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PSteele last won the day on January 29 2018

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  1. In the end, the amount that I'd have spent on defending and / or travel to defend it myself was more than what the settlement wound up being, so I just went and settled. That said: (1) yes, block billing was a thing. There was almost $12,000 worth of block billing. (2) yes, the rate charged was not the rate shown in the contract, for a couple hundred hours. (3) There was a little bit of partner time, but it wasn't partners doing work. Status meetings, etc. Of course, some of that time occurred after the case was adjudicated in my favor and the final orders were filed, but it was a relatively minor amount. (4) The big issue was incompetence, which may or may not have been intentional. The matter at hand was a suit where I was trying to take custody away from my ex-wife. In the end, I won, but it should have been a slam dunk at the first hearing for a variety of reasons that I'm not going to go into now. 7,000 dollars (block billed, of course) to prepare for a hearing on a motion to modify an out of state custody order, when the attorney knew (or should reasonably have known) that the order needed to be registered in-state first. And then the final order set me up with both full custody and an order to pay child support, because of course it did. It took me a couple of years to sort that out on my own hook, and I feel like the whole thing was just fishing for more fees. But whatever. It's over and done with now.
  2. No, I'm not trying to argue that they charged the incorrect billing rate. I'm saying that the contract they're presenting does not describe the dealings that occurred, which, combined with the fact that they never signed it indicates that no true meeting of the minds took place. I don't actually care what the bill rates are, just that they demonstrate that THIS sheet of paper is not a valid contract. (And, regardless, the fact that I supposedly breached it BEFORE my signature appeared on it would also argue against this being the ACTUAL contract.)
  3. No, not exactly. I'd be arguing that the alleged contract presented is invalid, nothing more. Plaintiff didn't sign it, plaintiff didn't follow it, and plaintiff claims I breached it a week before my signature appears on the sheet. Therefore, this alleged contract cannot possibly be valid. Plaintiff's own actions and allegations indicate that the alleged contract in the record couldn't be the one that governs any business between us.
  4. The problem is the work logs: almost 10,000 dollars are disposed of simply with the note of "manual entry." There's only about 5k that actually has anything attributed to it, and a big chunk of that is at the wrong bill rate. edit to add: I'm not against paying the deserved amount... the problem is, the deserved amount is NOWHERE NEAR what they're claiming. Attacking the contract is more an attempt to get rid of the interest than to get rid of the bill as a whole.
  5. A law firm that I had previously retained in an unrelated matter. An attorney employed by that law firm, though for purposes of this case he's operating under his own shingle rather than theirs. Started off at ~25k, reduced to ~15k, plus interest Plaintiff Served In person It appears to meet the requirements, yes Some years back they presented me with a rather padded bill for blatantly (and I think in part intentionally) incompetent service, and I told them they were insane. I live in California, but I'm being sued in Salt Lake County, UT 2014 Not a credit card, but everything started in 2014. Depends on a couple factors, none of which I'm sure of. Might be 4 years, might be (I think) 6. I've already filed the answer. I don't think it's been sent to a credit bureau. Years ago, but I don't think I have any record of this. Answer has already been filed. Background: I retained a law firm for an unrelated matter in Utah in 2014. I paid a substantial retainer, which they blew through in a hearing that they recommended which attempted to get a utah court to modify an order from an out of state court. Obviously this is a terrible idea, and the firm knew (or should reasonably have known) that the judge would smack them down for it. Subsequent to this, they went back and did it the right way and prevailed, though there was a substantial amount of other incompetence along the way, which caused me significant difficulties in other states that took a lot of additional time to resolve on my own. At the end of it, they presented a bill for almost 25,000 dollars. Complaint: The complaint has only a copy of the retainer contract attached. The contract was not signed by the firm. The contract specifies bill rates, interest, etc., and also that the contract expires one year from date of signature. The complaint alleges that I am a resident of (or that the contract was executed in) Salt Lake County. The complaint alleges that I owe almost 25k, plus interest compounded since a date about a week before my signature even appears on the contract, so presumably that's when the breach occurred? Settlement negotiations with plaintiff: Plaintiff was willing to settle for the principal in the matter, which they claimed was ~25k. I demonstrated to them that even if we were agreeing that there were no issues with their service, even Enron's accountants couldn't come up with that number. They came down on their settlement offer substantially after that, but it was still far more than anything that I could conceivably owe them. After I pointed out the false nature of their claim (I used the words "knowingly and willfully false") they very quickly filed an amended complaint. (VERY quickly. Under 2 hours after I sent them that email. I'm beginning to