Jackson v. ING Bank (In re Jackson)

555 B.R. 86, 2016 Bankr. LEXIS 2752
CourtUnited States Bankruptcy Court, D. Massachusetts
DecidedJuly 29, 2016
DocketCase No. 10-11716-MSHl; Adversary Proceeding No. 13-01064
StatusPublished

This text of 555 B.R. 86 (Jackson v. ING Bank (In re Jackson)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Massachusetts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. ING Bank (In re Jackson), 555 B.R. 86, 2016 Bankr. LEXIS 2752 (Mass. 2016).

Opinion

MEMORANDUM OF DECISION AND ORDER ASSESSING DAMAGES AGAINST DEFENDANT, PORT-NOY & GREENE PC

Melvin S. Hoffman, U.S. Bankruptcy Judge

As a result of the judgment entered in this adversary proceeding on February 1, 2016 [# 200] in favor of the plaintiff, Kim-my Jackson, and against the defendant Portnoy & Greene, PC (“P & G”), I conducted an evidentiary hearing on July 7, 2016, to determine appropriate damages to assess against P & G for violating the discharge injunction under Bankruptcy Code § 524, and for violating § 1692e(2)(A) of the Fair Debt Collection Practices Act (“FDCPA”).1 After considering the evidence presented, the parties’ written submissions, and arguments of counsel, I will assess damages against P & G in favor of Ms. Jackson in the amount of $17,994. In doing so, I have relied on the following legal and factual support.

“[A] bankruptcy court is authorized to invoke [Bankruptcy Code] § 105 to enforce the discharge injunction imposed by § 524 and order damages.. .if the merits so require.” Bessette v. Amo Fin. Servs., Inc., 230 F.3d 439, 445 (1st Cir.2000), amended on denial of reh’g (Dec. 15, 2000). I am empowered “to order monetary relief, in the form of actual damages, attorney fees, and punitive damages, when [89]*89creditors have engaged in conduct that violates § 524.” Id. The FDCPA provides that any debt collector who violates the statute is liable for “actual damages, statutory damages of up to $1,000, and the cost of the action, together with a reasonable attorney’s fee as determined by the court.” French v. Corporate Receivables, Inc., 489 F.3d 402, 403 (1st Cir.2007) (quoting 15 U.S.C. § 1692k(a)).

Ms. Jackson claims damages of $62,882.50. In her testimony and filings as to the assessment of damages, she assumes that a damage award should include all her expenses in connection with the main chapter 13 case as well as this adversary proceeding. She maintains that the two letters sent by P & G, in November 2011 and January 2012, which formed the basis for the judgment entered against P & G, precipitated her chapter 13 case and the entirety of this adversary proceeding. This may technically be true, but it doesn’t justify the result Ms. Jackson urges. The features of the two letters which violated the discharge injunction and the FDCPA, namely the claims that Ms. Jackson owed ING Bank money, were not the primary reason for Ms. Jacksons reopening her closed chapter 7 case and converting it .to chapter 13, or her filing this adversary' proceeding with a multi-count complaint against five defendants. It was something else contained in those letters, namely, the news that Ms. Jackson still owned her condominium unit despite a 2008 foreclosure. This prompted Ms. Jackson to move back into her unit, reopen her chapter 7 case in order to convert it to chapter 13 in an attempt to retain ownership of the unit and sue everyone who had anything to do with the prior and current attempts to foreclose upon it. For this reason, I do not credit Ms. Jackson’s testimony that P & G’s offending conduct proximately resulted in damages to her equivalent to the entirety of her legal fees and costs in connection with her chapter 13 case and this adversary proceeding.

There is also the matter of a superior court action brought by Ms. Jackson against P & G and others in July of 2012. Ms. Jackson drafted the complaint and initiated the suit on her own, but in November of 2012 she retained Thomas B. Vawter as her counsel and paid him $7,500 to represent her. She has included Mr. Vawter’s fees in her damage claim against P & G in this adversary proceeding.

I have reviewed the superior court complaint, introduced into evidence at trial. Drafted by Ms. Jackson without the benefit of counsel, the complaint is not a model of clarity. It contains a count (count II) entitled “Violation of Federal Bankruptcy” alleging violations both of Ms. Jackson’s bankruptcy discharge and the FDCPA without actually identifying which of the many named defendants perpetrated the alleged violations and without including in her prayers for relief any requested remedy as to those alleged violations. The complaint contains nine other counts unrelated to her bankruptcy discharge or the FDCPA violations. The complaint’s primary thrust is to seek an injunction to prevent the defendants from proceeding with a second foreclosure of her condominium unit.

While I am prepared to accept Ms. Jackson’s testimony that count II of her superi- or court complaint targeted P & G, I am not prepared to find that her legal fee to Mr. Vawter should be included in her damages suffered as a result of P & G’s violations. Like the claims in this adversary proceeding, the claims asserted against P & G in the superior court comprised only a fraction of the claims asserted by Ms. Jackson. Thus, P & G’s offending conduct cannot be said to have proximately resulted in damages to Ms. Jackson equivalent [90]*90to the entirety of her legal fee in the superior court action. Furthermore, and unlike this adversary proceeding, the superior court case was voluntarily dismissed by Ms. Jackson after the court refused to enjoin the then pending foreclosure sale of her unit.

It is against this legal and factual backdrop that I have quantified Ms. Jackson’s damages flowing proximately from P & G’s discharge and FDCPA violations.

Ms. Jackson testified at the hearing on assessment of damages that her attendance at the trial and other hearings involving P & G’s violations caused her to miss a total of three days of work resulting in lost earnings of $600.1 find her testimony credible and include Ms. Jackson’s claim for lost compensation of $600 in her damage award. She also testified to incurring costs for postage, gas, and parking in connection with her court appearances and mailing of documents, but failed to state the amounts. I am unable to include her claim for these items in the damage award.2 She testified to incurring $49 for copying costs in connection with sending various documents to P & G and others. I will include Ms. Jackson’s copying costs in her damage award. Ms. Jackson testified to paying $281 to the clerk of the bankruptcy court to institute her chapter 13 case.3 Having concluded that her chapter 13 case was not proximately caused by P & G’s offending conduct, I will not include this amount in Ms. Jackson’s damage award.

As indicated previously, the FDCPA provides for the imposition of statutory damages of up to $1,000 against those who have violated the statute. In fashioning an order of statutory damages, the court shall consider “among other relevant factors., .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). As discussed in my February 1, 2016 Memorandum of Decision, P & G not only misrepresented the legal status of Ms.

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Related

French v. Corporate Receivables, Inc.
489 F.3d 402 (First Circuit, 2007)
Cherry v. Arendall (In Re Cherry)
247 B.R. 176 (E.D. Virginia, 2000)
In Re Perviz
302 B.R. 357 (N.D. Ohio, 2003)
Bessette v. AVCO Financial Services Inc.
230 F.3d 439 (First Circuit, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
555 B.R. 86, 2016 Bankr. LEXIS 2752, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-ing-bank-in-re-jackson-mab-2016.