Chapter 19

Jury Instructions in an Abusive Debt Collection and Repossession Case

Brian Bromberg is in private practice in New York City and has been a NACA member since 2001. Dmitry Feofanov graduated from the Chicago-Kent College of Law in 1994. After serving as a law clerk for the Iowa Supreme Court and Illinois Appellate Court, he did municipal law and, in 2002, established ChicagoLemonLaw.com. He may be reached at Feofanov@ChicagoLemonLaw.com. This chapter contains jury instructions for abusive debt collection and repossession of a car. The instructions include instructions on claims under the Fair Debt Collection Practices Act, trespass, unfair and deceptive acts and practices, fraud, actual, statutory, and punitive damages. Also included are special verdict forms and interrogatories to the jury.

JURY INSTRUCTIONS AND A VERDICT FORM 1. The law regarding this case is contained in the instructions I will give to you. You must consider the Courts instructions as a whole, not pick out some instructions and disregard others. It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party, whether a corporation or an individual, should receive your same fair consideration. You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the Court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial. You are the sole judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case. An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law of the evidence you should disregard that statement.

2. A fact may be proved by circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances that give rise to a reasonable inference of the truth of the facts sought to be proved.

3. In considering the evidence in this case you are not required to set aside your own observation and experience in the affairs of life, but you have a right to consider all the evidence in the light of your own observation and experience in the affairs of life.

4. When I use the expression proximate cause, I mean any cause which, in natural or probable sequence, produced the injury complained of.

5. When I say that a party has the burden of proof on any proposition, or use the expression if you find, or if you decide, I mean you must be persuaded, considering all the evidence in the case, that the proposition on which she has the burden of proof is more probably true than not true.

6. When you retire to the jury room, you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous. Forms of verdict are supplied to you with these instructions. After you have reached your verdict, fill in and sign the appropriate form of verdict and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you by the court.

7. You have the right to take notes during the course of this trial if you choose to do so. Note pads will be provided for your convenience. Please place your name on the cover of the note pad. No one else will be allowed to look at your notes. You do not have to take notes. That is entirely up to you. I have no preference one way or the other. You may use your notes to refresh your memory at the appropriate time. Your notes are for your own use only, not for any other jurors. Do not show them to anyone at any time; that includes other jurors, and it includes the time when you are deliberating on your verdict. You should rely on your own memory of the evidence. If your notes conflict with your memory, or if someone elses notes conflict with your memory, you are free to use your own memory of the evidence. Just because a juror has taken notes does not mean his or her memory of the evidence has any more weight or impact than the memory of a juror who has not taken notes. Your notes will not leave this courtroom. They will be collected by ___________ (bailiffs name) when you leave for lunch and at the close of the court day. At the end of the trial, when you are discharged from further service in this case, the notes will be collected by ___________ (bailiffs name). They then will be destroyed. No one will be allowed to look at the notes before they are destroyed.

8. The claims of Mr. and Mrs. Vyshnevsky are separate and independent grounds for recovery in this case. They could overlap to some extent, but it is not necessary that they overlap. You can find in favor of Mr. and Mrs. Vyshnevsky or defendants on some claims, and not on others, or on all claims.

9. If you decide for Mr. and Mrs. Vyshnevsky on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate them for any of the following elements of damages proved by the evidence to have proximately resulted from violations of the Fair Debt Collection Practices Act, common law trespass to land, or Consumer Fraud Act, by Defendants. 1. Fair Debt Collection Practices Act: a. Statutory damages of up to $1,000.0; b. Loss of use of the car; c. Aggravation and inconvenience; d. Lost employment opportunities; e. Embarrassment and humiliation;

f. Having to buy a replacement car. 2. Trespass to Land a. Nominal damages; b. Actual damages; and c. Punitive damages, if you find that defendants conduct warranted them. 3. Consumer Fraud Act, fraudulent switch from purchase to lease: a. Loss of use of the car; b. Aggravation and inconvenience; c. Lost employment opportunities; d. Embarrassment and humiliation; e. Having to buy a replacement car; and f. Punitive damages, if you find that defendants conduct warranted them. Whether any of these elements of damages have been proved by the evidence is for you to determine.

10. The first issue you must decide arises under the federal Fair Debt Collection Practices Act. The Fair Debt Collection Practices Act was passed because Congress found that abusive debt collection practices contribute to the number of personal bankruptcies, to marital instability, to the loss of jobs, and to invasions of individual privacy. The purpose of the Act is to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

11. The first issue you must decide is as follows: There was in force at the time of the occurrence in question a federal statute, which provided that:
A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: Taking or threatening to take any nonjudicial action to affect dispossession or disablement of property if There is no present right to possession of the property claimed as collateral through an enforceable security interest.

In this case, Mr. and Mrs. Vyshnevsky contend that defendants, during the repossession of their car, told them that their car had been reported stolen and that they would be arrested if they drove it; the Vyshnevskys also contend that defendants wore badges reminiscent to the badges worn by undercover police officers. If true, these would be violations of the Fair Debt Collection Practices Act. Defendants deny these allegations.

