Recommended Posts

Spent hundreds of hours over the last 4 months reading this forum and defending myself against a JDB (Midland Funding LLC w/ law firm Suttell & Hammer representing them) to no avail.

Got served in March, filed Answers affirmative defenses, notice of appearance, answers to admissions, request for admissions, request for documents and interrogatories, sworn denial, motion to dismiss, motion to strike bill of sale, motion to strike affidavit....everything sent with certificate of service AND sent certified mail.

Went to court yesterday to defend myself against a Summary judgment, Judge ignored everything I filed, and everything I said in court. I even requested serving the plaintiff with a subpoena to verify the debt....He just said "denied".

So let me just give anyone in Island county washington a piece of advice. Dont even think for a second you will get Justus in the court system here. Dont get your hopes up reading this forum thinking you have a chance.

You dont. Not here.

Edited by patriot68
Link to post
Share on other sites

Can you not appeal to a higher court and get out of reach of this judge? It sounds like you had everything in order, but unfortunately there are some courts that don't seem to seek justice.

Link to post
Share on other sites

I already contacted a lawyer, he said it could cost me an additional $10,000 with no guaranty. My faith in the system is gone, so an appeal is out of the question.

I did file a motion for reconsideration, not that the court will take it seriously. I did it so I can look myself in the mirror and know I did all I could.

I already learned after my divorce that life aint fair, and good guys sometimes Loose.

Edited by patriot68
Link to post
Share on other sites

Stuff like that just ticks me off. Besides appeal, I wonder what else you can do though? Is there any method of complaining that the judge wouldn't grant your legal rights? I guess at the very least if he is in some sort of division, you can not vote for him at the next election, and campaign for others to do the same.

Link to post
Share on other sites

It's been suggested on another site, to ALWAYS bring a court reporter to any hearings. This puts all of the judges and attorneys actions "On Record". Just knowing they are on record will sometimes constrain them the follow the law and no just fly free and loose. The record is then your evidence for an appeal if they still violate the law.

Link to post
Share on other sites

File an appeal... you have a limited amount of time to do so... see if any court rules were violated and if there are precedents in your state for this type of case.

My guess is there are cases exactly like yours.

Link to post
Share on other sites

The hard part about appeals is that in some jurisdictions the appellate must post a bond equal to the amount of the judgment in order for the appeal to proceed.

I suspect that this is probably the hard position the OP is in.

Link to post
Share on other sites

The CLerk said the filing fee for an appeal is $280. The lawyer I spoke to said the appeals court is in Seattle, about 2 hours away.

I'll have to check to see if there was a court reporter while I was in court. I do remember a lady sitting off to the left side of the judge typing on a computer or something.

Edited by patriot68
Link to post
Share on other sites
Stuff like that just ticks me off. Besides appeal, I wonder what else you can do though? Is there any method of complaining that the judge wouldn't grant your legal rights? I guess at the very least if he is in some sort of division, you can not vote for him at the next election, and campaign for others to do the same.

The problem in my Maybury court is, at the next election the judge will run unopposed. There seems to be an unwritten rule, thou shalt not challenge a sitting local judge. The only time there is a contested election is when there is a vacancy, after a judge either retires or dies.

Link to post
Share on other sites
File an appeal... you have a limited amount of time to do so... see if any court rules were violated and if there are precedents in your state for this type of case.

My guess is there are cases exactly like yours.

I did a lot of searching for case files in WA state, and for some reason there are none. I have a feeling the courts are somehow in bed with the debt collection attorneys in this state.

The law says you are innocent until Proven guilty. But in WA state, if you are sued by a debt collector, you are GUILTY before you even walk into the courtroom. If you try to defend yourself and show the plaintiff has the burden of proof, you will just be ignored...because...well, you are already guilty.

Link to post
Share on other sites
I did a lot of searching for case files in WA state, and for some reason there are none. I have a feeling the courts are somehow in bed with the debt collection attorneys in this state.

The law says you are innocent until Proven guilty. But in WA state, if you are sued by a debt collector, you are GUILTY before you even walk into the courtroom. If you try to defend yourself and show the plaintiff has the burden of proof, you will just be ignored...because...well, you are already guilty.

