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61-2706. Claims exceeding small claims in jurisdiction. (a) Whenever a plaintiff demands judgment beyond the scope of the small claims jurisdiction of the court, the court shall either: (1) Dismiss the action without prejudice at the cost of the plaintiff; (2) allow the plaintiff to amend the plaintiff's pleadings and service of process to bring the demand for judgment within the scope of the court's small claims jurisdiction and thereby waive the right to recover any excess, assessing the costs accrued to the plaintiff; or (3) if the plaintiff's demand for judgment is within the scope of the court's general jurisdiction, allow the plaintiff to amend the plaintiff's pleadings and service of process so as to commence an action in such court in compliance with K.S.A. 61-1703 and amendments thereto, assessing the costs accrued to the plaintiff.

(B) Whenever a defendant asserts a claim beyond the scope of the court's small claims jurisdiction, but within the scope of the court's general jurisdiction, the court may determine the validity of defendant's entire claim. If the court refuses to determine the entirety of any such claim, the court must allow the defendant to: (1) Make no demand for judgment and reserve the right to pursue the defendant's entire claim in a court of competent jurisdiction; (2) make demand for judgment of that portion of the claim not exceeding $4,000, plus interest, costs and any damages awarded pursuant to K.S.A. 60-2610 and amendments thereto, and reserve the right to bring an action in a court of competent jurisdiction for any amount in excess thereof; or (3) make demand for judgment of that portion of the claim not exceeding $4,000, plus interest, costs and any damages awarded pursuant to K.S.A. 60-2610 and amendments thereto, and waive the right to recover any excess.

History: L. 1973, ch. 239, § 6; L. 1979, ch. 187, § 2;L. 1986, ch. 223, § 3; L. 1986, ch. 222, § 3; L. 1986, ch. 224, § 2;L. 1994, ch. 273, § 20;L. 2004, ch. 176, § 6; July 1.

Any information provided by me is generalized and for informational purposes only; it does not constitute legal advice. I'm not a lawyer.

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Rendered on May 29, 2008

Hudson & Keyse, LLC, and Timothy J. Hacking, for appellee.

Kenneth J. Carson, pro se.

APPEAL from the Franklin County Municipal Court.

SADLER, J.

{¶1} Appellant, Kenneth J. Carson ("appellant"), filed this appeal seeking

reversal of a judgment by the Franklin County Municipal Court granting summary

judgment in favor of appellee, Hudson & Keyse, LLC Assignee Chase Bank USA, N.A.

("appellee"). For the reasons that follow, we reverse the trial court's judgment

On May 8, 2006, appellee filed a complaint in the Franklin County Municipal

Court naming appellant as the defendant. The complaint set forth four causes of action:

(1) failure to pay money owed on an account, (2) quantum meruit based on the failure to

pay for the agreed upon financial services, (3) unjust enrichment, and (4) breach of

contract. The claim for money owed on an account was based on the assertion that

appellee is Chase Bank's assignee by virtue of its purchase of certain credit card

accounts with outstanding balances due and owing. The complaint also alleged that

appellant and appellee entered into an oral financial services agreement regarding

payment on the account, and that appellant failed to pay the outstanding balance as

provided by the financial services agreement. The claims for quantum meruit, unjust

enrichment, and breach of contract appear to have been based on the alleged financial

services agreement.

{¶3} The complaint further stated that appellee did not have a copy of the

financial services agreement or a copy of the assigned account. Appellee attached to the

complaint an affidavit executed by Nancy Quere, appellee's Legal Account Manager. The

affidavit stated:

1. That I, Nancy Quere, am the Legal Account Manager of

the Plaintiff herein and am competent to testify to the matters

stated herein, which are made on my personal knowledge

and are true and correct.

2. That there is justly an amount due and owing Hudson &

Keyse, L.L.C., Assignee of Chase Bank Usa [sic], N.a. [sic] by

the Defendant to the Plaintiff the sum of money amounting to

$7,833.38, plus interest totalling [sic] $3,512.78, beginning

from MAY 18 2004 through MAR 31 2006; and that such

balance will continue to earn interest at a rate of 24.00 from

MAR 31 2006, as an annual percentage rate calculated as

required by the Federal Truth In Lending Act.

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3. That the said indebtedness represents the amount due

and originating on a credit card, which Hudson & Keyse,

L.L.C. is the Assignee of Chase Bank Usa [sic], N.a. [sic] and

that Hudson & Keyse, L.L.C., Assignee of Chase Bank Usa

[sic], N.a. [sic], the within named Plaintiff, having purchased

said debt from said assignor, is the owner of said debt and is

the proper party to bring this action.

4. That Plaintiff has not directly or indirectly received any part

of the money or goods herein as due, or received an [sic]

security or satisfaction for which credit has not already been

given.

5. That the Plaintiff keeps regular books of account and that

the keeping of said books of account is in the charge of or

under supervision of the undersigned affiant. The entries in

said books of account are made in the ordinary course of

business. Said entries show the Defendant is indebted to the

Plaintiff in the manner and amount set forth herein.

6. That I have made diligent inquiry to determine if the

defendant is in the military service of the United States of

America, and have determined that defendant is not in such

military service and is therefore not entitled to the rights and

privileges provided under the Soldiers and Sailors Civil Relief

Act of 1940, as amended.

{¶4} On July 7, 2006, appellant filed a motion seeking a definite statement

pursuant to Civ.R. 12(E). In support of the motion, appellant argued that appellee failed

to attach a copy of the itemized account to the complaint. Appellant argued that if the

complaint set forth the existence of an oral agreement, appellee should have been

required to set forth in the complaint specific information regarding formation of the oral

agreement. Appellant also argued that appellee should be required to provide a copy of

the account, a copy of the financial services agreement alleged in the complaint, and a

copy of the assignment agreement between appellee and Chase Bank. On July 28,

2006, appellant filed a motion entitled "motion for declaratory judgment on the pleadings

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essentially reiterating the arguments set forth in the motion for definite statement, and

specifically alleged appellee's failure to comply with Civ.R. 10(D). This motion included

specific "rebuttals" to each of the counts alleged in the complaint. The trial court

overruled both motions by entry dated August 2, 2006.

{¶5} On August 17, 2006, appellant filed a motion to dismiss the complaint for

failure to state a claim upon which relief can be granted or, alternatively, for a definite

statement. This motion reiterated the arguments previously set forth. On September 8,

2006, appellant filed a motion seeking dismissal based on lack of personal and subject

matter jurisdiction, again reiterating the arguments previously set forth. The trial court

overruled both motions by entry dated October 5, 2006.

{¶6} On October 16, 2006, appellant filed an answer to the complaint, which

included a counterclaim claiming violation of a variety of federal laws, including the Truth

in Lending Act, the Fair Credit Billing Act, the Fair Credit Reporting Act, and the Fair Debt

Collection Practices Act. Appellant claimed damages in an amount exceeding $20,000.