12. The first subsidiary issue you must decide is as follows: There was in force at the time of the occurrence in question a state statute, which provided that:
The buyer on notifying the seller of his intention to do so may deduct all of any part of the damages resulting from any breach of the contract from any part of the price still due under the same contract. Upon giving such a notice, the buyer is not in default.

In this case, Mr. and Mrs. Vyshnevsky contend that they gave notice to Mitsubishi Motor Credit of their intention to deduct their damages from their contract with Mitsubishi Motor Credit. If true, this would mean that Mr. and Mrs. Vyshnevsky were not in default, and that Mitsubishi Motor Credit had no present right to possession of their car. Defendants deny these allegations.

13. In determining whether Defendants violated the Fair Debt Collection Practices Act, you are to apply the unsophisticated consumer standard. The law was not made for the protection of experts, but for the publicthat vast multitude which includes the ignorant, the unthinking and the credulous, and the fact that a false or misleading statement may be obviously false or misleading to those who are trained and experienced does nto change its character, nor take away its power to deceive others less experienced. Thus, in reaching your determination of whether Defendants communications are false or deceptive you must view them through the eyes of the unsophisticated consumer.

14. I turn now to the law of damages applicable to this case if you reach that phase. The Act specifically permits damages to be awarded against a defendant who violates the Act. First, actual damages may be awarded the Plaintiffs as a result of the failure of Defendants to comply with the Act. Actual damages not only include any out-of-pocket expenses, but also damages for personal humiliation, embarrassment, mental anguish, and emotional distress. There is no fixed standard or measure in the case of intangible items such as humiliation, embarrassment, mental anguish and emotional distress. You must determine a fair and adequate award of these items through the exercise of your judgment and experience in the affairs of the world after considering all the facts and circumstances presented during the trial of this case.

15. In additional to actual damages, and regardless of whether actual damages are awarded, you may award statutory damages in an amount not to exceed $1,000 to Plaintiffs, if you find that they are affected by the violation of the Act. In determining the amount of statutory damages to be awarded, whether $1.00 or up to and including $1,000.00, the Act provides that you must consider among other relevant factors, the frequency and persistence of

non-compliance by the Defendants, the nature of such non-compliance, and the extent to which non-compliance was intentional. If you decide for Mr. and Mrs. Vyshnevsky on the question of liability for the violation of the Fair Debt Collection Practices Act, you must then fix the amount of money that will reasonably and fairly compensate them for any of the following elements of damages proved by the evidence to have proximately resulted from the conduct of the Defendants. a. Statutory damages of up to $1,000.0; b. Loss of use of the car; c. Aggravation and inconvenience; d. Lost employment opportunities; e. Embarrassment and humiliation; f. Having to buy a replacement car. Whether any of these elements of damages have been proved by the evidence is for you to determine.

16. If you find for Mr. and Mrs. Vyshnevsky and against Defendants on the Fair Debt Collection Practices Act count pertaining to alleged misrepresentations concerning the car reported stolen and wearing of polic-like badges, you should mark the Plaintiffs column in the Verdict Form. If you find for Defendants and against Mr. and Mrs. Vyshnevsky, you should mark the Defendants column in the Verdict Form.

17. The second issue you must decide is as follows: There was in force in the State of Illinois at the time of the occurrence in question the law, which provided that:
A trespass is an intentional invasion of the exclusive possession of land. Trespass need not be in person but may be by casting something on the land or projecting anything into, over, or upon the same. The projection of any substance upon the lands of another without right is a trespass. Every trespass on realty results in legal injury entitling plaintiff to at least nominal damages.

In this case, Mr. and Mrs. Vyshnevsky contend that Defendants, without their permission, intentionally entered upon their land when they entered their garage. Defendants deny the allegations.

18. If you decide for Mr. Vyshnevsky on the question of liability for trespass to land, you must then fix the amount of money that will reasonably and fairly compensate them for any of the following elements of damages proved by the evidence to have proximately resulted from the conduct of the defendants. 1. Nominal damages;

2. Actual damages; and 3. Punitive damages, if you find that defendants conduct warranted them. Whether any of these elements of damages has been proved by the evidence is for you to determine.

19. If you find for Mr. and Mrs. Vyshnevsky and against Defendants on the trespass to land count pertaining to the intention entry upon their land, you should mark the Plaintiffs column in the Verdict Form. If you find for Defendants and against Mr. and Mrs. Vyshnevsky, you should mark the Defendants column in the Verdict Form.

20. The last issue you must decide is as follows: There was in force in the State of Illinois at the time of the occurrence in question a statute, which provided that:
Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact, in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damaged thereby.

The definition of a deceptive act in Illinois is:

(1) a deceptive act or practice, (2) an intent by defendant that the victim rely on the deception, and (3) the deception occurring in the course of conduct involving a trade or commerce.

The definition of an unfair act in Illinois is:

(1) whether the practice offends public policy, (2) whether it is immoral, unethical, oppressive, or unscrupulous, or (3) whether it causes substantial injury to consumers. All three criteria do not need to be satisfied to support a finding of unfairness.

