Can you really get mental anguish for false credit reporting against a debt collector?
Can you really get mental anguish for false credit reporting against a debt collector?
When we sue for false credit reporting, we almost always make a claim for mental anguish.
We have been suing debt collectors (Midland Funding, LVNV, Portfolio Recovery), credit bureaus (TransUnion, Equifax, Experian), and companies that furnish information to these credit bureaus for false credit reporting for many years.
In every single case, the defense lawyers come back to us and say, “We didn’t do anything wrong, but if we did anything wrong, your client can’t get any mental anguish damages for this. They weren’t physically hurt. You’ve got to have a physical injury to get mental anguish damages.”
I’ve been doing personal injury cases for 25 years, so I am pretty aware of mental anguish and pain and suffering as it relates to a physical injury.
However, in Alabama, physical injury is not a requirement for mental anguish claims.
Let’s think about this outside the scope of law using our own personal experiences.
Juries are told when they receive their jury charges to use their good common sense and their own experiences as they evaluate things.
From our own experience, can we have emotional distress and mental anguish without the presence of a physical injury?
Of course we can.
Maybe you were in a business partnership and your partner betrayed you.
The partner did not physically hurt you, but this could still be devastating and send you spiraling into depression.
Betrayal by a friend. Something extremely hateful said to a family member.
These are situations that can cut us deeply.
So from personal experience and common sense, we know it is possible to experience mental anguish without incurring a physical injury.
How does this work in our lawsuit?
When we sue somebody for false credit reporting and they say we have no claim to mental anguish, we remind them there is no physical requirement.
After we have blocked that claim, then they say “You can only claim mental anguish if you can prove that this lowered your score so that you did not qualify for a loan. Only then will it count.”
They get this false idea by unintentionally merging two separate concepts: economic damages and emotional distress.
These are two separate things. You can combine them, but they are not the same thing.
If I am one day away from closing on my house and Bank of America puts something false on my credit report and I’m not able to close and I lose the house, This is obviously upsetting.
But you do not need to have that economic loss to have mental anguish.
Just the fact that someone has put something false in my report is upsetting to me.
Imagine someone put a billboard up saying you are a child abuser. Even if this is not true, it would be upsetting.
Can you prove that you lost your job because of that billboard? No, it’s just very upsetting that false information is being put out about you.
If you have false credit reporting and you dispute it but they don’t fix it – even if it doesn’t impact your FICO score or the ability to get that loan – it still can be very upsetting to me because it is on your credit report.
You have the right to have a 100% accurate report.
Here’s an example:
For many years we have sued debt collectors under section 1692 e(8). This section of the FDCPA deals with misrepresentations, deceitfulness, and lying.
1692 e(8) says that if a debt collector provides information that they know is false or that they should know is false on your credit report, this is a violation of the law.
This explicitly includes the failure to mark an account being disputed.
We sue debt collectors all the time for this.
We tell them verbally we dispute it, we write them a dispute.
They know the account has been disputed and then they do not mark it as disputed.
When we sue them we will also ask for mental anguish.
The defense lawyers will try to say this isn’t possible.
When I ask the defense lawyers how many jury trials they have tried under FDCPA 1692 e(8), they say, “Well, these cases don’t really try and everybody knows you can’t get emotional distress for this.”
So, they’ve never tried one of these cases, but “everybody knows.” Who is “everybody”? What do they know?
The fact is, we have tried many cases under the FDCPA 1692 e(8).
We understand mental anguish.
Once we establish that they have no idea what they are talking about, they say, “Well, I just don’t see how anybody would award these damages.”
But they have no experience with this. And they’re trying to tell me what our jury (which we haven’t even seated yet) will do?
If you dispute a debt, that debt collector has an absolute responsibility to mark the debt as disputed.
The debt collector has absolutely refused to do so.
Could this be upsetting to you? Absolutely.
They may say it doesn’t affect your FICO score, but it does. The people make this claim do not know what they are talking about.
But even if it doesn’t affect it or it doesn’t block you from a loan, your credit report is damaged.
It is not showing the debt as disputed when it should.
Maybe that affects me. Maybe I want to go get credit tomorrow, maybe I’m going to apply for a job next month.
I’ve still got this in the back of my mind, even if I’m not applying for credit or a job.
You didn’t choose to have a credit report, but if you’ve got to have one it better be accurate.
Some debt collector, over a $50 charge or a $5000 charge, says they know what the law is and has decided they’re not going to follow it.
Why wouldn’t this be upsetting? Of course, it is upsetting.
The amount rewarded for mental anguish is up to the jury.
It’s not for the defense attorney to determine whether or not my client has mental anguish.
Frankly, it’s not even for a judge to determine beforehand.
This decision requires testimony first.
The jury may hear testimony and decide mental anguish does not qualify.
That’s fine for them to make the decision once they have heard the testimony.
Don’t let the other side get keep you down.
When we are bringing a claim against a debt collector under FDCPA or FCRA, and we claim emotional distress, we have to be careful that we don’t let the other side distract or discourage us.
They’ll try to tell us there’s no way we can win.
This is not up to the collector. The jury will make the final decision.
We have experience in these types of cases and have conducted focus groups.
We know this is a valid claim to make for our client.
If someone has violated the law against you or your client and your client legitimately says this is upsetting, take them seriously. Ask for mental anguish damages.
You follow the rules, you do everything I’m supposed to, and this debt collector willfully and intentionally refused to mark this as disputed on your report.
They know the law. It’s been the same since the 70s.
Now, they have violated the law.
Get the compensation you deserve for this.
If you live in Alabama and you have any questions, feel free to get in touch with us.
We would be glad to help you in any way we can.
You can reach us by phone at 1-205-879-2447, or you can fill out a contact form and we will get in touch with you quickly.
Thanks for reading!