think I shouldn't have said those words.) They still decline to back off the settlement amount. Amended Complaint: Same verbage as the initial complaint, though the amount is reduced substantially. It's still significantly more than legitimate, though. The offer of settlement (for far more than I actually owe, but substantially less than what they'd get in interest if they prevail) is open until Friday, so I need to make a decision quickly. I can attack the contract. They never signed it, they're alleging that I was in breach of it a week before the date of my signature, and there is a legitimate argument to be made that it doesn't represent a true meeting of the minds anyway because their billing history shows rates other than what are in the contract. I can attack the amounts. Some of the things that they're billing for are events which occurred well outside the scope of any service that they were authorized to provide, and which in fact the (alleged) contract says they'd require specific additional written authorization for. Further, quite a few thousands of dollars (close to 10k, in fact) are just manual entries in the billing record, without any sense of what they were actually doing in that time. Many courts (and the ABA model) reject block billing. I can attack their service for failure of consideration. Even though they explicitly disclaim any guarantee of success in the alleged contract that they did not sign, they are also required to behave in a manner that suggests they're at least trying, and they certainly should have known that they needed to handle the jurisdiction issue first. I can attack the timeline. The (alleged, and again-not fully executed) contract states that it expires in a year, and this entire thing lasted for more than a year, and then... what? I can attack failure to mitigate damages. There are clauses in the (alleged, and again not fully executed) contract that state that the firm will withdraw if they're not paid within 30 days, and they did not do that. I can attack venue. The complaint alleges that this is the proper court because I am either a resident of that county or that the contract was executed in that county. The contract was never signed by hte plaintiff, nor am I a resident of that county. So that's pretty much where my thoughts are right now. Is it worth fighting? Or should I just go ahead and cough up for their settlement, as ridiculous as it is? I have to make a decision very quickly.
  6. Yep. Plan to do that for sure. And of course, it's not like I'm out of the woods on this one yet myself: I think I really pissed off their attorney on this one, and there's still some months left on the SOL. When I get the trial brief redacted, you'll see why and how, but short version is that if things had gotten that far and the judge was in a good mood, she'd have had to self-report to the bar association.
  7. Dismissed w/o prejudice today against Portfolio. I could have had dismissed with prejudice... but I would have had to sign a mutual release of claims, and I plan to at least get my fees and costs back so I declined. Filed an opposition to the request for dismissal, but the major case that I relied on had been depublished and I hadn't noticed that. Judge took the time in court to go through the underlying reasoning with me, though, and he stated both before and after the proceedings that he'd found my depth of research and knowledge, as well as the quality of my legal writing, to be "very impressive," so that gave me a nice warm fuzzy. I couldn't have done it without the folks on this forum, and in particular @calawyer and @sadinca. I'll be redacting and uploading all the filings over the next little while. It's going to take some time, though, to make sure that everything is appropriately scrubbed. Oh, and there's a few minor details I need to address with the CFPB about that consent order that PRA is supposed to be following. (I've already filed a complaint with the CFPB on that one.) And maybe a few things that should get a bit of follow-up in regards to false or misleading statements on their part both in terms of PRA in general and PRA's counsel in specific...
  8. Thanks! I guess I should probably do that right now, actually!
  9. Welp, just got home from court. I always knew that the opposition to the dismissal was a long shot, and in the end I didn't get what I wanted out of it, mostly because the main case that I was using was depublished, as it turns out. But, the judge and I had a solid 5-8 minute discussion on the underlying precedent and the differentiation between those cases and this one, and it was pretty good. And the case is, of course, still dismissed. At both the beginning and at the end he complimented the depth of my research, the quality of my writing, and my level of knowledge, describing my work thus far as "very impressive." This was quite a big change from the case management conference where, after plaintiff's counsel was off the phone the judge said something to the effect of "see you back here in january, then, unless you settle before then. And I highly suggest you settle." None of it would have been possible without this forum and the people in it, particularly @calawyer and @sadinca. So, now it's off to have a look at the CFPB's complaint process. I'd say that dismissing a case on the morning of trial, when the lawyer doesn't even show up, might certainly be described charitably as "filing [a] collection lawsuit without intending to prove the debt, if contested." We'll see what else I can fit in there, too. I'll be redacting my filings over the course of the next little while and see what I can post. And, of course, I'll be filing a memorandum of costs. I think that's the right one? Whatever it is, it's what I have to do in order to get my costs and fees back.
