EMOTIONAL DAMAGES HOW PROVED BY AN AFFIDAVIT

MARCH 28, 2013

PUBLISH
UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
GLEN LLEWELLYN,
PlaintiffAppellant,
v. No. 11-1340
ALLSTATE HOME LOANS, INC.,
d/b/a Allstate Funding; OCWEN
LOAN SERVICING, LLC; NOMURA
CREDIT AND CAPITAL, INC.; NCC
SERVICING, LLC; CASTLE
MEINHOLD & STAWIARSKI, LLC,
DefendantsAppellees,
and
SHEARSON FINANCIAL
NETWORK, INC.; EQUITY PACIFIC
MORTGAGE, INC.; KEVIN RIDER;
OCWEN FINANCIAL
CORPORATION; NOMURA
SECURITIES INTERNATIONAL,
INC.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:08-CV-00179-WJM-KLM)
The Ocwen Defendants contend Plaintiffs affidavit, without more, is
insufficient to create a genuine dispute as to whether their actions caused Plaintiff
to suffer emotional damages. They rely on the requirement imposed by several of
our sister circuits that plaintiffs who rely on their own testimony to establish
emotional harm must explain [their] injury in reasonable detail and not rely on
conclusory statements, unless the facts underlying the case are so inherently
degrading that it would be reasonable to infer that a person would suffer
emotional distress from the defendants action. Bagby v. Experian Info.
Solutions, Inc., 162 F. Appx 600, 605 (7th Cir. 2006)
Viewing Plaintiffs affidavit in the light most favorable to him and drawing

all reasonable inferences in his favor, as we must, we conclude Plaintiff has

provided sufficient evidence he suffered emotional damages as a result of the
Ocwen Defendants actions. See Robinson v. Equifax Info. Servs., LLC, 560 F.3d
235, 242 (4th Cir. 2009) (concluding the plaintiff sufficiently articulated and
demonstrated the emotional distress she experienced as she attempted to correct
[the credit reporting services] errors where she presented evidence that her
mental distress manifested itself as headaches, sleeplessness, skin acne, upset
stomach, and hair loss). We agree that in relying on his own testimony, Plaintiff
was required to explain [his] injury in reasonable detail and not rely on
conclusory statements, Bagby, 162 F. Appx at 605 (internal quotation marks
omitted), and conclude he has done precisely that. Plaintiff detailed the state of
his health prior to the Ocwen Defendants negative reporting, including the
dormancy of his pre-existing conditions; he identified his discovery of the Ocwen
Defendants negative credit reports as the event precipitating the deterioration of
his health; and he described, in great detail, the stress, anxiety, and physical
symptoms he experienced after learning of the negative reports and the effect
theyhad on his Crohns disease and depression. Plaintiffs attribution of his
symptoms and the deterioration of his health to the Ocwen Defendants actions is
-18not so incredible or conclusory we can ignore it.3 It is reasonable to infer from
the aggravation of Plaintiffs previously managed conditions and the development
of several new symptoms at precisely the time Plaintiff discovered the negative
reports on his credit report that the Ocwen Defendants actions caused these
forms of emotional damages. This inference is no less reasonable simply because
Plaintiff was diagnosed with diabetes and experienced other stressful life events
(including several foreclosures) during the same time period. See Bach v. First
Union Natl Bank, 149 F. Appx 354, 362 (6th Cir. 2005) (concluding that
although a stroke suffered by plaintiff during the same time as the FCRA violation
was clearly not a result of [the] violation, the fact that [the plaintiff]
had suffered a stroke [was] pertinent to the circumstances surrounding [her]
emotional distress).
Contrary to the Ocwen Defendants assertion, Plaintiff was not required to
produce evidence to corroborate his detailed and specific testimony in order
tosurvive summary judgment. Although several of our sister circuits require a
plaintiff to describe his or her emotional distress in reasonable detail, Bagby,
162 F. Appx at 605 (internal quotation marks omitted), the Ocwen Defendants
have not pointed to, nor have we found, any circuit that additionally requires
corroborating evidence. As the Sixth Circuit explained, An injured persons
testimony alone may suffice to establish damages for emotional distress provided
that she reasonably and sufficiently explains the circumstances surrounding the
injury and does not rely on mere conclusory statements. Bach, 149 F. Appx at

361 (emphasis added). Plaintiff described the circumstances surrounding his

injury in reasonable and sufficient detail that he was not required to produce
further evidence of his emotional distress. We conclude that his affidavit alone
created a genuine dispute as to whether the Ocwen Defendants actions caused
him to suffer emotional damages.
FOOTNOTE

We acknowledge that Plaintiffs description of the damages he suffered

includes several physical symptoms in addition to forms of emotional distress. At
trial, Plaintiffs ability to recover for the various physical symptoms he describes
will turn, in part, on his ability to establish that the physical symptoms are
manifestations of the emotional distress he experienced. At this stage, however,
it is sufficient that Plaintiff presented a detailed description of various
manifestations of emotional distress he allegedly experienced as a result of the
Ocwen Defendants actions. These include, but are not limited to, drenching
night sweats, panic attacks, great stress and anxiety, and the feeling he could
not recover. (App. at 1205-06.) Plaintiffs ability to seek damages for the other
various physical symptoms will be more appropriately addressed by the district
court through pre-trial and trial motions.
3

Plaintiff contends that, in addition to his actual damages, he is entitled to

recover statutory and punitive damages under 15 U.S.C. 1681n because the
Ocwen Defendants willfully violated the FCRA. A willful violation is either
an intentional violation or a violation committed by an agency in reckless
disregard of its duties under the FCRA. Birmingham, 633 F.3d at 1010.
Recklessness is measured by an objective standard: action entailing an
unjustifiably high risk of harm that is either known or so obvious that it should be
-known. Id. (quoting Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 68 (2007)).
[A] company subject to FCRA does not act in reckless disregard of it unless the
action is not only a violation under a reasonable reading of the statutes terms, but
shows that the company ran a risk of violating the law substantially greater than
the risk associated with a reading that was merely careless. Id. (quoting Safeco,
551 U.S. at 69) (alterations in original). The district court concluded that,
although there was a genuine dispute as to whether the Ocwen Defendants
violated the FCRA, Plaintiff had failed to present evidence that any such violation
was willful.