by Mark C. Leffler, Esq, and Emily Connor Kennedy, Esq.
In each of three separate Chapter 13 bankruptcy cases co-counseled by Boleman Law Firm, P.C., Consumer Litigation Associates, and the Law Offices of Dale W. Pittman, the Bankruptcy Court ordered NetCredit to pay $100,000 in punitive damages for egregious violations of the automatic stay. Each $100,000 award included payment of $37,500.00 to National Consumer Law Center (NCLC) and $37,500.00 to Legal Services Corporation of Virginia.
The Court awarded varying damages amounts in each case related to bank overdraft charges caused by post-bankruptcy debits, lost time at work, mileage expenses, and emotional distress.
The Court also ordered NetCredit to pay a total of over $178,000 in attorney fees to the plaintiffs’ attorneys.
NC Financial Solutions of Utah, LLC, d/b/a NetCredit, violated the automatic stay of bankruptcy by continuing to debit debtors’ bank accounts, call debtors, and send emails in attempts to collect on pre-petition lines of credit.
NetCredit admitted the violations occurred well after it had received notices of bankruptcy. However, NetCredit denied that the debtors were significantly damaged, and blamed a single former employee for failing to properly process bankruptcy notices. The Court noted, however, that NetCredit’s automated system required the employee to send borrowers who filed bankruptcy an email warning that the borrower remained liable for the debt, and that non-payment could harm his or her credit. NetCredit’s process, therefore, necessarily involved willfully violating the automatic stay—a problem which could not be blamed on a single, scapegoat employee. At trial, the bankruptcy manager for NetCredit’s parent company, Enova ¹, testified that NetCredit continued to use that email and had no plans to stop using it.
The Court found that “NetCredit, as an institution, either does not fully grasp or refuses to acknowledge the importance and the purpose of the automatic stay.” ²
The Court awarded punitive damages because, “NetCredit’s conduct showed reckless disregard of the rights of the Plaintiffs, targeted individuals who were financially vulnerable (debtors in bankruptcy) and involved repeated actions.” ³
In assessing the appropriate remedy, the Court considered many factors, including Enova’s bankruptcy manager’s testimony that NetCredit had thousands of borrowers in bankruptcy, as well as evidence that NetCredit could afford to pay a substantial judgment. The Court held that, despite the relatively small amount of compensatory damages awarded, “[t]he amount of punitive damages assessed in these cases must be sufficient to motivate NetCredit to devote the resources necessary to correct the deficiencies in its bankruptcy procedures.” ⁴
¹ Enova’s North American subsidiaries include NetCredit, CashNetUSA, Enova Decisions, Headway Capital, and The Business Backer.
² Charity v. NC Financial Solutions of Utah, LLC, d/b/a Netcredit (In re Charity), Ch. 13 Case No. 16-31974-KLP, Adv. No. 16-03121-KLP, slip op. at 40 (E.D. Va. Aug. 15 2017).
³ Charity v. NC Financial Solutions of Utah, LLC, d/b/a Netcredit (In re Charity), Ch. 13 Case No. 16-31974-KLP, Adv. No. 16-03121-KLP, slip op. at 40 (E.D. Va. Aug. 15 2017).
⁴ Charity v. NC Financial Solutions of Utah, LLC, d/b/a Netcredit (In re Charity), Ch. 13 Case No. 16-31974-KLP, Adv. No. 16-03121-KLP, slip op. at 41 (E.D. Va. Aug. 15 2017).
Mark Leffler, Shareholder and Chief Legal Officer, joined Boleman Law Firm in 2000. Mark has spent most of his career litigating in Bankruptcy Court, including bringing numerous actions against debt collectors, mortgage companies, and predatory lenders in bankruptcy. He currently focuses his practice on federal consumer protection litigation, mostly under the Fair Credit Reporting Act.
Mark is President of the NACTT Academy for Consumer Bankruptcy Education, is a frequent author for the NACTT Academy’s webzine, and has served as a panelist at numerous national legal conferences such as the National Association of Chapter Thirteen Trustees (NACTT) and the National Consumer Law Center (NCLC). Mark is AV® rated by Martindale Hubbell, he was selected for inclusion in The Best Lawyers in America for his work in bankruptcy and debtor rights, and he is a frequent speaker and author on bankruptcy matters for Virginia CLE programs.
Mark was raised in Williamsburg, VA, and lives in Norfolk, VA with his wife, Leigh, and two children. In his free time, he enjoys staying physically active, regularly training in powerlifting, snow skiing during the winter, and traveling with his wife.