When is an attorney "acting as an attorney?"

[TheSarge2]

here's the exact quote from the paperwork I received:

"(XXX law firm) collects debts. At this time, no attorney with the firm has personally reviewed the particular circumstances of your account. We are attempting to collect a debt. Any information we obtain will be used for that purpose."

I get that, and not only one but TWO attorneys that are assigned to this......even a sworn affidavit from one.....

Their entire "mound" of evidence is the affidavit - which if you read it as a "layperson" you would swear the Midland themselves loaned us some money.....no reference to an original creditor, no sale or assignment, no records of any kind....the only kind of reference to anyone other than Midland is in the affidavit, a reference to "Plaintiff is the rightful assignee of the above referenced account...."

<EDITED> Leaving the original posted so my confusion is clearly seen lol

The affidavit is NOT from an attorney......searched the forums, it's from Midland's infamous Ashley Lashinski......who I see is listed sometimes as a "legal spe******t"....but is only listed on my complaint as "Signature of Plaintiff or Authorized Agent"

Edited July 29, 2011 by TheSarge2

[BTO429]

IN Avila-vs-Rubin (1996) Judge Evans of the 7th Circuit court concluded, An unsophisticated consumer receiving a letter from an attorney knows the price of playing poker has just gone up, Because attorneys have special status, from that of a debt collector, letter purporting to be written by an attorney hold greater weight than those written by a laymen.

Courts have also found that letters than come from attorneys are misleading and false when the lawyer has no involvement with the debt. Debt collectors seek to trade the attorneys authority, a letter from a debt collector may go unanswered where as a letter from an attorney gets more attention.

[usagi555]

here's the exact quote from the paperwork I received:

"(XXX law firm) collects debts. At this time, no attorney with the firm has personally reviewed the particular circumstances of your account. We are attempting to collect a debt. Any information we obtain will be used for that purpose."

I get that, and not only one but TWO attorneys that are assigned to this......even a sworn affidavit from one.....

Their entire "mound" of evidence is the affidavit - which if you read it as a "layperson" you would swear the Midland themselves loaned us some money.....no reference to an original creditor, no sale or assignment, no records of any kind....the only kind of reference to anyone other than Midland is in the affidavit, a reference to "Plaintiff is the rightful assignee of the above referenced account...."

<EDITED> Leaving the original posted so my confusion is clearly seen lol

The affidavit is NOT from an attorney......searched the forums, it's from Midland's infamous Ashley Lashinski......who I see is listed sometimes as a "legal spe******t"....but is only listed on my complaint as "Signature of Plaintiff or Authorized Agent"

Yeah, I was confused when I read your first post too, and I don't think that's really your fault. The incredulity of filing a complaint with a statement that is tantamount to an admission of malicious prosecution or abuse of process or something similar made me gloss over the possibility that your complaint had actually been filed with the courts the first time or three.

[BV80]

confused....restating just so I understand it, and I'll explain where I'm coming from.....

right now, I have a Midland suit pending.......now on the initial complaint, there is a signature of "A****** *******" listed specifically as "Counsel for Plaintiff set forth in the Entry of Appearance"

next page, which is an "Entry of Appearance"....this page lists A***** ***** as the attorney (different name), with license #

(just as a side not, I think it's funny.......both attorney's have the same initials first and last......and the only signature by either is illegible except for the initials....but anyway...)

the final page, the wording in it reads: "At this time, no attorney with the firm has personally reviewed the particular circumstances of your account"

as I read in the post, this is NOT kosher........?

I'm not sure the statement on the Complaint would be considered misleading the way it would in a dunning letter. The court's take on dunning letters with attorney letterheads, even if they include the statement about no attorney reviewing the file, is that the least sophisticated consumer will assume a lawyer is involved and could file suit.

In your case, a suit has already been filed, and you know an attorney is involved.

[TheSarge2]

I confuse even myself sometimes lol

Irregardless, PA caselaw is pretty clear when it comes to proving the contract....if they don't have the original contract and all other supporting documentation going forward of that....the affidavit is moot and hearsay....

[usagi555]

IN Avila-vs-Rubin (1996) Judge Evans of the 7th Circuit court concluded, An unsophisticated consumer receiving a letter from an attorney knows the price of playing poker has just gone up, Because attorneys have special status, from that of a debt collector, letter purporting to be written by an attorney hold greater weight than those written by a laymen.

