Missouri Supreme Court Strikes Down Cap on Punitive Damages

In Lewellen v. Franklin, a fraud and Missouri Merchandising Practices Act (“MMPA”) case, the Missouri Supreme Court has struck down the cap on punitive damages enacted by the Missouri legislature during its 2005 tort reform in certain cases. Lillian Lewellen (“Lewellen”) obtained a verdict against Chad Franklin National Auto Sales North, LLC (“National”) and its owner, Chad Franklin (“Franklin”), for $25,000 in actual damages and $1,000,000 in punitive damages on both claims, fraudulent misrepresentation and violation of the MMPA. Lewellen elected to take judgement for actual and punitive damages for fraudulent misrepresentation against Franklin and for actual and punitive damages for violation of the MMPA against National. Pursuant to section 510.265, RSMo,the trial court reduced the punitive damages verdict against Franklin and National to $500,000 and $539,050, respectively. On appeal, the Missouri Supreme Court found this statute unconstitutional as applied to Lewellen’s fraudulent misrepresentation claim and reinstated the full amount of the punitive damages.

Lewellen asserted that the reduction of her punitive damages award against Franklin violated her right to trial by jury as guaranteed by article I, section 22(a) of the Missouri Constitution, which provides “[t]hat the right of trial by jury as heretofore enjoyed shall remain inviolate.” In other words, if there was a right to a trial by jury before the adoption of the Missouri Constitution, then the legislature can not enact laws that affect that right. In Lewellen’s case, the right to trial by jury on claims of fraud existed at common law before the enactment of the first Missouri Constitution in 1820. Similarly, a party had a right to have a jury decide the amount of punitive damages in a fraud case as of 182o. Therefore, when applied to a fraudulent misrepresentation claim or any claim for which the right to a trial by jury existed prior to the adoption of the Missouri Constitution, section 510.265 infringes on the right to trial by jury and is unconstitutional.

Note that the defendants also argued that the award of punitive damages violated their due process rights. After analysis, the Court disagreed, but did acknowledge that there may be cases in which the reduction of punitive damages is warranted due to their affect on the defendants’ due process rights.

Fair Debt Collection Practices, Part 3

The Fair Debt Collection Practices Act (“FDCPA”) gives consumers the right to sue debt collectors who violate the Act. Under 15 U.S.C. 1692k, an individual consumer who has been subjected to unfair debt collection practices may file suit and recover any actual damages sustained along with statutory damages of up to $1,000. Actual damages may include emotional distress, humiliation, intimidation, and the fear caused by statements and threats made in violation of the FDCPA. If the suit is successful, the court will also award the costs of bringing the cause of action along with any attorney’s fees incurred. The fact that the court is required to award costs and attorney’s fees upon a successful prosecution of the suit make these cases financially viable. In addition, if the violation of the FDCPA is widespread, it is possible a class action may be able to be filed on behalf of all consumers whose rights have been violated.


Fair Debt Collection Practices, Part 2

In this post, we will discuss some of the practices specifically prohibited by the Fair Debt Collection Practices Act (“FDCPA”). In the last post, we listed some of the specific types of harassment or abuse prohibited by the FDCPA. Another section of the FDCPA prohibits debt collectors from using false and misleading statements when attempting to collect a debt. This section specifically prohibits a debt collector from the following:

