30(c). PRAYER FOR DAMAGES AND OTHER REMEDIES WHEREFORE, Plaintiff prays that judgment be entered against Defendant and Plaintiff be awarded damages from Defendant as follows: • An award of statutory damages of $1,000.00 pursuant to 15 U.S.C. § 1692k(a)(2)(A) for Plaintiff and each member of the Class; Case 3:16-cv-01992-WQH-WVG Document 11 Filed 09/30/16 Page 19 of 20Case 3:16-cv-0 992-WQH-WVG Document 24-4 Filed 06/13/17 PageID.482 Page 22 of 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 20 - FIRST AMENDED CLASS ACTION COMPLAINT • An award of costs of litigation and reasonable attorney’s fees, pursuant to 15 U.S.C. § 1692k(a)(3); • An award of statutory damages of $1,000.00 pursuant to Cal. Civ. Code § 1788.

77(2). WHEREFORE, Defendant respectfully requests that this Court enter an order granting this motion, entering final summary judgment in favor of Defendant and against Plaintiff with respect to all claims alleged in the Amended Complaint, find that one or more of Plaintiff's claims arising under the FDCPA was brought in bad faith and for purposes of harassment and award Defendant its reasonable attorneys' fees and costs pursuant to 15 U.S.C. § 1692k(a)(3), find that Plaintiff's claim arising under the FCCPA failed to raise a justiciable issue of law or fact and award Defendant its reasonable attorneys' fees and costs pursuant to Fla. Stat. § 559.77(2), and grant Defendant such other and further relief as the Court deems just and proper.

If the First Amendment does not help an attorney with regard to statements made in court, then, a fortiori, it should not apply to Carlisle’s office conduct here. CONCLUSION For the foregoing reasons, this Court should grant Ms. Jerman’s motion for summary judgment, award her $1,000 in statutory damages, and award the class $13,052.25 in statutory damages pursuant to 15 U.S.C. 1692k(a)(2)(B). Respectfully submitted, /s/ Stephen R. Felson Stephen R. Felson (0038432) 215 E. Ninth St., Suite 650 Cincinnati, Ohio 45202 (513) 721-4900 (513) 639-7011 (fax) E-Mail: SteveF8953@aol.com /s/ O. Randolph Bragg O. Randolph Bragg, pro hac vice Horwitz, Horwitz and Assoc. 25 E. Washington, Suite 900 Chicago, Illinois 60602 (312) 372-8822 (312) 372-1673 (Facsimile) E-mail: rand@horwitzlaw.com /s/ Edward A. Icove Edward A. Icove (0019646) Icove Legal Group, Ltd.

Similarly, the “factors considered by a court” in determining damages – in both the individual and class action context – reference monetary awards in terms of amounts imposed per debt collector, and not per action. See 15 U.S.C. § 1692k(b)(1)-(2) (“In determining the amount of liability in any action under subsection (a) of this section, the court shall consider, among other relevant factors . . . . in any individual action under subsection (a)(2)(A) of this section, the frequency and persistence of noncompliance by the debt collector, the nature of such Case 1:10-cv-05868-PKC-GWG Document 57 Filed 02/10/12 Page 19 of 31 15 noncompliance, and the extent to which such noncompliance was intentional . . . .

15 U.S.C. §1692k(a) (emphasis added). “Given the structure of [15 U.S.C. §1692k], attorney’s fees should not be construed as a special or discretionary remedy; rather, the Act mandates an award of attorney’s fees as a means of fulfilling Congress’s intent that the Act should be enforced by debtors acting as private attorneys general.” Graziano v. Walkeron, 950 F. 2d 107, 113 (3d.

77; E. The entry of judgment against Defendant and an award of attorney’s fees pursuant to § 1679g of the CROA; 24 F. The award of costs and reasonable attorney’s fees against Defendant pursuant to 15 U.S.C. § 1692k and Fla. Stat. § 559.77; and G. For such other and further relief as is just.

The same analysis applies in this case. No claim yet exists for Defendant McLemore recovery of attorney’s fees and costs under 15 U.S.C. § 1692k(a)(3) and, therefore, this theoretical issue is simply not ripe for adjudication and cannot be asserted by way of a claim in an Answer or as an Affirmative Defense at this time. CONCLUSION WHEREFORE, for the reasons stated above, Plaintiffs respectfully request this Court to strike Defendant McLemore’s claim that Plaintiffs brought the current action in bad faith and for the purpose of harassment, and that the Court should award Defendant McLemore attorney’s fees, Case 2:12-cv-00152 Document 8 Filed 06/05/12 Page 4 of 5 PageID #: 75 5 as authorized by 15 U.S.C. §1692(k)(a)(3), and for such other relief this Court deems just and proper.

The factors to be used by the Court in determining the amount of statutory damages include “the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collector’s noncompliance was intentional.” 15 U.S.C. 1692k(b)(2). It is not guaranteed that the class would receive the maximum amount of statutory damages.

Nothing about 15 U.S.C. §1692c and 12 C.F.R. §1024.36 are inconsistent and BSI could have easily complied with its 4 Plaintiff notes that the only defense under the Fair Debt Collection Practices Act is 15 U.S.C. §1692k(c) which requires the debt collector to demonstrate “by a preponderance of the evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error.” That standard cannot be met on a Fed.R.Civ.P. 12(b)(6) application.

CASE 0:06-cv-03228-PAM-JSM Document 16 Filed 11/14/06 Page 6 of 7 7 Furthermore, Defendant’s allegations are legally insufficient because they do not qualify as affirmative defenses under Rule 8, are procedurally ineffective under Rule 11, and untimely under 15 U.S.C. § 1692k(a)(3). Consequently, Defendant’s Sixth Affirmative Defense, which is only presented to harass, intimidate, and insult Plaintiff and Plaintiff’s counsel should therefore be properly stricken under Rule 12(f). CONCLUSION