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Court - rulings - procedures

Monday, July 12, 2010

Miller v. Cohen & Slamowitz court order:  unfair practices violate FDCPA

Incredibly, Cohen & Slamowitz FAILED to assign attorneys to active cases until consumers filed an answer even AFTER the court ruled against them in the Miller case in 9/09.

Of course MOST collection lawyers have nothing but contempt for consumers and they ignore disputes.  The calls are usually routed to aggressive COLLECTORS who TALK like attorneys and intimidate consumers into settling or making partial payment arrangements.  That’s what happened to me at Cohen & Slamowitz.

I really hope my client can find an attorney to represent him on contingency.

A lot more info:

Arthur Miller v. Cohen & Slamowitz: attorney’s failure to conduct meaningful review violates FDCPA

Friday, August 22, 2008

Asset Acceptance v. Proctor 2004 OH appeal re. documentation of alleged balance owed

This is your typical debt buyer lawsuit for over twice the amount owed when the account was charged off.  Local court granted summary judgment for Asset, relying on the infamous affidavit to establish the amount owed despite Proctor’s denial.

The OH appeals remanded.  From the unpublished opinion Asset Acceptance Corp. v. Proctor:

{¶3} Asset filed a complaint in the municipal court alleging that Proctor owed it $3,540.92, plus another $3,901.55 in accrued interest through September 30, 2002, and interest thereafter at the rate of 10% per annum on the principal balance. The complaint included a copy of a Customer Account Statement and an affidavit of Charles Hilson, Branch Manager, showing the amount due. Proctor filed a general denial and raised the following affirmative defenses: the claim is barred by the applicable statute of limitations, laches, and accord and satisfaction.

{¶4} Asset sent Proctor interrogatories, requests for admissions and requests for production of documents. Proctor answered the requests.

{¶5} Asset filed a motion for summary judgment. It referenced Proctor’s admissions where Proctor admitted (1) signing the credit card application, (2) using the card to purchase items, (3) failing to make all payments timely, and (4) failing to pay the total amount due. In addition, Asset filed the affidavit of Steve Robertson, Assistant Branch Manager, to verify Proctor’s indebtedness. However, just like the complaint, the affidavit of Charles Hilson, and the Customer Account Statement, Robertson’s affidavit only stated the total principal and total accrued interest through September 30, 2002. It did not state how Asset arrived at these numbers. Based on these admissions and the affidavit, Asset argued that the trial court should grant its motion for summary judgment.

{¶6} Proctor filed a memorandum opposing the motion for summary judgment. Proctor argued that the trial court should deny the motion because he did not owe the amount that Asset said he owed. Proctor filed an affidavit and averred: “1. That an accounting was never shown to me as to the basis of the alleged debt, time of the alleged debt, and/or the amount of the alleged debt. 2. That I was previously told by a representative of Plaintiff that the account was closed and written off. 3. That no information showing the balance, payments, credits, etc., has been provided. 4. That there is no basis for me to believe that any of the alleged debt was charged by me.”

{¶7} The trial court granted Asset’s motion for summary judgment.

{¶8} Proctor appeals and asserts one assignment of error: “The trial court erred in granting the motion for summary judgment in that there was not sufficient proof by the appellee of its damages.”
II.
{¶9} Proctor argues in his sole assignment of error that the trial court erred because there is a genuine issue of material fact. He contends that the total amount that Asset alleges he owes is in dispute. Our standard of review is de novo.

Of course he SHOULD have objected to the Asset evidence in LOCAL court.

{¶12} Because an action on an account is founded upon contract, the plaintiff must prove the necessary elements of a contract action, and, in addition must prove that the contract involves a transaction that usually forms the subject of a book account. Gabriele v. Reagan (1988), 57 Ohio App.3d 84, 87. In order to adequately plead and prove an account, “[a]n account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum. Following the balance, the item or items, dated and identifiable by number or otherwise, representing charges, or debits, and credits, should appear. Summarization is necessary showing a running or developing balance or an arrangement which permits the calculation of the balance claimed to be due.” Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 126.

{¶13} Here, Asset moved for summary judgment alleging that the total damages were not in dispute. Asset supported its motion by pointing to certain admissions Proctor had made and by an affidavit only showing the total amount due on the account. Asset failed to provide documentation of the charges, debits, or credits that would permit Proctor, the trial court, or this court to calculate the balance claimed to be due. Proctor responded by pointing out that in his admissions he denied that he owed what Asset claimed and by his affidavit where he disputed the total amount owed on his account. Hence, we find that this dispute over the total amount of damages owed is a genuine issue of material fact.