Unfortunately, I have to agree with you on this one. It appears that JDB'ers and CA's don't have to produce much evidence or really even prove their case. All they have to do is show up and sometimes, not even that much. I think its a sad state of affairs when judges determine guilt or innocence prior to even going in the courtroom...then go out and have lunch with the plaintiff or alleged attorney!

A few months ago, in a local court here, I was given a chance to answer only about three questions...what is your name, are you employed and by whom? It was only AFTER the proceedings that it occurred to me that I was never at any time given an opportunity to question the plaintiff, the evidence that was being presented or to defend myself in any way other than to state my name...my employment status and where I work (yeah, judge...like I want to do that idiot over there's homework for her...NOT!!)

Thanks for letting me vent...

RebelLady

Link to post
Share on other sites
Sounds to me like they had enough to make out their case and you had nothing but your good intentions. A lot of my clients are people who tried to go the pro se route thinking all they needed was the internet, then they hit the reality wall.

Well, the Bill of sale did not reference an account number, did not even have my name on it. Neither did the CC agreement. The affidavit had an account number that was blacked out. I filed a sworn denial, making the affidavit hearsay. The billing statement they attached had different amounts than what they were trying to collect in the claim.

Where is the proof they have legal standing to sue?

Link to post
Share on other sites
Guest usctrojanalum

To be honest appeals are expensive, and are outside of the scope of a pro se litigant. There are very specific rules, deadlines, procedures and appeals court are extremely strict about these rules and do not hesitate to dismiss cases based on a violation of those rules and not perfecting the appeal properly.

Link to post
Share on other sites

On January 29, 2010 John C. Coughenour in Case No. C09-1047-JCC United States District Court, W.D. Washington, Seattle.

Clearly defined Suttell and Hammer as Collection agency for Midland. No If’s And’s or but’s.

RUN do not walk RUN to the DOL.WA offices in Olympia and file a complaint under RCW 19.16 for operating a collection agency without a license. File a complaint against Midland for aiding an unlicensed collection agency in the state. Then in your motion for reconsideration state 19.16.260 they have to have a license to file the law suit.

Get a Lawyer it will be worth a lot to you and the lawyer.

RCW 19.16.430

Violations — Operating agency without a license — Penalty — Return of fees or compensation.

(1) Any person who knowingly operates as a collection agency or out-of-state collection agency without a license or knowingly aids and abets such violation is punishable by a fine not exceeding five hundred dollars or by imprisonment not exceeding one year or both.

(2) Any person who operates as a collection agency or out-of-state collection agency in the state of Washington without a valid license issued pursuant to this chapter shall not charge or receive any fee or compensation on any moneys received or collected while operating without a license or on any moneys received or collected while operating with a license but received or collected as a result of his or its acts as a collection agency or out-of-state collection agency while not licensed hereunder. All such moneys collected or received shall be forthwith returned to the owners of the accounts on which the moneys were paid.

RCW 19.16.440

Violations of RCW 19.16.110 and 19.16.250 are unfair and deceptive trade practices under chapter 19.86 RCW.

The operation of a collection agency or out-of-state collection agency without a license as prohibited by RCW 19.16.110 and the commission by a licensee or an employee of a licensee of an act or practice prohibited by RCW 19.16.250 are declared to be unfair acts or practices or unfair methods of competition in the conduct of trade or commerce for the purpose of the application of the Consumer Protection Act found in chapter 19.86 RCW.

RCW 19.16.260

Licensing prerequisite to suit.

No collection agency or out-of-state collection agency may bring or maintain an action in any court of this state involving the collection of a claim of any third party without alleging and proving that he or it is duly licensed under this chapter and has satisfied the bonding requirements hereof, if applicable: PROVIDED, That in any case where judgment is to be entered by default, it shall not be necessary for the collection agency or out-of-state collection agency to prove such matters.

A copy of the current collection agency license or out-of-state collection agency license, certified by the director to be a true and correct copy of the original, shall be prima facie evidence of the licensing and bonding of such collection agency or out-of-state collection agency as required by this chapter.

[1994 c 195 § 8; 1971 ex.s. c 253 § 17.]

leagle.com/unsecure/page.htm?shortname=infdco20100201799

LECLAIR v. SUTTELL AND ASSOCIATES P.S.

WENDY LECLAIR, Plaintiff,

v.

SUTTELL AND ASSOCIATES, P.S., Defendant.

Case No. C09-1047-JCC.

United States District Court, W.D. Washington, Seattle.