Courts have also found that letters than come from attorneys are misleading and false when the lawyer has no involvement with the debt. Debt collectors seek to trade the attorneys authority, a letter from a debt collector may go unanswered where as a letter from an attorney gets more attention.

Yeah, I pretty much have to rely on case law that is not binding here. I have been unable to find anything at the local or even in my US District Court that deals with the specific issues that I have to contend with. That is not to say that there is no local case law that will be helpful, just that it doesn't cover all the bases.

[jackson212]

If nothing else for the pitiful filing and "wasting of the Court's time"???

"waste of judicial resources"

they will hate you for using these words.

[jackson212]

i had said

LMAO

not laughing at you. im laughing at them.

there is a case/case law that comes to mind, i just dont remember the name of it. if and when i remember i'll post it here, i think its a bit relevant to your situation.

IN Avila-vs-Rubin (1996) Judge Evans of the 7th Circuit court concluded, An unsophisticated consumer receiving a letter from an attorney knows the price of playing poker has just gone up, Because attorneys have special status, from that of a debt collector, letter purporting to be written by an attorney hold greater weight than those written by a laymen.

Courts have also found that letters than come from attorneys are misleading and false when the lawyer has no involvement with the debt. Debt collectors seek to trade the attorneys authority, a letter from a debt collector may go unanswered where as a letter from an attorney gets more attention.

these are the exact words that i was trying to remember, and trying to remember which case it came from. i think i read these exact words in another case that was quoting the Avila court. but thanks, this is a tremendous help to me even though im not the OP. i have to properly archive this case law now LOL before i lose it.

[usagi555]

I'm laughing. The firm that is after me just lost a big lawsuit for over $1mil. That'll teach those bastards to change the SS# in their files to another person's SS# who happens to have the same name and then try to garnish wages twice after being notified of exactly what they are full of.

[BTO429]

Glad I could be of some help, Just wish I could put more case law to memory but there are to many to remember all of them. I just hope I can remeber case law when I take the bar exam. lol

[usagi555]

Glad I could be of some help, Just wish I could put more case law to memory but there are to many to remember all of them. I just hope I can remeber case law when I take the bar exam. lol

Here's the gist of what I should be able to do with that ruling:

FDCPA Claim: Letters 1 & 2 would appear to an unsophisticated consumer to be communications from attorneys before any meaningful review was even possible <insert proof here>

More claims...

State Licensing & Consumer Protection Claim: Letter 1 does not in any way, shape or form count as an attorney collecting a debt as an attorney in the name of and on behalf of a client, therefore Scruffy & Skeezy should be licensed as a collection agency, which they are not.

Denying one is pretty much either admitting the other, or admitting to some other violation of state and/or federal law.

[usagi555]

I don't know why I didn't catch this before, but two of the dunning letters I received from Scruffy & Skeezy have the same signature on them. When I say same signature, I don't mean that they were signed by the same person, I mean the same damned signature.

I verified by scanning the letters, opening the scans up in GIMP (GNU Image Manipulation Program,) copying the signature boxes, pasting one over the other, adding some transparency to one layer and viola! They are identical.

Funny thing is that one of these letters was dated before the affidavit that they filed with the case.

Form letters with electronic or mechanically reproduced signatures on law firm letterhead with no meaningful review. This is wonderful.

Edited August 20, 2011 by usagi555

[BTO429]

Section 1692e of the FDCP prevents, “false, deceptive or misleading representation or means in connection with the collection of any debt.” The use of attorney letterhead and an attorney signature on a letter is enough to find that letter “false and misleading” if the attorney is not sufficiently involved in the sending of the letter so that the court finds that the letter is not actually “from” an attorney.

June 2011, the Third Circuit Court of Appeals, in the case of Leshner v. The Law Offices of Mitchell N. Fay, F.3d, 2011 WL 2450964 (3d Cir. 2011), found that settlement letters sent on a law firm’s letterhead implied that there was forthcoming legal action, and therefore were “false and misleading” under section 1692e of the FDCPA, because the firm was not acting in a “legal capacity” when the letters were sent. This ruling was made despite the existence of a disclaimer on the letters concerning the attorney involvement in the case.

But there have been other cases where that sort of language was found not to be misleading. So what needs to be done is get the courts all on the same sheet of music. We need a determination or new law the clearly states whether or not this is a violation.