  10. In this case, the relief sought in my motion in limine includes a final adjudication. Plaintiff failed to object to the motion. Therefore, under the local rules, they have essentially waived their objections to my motion and created an inference of meritoriousness. Even without my notice of non-opposition (which was still filed before Plaintiff's request to dismiss), that means that a motion for final adjudication on the merits of the pleadings has been submitted to the court. Because Plaintiff waived their ability to object or offer arguments against it, the only thing that remains is for the judge to rule on it. In other words, there's an exception there to 581. Granting Plaintiff's dismissal is tantamount to letting them off the hook for their behavior in this trial. They get to avoid an adverse judgement, and go wash their unclean hands so they can come back for another bite at the apple. It is not in the interests of justice to give the plaintiff a mulligan on their misuse of the discovery process and attempts to perpetrate a fraud upon the court through subversion of CCP 98 and the rules of evidence. Harris v. Billings (16 Cal.App. 4th 1396. 1402): "The right of a plaintiff to voluntarily dismiss an action before commencement of trial is not absolute. Code of Civil Procedure section 581 recognizes exceptions to the right; other limitations have evolved through the courts' construction of the term 'commencement of trial.' These exceptions generally arise where the action has proceeded to a determinative adjudication, or to a decision that is tantamount to an adjudication." Pielstick v. MidFirst Bank, 224 Cal. App. 4th 1452: "The California Supreme Court has construed the word "trial" in section 581 to include a hearing on a dispositive motion." "We held that the matter having been submitted to the court, a plaintiff no longer had the right to dismiss without prejudice. 'If he could do so, litigation would become interminable, because a party who was led to suppose a decision would be adverse to him could prevent such decision and begin anew, thus subjecting the defendant to annoying and continuous litigation.'"
  11. Okay, good. I just wanted to make clear that the portions that I'm leaning on the hardest on are the ones that won't expire, and which tie a specific practice to a specific piece of law. That said, I'm not really relying on even those, though. And they definitely blew off 98 here, for sure. As well as the 1271 exceptions: they made not even the slightest pretense at showing any of it wasn't hearsay. I know that I'm going to get it dismissed, at a minimum, if only because Plaintiff has already filed a request for dismissal without prejudice. Thing is, I don't want it dismissed without prejudice: I want it dismissed with prejudice. And that's why I spent about 20 hours trying to figure out how to defeat the request for dismissal. I think it's better than even that I lose on that opposition, but even if I do I'm only out a few sheets of paper and a trip to the court house, and I'll still be able to complain to the CFPB afterwards.
  12. ... re: settlement v. law, maybe. I don't have time to argue the whole thing right now, nor do I want to air that particular bit of laundry before Monday, on the off chance that this does turn out to be a trial. Regardless of the nature of a thing being truly a violation of the FDCPA or not, though, when there's an order that says "Don't ever again do this specific, exact, thing" and then the subject of that order goes and does that specific, exact, thing... it's hard to argue that PRA didn't violate the order, if nothing else. Even if the court declines to enforce it. I mean, in my case we're talking really specific things being prohibited, and not the kind of thing that's inadvertently done. The conduct provisions are permanent (with one possible exception). The reality is that, on the expiration of the order, PRA will not magically be granted the authority to violate the law in any manner they choose. The conduct provisions are, essentially, a notice that they are not allowed to break the law, and the CFPB specifying certain things which are guaranteed and / or required in order to comply with the law. (Possible exception: the prohibition against selling any accounts.) You're reading way too much into that. Paragraph 181 states "The provisions of this Consent Order will be enforceable by the Bureau." It does not, however, include any wording to indicate that nobody else can enforce it. (e.g., "will be enforceable solely by the Bureau.") Additionally, Paragraph 175 reads: "The provisions of this Consent Order do not bar, estop, or otherwise prevent the Bureau, or any other governmental agency from taking any other action against Respondent, except as described in Paragraph 176." You're not reading enough of that case. Cooper used the consent order to show prior bad acts on PRA's part, and alleged that they were continuing to perform the same bad acts, but appears to have offered no evidence of it beyond a slightly overenthusiastic misinterpretation of case law, and unsupported speculations about PRA's behind-the-scenes operational processes. More to the point, the actions that Cooper alleges were in violation were ruled by the court to have been a-ok and met the standard set by statute and precedent: "Si[/s]nce the parties agree as to the content of the verification documents and PRA fulfilled its obligations under the FDCPA, PRA is entitled to summary judgment on the issue of verification" This is strongly differentiated from my case, where specific actions taken by plaintiff in my case are identical, even down to the verbiage used, to what they have done in the past, and from which they are "permanently restrained and prohibited." This goes a long, long way towards indicating that a thing is just as much a violation now as it was then. Think about it this way: if there's a speed limit sign that says 55, and you get pulled over 100 yards past it for going 90, the fact that there may not be another speed limit sign for another five miles down the road shouldn't lead you to expect that you won't get a ticket for going 90 in that stretch. After repeatedly showing that the bad acts described in the consent order continue to happen--I mean, the specific and exact bad acts--there is one spot where I do use the consent order's historical listing to infer the current existence of continued bad acts. The order describes the specific details of of warranty provisions from previous forward flow agreements as being essentially "buyer beware, because we're making no guarantees and it's your problem now." PRA asserts that they're proceeding in this on the strength of the warranties provided by the account seller... but then specifically refuses to provide the document containing the warranties, because it's "confidential and proprietary." I do draw the inference there that the specific refusal to provide the document--whether at discovery or as evidence at trial--combined with the previous history of the documents as described by the CFPB, means that the current document also doesn't say what they want it to say. It's not a settlement: it's a cease-and-desist order, issued under federal law, and is described that way in 12 USC 5563.