Gengo v. Target Nat. Bank (a case relating to the fact that the banks CREATE the money) provides some insight in the creditors’ obligations to investigate FCBA disputes and it is very important that consumers submit disputes.  While the FCBA requires disputes within 60 days from the statement with disputed data, in Genko the court wrote:

Defendant argues that Plaintiff’s first notice is untimely under Regulation Z because Defendant did not receive the notice 60 days after it transmitted the first periodic statement that reflects the alleged billing errors, but rather it received Plaintiff’s notice within 60 days following the date of the statement being disputed by Plaintiff. (Instrument No. 24, at 6-7). Defendant’s argument focuses on the following specific language used in Plaintiff’s notice, “because I believe I should not have been charged finance charges or fees for the history of the account, I dispute the accuracy of the following items on my statements ...” (Id. at 8) (emphasis added). Secondly, Defendant argues that Plaintiff’s notices do not involve billing errors as defined by the FCBA because finance charges are merely incidents to the extension of credit, but not themselves extensions of credit. (Id. at 10). Defendant goes on to argue that simply because Plaintiff has dubbed something a billing error does not necessarily make it a billing error under the Act. Moreover, Defendant attempts to make what the Court has determined to be a trivial distinction with respect to when a creditor’s duties are triggered by an obligor who makes a mistake of fact about an alleged billing error and an obligor who makes a mistake of law about a billing error. (Id. at 11-12). Further, it is Defendant’s interpretation that the statutory requirements for Plaintiff to assert a billing error properly impose upon Plaintiff a duty to indicate her belief that the statement contains a billing error as the statute defines a billing error. (Instrument No. 23, at 7-10).  ...

Of course it’s more difficult to prevail against original creditors, but debt buyers generally don’t have ADMISSIBLE evidence.

I really don’t understand why these debt buyers dare to sue at all.  I was actually looking for more cases against the debt buyers’ attorneys such as FARID M. SAYYED, Plaintiff-Appellant, v. WOLPOFF & ABRAMSON, Defendant-Appellee, but since Asset and other collectors are filing countless suits, I thought I’d post the OH opinion.

Thursday, August 07, 2008

Kok v. Palisades and CRAs—FDCPA and FCRA

Kok v. Palisades, TU, Experian and Equifax 2:08-cv-00915-NVW (FDCPA and FCRA)

That’s a very interesting case.  After several judges recused themselves, infamous judge Wake got it.

The scheduling hearing is set, Kok’s discovery went out and Equifax already threw him some “going away” money and/or deletion (the money is probably for the legal fees) and they settled.

Palisades attorney Kaplan SUED Kok in local court and then DISMISSED, apparently after he didn’t answer and I suspect they had NO documentation and only sued to get him to settle.  (Just guessing, but why else would they dismiss?)

The account was from 2000, but Palisades verified with all 3 CRAs with a 2003 aging date and outstanding balance after Kok disputed as reaged.

Bybee wrote a LONG complaint with lots of bla bla bla, but nothing about what exactly the FDCPA violations are.  I’m hoping it’s for suing Kok.

Now Kok is suing everybody in federal court because he sent the dismissal with the disputes (attached as exhibit) and they didn’t delete the reaged account.

32. On or about August 16, 2007, Palisades filed a Notice of Dismissal on the Justice Court case. A copy of the Notice of Dismissal is attached hereto as Exhibit A.

33. In the Notice of Dismissal, Palisades states that the case was dismissed “on the grounds that the matter has been compromised and or settled.”

34. In or March 2008, Palisades reported the AT&T account to Plaintiff’s credit file with Experian, Trans Union and Equifax, showing that the account as opened in March 2005, and that it was a current account with a balance owing of $904 as of March 2008.

35. Upon information and belief, when it reported account, Palisades failed to notify each of the consumer reporting agencies that Plaintiff disputed the debt.

36. In March 2008, Plaintiff sent a letter to Experian disputing the Palisades tradeline, stating that the Palisades debt defaulted with AT&T in November 2000, and that the debt was too old to collect, and too old to report on his credit report.

37. Plaintiff attached a copy of the Notice of Dismissal to his letter to Experian.

38. Upon information and belief, upon receipt of Plaintiff’s dispute letter and attachment, Experian contacted Palisades by sending an electronic Consumer Dispute Verification Form or ACDV.

39. Upon information and belief, Experian did not send Palisades a copy of Plaintiff’s dispute letter, or a copy of the Notice of Dismissal attached to the letter.