In this case, Mr. and Mrs. Vyshnevsky contend that Defendants committed an unfair and deceptive act or practice, including deception, fraud, false pretense, misrepresentation, or the concealment, suppression or omission of material facts, when they told Mr. and Mrs. Vyshnevsky that their car had been reported stolen, that they could not drive it, and when they wore police-like badges. Defendants deny these allegations.

21. If you decide for Mr. and Mrs. Vyshnevsky on the question of liability for violations of the Consumer Fraud Act, such as telling them that their car had been reported stolen, that they could not drive it, and wearing police-like badges, you must then fix the amount of money that will reasonably and fairly compensate them for any of the following 7

elements of damages proved by the evidence to have proximately resulted from the conduct of the defendants. 1. Loss of use of the car; 2. Aggravation and inconvenience; 3. Lost employment opportunities; 4. Embarrassment and humiliation; 5. Having to buy a replacement car; and 6. Punitive damages, if you find that defendants conduct warranted them. Whether any of these elements of damages has been proved by the evidence is for you to determine.

22. If you find for Mr. and Mrs. Vyshnevsky and against Defendants on the Consumer Fraud Act count, you should mark the Plaintiffs column in the Verdict Form. If you find for Defendants and against Mr. and Mrs. Vyshnevsky, you should mark the Defendants column in the Verdict Form.

23. If you find that Defendants acted with malicious intent or reckless indifference to the rights of Mr. and Mrs. Vyshnevsky, and with an evil motive, or that their conduct was willful and wanton, and proximately caused injury to Plaintiffs, and if you believe that justice and the public good require it, you may, in addition to any other damages to which you find Mr. and Mrs. Vyshnevsky are entitled, award an amount which will serve to punish Defendants and to deter Defendants and others from similar conduct.

24. When I use the expression willful and wanton conduct I mean a course of action which shows actual or deliberate intention to harm or which, if not intentional, shows an utter indifference to or conscious disregard for the rights of others.

25. Punitive damages may be awarded in actions characterized by fraud, oppression, or in actions where Defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of rights of others.

26. Punitive damages should only be awarded when aggravating circumstances are present. Fraud is one of such aggravating circumstances. Punitive damages are awarded to punish Defendant, teaching him not to repeat his intentional, deliberate and outrageous conduct, and to deter others from similar conduct.

27. Punitive damages may be awarded by you in your discretion for the purpose of making an example of and punishing the defendant for the wrong done and to serve as an example to others not to engage in such conduct. You may, in the exercise of discretion if you

choose to do so, add to the award of actual damages such amount as you shall agree to be proper as punitive damages. Whether or not to make any award of punitive damages is a mater exclusively within your province. You should bear in mind that the amount of such punitive damages must be fixed with calm discretion and sound reason and must never be either awarded, or fixed in amount, because of any sympathy or bias, or prejudice with respect to any party to the case.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION [Consumer 1] and [Consumer 2], Plaintiffs, v. Assets Biz Corporation, and Michael Stephen, Defendants. Case No.

JURY DEMANDED VERDICT FORM WE, THE JURY, find for (please check for each claim): Plaintiffs: Fair Debt Collection Practices Act Trespass Consumer Fraud Act Defendants:

_______ _______

_______ _______

_______

_______

If you find for Plaintiffs and against Defendants, please answer the following questions: What damages, if any, do you award to Plaintiffs for violations of the Fair Debt Collection Practices Act? a. Statutory damages of up to $1,000.00: b. Loss of use of the car: c. Aggravation and inconvenience: d. Lost employment opportunities: $______________________; $______________________; $______________________; $______________________;

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e. Embarrassment and humiliation: f. Having to buy a replacement car:

$______________________; $______________________.

What damages, if any, do you award to Plaintiffs for trespass on their property? a. Nominal damages: b. Actual damages: c. Punitive damages: $____________________; $____________________; $____________________.

What damages, if any, do you award to Plaintiffs for violations of the Illinois Consumer Fraud Act? a. Loss of use of the car: b. Aggravation and inconvenience: c. Lost employment opportunities: d. Embarrassment and humiliation: e. Having to buy a replacement car: f. Punitive damages: $_________________; $_________________; $_________________; $_________________; $_________________; $_________________.

Signed: ________________________

________________________

________________________

________________________

________________________

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________________________

________________________

________________________ Foreperson Dated: March ___, 2004

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VERDICT FORM TO AVOID DUPLICATIVE DAMAGES AWARDS If any amount of the actual damages awarded under one of the claims duplicate the same loss or harm as damages awarded under the other claim, you must state the amount of actual damages that are the same. This avoids a double recovery for Plaintiffs if you award damages for the same loss under more than one claim. Therefore, indicate below if any amounts you have awarded as actual damages duplicate the actual damages awarded under any other claim by identifying the amount that compensate Plaintiffs for the same damages.

________________________ or, if no amounts written above, then none of the actual damages awarded duplicate any other damages awarded under the other claims.

_____________________________ _____________________________ _____________________________ _____________________________ _____________________________ _____________________________ _____________________________ _____________________________

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