Mich SOL and remedy for FDCPA violation

[bryonyvaughn]

BACKGROUND:

In March of 2000 we bought a residential phone system from Ameritech. Shortly after that my husband's employer went under and our income dropped from $60k to $15k. We quickly fell behind, lost our house, and didn't hear from Ameritech after their final bill in June 2000.

August 2004 we started getting form letters and calls from CFC which bought the debt. We mailed a validation letter and rather than an answering it they filed suit.

QUESTIONS:

Statute of limitations?

The sources I've read online show Michigan as 6 years unless it's falls under UCC-Sales which has a 4 year SOL. I haven't puzzled out what the difference is. Can anyone explain it to me? IRL lawyers we've asked won't explain it. They just want us to pay them to file bankruptcy for us. As this is the only suit we've had from our "black period", we'd rather wait out the statute of limitations to clear our credit report than getting a bankruptcy listed in 2005. FWIW the bill consists of the phone system sold over the phone as well as charges for monthly phone service.

Violation of FDCPA?

At http://debt-consolidation-credit-repair-service.com/phpBB2/viewtopic.php?t=22091 I read the following.

Responding to a DV demand from a consumer by calling or filing suit *is* an FDCPA violation. Argentieri v Fisher Landscapes, Inc. & Contra, Strange v. Wexler.

Is this true? If so what do I do about it...complain to a regulator, file suit myself, file a countersuit? What is the remedy...do they forfeit their right to collect <wishful thinking>, pay a fine to some government agency, pay us money?

TIA for your input.

[Guest]

Yes you file a countersuit that they violated the FDCPA.

Sometimes you can get away with it because the action is basically what brought on the countersuit...

Sue them for 1000 plus damages...

but wait for some other input.. I am sue happy recently!!

[bryonyvaughn]

Thanks for the reply, Sky. I'll let my SO know. He's scheduled for court this Wednesday.

Also, thank you to everyone else for all your posts. I've learned far more reading your message board in the rest of my internet searches combined.

[bryonyvaughn]

WE WON!!!!!!!!!!!!!!!!!

Here's the update.

At court yesterday DH learned CFC bought 5000 Michigan accounts that SBC got went they bought out Ameritech. Ameritech's files were a mess and ALL these files were beyond MI's 4-yr SOL. (I learned MI's 6-yr SOL applies only to signed contracts.) Most folks settled before their court dates and of those that didn't about 70% weren't showing up and getting default judgements against them.

We didn't file a countersuit yesterday but, since we learned the scope of the scam their running, are going to sue for the FDCPA violation I mentioned in my OP.

Now that we have a paper showing the judge dismissed their case with prejudice (so they couldn't sell the account or sue us over it again--is that right?) I assume we should send a photocopy with a certified letter demanding they remove any negative report regarding this account from our credit reports. I know I should give them a deadline. Is 30 correct? Should I also mail letters to the CRAs or should I only do that if CFC doesn't meet the 30 day deadline?

Beyond this do I have to keep paying for credit reports to check to see if they've made the changes yet? How do you all get around that expense?

TIA for you help. I've learned a lot from you all and am excited about the steps I can take to spiff up my credit report and rating.

[DocDon]

That's awesome news. Not only for your win, but for using the UCC argument in court and winning!

We can close another chapter now.

Congrats!

Yes, demand immedate deletion.

[gdouglaslee]

BACKGROUND:

In March of 2000 we bought a residential phone system from Ameritech. Shortly after that my husband's employer went under and our income dropped from $60k to $15k. We quickly fell behind, lost our house, and didn't hear from Ameritech after their final bill in June 2000.

August 2004 we started getting form letters and calls from CFC which bought the debt. We mailed a validation letter and rather than an answering it they filed suit.

QUESTIONS:

Statute of limitations?

The sources I've read online show Michigan as 6 years unless it's falls under UCC-Sales which has a 4 year SOL. I haven't puzzled out what the difference is. Can anyone explain it to me? IRL lawyers we've asked won't explain it. They just want us to pay them to file bankruptcy for us. As this is the only suit we've had from our "black period", we'd rather wait out the statute of limitations to clear our credit report than getting a bankruptcy listed in 2005. FWIW the bill consists of the phone system sold over the phone as well as charges for monthly phone service.