40. Upon information and belief, Palisades returned the ACDV to Experian indicating that its tradeline as reported was correct.

41. On April 14, 2008, Experian sent Plaintiff notice that Palisades verified its tradeline, and that it remains on his Experian credit report.

42. Upon information and belief, Experian’s investigation of Plaintiff’s dispute of the Palisades tradeline consisted only of contacting Palisades through sending an ACDV.

...

The complaint is posted with the CreditFactors legal resources and I’ll update there occasionally.

This would make a great case to make some good case law, if it wasn’t judge Wake and attorney Bybee.  In the past, I wasn’t too impressed with Bybee, but after having been in this court for a number of years, I’m beginning to understand.

Especially with a judge like Wake, all you can hope for is to get a little “going away” money.  I’ve never seen an AZ consumer attorney appeal.

Wednesday, July 09, 2008

9th circuit FDCPA opinion: Reichert v. National Credit System

An EXCELLENT decision by the 9th circuit court of appeals. 

Bona Fide Error Defense Requires Bona Fide Procedures, Ninth Circuit Holds

The Ninth Circuit today upheld summary judgment for a debtor against a debt collection agency under the Fair Debt Collection Practices Act.  The agency had purported to verify to the debtor that he owed, in addition to an amount due under a residential lease, a $225 fee for the landlord’s cost of having a lawyer write a demand letter.  But the lease allowed recovery of such a fee only if the landlord sued.  Oops.

The debt collector invoked the bona fide error defense under section 1692k(c) of the FDCPA.  It asserted, in a declaration, that the landlord had always given it accurate information in the past and that it therefore reasonably relied on the false information about the landlord’s entitlement to tack on the fee. 

The Ninth Circuit rejected the defense.  It noted that the statute requires proof 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.” Reliance on a creditor to get the numbers right doesn’t raise a fact issue that the agency maintained “procedures reasonably adapted to avoid” a mistake in the creditor’s representations.  “The procedures themselves must be explained, along with the manner in which they were adapted to avoid the error.” Reichert v. Nat’l Credit Systems, Inc., No. 06-15503, slip op. at 8 (9th Cir. July 7, 2008).

Collectors always rely on the bona fide error defense and I sure wish I had this opinion a year ago at the Focus Receivables settlement conference.

Which reminds me, I have to update on the Focus appeal.  Scumbag liar/lawyer Cynthia Fulton filed a motion to dismiss and falsely stated that she served me electronically.  The 9th circuit appeals court electronic filing system is still being developed and I was VERY lucky they didn’t dismiss my case since I didn’t oppose the motion I didn’t receive until AFTER the court denied it.

I’ve asked the court to revoke Fulton’s privilege to practice in the appeals court and have to pick up her response at the post-office, will update shortly.

It is such a struggle.  The attorney for Reichert was Deepak Gupta from Washington D.C., so I believe he is the Public Citizen attorney:

Deepak Gupta is a staff attorney at Public Citizen Litigation Group in Washington, DC, where his practice focuses on consumer and constitutional litigation.

And I’ll try to get the actual filings from the district court in Reichert v. National Credit System for posting at CreditFactors.  Unfortunately, as I found out when I tried to get the Focus motion to dismiss, the appeals court does not mail filings, not even for if you pay 50 cents/page for copying plus postage and I sure can’t afford to hire a legal service in San Francisco to get the briefs. 

Here is the opinion:

http://www.ca9.uscourts.gov/ca9/newopinions.nsf/2202ACCF90C8382B8825747F00577E69/$file/0615503.pdf

Wednesday, June 11, 2008

LA porn trial suspended over judge Kozinski’s website

LA obscenity trial suspended over judge’s Web site

Jun 11, 11:22 PM (ET)

By GREG RISLING

PASADENA, Calif. (AP) - A federal judge has suspended the obscenity trial of a Los Angeles porn distributor following a newspaper report that the judge had sexually explicit material on his own Web site.

Judge Alex Kozinski on Wednesday granted a joint motion to suspend the trial after the prosecution said it needed time to look into the issue of the judge’s Web site.

The judge has told the jury to return on Monday. The panel spent hours at the Pasadena offices of the 9th U.S. Circuit Court of Appeals watching videos depicting bestiality and extreme fetishes.

Kozinski is chief justice of the 9th Circuit but is serving as a trial judge in the obscenity case.

Would it be an issue if a judge does NOT like porn?

Are they saying Kozinski did something illegal?