January 29, 2010.

ORDER

JOHN C. COUGHENOUR, District Judge.

This matter comes before the Court on Defendant's Motion for Summary Judgment (Dkt. No. 19), Plaintiff's Response (Dkt. No. 25), Defendant's Reply (Dkt. No. 28), and Plaintiff's Supplemental Filing[ 1 ] (Dkt. No. 27). This matter also comes before the Court on Plaintiff's Motion for Leave to File Amended Complaint (Dkt. No. 36), Defendant's Response (Dkt. No. 39), and Plaintiff's Reply (Dkt. No. 41). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the Motion to Amend (Dkt. No. 36), and GRANTS IN PART the Motion for Summary Judgment (Dkt. No. 19), for the reasons explained herein.

E. State Law Claims

Plaintiff failed to respond to Defendant's argument regarding its state law claims. Under most circumstances, the Court would take this to be a concession that the argument has merit. Local Rules W.D. Wash. CR 7(B)(2). Nonetheless, the Court cannot sustain Defendant's theory that Washington state law exempts Suttell & Associates from liability. Defendant states that the Washington Collection Agency Act does not apply to Suttell & Associates because the statute excludes the activities of "any person . . . directly related to the operations of a business other than a collection agency . . . such as . . . lawyers." WASH. REV. CODE 19.16.100(3)©. Defendant seems to be arguing that its status as a law firm grants it total immunity. But Suttell & Associates here was acting as a collection agency for Midland; it was not, for example, collecting debts owed to it by a client for legal services. Semper v. JBC Legal Group, C04-2240-RSL, 2005 WL 2172377, at *3 (W.D. Wash. Sept. 6, 2005). Defendant's activities here were not "directly related to the operations of a business other than a collection agency," and thus the state law claims stand.

Link to post
Share on other sites
Well, the Bill of sale did not reference an account number, did not even have my name on it. Neither did the CC agreement. The affidavit had an account number that was blacked out. I filed a sworn denial, making the affidavit hearsay. The billing statement they attached had different amounts than what they were trying to collect in the claim.

Where is the proof they have legal standing to sue?

How does a sworn denial make an affidavit hearsay? I am confused.

Also, did you file an affirmative defense based on standing? Did you raise that in you repsonse to the MSJ.

Did you file an affidavit in defense of the MSJ creating an issue of material fact?

Unless certain things are done, a judge's hands are tied on MSJ.

Link to post
Share on other sites
How does a sworn denial make an affidavit hearsay? I am confused.

Also, did you file an affirmative defense based on standing? Did you raise that in you repsonse to the MSJ.

Did you file an affidavit in defense of the MSJ creating an issue of material fact?

Unless certain things are done, a judge's hands are tied on MSJ.

I sure wish I would have talked with you 3 months ago. It makes me sick to think I going to loose based on minor things. If/when my motion for reconsideration gets denied, is there anything else I can do? I did state in the MFR that the Bill of Sale does not reference me or an account #, does not prove they have standing to sue.

Link to post
Share on other sites

Look at the WASHINGTONIANS! Post in the top of the forums.

Unfortunately for consumers, JDBs in WA State have been ruled to be exempt from the 19.16 RCWs. So in other words, a CA according to the FDCPA is NOT THE SAME as a CA according to Washington State Law.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=277169

Originally Posted by dls7406

You know what really sucks about WA though? JDBs are NOT covered by the laws governing CAs. It wasn't what the law makers intended if you ask me, or read the definitions, but a small group of people actually interpreted the laws as being written FOR THE PROTECTION OF CREDITORS, and based on that found that it shouldn't include JDBs.

For those of you who would like a little proof of how the government occasionally REALLY screws up, I am including a response to a phonecall I made to the WA state lisencing dept.;

Per our conversation, attached is the Collection Agency Board's July 2004 meeting minutes regarding debt buyers and whether they fall under the state collection agency law (Chapter 19.16 RCW).