{¶7} On November 29, 2006, with leave from the trial court, appellee filed a

motion for summary judgment. Appellee argued that summary judgment was appropriate

based on requests for admissions deemed admitted by appellant's failure to respond to

them. Appellee subsequently filed a motion seeking dismissal of the counterclaim

because the damages sought exceeded the municipal court's monetary jurisdiction. On

November 2, 2007, by separate entries, the trial court granted appellee's motion for

summary judgment and motion to dismiss appellant's counterclaim.

{¶8} Appellant filed this appeal, alleging three assignments of error:

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I. PLAINTIFFS APPELLEES [sic] APPEAR TO HAVE

FAILED TO ESTABLISH ANY BASIS FOR THE RELIEF

REQUESTED WITHIN THE PROVISIONS OF THE RULES

OF CIVIL PROCEDURE FOR THE STATE OF OHIO

PURSUANT TO WHICH THEIR ACTION IS BROUGHT.

II. THE CONDUCT OF THE TRIAL COURT IN ALLOWING

THIS CASE TO PROCEED AGAINST MR. CARSON

APPEARS TO VIOLATE THE PUBLIC POLICY OF THE

STATE OF OHIO AND THE RULE OF LAW, THEREFORE

PLAINTIFFS [sic] SHOULD BE [OVERRULED] AND THE

RESULTING JUDGMENT SHOULD BE SET ASIDE.

III. THE TRIAL COURT APPEARS TO HAVE COMMITTED

PREJUDICIAL ERROR AND ABUSE OF DISCRETION

WHEN IT DISMISSED THE COUNTERCLAIM OF MR.

CARSON WITH PREJUDICE, WITHOUT THE SPECIFIED

SEVEN DAY NOTICE, SEEMINGLY ADVERSE TO HIS

PROCEDURAL AND SUBSTANTIVE DUE PROCESS

RIGHTS UNDER THE RESPECTIVE STATE AND FEDERAL

CONSTIIUTIONS [sic].

{¶9} For ease of discussion, we will address the assignments of error out of

order. In his second assignment of error, appellant essentially assigns as error the trial

court's decision to allow the action to proceed by denying his motion for definite

statement. Appellant argued in the motion for definite statement that appellee failed to

attach certain documents to the complaint, thereby failing to comply with Civ.R. 10(D)(1).

{¶10} Civ.R. 10(D)(1) provides that "[w]hen any claim or defense is founded on an

account or other written instrument, a copy of the account or written instrument must be

attached to the pleading. If the account or written instrument is not attached, the reason

for the omission must be stated in the pleading." Generally, the failure to comply with

Civ.R. 10(D)(1) is addressed through a motion for definite statement, pursuant to Civ.R.

12(E), that, if granted, results in the trial court ordering the filing of an amended complaint

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See Natl. Check Bur. v. Buerger, Lorain App. No. 06CA008882, 2006-Ohio-6673

Appellant argued in his motion that appellee failed to attach a copy of the account, a copy

of the financial services agreement alleged in the complaint to exist between appellant

and appellee, and a copy of the agreement by which Chase Bank assigned the credit

card account to appellee.

{¶11} Initially, we note that the assignment agreement between Chase Bank and

appellee was not the foundation for the claims against appellant, but was instead the

foundation for appellee being the real party in interest for purposes of bringing the action.

Appellee could not prevail on the claims assigned by the bank without proving the

existence of a valid assignment agreement. Natl. Check Bur., Inc. v. Cody, Cuyahoga

App. No. 84208, 2005-Ohio-283, citing Zwick & Zwick v. Suburban Constr. Co. (1956),

103 Ohio App. 83, 84, 74 Ohio Law Abs. 183, 134 N.E.2d 733. However, for purposes of

pleading, it was sufficient that the complaint alleged that the account had been assigned.

to appellee. Consequently, failure to attach a copy of the assignment agreement to the

complaint did not implicate Civ.R. 10(D)(1).

{¶12} Likewise, failure to attach the alleged financial services agreement between

appellant and appellee did not implicate Civ.R. 10(D)(1). The complaint alleged that the

financial services agreement was an oral contract. As with the assignment agreement,

appellee could not prevail without proving the existence of the oral financial services

agreement, but, for purposes of pleading, asserting the existence of the agreement was sufficient.

{¶13} The issue then is whether appellee complied with the Civ.R. 10(D)(1)

requirement that a copy of the account upon which the action was founded be attached to

the complaint. Generally, for purposes of Civ.R. 10(D)(1):

No. 07AP-936 7

[A]n account must show the name of the party charged. It

begins with a balance, preferably at zero, or with a sum

recited that can qualify as an account stated, but at least the

balance should be a provable sum. Following the balance,

the item or items, dated and identifiable by number or

otherwise, representing charges, or debits, and credits,

should appear. Summarization is necessary showing a

running or developing balance or an arrangement which

permits the calculation of the balance claimed to be due.

Asset Acceptance Corp. v. Proctor, 156 Ohio App.3d 60, 2004-Ohio-623, 804 N.E.2d

975, at ¶12, quoting Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123,

126, 38 O.O.2d 143, 223 N.E.2d 373. It is not necessary that every transaction that has

transpired between the parties be included. Am. Express Travel Related Serv. v.

Silverman, Franklin App. No. 06AP-338, 2006-Ohio-6374, citing Wolf Automotive v. Rally

Auto Parts, Inc. (1994), 95 Ohio App.3d 130, 641 N.E.2d 1195.

{¶14} Ohio courts have recognized that the Civ.R. 10(D)(1) requirement may be

satisfied even where documents attached to a complaint do not strictly meet the definition

of an account. Creditrust Corp. v. Richard, Clark App. No. 99-CA-94, 2000 Ohio App.

LEXIS 3027 (one year's worth of monthly credit card statements and a "customer account

statement" prepared by assignee setting forth name of debtor, balance at time of

assignment, list of debits and credits, and a summary of the account sufficient to comply

with rule); Capital One Bank v. Nolan, Washington App. No. 06CA77, 2008-Ohio-1850

(credit card agreement and two monthly credit card statements sufficient); Natl. Check

Bur. v. Cody, supra (seven monthly credit card statements and part of cardholder

agreement sufficient); Natl. Check Bur. v. Buerger, supra (six years of credit card

statements sufficient). However, at least one appellate court has held that an affidavit

attached to the complaint is not sufficient to comply with Civ.R. 10(D)(1),

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even were no affidavit set forth the debtor's name, the amount due, the contracted interest rate, the

delinquency date, and the account number. Capital One Bank v. Toney, Jefferson App.