  • The false representation or implication that the debt collector is vouched for, bonded by, or affiliated with the United States or any State, including the use of any badge, uniform.
  • The false representation of the character, amount, or legal status of any debt;  any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.
  • The false representation or implication that any individual is an attorney or that any communication is from an attorney.
  • The representation or implication that nonpayment of any debt will result in the arrest or imprisonment of any person or the seizure, garnishment, attachment, or sale of any property or wages of any person unless such action is lawful and the debt collector or creditor intends to take such action.
  • The threat to take any action that cannot legally be taken or that is not intended to be taken.
  • The false representation or implication that a sale, referral, or other transfer of any interest in a debt shall cause the consumer to lose any claim or defense to payment of the debt or become subject to any practice prohibited by this title (i.e.the debt collector may now be able to engage is actions otherwise prohibited by the FDCPA if the debt is transferred to another person or company).
  • The false representation or implication that the consumer committed any crime or other conduct in order to disgrace the consumer.
  • Communicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed.
  • The use or distribution of any written communication which simulates or is falsely represented to be a document authorized, issued, or approved by any court, official, or agency of the United States or any State, or which creates a false impression as to its source, authorization, or approval.
  • The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.
  • The failure to disclose in the initial written communication with the consumer and, in addition, if the initial communication with the consumer is oral, in that initial oral communication, that the debt collector is attempting to collect a debt and that any information obtained will be used for that purpose, and the failure to disclose in subsequent communications that the communication is from a debt collector, except that this paragraph shall not apply to a formal pleading made in connection with a legal action.
  • The false representation or implication that accounts have been turned over to innocent purchasers for value.
  • The false representation or implication that documents are legal process.
  • The use of any business, company, or organization name other than the true name of the debt collector’s business, company, or organization.
  • The false representation or implication that documents are not legal process forms or do not require action by the consumer.
  • The false representation or implication that a debt collector operates or is employed by a consumer reporting agency.

While this list does not necessarily contain all misrepresentations prohibited by the FDCPA, it does give us a good idea of what can and can not be done by a debt collector. In essence, when a debt collector is dealing with a consumer, the debt collector must treat the consumer with honesty and respect. Threats, misrepresentations, and outright lies are all prohibited. Unfortunately, this doesn’t always happen. If you are being pursued by a debt collector and have concerns over the tactics being used, please consult an attorney familiar with the FDCPA to determine your rights.


Fair Debt Collection Practices, Part 1

In this post, we will discuss some of the rights the Fair Debt Collection Practices Act (“FDCPA”) gives consumers and certain actions debt collectors can not take when collecting a debt. In 1977, Congress enacted the FDCPA to protect consumer from abusive debt collection practice. The FDCPA gives consumer a number of protections, including:

  • Restrictions on who a debt collector may contact for information on the debtor.
  • Restrictions on contacting the debtor at work.
  • Restrictions on contacting the debtor if the debtor is represented by an attorney.
  • The debt collector can not contact the consumer at unusual times or locations .

The FDCPA also prohibits a debt collector from:

  • The use or threat of use of violence or other criminal means to harm the physical person, reputation, or property of any person.
  • The use of obscene or profane language or language the natural consequence of which is to abuse the hearer or reader.
  • The publication of a list of consumers who allegedly refuse to pay debts (with certain exceptions)
  • The advertisement for sale of any debt to coerce payment of the debt.
  • Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number.
  • The placement of telephone calls without meaningful disclosure of the caller’s identity (with certain exceptions).

In the next post, we will discuss what constitutes harassment or abuse by a debt collector as well as the prohibitions on false or misleading statements by debt collectors. In the meantime, be aware of scams involving debt collection attempts, as reported in the related article.


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Victim of Consumer Fraud?

The Missouri Merchandising Practices Act  (MMPA) provides that “the act, use or employment by any person of any deception, fraud, false pretense, false promise, misrepresentation, unfair  practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement of any merchandise in trade or commerce or the solicitation of any funds for any charitable purpose…in or from the state of Missouri, is declared to be an unlawful practice.”  The MMPA’s definitions make a broad range of acts illegal. For instance, “sale” is defined as any sale, lease, offer for sale or lease, or attempt to sell or lease merchandise for cash or on credit. Therefore, even fraudulent offers for sale or attempts to sell merchandise violate the act. To broaden the MMPA even further, the Missouri legislature defined “merchandise” as objects, wares, goods, commodities, intangibles, real estate or services. The inclusion of intangibles, real estate, and services in the definition of merchandise creates a broad and powerful statute to protect consumers of all types.

Violation of the MMPA can give rise to both civil and criminal liability. If a law suit is brought by a consumer, punitive damages and attorney’s fees may be recovered in addition to any actual damages. If you have been the victim of fraud in any transaction, you may have a cause of action under the MMPA.