plaintiff served the Summons and Complaint on NFS.
(CIV-90-1185S, Wiseman Affidavit, March 15, 1991, exh. A).
On March 18, 1991, the plaintiff, having received no response
from NFS, filed a motion for an entry of default with the Clerk
of the Court. On March 20, 1991, the Clerk of the Court filed
an Entry of Default in the case. Subsequently, on June 26,
1991, the plaintiff filed the present motion seeking a Default
Judgment for actual and additional damages, attorneys' fees and
Although the plaintiff submitted an affidavit with respect to
her claim to actual damages, finding the affidavit inconclusive
on the plaintiff's entitlement to actual damages, this Court
further held a hearing on October 17, 1991, at which the
plaintiff, and no other witnesses, testified.
On January 28, 1991, the plaintiff filed her Complaint. On
March 13, 1991, the plaintiff served the Summons and Complaint
on Lanocha. (CIV-91-51S, Wiseman Affidavit, April 9, 1991, exh.
On April 10, 1991, the plaintiff, having received no response
from Lanocha, filed a motion for an entry of default with the
Clerk of the Court. On April 16, 1991, the clerk of the Court
filed an Entry of Default in the case. Subsequently, on August
16, 1991, the plaintiff filed the present motion seeking a
Default Judgment for actual and additional damages, attorneys'
fees and costs.
The Hon. Richard J. Arcara originally presided over
CIV-91-51S. Due to the similarities between CIV-91-51S and
CIV-90-1185S, on December 10, 1991, Judge Arcara transferred
CIV-91-51S to this Court.
Recognizing that CIV-91-51S remains not only factually
similar to CIV-90-1185S, but that plaintiff's claim to actual
damages stems from the conduct of NFS and Lanocha, this Court
inquired of plaintiff, through her counsel Wiseman, whether the
hearing testimony already received in CIV-90-1185S could also
be applied to CIV-91-51S. After consulting with counsel,
plaintiff agreed to apply her hearing testimony to both
II. Plaintiff's Entitlement To "Additional" Damages
In CIV-90-1185S the plaintiff alleges five separate
violations by NFS of four provisions of the FDCPA, all stemming
from a single notice sent to the plaintiff.*fn1 (CIV-90-1185S,
Motion For Default Judgment, exh B). Specifically, the
plaintiff alleges that NFS violated: 1) 15 U.S.C. § 1692g
(insufficient debt validation notification due to size and
color of type and a misleading response date)*fn2; 2)
15 U.S.C. § 1692e(11) (insufficient debt collection disclosure due
to size of type); 3) 15 U.S.C. § 1692e(5) (threat to take legal
action not actually intended to be taken); and 4)
15 U.S.C. § 1692e(3) (false implication that plaintiff would need to retain
The plaintiff seeks additional damages of $5,000.00, or
$1,000.00 per each alleged violation.
Section 1692k(a)(2)(A) ("§ 1692k") provides for the award of
actual and "additional" damages as follows:
(a) Except as otherwise provided by this section,
any debt collector who fails to comply with any
provision of this sub-chapter with respect to
any person is liable to such person in an amount
equal to the sum of —
(1) any actual damage 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 $1,000. . . .
In seeking $5,000.00 damages predicated on five alleged FDCPA
violations, the plaintiff argues that § 1692k authorizes up to
$1,000.00 per FDCPA violation in a single suit, that is,
according to plaintiff, a FDCPA plaintiff could recover more
than $1,000.00 additional damages in a single lawsuit where
there are multiple FDCPA violations.