No. 06 JE 28, 2007-Ohio-1571.

{¶15} We agree with those courts that have held that compliance with Civ.R.

10(D)(1) can be achieved by attaching documents that do not strictly constitute a

statement of account. However, in this case, the affidavit appellee attached to the

complaint did not make any reference to the account number upon which appellee sought

to collect, nor did appellee attach any documents, such as monthly credit card statements

or the credit card agreement between appellant and Chase Bank, to the complaint.

Consequently, the affidavit was not sufficient to place appellant on notice of the account

upon which appellee's complaint was based for purposes of Civ.R. 10(D)(1), and the trial

court erred when it denied appellant's motion for a more definite statement.

{¶16} Appellee points out that in its complaint it asserted claims other than the

claim for an account that would not have required compliance with Civ.R. 10(D)(1).

However, it is not necessary for us to address this argument. Although appellee's

complaint asserted claims for quantum meruit, unjust enrichment, and breach of an oral

contract for financial services, it is clear that appellee's motion for summary judgment and

the trial court's judgment were based on appellee's claim on an account, and not on any

of the other causes of action. Therefore, appellee's compliance with Civ.R. 10(D)(1) for

purposes of that claim is the only issue before us.

{¶17} For the above stated reasons, appellant's second assignment of error is

sustained, and this case is remanded with an instruction for the trial court to order

appellee to file an amended complaint that complies with Civ.R. 10(D)(1). Because further proceedings must necessarily be based on appellee's amended complaint,

appellant's first and third assignments of error are overruled as moot.

{¶18} Consequently, we sustain appellant's second assignment of error, overrule

the remaining assignments of error as moot, and remand this case for further

proceedings consistent with this opinion.

Judgment affirmed in part and reversed in part;

cause remanded.

PETREE and T. BRYANT, JJ., concur.

T. BRYANT, J., retired of the Third Appellate District,

assigned to active duty under authority of Section 6©, Article

IV, Ohio Constitution.

_____________________________

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Statute 84-2-210: Delegation of performance; assignment of rights. (1) A party may perform his duty through a delegate unless otherwise agreed or unless the other party has a substantial interest in having his original promisor perform or control the acts required by the contract. No delegation of performance relieves the party delegating of any duty to perform or any liability for breach.

(2) Except as otherwise provided in K.S.A. 2009 Supp. 84-9-406 and amendments thereto, unless otherwise agreed all rights of either seller or buyer can be assigned except where the assignment would materially change the duty of the other party, or increase materially the burden or risk imposed on him by his contract, or impair materially his chance of obtaining return performance. A right to damages for breach of the whole contract or a right arising out of the assignor's due performance of his entire obligation can be assigned despite agreement otherwise.

(3) The creation, attachment, perfection, or enforcement of a security interest in the seller's interest under a contract is not a transfer that materially changes the duty of or increases materially the burden or risk imposed on the buyer or impairs materially the buyer's chance of obtaining return performance within the purview of subsection (2) unless, and then only to the extent that, enforcement actually results in a delegation of material performance of the seller. Even in that event, the creation, attachment, perfection, and enforcement of the security interest remain effective, but (i) the seller is liable to the buyer for damages caused by the delegation to the extent that the damages could not reasonably be prevented by the buyer, and (ii) a court having jurisdiction may grant other appropriate relief, including cancellation of the contract for sale or an injunction against enforcement of the security interest or consummation of the enforcement.

(4) Unless the circumstances indicate the contrary a prohibition of assignment of "the contract" is to be construed as barring only the delegation to the assignee of the assignor's performance.

(5) An assignment of "the contract" or of "all my rights under the contract" or an assignment in similar general terms is an assignment of rights and unless the language or the circumstances (as in an assignment for security) indicate the contrary, it is a delegation of performance of the duties of the assignor and its acceptance by the assignee constitutes a promise by him to perform those duties. This promise is enforceable by either the assignor or the other party to the original contract.

(6) The other party may treat any assignment which delegates performance as creating reasonable grounds for insecurity and may without prejudice to his rights against the assignor demand assurances from the assignee (K.S.A. 84-2-609).

History: L. 1965, ch. 564, § 34; L. 2000, ch. 142, § 138; July 1, 2001.

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Debbie Jones v. Intuition, Inc. f/k/a BTI Services, Inc. and Tennessee State Assistance Corp., Civil No. 97-2614-G United States District Court W.D. Tennessee Western Division. May 29, 1998 FN2. 15 U.S.C. § 1692a(6)(F)(iii) states in pertinent part: The term "debt collector" ... does not include--any person collecting or attempting to collect any debt owed or due or asserted to be owed or due another to the extent that such activity ... concerns debt which was not in default at the time it was obtained by such person. The court notes, however, that defendant Intuition Inc. does not qualify for exemption under 15 U.S.C. § 1692a(6)©. That provisions exempts government entities or officers from suit under the FDCPA provided that the debt collection was made in the performance of official duties. This exception does not extend to nonprofit organizations with a government contract. See Brannan v. United Student Aid Funds, Inc., 94 F.3d 1260, 1263 (9th Cir.1996) cert. denied, --- U.S. ----, 117 S.Ct. 2496, 138 L.Ed.2d 1003 (1997) (holding that the § 1692a(6)© exemption applies "only to an individual government officer or employee who collects debt as part of his government employment responsibilities"). Defendants direct the court to the following cases, all of which stand for the proposition that administrative student loan agencies that begin to service student loans prior to the debtor's default of the loans are excluded from application of the FDCPA under the "debt collector" exception, 15 U.S.C. § 1692a(6)(F)(iii). (FN2) In Edler v. Student Loan Marketing Assoc., 1993 WL 625570, at *2 (D.D.C. Dec. 13, 1993), the United States Court of Appeals for the District of Columbia, after a lengthy analysis of 15 U.S.C. § 1692a(6)(F)(iii), held that because the debtor's loans were not in default when the student loan administration agency began to service them, the FDCPA was inapplicable to that agency as a matter of law. Finding likewise, the United States District Court for Connecticut determined in Coppola v. Conn. Student Loan Found., 1989 WL 47419, at * 2 (D.Conn. March 22, 1989), that "the legislative history of the [FDCA] indicates that Congress intended that parties who service debts not in default when obtained (such as mortgages and student loans) should be excluded from the Act's coverage." See also Fischer v. UNIPAC Serv. Corp., 519 N.W.2d 793, 799 (Iowa 1994) (discussing the application of the FDCPA to loan servicing agencies and stating "[w]e believe that collection efforts by holders of federally insured student loans or their servicing companies are simply not the kind of activity Congress intended to regulate.").