  13. I'm not relying on the consent order. I have plenty of other things to go on as well. I do, however, want the judge to see it, and--ideally--to note that they are violating it, whether or not he can enforce anything. That will make the net stages easier, when I go to the CFPB.
  14. I pretty much stopped posting publicly for a while, and kept everything in private messages for a bit, due to an appearance--possibly mistaken, but irrelevant at this stage--that Portfolio was reading this thread and may have identified the specific case being described. Doesn't really matter now, though: trial is on Monday. 3 days from now. No, 2 days- it's after midnight, and technically Saturday already. Everything's been filed that can be. So. Filling in the past several months. (1) I filed and served my discovery demands back in July. I received no response of any kind. (2) In early December I received the plaintiff's trial brief, CCP 98 declaration, exhibits, witness list, evidence list, etc. (3) The CCP 98 declarant, of course, used a third-party law firm as the address for service. (Hunt & Henriques in San Jose. It's within 150 miles... barely.) The declarant (ever so kindly) gave me permission to contact plaintiff's counsel for effectuation of proper service, in the event that she was unable to be served at that address. Sadly, "Lori N. Williams" is not an address, and even if it was it would not be within 150 miles. I didn't bother with a 1987 notice to appear, since the declarant is not a party or a principle of hte plaintiff or some other party for whose benefit this action is being conducted, and therefore it would not be enforceable. (I called that out in the MIL specifically- I've seen Plaintiff's trial briefs where they say that Defendant should have filed a 1987 on the records custodian, and it was pure gamesmanship to not do so.) (3) I obtained and attempted to serve a subpoena upon the witness at the address given. Nobody there knew who she was, and the process server company said that there was no point in trying again, that I'd done my due diligence with that address. (4) I discovered that there is a consent order against PRA from the CFPB. I'll link it later. It's magical. Forget California, it's a 50-state silver bullet against PRA. Almost every single practice that PRA was employing in this case is a thing which they are specifically "restrained and prohibited" from doing. Even the boilerplate verbiage in the CCP 98 declaration is quoted in the consent order as being a deceptive practice. But, even more hilarious, PRA is "permanently restrained and prohibited" from even making an allegation that someone owes a debt without having THOROUGHLY researched it first, and having the documents to prove it BEFORE making the allegation, never mind initiating a lawsuit. (4a) I also discovered that the "sale file" they produced as evidence had blended my personally identifying information with someone else's. I'd been wondering where all this stuff came from, before. Now at least I can sort of make some semi-educated guesses, at a minimum. (5) I wrote and timely filed my motion in limine / written objections. One of them specifically called out Plaintiff's failure to respond to discovery, and--citing the appropriate code section--characterized it as "abuse of the discovery process," and requested as relief evidence sanctions, dismissal with prejudice or a default judgement for the defendant, and holding in contempt of the plaintiff's counsel. I also made the other standard arguments based on Target v. Rocha, etc., with respect to CCP 98 deficiencies. I also called out Plaintiff for violating the consent order mentioned above, made all the hearsay objections, and everything else I'm supposed to do at this point. (6) I wrote and timely filed my trial brief. In addition to the other claims mentioned in (5), supra, I pointed out that Plaintiff's counsel is an employee of plaintiff, rather than an employee of an outside firm contracted for this, and is certainly aware of the inaccurate / false / misleading nature of the statements used in the CCP 98 declaration, particularly the bit about the location for service of subpoena. I requested sanctions against her. Specifically, I requested that she be held in contempt for knowingly / willfully participating in Plaintiff's attempt to mislead / perpetrate a fraud upon the court. I had plenty of solid statute and case law for it. (7) The trial was continued, due to the judge's illness. (8) Even using the latest possible date, after the continuance, Plaintiff did not file any objection to my MIL, with it's attendant requests for relief in the form of dismissal with prejudice or a default finding for the defendant. In fact, as of close of business today--in other words, 1.5 court-hours before