You can argue that it is a violation and give the court some case law that supports your claim and maybe your judge will agree, maybe not.

OVERSHADOWING is not directly contained the the language within the FDCPA, you will not find the word in the FDCPA. Overshadowing has been used to argue that collection letter mislead the least sophisticated consumer. What is important is where the language that the case has not been revied by an attorney appears in the letter. Is it before the mini miranda, is it in bold type to draw attention to it, is it after the miranda? These are questions that will be looked at when determining whether or not it overshadows the true meaning of a collection letter.

In the alternative, a lawyer acting as a debt collector must notify the consumer, through a clear and prominent disclaimer in the letter, that the lawyer is wearing a “debt collector” hat and not a “lawyer” hat when sending out the letter.   See Greco v. Trauner, Cohen & Thomas, L.L.P., 412 F.3d 360, 361-62 (2d Cir.2005).

Clomon v. Jackson, 988 F.2d 1314, 1321 (2d Cir.1993).   In Clomon, the Second Circuit held that a lawyer violated the FDCPA when he “authorized the sending of debt collection letters bearing his name and a facsimile of his signature without first reviewing the collection letters or the files of the persons to whom the letters were sent.”  Id. at 1316

In Clomon the court stated:

“The use of an attorney's signature on a collection letter implies that the letter is ‘from’ the attorney who signed it;  it implies, in other words, that the attorney directly controlled or supervised the process through which the letter was sent ․  The use of an attorney's signature implies-at least in the absence of language to the contrary-that the attorney signing the letter formed an opinion about how to manage the case of the debtor to whom the letter was sent ․  There will be few, if any, cases in which a mass-produced collection letter bearing the facsimile of an attorney's signature will comply with the restrictions imposed by § 1692e.”

Edited August 21, 2011 by BTO429

[usagi555]

I am going to argue overshadowing like a mofo on both the first, second and most likely third letters. The very first sentence in the body of the first letter is " Please be advised that this firm represents the above reverenced creditor in connection with your account." There is also a signature in the signature box that some least sophisticated consumer would take as either Scruffy's signature or Skeezy's signature. It's not signed by an attorney and contains the Greco disclaimer, but it appears to be signed by an attorney.

I was served, then about 3 weeks later they sent a copy of the complaint that I was served via USPS from their local office. On the very same day that I received that, I also received a letter from their other office telling me to call them and settle. I don't doubt for a second that they try to time it that way to bully people. Dirty bastards.

I am going to nail them, and I am going to use the first and possibly second letters to nail them for engaging in debt collection activities in my state without a license. They're acting all smug now, but I'm finally starting to get a handle on the processes in my state's court system. I don't know everything I need to know yet, but I will soon be able to mount a nasty offensive, which is what I plan on doing. Right now they are of the opinion that I will be easy prey. They can just keep on believing that. I'm judgment proof and this is going to cost them, even if they win.

[usagi555]

I just found the answer to the initial question in this thread:

fdcpa attorney-at-law collecting a debt as an attorney - Google Scholar

Since the pre 1986 version of the FDCPA excluded attorneys using this exact language:

"any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client."

And my state's current definition of debt collectors/collection agencies not only is very similar to the federal definition, it also excludes attorneys using this exact statement:

"any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client;"

I now think that I can move in on Scruffy & Skeezy very hard regarding this one issue. The fact that the state definition is very similar and the attorney exception in the pre 1986 FDCPA is identical word for word to the current state attorney exception is a very strong argument that federal case law from another circuit should be applied to the state's definition.

[BTO429]

Its plain and simple by definition in the language of the FDCPA

§ 803. Definitions [15 USC 1692a]

(6) The term "debt collector" means any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. For the purpose of section 808(6), such term also includes any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the enforcement of security interests.

Google Heints-vs-Jenkins; Wadlington v. Credit Acceptance Corp:

Edited August 22, 2011 by BTO429

[usagi555]

I pretty sure that I already have them on that first letter for FDCPA violations because that the FDCPA clearly includes lawyers in the definition. Where I really want to nail them is on my state's act that regulates collection agencies. The penalties there are a lot more serious if I can do that. Even if the person who is not an attorney that sends out the letters is never identified or charged, this is a felony act under state law. Once I show in court that somebody at the firm has committed a felony in the regular course of business, bad things can start to happen to them. Once I show that most, if not all of their 1692g letters violate this state law, even worse things start to happen to them. It could potentially lead to the firm getting shut down, some or all of the attorneys losing their licenses to practice law and other bad things.