Barlett v. Heibl, 128 F.3d 497 (7th Cir. 1997), at 498, “The debt collector is perfectly free to sue within thirty days; he just must cease his efforts at collection during the interval between being asked for verification of the debt and mailing the verification to the debtor. Consumer Credit Protection Act, Section 809(B), as amended, 15 U.S.C.A. section 1692g(B).

Rabideau v. Management Adjustment Bureau, 805 F.Supp, 1086 (at 1092) states that “If the consumer disputes the debt or requests, in writing, the name of the original creditor, then the collector must halt all collection efforts until it sends verification of the debt or the creditor’s name to the consumer. 15 U.S.C. Section 1692g(B). However, absent such dispute or notification during the thirty day validation period, the debt collector may continue its collection efforts. “While continuing efforts to collect debt may occur within 30-day validation period provided under Fair Debt Collection Practices Act (FDCPA), those efforts must terminate for at least that period from date validation demand is received by debt collector, within the 30-day period, until date that information demanded is provided to debtor.

Heintz v. Jenkins, 514 US 291, at 291 (1995) FDCPA applies to lawyers engaged in debt collection and states specifically as follows: “…a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings meets the Act’s definition of ‘debt collector’: one who ‘regularly collects or attempts to collect, directly or indirectly, [consumer] debts owed … another.” 15 U.S.C. Section 1692a(6) Additionally, a 1986 senate report 99-405 included attorney’s as well as judges in the prohibitions.

Martinez v. Law Offices of David J .Stearn 128 F.3e 500, 501 “Upon acting upon a validation notice by disputing the debt, a consumer is under no obligation to respond to the complaint.”

O'Connor v. Check Rite, Ltd., D.Colo.1997, 973 F.Supp. 1010 Fair Debt Collection Practices Act (FDCPA) is strict liability statute, and consumer need only show one violation of its provisions to establish FDCPA claim.

Baker v. G. C. Services Corp., C.A.9 (Or.) 1982, 677 F.2d 775 This subchapter is designed to protect consumers who have been victimized by unscrupulous debt collectors, regardless of whether valid debt actually exists.

Dalton v. FMA Enterprises, Inc., M.D.Fla.1997, 953 F.Supp. 1525 Purpose of the Fair Debt Collection Practices Act was not to shield consumers from embarrassment and inconvenience which are natural consequences of debt collection.

Wiener v. Bloomfield, S.D.N.Y.1995, 901 F.Supp. 771 Broad remedial purpose of Fair Debt Collection Practices Act (FDCPA) is not concerned with intent of debt collector; its concern is with likely affect of various collection practices on mind of least sophisticated consumer.

Blackwell v. Professional Business Services of Georgia, Inc., N.D.Ga.1981, 526 F.Supp. 535. This subchapter was designed to safeguard consumers in their dealings with business.

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Rutyna v. Collection Accounts Terminal, Inc., N.D.Ill.1979, 478 F.Supp. 980 This subchapter was enacted by Congress to eliminate abusive, deceptive, and unfair debt collection practices.

Peasley v. Telecheck of Kansas, Inc., Kan.App.1981, 637 P.2d 437, 6 Kan.App.2d 990 This subchapter was enacted to eliminate false, deceptive, misleading, unfair, or harassing debt collection practices.

Shapiro and Meinhold v. Zartman, Colo.1992, 823 P.2d 120 "Debt collectors," for purposes of Fair Debt Collection Practices Act, includes attorneys whose practices are limited to purely legal matters.

Heintz v. Jenkins, U.S.Ill.1995, 115 S.Ct. 1489, 514 U.S. 291, 131 L.Ed.2d 395 Fair Debt Collection Practices Act applied to lawyer regularly engaged in consumer debt-collection litigation on behalf of creditor client.

Wadlington v. Credit Acceptance Corp., C.A.6 (Mich.) 1996, 76 F.3d 103 Attorneys engaged in litigation were "debt collectors" subject to the Fair Debt Collection Practices Act (FDCPA) where they filed lawsuits on behalf of client to collect debts allegedly owed by consumers.

Avila v. Rubin, C.A.7 (Ill.) 1996, 84 F.3d 222 Validation notice, which informed debtor that he had 30 days to dispute debt and which followed with statement that if "above does not apply" debtor had ten days to pay up or civil suit could be initiated against debtor, was entirely inconsistent and failure to comply with Fair Debt Collection Practices Act (FDCPA), even though there was no evidence of actual consumer confusion.

Austin v. Great Lakes Collection Bureau, Inc., D.Conn.1993, 834 F.Supp. 557 Debt collection agency's willful and repeated disregard of consumer's clear request to discontinue its attempts to contact consumer at her office constituted direct violation of provision of Fair Debt Collection Act prohibiting debt collector from contacting consumer at time or place known to be inconvenient to consumer.

U.S. v. Central Adjustment Bureau, Inc., N.D.Tex.1986, 667 F.Supp. 370, affirmed as modified on other grounds 823 F.2d 880 Government established by preponderance of evidence that collection agency and many of its debt collectors, including some supervisors and managers in regional collection offices, used abusive, deceptive, and unfair debt collection practices in violation of the Fair Debt Collection Practices Act; evidence indicated that telephone calls were made to debtors before 8:00 a.m. and after 9:00 p.m., that debtors' places of employment were called after agency was told not to do so by debtors or employers, that third parties were contacted about debts without debtors' consent, that racial slurs and obscenities were used in attempting to collect debts, and that collectors falsely represented to debtors that they would be arrested or jailed or that property would be seized or garnished.

O'Connor v. Check Rite, Ltd., D.Colo.1997, 973 F.Supp. 1010 Consumer failed to establish that he had made written request that debt collector cease any further communications, as required for consumer to prevail under section of the Fair Debt Collection Practices Act (FDCPA) prohibiting further communications following such a written request, based solely on the fact that following such an alleged communication, of which consumer presented no direct written evidence, debt collector had mailed collection letter which specifically referred to this section of the FDCPA.

Brady v. Credit Recovery Co., Inc., D.Mass.1998, 26 F.Supp.2d 201 General principle of the Fair Debt Collection Practices Act (FDCPA), entitling a debt collector to assume the validity of a debt absent a written dispute, carries over to the anti-fraud provision of the FDCPA.

Hancock v. Tri-State Ins., 43 Ark.App. 47, 858 S.W.2d 152, 154 (1993)

In contract dispute, it is court's duty to enforce contracts as they are written and in accordance with ordinary meaning of language used and overall intent and purpose of the parties.

When contract is ambiguous, its construction is question of law for the court, and, in such circumstances, court will apply the rules of construction.

[4] [5] [6] In a contract dispute, "t is the duty of courts to enforce contracts as they are written and in accordance with the ordinary meaning of the language used and the overall intent and purpose of the parties." Hancock v. Tri-State Ins., 43 Ark.App. 47, 858 S.W.2d 152, 154 (1993). "[W]hen a contract is ambiguous, its construction is a question of law for the court," and, in such circumstances, a court will apply the rules of construction. Hartford Fire Ins. Co. v. Carolina Cas. Ins. Co., 52 Ark.App. 35, 914 S.W.2d 324, 326 (1996).