UCC is goods and services and if MI state courts buy it, then the debt is SOL.

Violation of FDCPA?

At http://debt-consolidation-credit-repair-service.com/phpBB2/viewtopic.php?t=22091 I read the following.

Responding to a DV demand from a consumer by calling or filing suit *is* an FDCPA violation. Argentieri v Fisher Landscapes, Inc. & Contra, Strange v. Wexler.

Is this true? If so what do I do about it...complain to a regulator, file suit myself, file a countersuit? What is the remedy...do they forfeit their right to collect <wishful thinking>, pay a fine to some government agency, pay us money?

Don't start doing the happy dance just yet. I'll have to verify that for you. Your controlling FDCPA cases are out of the 6th USDCA in Cincinnati. The 6th has ruled that the filing of a lawsuit is not continued collection activity. The court, in its ruling explained that legal action was consistent with validation, in other words, they are one and the same, since they will either be able to validate or they will not.

The ruling was good, in that it avoided any confrontation with the Bill of Rights (the first 10 amendments) of the US Constitution. Surely, you remember from your 6th grade civics class that under the 1st Amendment you have the right to redress grievances and the right to trial under the 6th and 7th Amendments, plus other rights under the 9th and 10th Amendments. State and Federal laws cannot pre-empt the the constitution or the amendments.

TIA for your input.

[DocDon]

So if the Michigan courts "buy" the UCC deal, it's o.k., but put away the happy dance shoes for an FDCPA violation?

That makes no sense at all. They can't "buy" the FDCPA violation?

[gdouglaslee]

So if the Michigan courts "buy" the UCC deal, it's o.k., but put away the happy dance shoes for an FDCPA violation?

That makes no sense at all. They can't "buy" the FDCPA violation?

Have you read the MI statutes on account stated? They are kind of scary. I just actually saw where they won, which is good. People have had trouble in MI with the 6 year thing in the same way people have had trouble in FL with the 5 year thing which seems to be entirely dependent on which judge you get.

A lot of people don't understand "shepardizing" and how controllers work. A federal district court in California might say something violates the FDCPA but that doesn't mean squat if somebody lives in Illinois and the 7th Circuit Appeals court says no it isn't. And a case from Massachusetts means nothing if your in the 6th District, so no, the judge wouldn't buy it.

I wanted to check Argentieri because I never heard of it. After I read them both, I don't understand how Argentieri could possibly come into play with the FDCPA, 1692g, validation, the state of Michigan and lawsuits. It is a bad case. No consumer should be citing Argentieri for any reason. Argentieri lost. So did Argentieri's attorney.

TED ARGENTIERI, Plaintiff, v. FISHER LANDSCAPES, INC., BOURDREAU & NICOSIA, P.C., and PETER J. NICOSIA, Defendants.

Civil Action No. 98-10229-NG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

27 F. Supp. 2d 84; 1998 U.S. Dist. LEXIS 16801

October 6, 1998, Decided

SUBSEQUENT HISTORY: [**1] As Amended November 2, 1998.

DISPOSITION: Plaintiff's Assented To Motion For Relief From Judgment And To Vacate June 9, 1998, Memorandum And Order And, Thereafter To Dismiss Case [docket # 34] DENIED

COUNSEL: For TED ARGENTIERI, Plaintiff: Daniel W. Goldstone, Goldstone & Sudalter, Boston, MA.

For FISHER LANDSCAPES, INC., Defendant: Richard Gary Garmil, North Andover, MA.

For BOUDREAU & NICOSIA PC, Defendant: Peter J. Nicosia, Law Offices of Robert T. Boudreau, Tyngsboro, MA.

JUDGES: NANCY GERTNER, U.S.D.J.

