Posted on Tue, Dec. 17, 2002
LEGAL AFFAIRS: Bear Stearns subsidiary
to pay $6 million in punitive damages
In what may be the largest local award in a non-class action
consumer protection case, a subsidiary of Bear Stearns & Co. Inc.
has been ordered to pay $6 million for violating the Fair Debt Collection Practices Act.
Arbitrator Donald L. Mason ordered EMC Mortgage Corp. of
Irving, Texas, to pay the punitive damages to Stanley and Pat Stark, a Holden,
Mo., couple whose mortgage note EMC had purchased out of bankruptcy.
Mason, a retired Jackson
County judge, said he found EMC's conduct "reprehensible and outrageous
and in total disregard of (the Starks') legal rights."
The Starks' ordeal began shortly after they defaulted on their $56,900 note, which
they had taken out from United Lending Corp. to shore up their troubled
photography business in Warrensburg, Mo.
The loan didn't resolve their problems, and the Starks filed for Chapter 7
bankruptcy in early 2000. Around the same time, United Lending also filed
for bankruptcy. In mid-2000, EMC bought 52,000 notes from United, including the
Starks' loan.
Shortly afterward, EMC and its lawyers, the St. Louis firm of Sandberg
Phoenix & von Gontard, began contacting the Starks to collect the debt.
Although the Starks' lawyer, Kansas City attorney Roy True of The True Law
Firm, 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, however, never occurred. Instead, in June 2001, an agent of EMC forcibly entered
the Starks' vacant house. (The Starks, while continuing to own the home,
had moved on True's advice.) In the front-room window the agent posted a sign
stating "Property has been secured or winterize.(sic) Not for sale or
rent."
All that happened during the pendency of a federal lawsuit filed
by the Starks to stop the foreclosure sale. EMC, however, invoked an agreement
in the loan documents and requested that the case be sent to arbitration. True
and his clients resisted, figuring they had a better chance in front of a jury.
U.S. District Judge Ortrie
Smith sided with EMC, and the case was submitted to Mason. Once in arbitration, True
asserted additional tort claims under Missouri law seeking punitive damages from EMC for invasion of
privacy and intentional infliction of emotional distress.
EMC countered that punitive damages were precluded by the
arbitration agreement, but Mason disagreed. He then found that the Fair Debt Collection Practices
Act was "repeatedly violated" by EMC and awarded the Starks
$1,000 each in actual damages and $6 million in punitive damages -- or what he
said amounted to 1 percent
of Bear Stearns' stockholders' equity.
At 1 percent of the investment banking firm's equity, Mason said,
"this is not great
punishment but it should act as a deterrence."
EMC associate general counsel Chris Carman on Monday said the company was
"extremely disappointed" with the decision and would seek to have the
punitive damage award vacated.
True, a 36-year-old sole practitioner, said he found it ironic
that the very proceeding he opposed -- arbitration -- worked in his favor.
Unlike a jury verdict, there are limited grounds to appeal an arbitration
award.
"And these same arbitration agreements are being used in 52,000 other loans," True
said, referring to the other mortgage notes EMC purchased out of United
Lending's bankruptcy. "The theory is that arbitration is almost
always better for the creditor. They may have to rethink that now."
While class-action debt-collection cases have yielded
multimillion-dollar verdicts and settlements, it's rare for individual
consumers to win such awards. True said he was unaware of any award in an individual debt-collection
case as big as the one handed to his clients.
More debt collection
Coincidentally, a
class-action case involving debt collections was filed against a Johnson County
law firm around the same time the Starks won their case.
The plaintiff, Johnson County resident Kathy Garrison, is seeking
unspecified damages from Berman & Rabin, alleging the firm served
her with a summons containing false and deceptive language.
The suit, filed in federal court in Kansas City, Kan., contends
that the summons the firm sent to Garrison stated, among other things: "If
you are not represented by an attorney, the answer shall be signed by you under
penalty of perjury."
That, Garrison says, was a violation of the Kansas Code of Civil Procedure, which
doesn't impose perjury penalties for answers in civil lawsuits.
"Defendants engaged in
unconscionable acts and practices with the collection of a debt...," Garrison alleges.
Lawyers at Berman & Rabin did not return phone calls seeking
comment.
Garrison wants her
complaint certified as a class action on behalf of similarly situated debtors.
She estimates that the would-be class contains more than 500 members throughout
the state.
Garrison's lawyers at Hill Beam-Ward & Kruse declined
to comment on the lawsuit.
To reach Dan Margolies, legal affairs
reporter, call (816) 234-7740 or send e-mail to dmargolies@kcstar.com.