In The Supreme Court of the State of Kansas No. 94,380

MBNA America Bank, N.A. v. Loretta K. Credit (yes that is her name)

Many consumers who have chose not to continue paying their credit card bills for what ever reason they had, found themselves getting an Arbitration Award rendered against them. By far most were arbitrated by a company called National Arbitration Forum. We have known for years the connection between National Arbitration Forum and Wolpoff and Abramson. We have known for years that as a consumer, you would not have any chance of winning your arbitration. Their clear biased decisions were clear evidence that you as a consumer could not possibly win.

For years National Arbitration Forum advertised to banks telling them they could "protect" them from class action suits brought against them by consumers who have gone through the arbitration process. They have thrown huge and lavish parties inviting all the big names in the banking industry. This all done in an attempt to gain new "customers".

With all the parties and seminars with banks, how could National Arbitration Forum not be biased? If they ruled against the bank, the bank would no longer want to use them as their "exclusive" arbitration forum! However, for many years, the courts have turned a blind eye to the injustice that American's are facing everyday by this corrupt and biased system. UNTIL NOW!

Finally a court has decided to do their job and protect the American Citizen from this abuse. We proudly stand up and applaud the Kansas Supreme Court. This honorable court has now ruled that an Arbitration Award CANNOT be confirmed without showing a "signed" Arbitration Agreement between all parties involved. This is a landmark decision for consumers. See the ruling here.

Note: Loretta is a pro se litigant

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Toppings v. Meritech Mortgage

Arbitrator bias - West Virginia Supreme Court holds that Meritech cannot use arbitrators who rely on the corporation for income. Unconscionability Based on bias by the National Arbitration Forum. See: Toppings v. Meritech Mortgage Services, Inc.—Reply Brief ...

McQuillan v. Check 'N Go of North Carolina, Inc. No. 04-CVS-2858 (Super. Ct. N.C. filed July 27, 2004)

Let me put my own “biases” on the table at the outset. Based upon extensive investigation and interviews with literally hundreds of people, my law firm, Trial Lawyers for Public Justice, has argued vociferously in several different court cases around the nation that the National Arbitration Forum is not a truly neutral organization. Instead, we have argued, National Arbitration Forum has conducted itself in ways that suggest that it in disputes between consumers and large corporations (and particularly banks and other lenders), that the National Arbitration Forum as an institution is pre-disposed to favor the corporations and lenders. McQuillan v. Check N Go

Baron v. Best Buy CASE NO. 99-14028-E

There is substantial evidence that National Arbitration Forum is likely to be biased in favor of corporations in the financial services industry, such as defendants.

The National Arbitration Forum has made inappropriate promises to companies in the financial services industry.

National Arbitration Forum has evidenced a likely bias in favor of financial services companies by engaging in inappropriate ex parte contacts soliciting business from financial institutions. Instead of communicating with these companies as a truly neutral decision maker, National Arbitration Forum's solicitations to financial services companies and their defense counsel communicate a strong sympathy for those companies. National Arbitration Forum's solicitations suggest that consumer lawsuits are a battle between the companies and their customers, and that National Arbitration Forum will be taking the companies' side in "improving their bottom line" in that battle. The letters described above establish that National Arbitration Forum officials solicit new business by promising prospective business clients and their counsel that its procedures will favor their interests relative to those of their consumers in adjudicating any future dispute. Fair Credit Billing Act (15 U.S.C. 1666-1666j)

This Act, amending the Truth in Lending Act, requires prompt written acknowledgment of consumer billing complaints and investigation of billing errors by creditors. The amendment prohibits creditors from taking actions that adversely affect the consumer's credit standing until an investigation is completed, and affords other protection during disputes. The amendment also requires that creditors promptly post payments to the consumer's account, and either refund overpayments or credit them to the consumer's account.

On Appeal from the United States District Court for the Southern District of Florida

Cancel Student Loans Debt .Info See: http://cancelstudentloansdebt.info is an information website about how Student Loans Debt is Uncollectable.

______________________________________________________________________________________

Fair Credit Reporting Act (15 U.S.C. §§ 1681-1681(u), as amended)

The Act protects information collected by consumer reporting agencies such as credit bureaus, medical information companies and tenant screening services. Information in a consumer report cannot be provided to anyone who does not have a purpose specified in the Act. Companies that provide information to consumer reporting agencies also have specific legal obligations, including the duty to investigate disputed information. Also, users of the information for credit, insurance, or employment purposes must notify the consumer when an adverse action is taken on the basis of such reports. Further, users must identify the company that provided the report, so that the accuracy and completeness of the report may be verified or contested by the consumer.

Fair Credit and Charge Card Disclosure Act (codified in scattered sections of the U.S. Code, particularly 15 U.S.C. 1637©-(g))

This Act, amending the Truth in Lending Act, requires credit and charge card issuers to provide certain disclosures in direct mail, telephone and other applications and solicitations to open-end credit and charge accounts and under other circumstances.

Fair Debt Collection Practices Act (15 U.S.C. §§ 1692-1692o, as amended)

Under this Act (Title VIII of the Consumer Credit Protection Act), third-party debt collectors are prohibited from employing deceptive or abusive conduct in the collection of consumer debts incurred for personal, family, or household purposes. Such collectors may not, for example, contact debtors at odd hours, subject them to repeated telephone calls, threaten legal action that is not actually contemplated, or reveal to other persons the existence of debts.

Credit Repair Organizations Act (15 U.S.C. §§ 1679-1679j) This Act, Pub. L. No. 104-208, § 2451, 110 Stat. 3009-455 (Sept. 30, 1996), amending title IV of the Consumer Credit Protection Act, prohibits untrue or misleading representations and requires certain affirmative disclosures in the offering or sale of "credit repair" services. The Act bars "credit repair" companies from demanding advance payment, requires that "credit repair" contracts be in writing, and gives consumers certain contract cancellation rights.

Fair and Accurate Credit Transactions Act of 2003 (codified to 15 U.S.C. §§ 1681-1681x) This Act, amending the Fair Credit Reporting Act (FCRA), adds provisions designed to improve the accuracy of consumers’ credit-related records. It gives consumers the right to one free credit report a year from the credit reporting agencies, and consumers may also purchase for a reasonable fee a credit score along with information about how the credit score is calculated. The Act also adds provisions designed to prevent and mitigate identity theft, including a section that enables consumers to place fraud alerts in their credit files. Further, the act grants consumers additional rights with respect to how their information is used. The FTC has rulemaking responsibilities under numerous provisions of the Act and study requirements under many more.