OPINIONBY: NANCY GERTNER

OPINION:

[*84] GERTNER, D.J.:

AMENDED

MEMORANDUM AND ORDER

November 2, 1998

Pursuant to Rule 60 of the Federal Rules of Civil Procedure, plaintiff Ted Argentieri ("Argentieri") moves to vacate the Court's June 9, 1998, Order ("Order") entering summary judgment for Defendants Peter J. Nicosia, Esq. ("Nicosia") and his law firm, Boudreau & Nicosia, P.C. ("Boudreau & Nicosia"), and sanctioning Argentieri's attorney Daniel W. Goldstone ("Goldstone") pursuant to Rule 11 of the Federal Rules. Nicosia and his firm assent to Argentieri's motion. Argentieri argues that the Order is inconsistent with controlling law, and that he had a good faith basis for filing his complaint. [**2] While I will take this opportunity to clarify two aspects of the reasoning underlying the Order, the motion to vacate is DENIED.

TED ARGENTIERI, Plaintiff, v. FISHER LANDSCAPES, INC., and BOUDREAU & NICOSIA, P.C., and PETER J. NICOSIA, Defendants.

Civ. No. 98-10229-NG

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

15 F. Supp. 2d 55; 1998 U.S. Dist. LEXIS 10765; 41 Fed. R. Serv. 3d (Callaghan) 1620

June 9, 1998, Decided

DISPOSITION: [**1] Defendants' motions for summary judgment and entry of separate and final judgment GRANTED; defendants' motion for sanctions against Goldstone GRANTED; and motion for sanctions against Argentieri DENIED. Plaintiff's motion for sanctions against Nicosia and Boudreau DENIED.

COUNSEL: For TED ARGENTIERI, Plaintiff: Daniel W. Goldstone, Goldstone & Sudalter, Boston, MA.

For FISHER LANDSCAPES, INC., Defendant: Richard Gary Garmil, North Andover, MA.

For BOUDREAU&NICOSIA PC, Defendant: Peter J. Nicosia, Law Offices of Robert T. Boudreau, Tyngsboro, MA.

JUDGES: NANCY GERTNER, U.S.D.J.

OPINIONBY: NANCY GERTNER

OPINION: [*57] MEMORANDUM AND ORDER

June 9, 1998

This case, under federal debt collection laws and pendent state claims brought against an attorney who appended a request for attorney's fees to his $ 6,000 state court contract claim, is one in which zealous advocacy has run amok. The case is fundamentally frivolous. Even if there was a modicum of substance to it, plaintiff's lawyer should have exercised some professional judgment and restraint: this case should have never been brought.

[DocDon]

I also remember when we discussed the same topic for Illinois and found the issue with their SOL.... yes, scary.

However, your argument doesn't mean squat only if somebody else in that courtroom knows it doesn't mean squat....

[gdouglaslee]

I also remember when we discussed the same topic for Illinois and found the issue with their SOL.... yes, scary.

Not quite the same thing. In the Harris Trust case they argued the wrong point and never used TILA, the UCC or any exemptions for open end accounts as a defense or even as an argument. A written agreement is in writing on paper but all writing on paper is not a written agreement. Somebody could probably beat it but it would mean a trip to Springfield or wherever their supreme court is.

I'm still looking for case law to see how MI state courts define "verification" and "open end" accounts. I already have it for most of the big states.

However, your argument doesn't mean squat only if somebody else in that courtroom knows it doesn't mean squat....

Agreed. But, I never said don't raise the issue. I just said it probably won't fly. You can't make an omlet if you don't break a few eggs.

[wunderwoman]

I LOVE when people win! I just truly LOVE it!

[KentWA]

Here is what I would do. Just dispute the listings with the CRA's, do not at this time send your judgement to them. The CA will likely verify and fall into your mouse trap.

Then nail them for FCRA violations. When you sue them argue the FDCPA violations as well and do not bring up any adverse case law, use the case law that helps you. There is nothing in the rules that you have to reveal a shakey legal position. That would be the CA's job and if they screw that one up, to bad for them.

If you do it in small claims you are likely to hit a home run!!