<<July 2004 Minutes - Debt Buyer decision.pdf>>

Harumi Tucker Tolbert

Regulatory Program Manager Department of Licensing

htolbert@dol.wa.gov Master License Service

(360) 664-1389 PO Box 9034

Fax: (360) 570-7875 Olympia, WA 98507-9034

And attached;

STATE OF WASHINGTON

DEPARTMENT OF LICENSING

PO 80x 9020 • Olympia, Washington 98507-9020

WASHINGTON STATE

COLLECTION AGENCY BOARD

SPECIAL MEETING MINUTES

A special meeting of the Washington State Collection Agency Board was

scheduled for 9:30 a.m., Wednesday, July 14, 2004, at the Department of

Licensing, 405 Black Lake Boulevard SW, Olympia, Washington. Chair Craig

Nelson called the meeting to order at 9:30 a.m.

Craig Nelson, Chair

Debbie Buxton, Industry Member

Moises Garcia, Jr., Public Member

Joyce Olsen, Public Member

Roy H. Warnick, Industry Member

Harumi Tucker Tolbert, Regulatory Program Manager

Rob Kosin, Assistant Attorney GeneralJProsecutor

Sharon Eckholm, Assistant Attorney General/Advisor

OPEN

SESSION: I. Call to order

A. Approval of Agenda

A motion was made by Debbie Buxton and seconded by Moises

Garcia, Jr. to approve the agenda as presented. The motion was

passed.

B. Approval of Minutes

A motion was made by Debbie Buxton and seconded by Moises

Garcia, Jr. to approve the October 6, 2003 minutes as presented.

The motion was passed.

Collection Agency Board

Special Meeting Minutes

July 14, 2004

Page 2

II. Debt Buyers

Assistant Attorney General Sharon Ecldlolm presented the debt buyer

issue. Discussion was held on whether debt buyers fall under the

definition of"collection agency" as defined in RCW 19.16.IOO(2)(a).

AAG Ecldlohn stated that her legal analysis had determined that debt

buyers are not covered by Chapter 19.16 RCW.

The board and AAG Ecldlolm reviewed the definition found in RCW

19.16.100(2)(a). AAG Ecldlolm stated that the Washington Collection

Agency Act appears to be mainly to protect the creditor. She further

referenced RCW 19.16.IOO(2)©, which also indicates collection by a

"third party." AAG Ecldlolm clarified that the phrase "soliciting claims

for collection" found in RCW 19.16.IOO(2)(a) is interpreted to mean for

another.

They also discussed that debt buyers are covered by the federal Fair Debt

Collection Practices Act (FDCPA) and the Washington Consumer

Protection Act and that the Federal Trade Commission and the Attorney

General's Office Consumer Protection Division could pursue

unscmpulous debt buyers.

AAG Eckholm shared her review of Michigan State law, which is similar

to Washington's collection law. Michigan does not interpret their law as

covering debt buyers. The Michigan court of appeals held that a successor

creditor was not a collection agency. The court also found that the agency

in question was a debt collector under the FDCPA and thus subject to its

protective provisions governing fair practices. [Asset Acceptance Corp. v.

Robinson, 244 Mich. App. 728, 732 (2001)].

AAG Rob Kosin explained his review of the issue and how he would have

to prove his case before the Board and ifthere was an appeal, before

Superior Court. AAG Kosin and the Board discussed a hypothetical case

where the debt buyer collects on claims they own as well as third-party

claims. The question brought forth was whether the debt buyer would be

required to be licensed under this scenario. Consensus was that if the debt

buyer collects on any third-party claims, they would fall under the Board's

jurisdiction and require a license.

A motion was made by Moises Garcia, Jr. and seconded by Debbie Buxton

to accept the following decision: Debt buyers that collect solely on their

own claims and in their own names are not covered by Chapter 19.16

RCW. Motion was passed.

Collection Agency Board

Special Meeting Minutes

July 14, 2004

Page 3

It was mentioned that if the Board wanted to regulate debt buyers,

legislation would have to be proposed to change the existing law. Debbie

Buxton and Roy Warnick agreed to discuss this issue with the Washington

Collectors Association (Association) to see if they are interested in

drafting proposed legislation to include debt buyers to Chapter 19.16

RCW. lfthe Association is interested, Debbie and Roy agreed that the

Association would work with the Department of Licensing.

IV. Telephone Harassment & the Use of Automated Dialers

Hammi Tolbert described the following scenario regarding collection

agencies' use of automated dialers which may fall under RCW

19.16.250(12)(a), (B) and ©:

Many collection agencies use automated dialers that call the

debtor's number on a set schedule, etc. and they can

program the dialer on when and how often to call.