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Peasley v. Telecheck of Kansas, Inc.

6 Kan.App.2d 990, 637 P.2d 437

Kan.App., 1981.

December 03, 1981

Syllabus by the Court

1. It is the purpose of K.S.A. 50-701 to 50-722, inclusive, and amendments thereto, to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer**438 credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information in accordance with the requirements of such sections of this act. K.S.A. 50-701(B).

2. The check guarantee and reporting service on bank checks of consumers, which defendant engages in for the benefit of merchant subscribers, falls within the definition of a “consumer report” as it appears in K.S.A. 50-702© and in 15 U.S.C.A. s 1681a(d), and defendant in furnishing such service is a “consumer reporting agency” as defined in K.S.A. 50-702(e) and in 15 U.S.C.A. s 1681a(f).

3. The record is examined on appeal from a summary judgment entered in favor of the defendant and against the plaintiff on three claims and it is held : The trial court (1) erred in entering judgment in favor of defendant on the claim under the Fair Credit Reporting Act, K.S.A. 50-701 et seq., (2) did not err in holding the claim under the Fair Debt Collection Practices Act, 15 U.S.C.A. s 1692 et seq. (1981), was barred by the applicable statute of limitations, and (3) did not err in holding the plaintiff failed to state a valid claim for wrongful debt collection practices.

Kris L. Arnold, Roeland Park, for appellant.

J. Steven Schweiker, of David R. Gilman & Associates, Overland Park, for appellee.

Before FROMME, Justice Presiding, PARKS, J., and B. MACK BRYANT, District Judge Retired, Assigned.

FROMME, Justice Presiding:

Plaintiff Arthur P. Peasley filed the present case against Telecheck of Kansas, Inc., based on three claims. The first claim was brought under the Fair Credit Reporting Act, K.S.A. 50-701 et seq., the second was under the Fair Debt Collection Practices Act, 15 U.S.C.A. s 1692 et seq. (1981), and the third was a common law claim for relief based on wrongful debt collection practices. The district court sustained a summary judgment in favor of the defendant and against the plaintiff on all *991 three claims. Plaintiff appeals and we will examine each of these three claims in the order above mentioned.

The Fair Credit Reporting Act (FCRA) was enacted and became effective in Kansas January 1, 1974. Since that time the appellate courts of this state have had little or no occasion to consider the Act. The only reported case in which the act was discussed is Kansas Commission on Civil Rights v. Sears, Roebuck & Co., 216 Kan. 306, 320, 532 P.2d 1263 (1975). Consideration of the Kansas FCRA in that case was limited. The court merely determined that furnishing credit reports in response to a court order issued by a court having proper jurisdiction would not subject a person to civil penalties under the Act.

The purpose of this Act as stated in K.S.A. 50-701(B) is as follows:

“(B) It is the purpose of K.S.A. 50-701 to 50-722, inclusive, and amendments thereto, to require that consumer reporting agencies adopt reasonable procedures for meeting the needs of commerce for consumer credit, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy, and proper utilization of such information in accordance with the requirements of such sections of this act.”

This Act first defines various words and phrases including “consumer report” and “consumer reporting agency.” Then follows a list of permissible purposes for furnishing the reports, a list of items of obsolete information which must be omitted from these reports, and various requirements are listed to be observed by every consumer reporting agency. Procedures to be used are outlined for those cases where the accuracy of a consumer report is disputed. Civil penalties are provided for negligent noncompliance and criminal penalties are provided for willful violations of the Act.

**439 We turn now to the facts leading to this appeal. Telecheck is a service organization whose business is guaranteeing checks to its merchant subscribers. Telecheck also offered a service called “Rent Check” in which it guaranteed payments of rent to apartment owners. Telecheck maintains a negative information file in a computer data base on individuals whose checks have been dishonored by banks and whose rent payments have not been paid when due. Telecheck enters into a contract with a subscriber merchant in which Telecheck will guarantee for a fee the payment of certain checks approved by Telecheck which the merchant accepts. Telecheck also turns down certain checks *992 from individuals whose names appear in the negative information computer data base it maintains. The procedure is as follows:

When a check is presented to a merchant subscriber, the merchant calls Telecheck by telephone and gives the check maker's name and the identification number on the bank check to an audio response computer. If there is no negative information on the maker of the check in the computer data base, the computer will respond with a numerical code number, which in effect approves the individual's check for payment. If there is negative information on the maker in the data base, the computer transfers the merchant's call to a human operator. The human operator turns the check down by using numerical code numbers. The final decision to accept or reject the check is then up to the merchant.

The human operator does attempt to update the information in the computer data base covering the maker of the check. Address, telephone number, and other information is gathered and the data base is corrected when necessary. The merchant receives from Telecheck nothing more than a computerized approval code number or a disapproval code number.

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In plaintiff's case, his name and identification numbers became part of the computer base and were placed in the negative information file by reason of a rent dispute he had had with Fairfield Apartments. At that time Telecheck also operated a similar service on rental dealings between landlords and tenants. Plaintiff and the Fairfield Apartment manager had had a misunderstanding over terminal rent due from plaintiff when he moved out of the apartment. Plaintiff believed he had an agreement with the manager to apply the security deposit on the last month's rent, but the manager turned his name in to Rent Check and claimed a short rent payment of $145.00. Telecheck made repeated attempts to collect this amount by letter, by post card, and by telephone.

Plaintiff, apparently, had never written a bad check in his life. The rent dispute was never solved and Telecheck knew the rent amount it claimed was being disputed by plaintiff. From the deposition testimony of the Telecheck employees it appears that Telecheck did not distinguish a rent dispute from a bad check when operating the negative information base. It has since discontinued Rent Check and has removed instances of nonpayment of rent from the negative information base.

*993 Plaintiff identifies four checks which he attempted to negotiate to merchants in the area and the merchants refused to accept the checks in payment of personal consumer items purchased by plaintiff.

The trial court entered summary judgment in favor of defendant, specifically holding that the service rendered by Telecheck concerning checks did not come within the scope of the Fair Credit Reporting Act (FCRA), and therefore, no violations of the Act could occur. The validity of that decision depends on answers to two questions: (1) Is Telecheck a “consumer reporting agency?” and (2) does the computer based audio reporting service of Telecheck distribute “consumer reports?”

K.S.A. 50-702(e) provides:

“(e) The term ‘consumer reporting agency’ means any person which, for monetary fees, dues, or on a cooperative nonprofit basis, regularly engages in whole or in part in the practice of assembling or evaluating consumer credit information or other information on consumers**440 for the purpose of furnishing consumer reports to third parties, and which uses any means or facility of interstate commerce for the purpose of preparing or furnishing consumer reports.”

