How Bad Plaintiff Behavior Turned a Winning FDCPA Case into a Massive Defeat

Brandon Scroggin had an air-tight FDCPA claim against a debt collection agency. It was such a solid case, the company offered him a $5,000 settlement to make it go away. But now Scroggin owes the agency more than $33,000 to pay their attorney’s fees.

So how did he go from five grand up to 33-large in the hole?

Scroggin is a prolific poster on consumer-focused web forums, offering people advice on how to deal with debt collectors and creditors. His specialty is suing debt collectors for FDCPA violations, many of which he baited the firms into making. And he doesn’t try to hide that fact.

In evidence presented in the case, Scroggin wrote on a consumer message board:

If you want to solicit the FDCPA violation, send them the refusal to pay with a reason. They are more likely to write you back to show you how you are wrong and they are right, in other words argue with you. Who cares, what they say, it’s an FDCPA violation and it’s strict liability.

Scroggins was, of course, technically correct about the FDCPA being a strict liability statute. But a zealous focus on that technical correctness, combined with a tenuous understanding of the legal process and propensity to boast about his accomplishments to anonymous Internet users, led to an unfavorable judgment.

The case in question, Brandon Scroggin v. Credit Bureau of Jonesboro (CBJ), seemed relatively straightforward. After a medical bill owed by Scroggin went delinquent, the debt was sent to CBJ for collection. The plaintiff accused the collection agency of then violating the FDCPA by contacting him after sending a written cease and desist letter and for third party disclosure after a friend heard a voice message from the collection agency.

The defendant offered to settle the case for $5,000. But that wasn’t good enough for Scroggin. “I want to maximize the retaliation, do some damage and hopefully goad and/or force them to an actual trial,” he wrote online.

He did force that trial, and he actually won. A jury found that CBJ had violated the FDCPA…twice.

FDCPA violations carry a $1,000 statutory award per instance. But the jury found that Scroggin was not eligible for any damages, awarding him $0.  That didn’t matter, though, because Scroggin’s intent was to cash in on attorney’s fees as the prevailing party. How did anyone know that fact? He kept posting about it online…over and over and over.

Due to a novel approach from CBJ’s attorney, Rebecca Worsham of Mixon & Worsham, all of the defendant’s online postings were admitted into evidence, including the ones that talked about award strategy.

The case was the first FDCPA defense by Worsham. Her firm had handled other matters for CBJ in the past, but never entered the highly-specialized world of debt collection defense.

Worsham wanted to find a new approach to limit her client’s liability. Before her were pages of vitriolic Internet postings and an opponent who gladly admitted they were, in fact, his.

“I actually reached out to more general attorneys for advice on how best to get this evidence admitted,” Worsham told insideARM. She felt there was a very good case to be made that Scroggin had filed the suit, and continued through to trial, in bad faith and for the purpose of harassment.

Perhaps the most pivotal action Worsham took was moving for dismissal of the case and “for order of civility based on comments Scroggin posted on certain websites” in discovery upon learning about his posting habits. Although that motion was denied, the judge allowed the posts to be entered into evidence, especially since Scroggin seemed so proud of them.

Immediately after the jury handed down their verdict against CBJ, Worsham filed for attorney’s fees and costs. The FDCPA does allow for attorney’s fees and costs if the defendant wins and can show that the case was brought in bad faith. And the Supreme Court last year famously held that a successful defendant could be awarded costs even in the absence of a finding of bad faith. But awarding costs to a defendant that lost? That would be a first.

Interestingly, the jury signaled that there might be a case there. In addition to deciding on the merits of the FDCPA violations and what damages the plaintiff was entitled to, the jury was asked if they felt Scroggin had brought the case 1) in bad faith, and 2) for the purpose of harassment. The jury found that he had brought the suit in bad faith, but found that he had not brought if for the purpose of harassment.

That’s all District Judge Susan Webber Wright needed to award fees and costs to CBJ in the total amount of $33,220.

Scroggin appealed the decision to the Eighth Circuit Court of Appeals. Rather than debate the merits of the award in the FDCPA, the Circuit Court panel was asked to examine if Judge Wright was acting within her discretion to give the award to CBJ. They affirmed her right to award the fees and costs without commenting on merit.

The 8^th Circuit opinion is extremely brief and not filed for publication, so there is probably no precedent to be had for ARM firms. Scroggin has vowed to appeal to the Supreme Court, but that seems to be a longshot at best. The biggest takeaway here is that opponents on either side of a case should respect the legal process and not attempt to make it a mockery. If someone on the other side is doing that, there now appears to be at least one avenue to explore to make things right.