The dialer is calling more than three times during a week,

but the call record sheets might indicate that the call was

connected but was hung up or that the dialer got an

answering machine, but it doesn't indicate whether a

message was left.

Is it only considered a "communication" and thus

harassment when collectors speak to a live body or does the

above scenario violate subsection (12) "unreasonable

Collection Agency Board

Special Meeting Minutes

July 14, 2004

Page 4

frequency" language and also (12)(a) because there are

more than 3 calls per week?

The Board discussed the FDCPA section 15 USC 1692d(5)

regarding causing the telephone to ring.

AAG Eckholm stated that under the scenario described, simply

causing the telephone to ring is not a "communication." She

further stated that multiple calls after the collector talks with a

person even if subsequent calls are not answered could fall under

the "umeasonable frequency" language.

A motion was made by Roy Warnick and seconded by Debbie

Buxton that harassment cases received by the program that include

the use of automated dialers should be handled on a case-by-case

basis. The motion was passed.

VI. Standardized Collection Forms

Prior to the meeting, Hammi Tolbert surveyed other states to

determine ifthey provide standard collection form letters or

approve letters used by agencies. She received a response from

Arkansas, Colorado, Connecticut, Maine, Massachusetts,

Michigan, Minnesota, Nebraska, Utah and Wyoming. Connecticut,

Maine and Massachusetts review all collection letters during the

application process and subsequent forms used after an agency

becomes licensed. Wyoming requests the collection letters at

application, but they are not reviewed but simply filed. All the

states agree that the process is time consuming and most states

don't have the staff it would take to continually review and

approve letters.

Collection Agency Board

Special Meeting Minutes

July 14,2004

Page 5

Joyce Olsen motioned that the Board not provide sample form

letters or approve those used by agencies. Debbie Buxton

seconded the motion. Motion was passed.

VII. Review Charging Documents - New Format

AAG Rob Kosin presented the new formats used for the following

charging documents so the Board could familiarize themselves

with the new formats:

• Statement of Charges;

• Answer to Statement of Charges and Request for

Settlement and Hearing;

• Notice of Intent to Issue Cease and Desist Order;

• Demand for Hearing and Response to Notice of Intent to

Issue Cease and Desist Order;

• Temporary Cease and Desist Order;

• Demand for Prompt or Regularly Schedule Hearing and

Response to Temporary Cease and Desist Order; and

• Cover letter for each charging document.

VIII. Adjournment

There being no further business or discussion, the meeting was adjourned

at 2:15 p.m. by Craig Nelson, Chair.

Submitted by:

~~<j~~\y~

Hammi Tucker Tolbert

Regulatory Program M,mager

Collection Agency Section

Approved by:

Link to post
Share on other sites

Thanks for the info. Looks like JDB's can thrive here in WA without having to prove their case.

I checked out the link and read the posts. In RCW 19.16.270 it says:

"the assignment of the claim to licensee by his or its customer shall be conclusively presumed valid, if the assignment is filed in court with the complaint, unless objection is made thereto by the debtor in a written answer or in writing five days or more prior to trial."

Wouldn't the Sworn denial, Motion to dismiss, Motion to strike Bill of Sale, or Motion to Strike Affidavit that I filed be considered an "objection"?

Link to post
Share on other sites

Hello,

In the court, is it possible to elect arbitration even without submitting the Motion to Compel Arb?

In other words,

I sent the Motion to strike and got hearing date scheduled. During the hearing, if the judge is not listening to my side of story like in the case of OP's case, can I elect the arbitration clause??

the copy of arbitration clause is already submitted as exhibit and filed. Without formal "motion to compel", is it possible to elect it????

If not, I must file "motion to compel arb" before the hearing and I'm concerned how the court would perceive it when the defendant is complying with court system by sending Motion to Strike and then also raising the possibility of leaving the court system by submitting Motion to Compel Arb at the same time... wouldn't it send a mixed message???

Please advice.

Link to post
Share on other sites

Electing arbitration means choosing arbitration. You can elect arb in a letter to the plaintiff's attorney.

To get the case out of the court (and that is the goal of the arb strategy), you need to file either: a motion to compel arb/stay pending arb; or: a motion to dismiss, or in the alternative, to stay pending arb.

Again, the whole premise of the arb strategy is to leave the court system, which is especially important if you think you going to get railroaded.

Link to post
Share on other sites
Guest
This topic is now closed to further replies.