I recently attended a settlement conference on an FDCPA case somewhere outside of Chicago.  In this particular jurisdiction, the Judge had the parties split up into two different rooms and went back and forth between the rooms trying to get the parties to reach middle ground regarding the settlement figure.  Our case was what we considered to be a slam dunk.  Not only was my client steadfast in its recollection of the events, we also had recordings to substantiate her claims. 

Believe it or not, the parties were not that far off in their settlement figures; it wasn’t settling for another reason.  My client didn’t necessarily want money; she wanted an apology and for this collection agencies representative to promise they were going to change their ways.  When my client told this to the Judge the Judge, who has a lot of experience handling FDCPA cases, said something I will never forget.  He said, “Mrs. XYZ, you’re not going to get them to change their ways.  I see them getting sued day after day and their ways don’t change.  I guarantee you that I am going to see them again later this week.  There is nothing that will happen in this courtroom today that is going to make them act differently.  As we speak there is a collection agency violating the law”.

I have frequently reflected on this comment since I’ve returned to Chicago and its raised so many questions in my head.  First, how could this be?  How can someone or something constantly violate the law and their lawlessness be reduced to a simple nonchalant recognition from the Judge that its absolutely certainly going to happen again.   If the judges that are hearing these cases recognize that regardless of what takes place in their courtroom the defendant’s actions are not going to change, what difference am I really making? 

This incident, more than any other, has solidified my belief that the FDCPA needs amended.  I mean really; the statute that was supposed to prevent and deter collection agencies from stepping over the line has become a joke to the offenders.  The statute provides for damages up to $1,000.00 and actual damages if they can be proven.  The statute was written in the early seventies and the amount of damages has never been increased.  If the Judges that are hearing these cases can conclude that regardless of what happens the defendant’s behavior isn’t going to change then its pretty obvious we need a new mechanism for deterrence.   If the punishment doesn’t modify their behavior then you need to tailor the punishment to one that is effective.

Also, the thing that ……..oooh sorry, I need to answer my phone; a potential client is calling.  Guess the Judge knew what he was talking about…..

Jeffrey S. Hyslip

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