This firm is a menace to my state's judicial system in a serious way and they need to be shut down. Even the judges don't have the big picture here due to the nature of how cases are logged and distributed amongst the judges. I spent the time to get a glimpse of the big picture, and for 4 attorneys to file over 30% of the civil cases in district courts in my state is completely insane.

[tropicaljo]

Kinda curious how (if) this one is playing out. I have a very similar lawfirm/CA and state licensing issues you are dealing with. Local courts have seen my lawfirm/collectors so much that the courts act like anything the lawfirm presents is valid law and rubberstamp the lawfirms complaints nearly as soon as it hits the judges desk. Sure would like to know if you managed to make your point in court.

[nascar]

Read Miller v. Upton, Cohen & Slamowitz, 687 F. Supp. 2d 86 (E.D.N.Y. 2009)

[usagi555]

Kinda curious how (if) this one is playing out. I have a very similar lawfirm/CA and state licensing issues you are dealing with. Local courts have seen my lawfirm/collectors so much that the courts act like anything the lawfirm presents is valid law and rubberstamp the lawfirms complaints nearly as soon as it hits the judges desk. Sure would like to know if you managed to make your point in court.

My threads seem to be getting resurrected here lately. I guess that means that I have been asking good questions.

To answer yours, I had been drafting some third party claims against the law firm and they cut and run before I had a chance to ask for leave of the court to file an amended response that included those claims. I was also going to include third party claims against a subsidiary of Citibank and counter claims against Citibank under some NM laws. I had them dead to rights when it came to lying to me about discovery and I had also asked some discovery requests that they really did not want to answer. They dismissed with prejudice because, now, if I do sue them, any amount that I'll get out of them will be much lower than had they just dismissed w/o prejudice or had we duked it out all the way to the end. It also helped that they couldn't produce some of the important evidence because it didn't exist. I knew it didn't exist.

Actually, one very likely outcome had they shown up was that I would have had them sanctioned and had a default judgment in my favor entered, then gone after them in a separate case. I had already quoted some rules and combined those quotes with "failure to act in good faith." It would have been nice to pull a Coltfan on them and layout a major bushwhacking, but this was an OC, and now that the stress is gone, I realize just how stressed I was.

Yeah, imagine how a default in my favor would look to a jury. Now, imagine how a jury would see it considering that they did dismiss with prejudice. I had evidence of lies that they would have been hard pressed to deny. They already have a tarnished reputation. See Yazzie v Farrell & Seldin et al for that. The lawyer that was after them on that one has some wonderful briefs that you can read on recapthelaw.org.

I am convinced, however, that under NM law, they are required to be licensed. I haven't reread through this thread to see if it's where I posted some of the reasons and case law that leads me to believe that, but the Upton, Cohen & Slamowitz case posted above by Nascar is one. Boyd v Wexler was another. I was also going to use the Greco case because they did have a Greco disclaimer in the first communication sent to me. (At this time, no attorney has reviewed the particular circumstances of your account.) The big one, though, was FTC v Shaffner, because the FDCPA exceptions to who is a debt collector used to be word for word identical to NM's exceptions to who is a Collection Agency, including the exception of interest. Congress removed the "an attorney-at-law collecting a debt as an attorney in the name of and on behalf of" a client exception in 1986, but NM kept it. FTC v Shaffner dealt with this very issue, except under the pre-1986 FDCPA and not NM law.

[nascar]

I am not aware of any state that requires an attorney to obtain a debt collector license (except under very specific circumstances). With respect to New Mexico, 61-18A-2.C(6) looks like that state's attorney exception.

As far as being subject to the FDCPA, Heintz v. Jenkins, 514 U.S. 291 (1995) is still controlling on that question as far as I know.

[tropicaljo]

Arkansas has similar conflicts in the licensing laws. One statute states that ANYONE who collects for a third party must be licensed to collect, then a couple of statutes later, it says that attorneys who are 'rendering legal services for a client in the collection of a debt' are exempt.

In my case, the lawfirm I'm dealing with freeely admits that they are a collection agency as defined by state and federal laws, but they use 2 state statutes regarding attorney immunity as "get out of jail free" cards. Sad thing is that the courts (even the state supreme court) have always upheld this tactic.