The word “person” is defined in subsection (a) to include individual, partnership, corporation, trust, estate, cooperative, association, government or governmental subdivision or agency, or any other entity.

K.S.A. 50-702© provides:

“The term ‘consumer report’ means any written, oral, or other communication of any information by a consumer reporting agency bearing on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living which is used or expected to be used or collected in whole or in part for the purpose of serving as a factor in establishing the consumer's eligibility for credit or insurance to be used primarily for personal, family, or household purposes, or employment purposes, or other purposes authorized under K.S.A. 50-703. The term does not include (1) any report containing information solely as to transactions or experiences between the consumer and the person making the report; (2) any authorization or approval of a specific extension of credit directly or indirectly by the issuer of a credit card or similar device; or (3) any report in which a person who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer conveys that decision with respect to such request, if the third party advises the consumer of the name and address of the person to whom the request was made and such person makes the disclosures to the consumer required under K.S.A. 50-714.”

[1] Kansas has but one case interpreting the provisions of this Act. *994 It should be noted, however, that there is a federal counterpart to the Kansas FCRA. It appears in 15 U.S.C.A. s 1681 et seq., and a comparison of the two Acts, including the effective dates of the Acts, indicates that the 1974 Kansas FCRA is modeled closely after the 1971 federal Act. Therefore, case law interpreting the federal Act, although not controlling, is persuasive.

[2] Greenway v. Information Dynamics, Ltd., 524 F.2d 1145 (9th Cir. 1975), is a one paragraph opinion affirming a lower court's decision holding that a report on the previous issuance of an unpaid check taken from check lists maintained by a reporting agency is a “consumer report” under 15 U.S.C.A. s 1681a(d). The definition appearing in 15 U.S.C.A. s 1681a(d) is identical to that in K.S.A. 50-702©. It was held in Greenway that such a report subjected the issuer to the requirements of the Federal Fair Credit Reporting Act as a “consumer reporting agency.” This holding was based on a finding that such a report bears on a consumer's credit worthiness, credit standing, credit capacity, character, general reputation, and personal characteristics.

In Howard Enterprises, Inc., et al., 93 F.T.C. 909 (1979), the Federal Trade Commission agrees with the Greenway court. However, the decision of the administrative law judge rejected the Greenway decision (93 F.T.C. 924), and concluded that it was improper to construe s 1681b(3)(E) so broadly since in the judge's opinion these check lists were the same as protective bulletins recognized as exempt in the legislative history of the Act. Upon review by the Federal Trade Commission, the general findings of the administrative law judge were accepted but the Commission held it had jurisdiction over Howard Enterprises' activities.

The check lists in the Howard case were derived from “report cards” which participating merchants sent to Howard Enterprises periodically. These cards were the only information received on the bad check writers. Howard Enterprises did not obtain any independent verification on the individuals involved. The only mechanism for correcting or updating the list was for the subscribers to mail a post card requesting deletion of a name.

**441 On the key issue in Howard, whether the company came within the FCRA, the Federal Trade Commission reversed the administrative law judge, 93 F.T.C. at 932. The Commission concluded *995 these check lists were “consumer reports” as defined in the federal FCRA.

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In Howard it is stated:

“Judicial decisions support our conclusion that the FCRA applies in this case. For example, the facts in Greenway v. Information Dynamics Ltd., 399 F.Supp. 1092 (D.Ariz.1974) aff'd 524 F.2d 1145 (9th Cir. 1975), are virtually identical to the facts in this case. In Greenway, the defendant distributed to subscribing merchants the following information concerning consumers who allegedly passed bad checks: their names, drivers' license numbers, checking account numbers, number of checks returned, and, in some cases, the reasons for the return of the checks. There, the Court of Appeals for the Ninth Circuit concluded that such information constitutes a ‘consumer report,’ as defined in the FCRA. See also Belshaw v. Credit Bureau of Prescott, 392 F.Supp. 1356 (D.Ariz.1975); Beresh v. Retail Credit Co., 358 F.Supp. 260 (C.D.Cal.1973).” 93 F.T.C. at 934.

The trial court in our present case appears to have relied on the administrative law judge's decision before that decision was reviewed by the Federal Trade Commission. It also relied on Pembleton, et al. v. Telecheck Washington, Inc., No. 78-350-A (E.D.Va.1978), an unreported, unappealed case. The latter case involved the identical check guarantee services discussed in this case, except in Pembleton, the computer data base did not include Rent Check data as in our present case. In Pembleton summary judgment was sustained against allegations of violations of the FCRA. No formal decision was filed. A transcript of the proceedings indicates that for reasons stated from the bench the summary judgment was ordered because a check was held to be a “credit transaction” and under 15 U.S.C.A. s 1681a(d)(3)© an exemption is provided for credit granting institutions. 15 U.S.C.A. s 1681a(d)(3)© contains the same wording and recognizes the same kind of an exemption as does K.S.A. 50-702©(3). This subsection provides that the term “consumer report” does not include:

“(3) (A)ny report in which a person who has been requested by a third party to make a specific extension of credit directly or indirectly to a consumer conveys that decision with respect to such request, if the third party advises the consumer of the name and address of the person to whom the request was made and such person makes the disclosures to the consumer required under K.S.A. 50-714.” K.S.A. 50-702©(3).

The Pembleton court concentrated on Telecheck's check guarantee service, rather than its information gathering activities, and concluded that Telecheck fell within the exception of s 1681a(d)(3)©, which is identical to that in K.S.A. 50-702©(3), because it *996 indirectly granted credit when a guaranteed check was dishonored for payment.

We find it extremely difficult to fit Telecheck's services into that exception. It appears that the exception contemplated by K.S.A. 50-702©(3) and its federal counterpart 15 U.S.C.A. s 1681a(d)(3)© was made for finance companies or banks, a fact of which the Pembleton court did not seem to be aware.

In Division of Credit Practices, Compliance with the Fair Credit Reporting Act reported in 5 Cons.Cred.Guide (CCH) P 11,301, et seq., (rev. ed. 1977), the author, in referring to this particular exception states:

“The third exception to the term ‘consumer report’ covers the common situation in which a dealer or merchant attempts to obtain credit for his customer from an outside source (a finance company, for instance). The statute provides that the communication of the decision by the financial institution regarding the transaction is not a ‘consumer report’ if the retailer informs the customer of the name and address of the bank, finance company, or other financial institution to which the application or contract is offered**442 and the bank, finance company, or other institution makes the disclosures required by Section 615 of the Act (i.e., K.S.A. 50-714).” P 11,306 E. 3.

