Posted on Fri, Aug. 27, 2004

Court restores $6 million award

A federal appeals court on Thursday restored a $6 million punitive damage award in a debt collection case brought against a subsidiary of Bear Stearns.

The ruling by a three-judge panel of the 8th U.S. Circuit Court of Appeals reversed a decision by a federal judge in Kansas City throwing out the award. The award, thought to be the largest ever handed down locally in an individual consumer protection case, was in favor of Stanley and Pat Stark of Holden, Mo.

In 2002, arbitrator Donald L. Mason ordered EMC Mortgage Corp. of Irving, Texas, to pay the punitive damages to the Starks. The couple had argued that EMC, a subsidiary of Bear Stearns & Co. Inc., had violated the Fair Debt Collection Practices Act by repeatedly contacting them when they were represented by a lawyer.

Kansas City lawyer Roy True said Thursday that the appeal court's decision was a victory for the arbitration process.

“The debt collector got what they bargained for,” True said. “They forced my client into arbitration and then when we won the arbitration case, they wanted the court to overturn it.”

Elizabeth Ventura, a Bear Stearns spokeswoman, declined comment, saying the firm had not yet reviewed the court's decision.

The case stemmed from a loan the Starks took out from United Lending Corp. Not long afterward, the Starks filed for bankruptcy. About the same time, United Lending also filed for bankruptcy. In mid-2000, EMC bought United Lending's promissory notes, including the Starks' loan. Shortly after that, EMC and its lawyers began contacting the Starks to collect the debt. Although True warned them not to contact his clients directly, EMC and the lawyers persisted, sending additional letters and then a “notice of foreclosure sale” to Stanley Stark.

The foreclosure never occurred. Instead, an EMC agent entered the Starks' vacant house and placed a sign in the window stating that the property had been secured and was not for sale or rent. The Starks earlier had filed a federal lawsuit to stop the foreclosure, but EMC invoked a provision in the loan documents that required sending the case to arbitration.

Mason then hit EMC with $6 million in punitive damages, finding the company's conduct “reprehensible and outrageous and in total disregard of (the Starks') legal rights.”

EMC appealed the award to U.S. District Judge Ortrie Smith, who set it aside, saying that the arbitration agreement precluded an award of punitive damages. The appeals court reversed Smith on Thursday, agreeing with Mason that the contract language was ambiguous.

To reach Mark Morris, call  (816) 234-4310 or send e-mail to