclusion. For example, the statute provides, in part, that “[i]n determining the amount of liability in any action [under
This provision undermines Wright‘s contention that each noncompliance constitutes a separate “action“. Where multiple violations occur, Congress intended the courts to award close to the full $1,000. Conversely, in less egregious situations, the court can award less. See, e.g., Whatley v. Universal Collection Bureau, Inc., 525 F.Supp. 1204 (N.D.Ga.1981).
We also note that allowing plaintiffs to recover on a “per violation” basis rather than a “per proceeding” basis creates an anomaly: an individual plaintiff could recover more in damages than a similarly situated plaintiff representing a class of claimants. This is because
Consequently, the terms of the statute indicate that Wright‘s recovery for additional damages is limited to $1,000 per proceeding. All the courts publishing opinions on this issue have reached a similar result. See Harper v. Better Business Servs., Inc., 961 F.2d 1561 (11th Cir.1992); Beattie v. D.M. Collections, Inc., 764 F.Supp. 925 (D.Del.1991); Donahue v. NFS, Inc., 781 F.Supp. 188 (W.D.N.Y.1991); Whatley v. Universal Collection Bureau, Inc., supra; Harvey v. United Adjusters, 509 F.Supp. 1218 (D.Or.1981). Although Wright cites several unpublished district court cases as support for her argument, we find these cases unpersuasive and contrary to the plain meaning of the statute.
Accordingly, we hold that
We AFFIRM the district court‘s judgment.
KENNEDY, Circuit Judge, concurring in part and dissenting in part.
The District Court and the majority have concluded that the executrix had standing to bring this action. I disagree and respectfully dissent. I fully agree with the majority‘s holding that plaintiff‘s statutory damages are limited to $1000.00.
I begin with
To be liable under section 1692k(a), the debt collector must have violated a provision of the subchapter. The plaintiff has sued under section 1692d, which also uses the broad language of “any person” and section 1692e(1), (5), (8) and (11), which does not limit recovery to a person or to a consumer.
Under the definitions section,
Additionally, under
The purposes behind the FDCPA include deterring abusive debt collectors and protecting consumers. For example, one of the congressional findings found in
NATHANIEL R. JONES, dissenting.
The majority today finds that the Fair Debt Collection Practices Act (“FDCPA“) limits Wright‘s recovery to $1000 per proceeding as opposed to per violation. Because I continue to adhere to my original reading of the statute, see Wright v. Finance Service of Norwalk, 996 F.2d 820 (6th Cir.1993), vacated on grant of rehearing, 996 F.2d 827 (6th Cir.1993), I respectfully dissent.
The FDCPA,
(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 [actual damages; and]
(2)(A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or
(B) in the case of a class action, [damages for named plaintiffs as in (A); and damages for other class members up to a prescribed limit.]
The majority reads this “in the case of any action” language of
When attempting to divine the true meaning of a statute, it is well settled that the statutory language must be read in context and not in isolation. Oates v. Oates, 866 F.2d 203, 206 (6th Cir.), cert. denied, 490 U.S. 1109, 109 S.Ct. 3163, 104 L.Ed.2d 1025
Given that the phrase, “in the case of any action by an individual,” serves only to differentiate between the statute‘s treatment of class actions and individual actions, I find that one must then return to the introductory language of
Both the legislative history and the articulated purpose of the FDCPA support the conclusion that the $1000 limit applies per violation. The purpose of the FDCPA 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.
Because Congress has designated consumers as the primary watchdogs over FDCPA violations, a per proceeding limit of $1000 unwisely frustrates the FDCPA‘s broadly stated goals. The meager financial benefit for bringing suits that the majority‘s holding imposes will discourage consumers from expending the energy necessary to pursue FDCPA claims.
Moreover, the majority‘s holding in the instant case invites an even greater harm. The majority‘s refusal to apply the $1000 limit to each violation illogically rewards unscrupulous collectors who, having engaged in an initial violation during attempts to collect on a particular debt, continue with their abusive practices. Applying a flat $1000 ceiling to any one proceeding, regardless of the number of violations involved, means that as the number of violations increases the cost per violation to the collector decreases. I cannot agree that this is a correct result; accordingly, I respectfully dissent.