the trial is to commence--there was still no attempt made to object. (9) A couple days ago (but still past the time limit for filing an opposition to my MIL), plaintiff's counsel contacted me and offered dismissal with prejudice for $0.00... but only if I'd sign a mutual release of claims. In other words, the costs and fees that I've sunk into this so far would be lost, I would not be able to file a complaint with the CFPB to reset the counter on the oversight provisions of their consent order; nor would I be able to commence any action against Plaintiff, Plaintiff's counsel, or Plaintiff's declarant for anything they'd done in the course of this case. She also, incidentally, acknowledged that they had failed to respond to discovery, but blamed it on a mis-filed scanned document. (Those stupid office staffers! they can't do anything right!) (10) I declined this offer of settlement. Just the amount that I've spent on costs / fees / postage alone is enough to pay for a month of medical care, and a cancer patient can't afford to just throw that in the ditch and piss on it. (11) Yesterday, Plaintiff's counsel said she was going to dismiss anyway. Of course, it would be without prejudice, and they could re-file again. She gave as a reason that her witness (i.e., the CCP 98 declarant) wouldn't be available to show up in court that day. (Ofc, she negelected to say anything about how hard they tried to make her unavailable for subpoena, or the fact that their trial witness list only described her as testifying by written declaration, rather than appearing in person.) But... she mailed it to the court, rather than faxing it or filing in some other electronic manner. (12) I spent the balance of yesterday researching and writing a bunch of things. I wrote a notice of plaintiff's non-opposition to my motion in limine, noting that local rules of court provide that, should there be no opposition to a motion, the opposing party waives their right to make any objections or submit oral arguments, and that the failure to object may create an inference that the motion itself is meritorious. I reiterated in it that the motion sought relief including, but not limited to, either dismissal with prejudice or a default judgement for the defendant. (13) I created an opposition to Plaintiff's request to dismiss without prejudice. Because the MIL was unopposed and there was an inference of meritoriousness, and because it sought--essentially--a final adjudication of the claims based on the merits of the pleadings, this matter was already submitted to the court for judgement, and therefore the plaintiff's CCP 581 right to dismiss was no longer applicable. Plaintiff's request to dismiss was characterized as merely a base attempt to avoid an adverse adjudication, and then wash their unclean hands and come back for a second bite at the apple. I really want to get either with prejudice or a straight judgement for the defendant, and without giving up my claims and rights against them. And, hey, cancer patient. WTF do I have to lose? Worst-case scenario, I still get dismissed and it's only a few more months before the SOL is up on this alleged account. (13a) I filed these notices and oppositions this morning, before the mail had arrived at the courthouse. In other words, my notice of non-opposition (in particular) beat plaintiff's request for dismissal without prejudice onto the docket. (Of course, my opposition to dismissal without prejudice did as well, but I included a copy as an exhibit to the declaration in support of opposition, just in case Plaintiff's counsel had... 'forgotten' to mail it and was hoping I just wouldn't show up on Monday.) (14) I served the final documents by mail, and once that was done I filed the POS with the court. At that time, shortly before COB, there had still been no ruling on the request for dismissal--given the opposition, the clerks were putting it before the judge instead of stamping it themselves--and the hearing/trial remained calendared for Monday, 29 January. (15) I returned home and emailed the documents to the Plaintiff's counsel, along with the note that we're still on the calendar. I wanted to throw in a note to wish her a safe drive--it is, after all, several hundred miles from her office to my courthouse and I'm sure she'd hoped to sleep in on Monday until at least a semi-reasonable hour--but refrained, and limited myself to expressing hope that she has a fantastic weekend. (16) Now I wait for Monday to show up, and see what happens.
  15. http://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf I strongly suggest you have a look through this, too. It's pretty interesting, if you're dealing with Midland or any of the other subsidiaries of Encore Capital Group.
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