My contention is and always has been... All actions taken prior to filing court documents were those of a collection agency, not an attorney 'rendering legal services.'

There should be a difinitive line between the 2 professions. The FDCPA clearly define the actions of a debt collector. But where is there a definative definition of "rendering legal services?" I sat down one day with my dictionary and tried to come up with a clear definition of rendering legal services. Here's the short version of what I came up with...

Rendering legal services is;

To be in the business of offering assistance to others in matters related to, or concerned with, or authorized by, or based on, or in conformity with, or permitted by, or recognized by, or enforced by the law rather than equity.

To make it short; To be in the business of offering assistance to others in matters of the law rather than equity.

Too bad my opinions don't count for much...

@usagi555, I'd be very interested in seeing your discovery questions. Maybe you could pm them to me if you don't mind sharing???

[usagi555]

Arkansas has similar conflicts in the licensing laws. One statute states that ANYONE who collects for a third party must be licensed to collect, then a couple of statutes later, it says that attorneys who are 'rendering legal services for a client in the collection of a debt' are exempt.

In my case, the lawfirm I'm dealing with freeely admits that they are a collection agency as defined by state and federal laws, but they use 2 state statutes regarding attorney immunity as "get out of jail free" cards. Sad thing is that the courts (even the state supreme court) have always upheld this tactic.

My contention is and always has been... All actions taken prior to filing court documents were those of a collection agency, not an attorney 'rendering legal services.'

There should be a difinitive line between the 2 professions. The FDCPA clearly define the actions of a debt collector. But where is there a definative definition of "rendering legal services?" I sat down one day with my dictionary and tried to come up with a clear definition of rendering legal services. Here's the short version of what I came up with...

Rendering legal services is;

To be in the business of offering assistance to others in matters related to, or concerned with, or authorized by, or based on, or in conformity with, or permitted by, or recognized by, or enforced by the law rather than equity.

To make it short; To be in the business of offering assistance to others in matters of the law rather than equity.

Too bad my opinions don't count for much...

@usagi555, I'd be very interested in seeing your discovery questions. Maybe you could pm them to me if you don't mind sharing???

http://www.creditinfocenter.com/forums/there-lawyer-house/310127-discovery-requests-citibank.html

[Guest usctrojanalum]

My contention is and always has been... All actions taken prior to filing court documents were those of a collection agency, not an attorney 'rendering legal services.'

I like this way of thinking, but like others have said throughout this thread and as the Courts have said - a letter that comes from an attorney holds more weight and is of a more serious nature than one that comes from a collection agency. Letters from attorneys are serious, and should be taken as such. An attorney who sends out a letter with the intention of filing a lawsuit is definitely rendering a legal service.

[tropicaljo]

Thanks for that, but that link doesn't help me much as it relates to OC's and JDB's. I'm suing the lawfirm/collection agency for FDCPA violations after they dismissed thier clients complaint for a bs reason.

In my situation, the lawfirm filed a complaint after I had invoked the arb clause twice, in writing prior to thier filing the complaint.

They sought a MTS after I denied the court had jurisdiction due to the fact that I had invoked the arb clause prior to their filing of the complaint. Their MTS was granted and the Order was stipulated (in the judges handwriting) that the arb not exceed 90 days.

8 months later they requested a hearing and tried to take the complaint back to the court due to their allegation that they were "precluded' from filing arbitration with AAA in or around February 2011 due to the moritorium on business initiated consumer debt arbitration filings.

I filed a MTD with prejudice and filed documents from AAA that showed they were not 'precluded' from filing b/c the moratorium had been lifted in October of 2010. In fact, I was told by AAA that they never even attempted to file an application for arb on the clients claims.

They fought that and filed their own MTD without prejudice using the same "preclusion" allegations and stated they were choosing to non-suit. The judge ignored my MTD and signed theirs 20 minutes before oral arguements were to be heard.

So I'm not sure what all to ask for in discovery. I do plan to ask for the full names, job titles, etc of each and every agent that attempted to call my home and discuss the alleged debt after they received my C&D, as well as the full name, etc. of the person in their firm who informed me that the attorney at hand had not informed the client of my invoking the arb clause until after that attorney had filed the complaint. Beyond that, I'm kinda at a loss as to what else to ask for.