The Federal Trade Commission has consistently held that lists containing the names of consumers who have had checks returned for insufficient funds are consumer reports. Besides the Howard case mentioned earlier, see also Robert N. Barnes t/a National Credit Exchange, Etc., 85 F.T.C. 520 (1975); Filmdex Chex System, Inc., et al., 85 F.T.C. 889 (1975); Checkmate Inquiry Service, Inc., et al., 86 F.T.C. 681 (1975); Interstate Check Systems, Inc., 88 F.T.C. 984 (1976); Moore & Associates, Inc., 92 F.T.C. 440 (1978). The organizations compiling and publishing such lists have been issued cease and desist orders for violations of the Act, such as furnishing reports for impermissible purposes, failing to maintain procedures for settling disputed items, publishing noncoded lists, and publishing inaccurate reports.

Apparently the subscriber merchants were directed by Telecheck to give information cards to those consumers whose checks were disapproved by Telecheck. The card read:

“Dear Customer:

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“Dear Customer:

“We are sorry that we cannot accept your check at this time because Telecheck will not approve it.

“We encourage you to contact Telecheck so they can explain the reasons for their actions and work with you to resolve the situation.

“Please contact:

Consumer Service Manager

*997 (913) 381-8742

8 a.m.-5 p.m. Monday-Friday

(913) 381-6963

after business hours

Telecheck Kansas City

8650 West College Blvd., Suite 200

Overland Park, Ks. 66210“

Considering the aspects of Telecheck's service, the decoded communication of information did bear upon a consumer's credit worthiness, credit standing and credit capacity. The information was collected for the purpose of establishing the consumer's eligibility for credit. Credit acceptance was primarily for check purchases of personal, family, or household goods. This falls within the definition of a “consumer report” set out in K.S.A. 50-702© when furnished to a merchant who has a legitimate business need for the information in connection with a business transaction involving the consumer.

Once it is determined the service offered is a consumer report within the definition of K.S.A. 50-702© it is then clear that Telecheck is a consumer reporting agency within the definition appearing in K.S.A. 50-702(e). Telecheck is a corporation who for monetary fees engages in whole or in part in the practice of assembling consumer credit information for the purpose of furnishing reports to third persons by means of interstate commerce. See 15 U.S.C.A. s 1681a(f) for the identical definition of a consumer reporting agency in the federal Act.

We hold the check guarantee and reporting service on bank checks of consumers, which defendant engages in for the benefit of merchant subscribers, falls within the definition of a “consumer report” as it appears in K.S.A. 50-702© and in 15 U.S.C.A. s 1681a(d), and defendant in furnishing such service is a “consumer reporting agency” as defined in K.S.A. 50-702(e) and in 15 U.S.C.A. s 1681a(f).

The FCRA requires a consumer reporting agency (1) to maintain procedures which will assure maximum possible accuracy, K.S.A. 50-706(B) and 15 U.S.C.A. s 1681e(B), (2) to maintain proper procedures to settle disputed accuracy of information, K.S.A. 50-710 and 15 U.S.C.A. s 1681i, and (3) to maintain proper procedures to assure that the information is furnished for permissible purposes, K.S.A. 50-706(a) and 15 U.S.C.A. s 1681e(a), 50-703 and s 1681b, and 50-714 and s 1681m. If defendant Telecheck *998 did not do these things, it may be liable for damages in accordance with the provisions of K.S.A. 50-715 or 15 U.S.C.A. s 1681n, and **443 K.S.A. 50-716 or 15 U.S.C.A. s 1681o. See Bryant v. TRW, Inc., 487 F.Supp. 1234 (E.D.Mich.1980).

Arguably Peasley's claim falls within K.S.A. 50-710 and 15 U.S.C.A. s 1681i which requires certain procedures to be followed in case of the disputed accuracy of an item of information on which a consumer report is based.

[3] All cases agree there is a duty to maintain reasonable procedures to insure maximum possible accuracy. There is a duty to reinvestigate after the accuracy of a consumer credit file is disputed. Middlebrooks v. Retail Credit Co., 416 F.Supp. 1013 (N.D.Ga.1976); Checkmate Inquiry Service, Inc., et al., 86 F.T.C. 681; Hauser v. Equifax, Inc., 602 F.2d 811 (8th Cir. 1979).

Plaintiff's name was on the negative information list for over a year. It does not appear whether a reinvestigation was undertaken and neither does it appear whether plaintiff filed the statement of dispute as contemplated by K.S.A. 50-710 and 15 U.S.C.A. s 1681i. These are matters to be shown by evidence. At least arguably the bad check file on plaintiff was inaccurate because his name was on what was considered to be a bad check passers list and he had never written a bad check. The summary judgment was improperly entered for defendant. The defendant's check guarantee services did come within the provisions of the Fair Credit Reporting Act, and whether it violated the requirements of that Act depends on disputed facts which are material to the claim of the plaintiff.

The second issue raised on appeal concerns the holding by the district court that plaintiff could base no cause of action on the federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. s 1692, et seq. (1981), because the acts of defendant which plaintiff claimed to be in violation of the FDCPA occurred before the effective date of this Act. Kansas has no counterpart to this federal Act.

The acts complained of consisted of maintaining plaintiff's name on a computer bad check list long after defendant was advised that plaintiff had never written a bad check. This erroneous bad check listing resulted in having the merchants in the area refuse to accept plaintiff's bank checks. It is alleged the defendant threatened to continue this erroneous listing in order to force *999 collection of a disputed bill claimed by defendant to be due on a rental apartment occupied by plaintiff.

[4] [5] The FDCPA was enacted on September 20, 1977, and became effective upon the expiration of six months after September 20, 1977. Under 15 U.S.C.A. s 1692g (1981), in case of disputed debts as in this case, the Act applies only with respect to debts for which the initial attempt to collect occurred after the effective date. See s 818 of Pub.L. 90-312, set out as a note under s 1692 of this title. The effective date of the Act was, therefore, March 20, 1978. This law was enacted by Congress to eliminate false, deceptive, misleading, unfair, or harassing debt collection practices. Rutyna v. Collection Accounts Terminal, Inc., 478 F.Supp. 980 (N.D.Ill.1979). The initial collection letter was sent to the plaintiff on March 31, 1977, almost a year before the effective date of the Act. Therefore, summary judgment was properly entered in favor of defendant on the FDCPA claim.

[6] The final issue concerns the entry of summary judgment on the common law claim for relief on wrongful debt collection practices. Plaintiff relies on the case of Dawson v. Associates Financial Services Co., 215 Kan. 814, Syl. P 1, 529 P.2d 104 (1974), in which it is held:

“A creditor who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to the debtor is subject to liability for such emotional distress, and if bodily harm to the debtor results from it, for such bodily harm.”

In the recent case of Roberts v. Saylor, 230 Kan. 289, Syl. P 2, 230 P.2d 289 (1981), it is held:

“Liability for extreme emotional distress has two threshold requirements which must be met and which the court **444 must, in the first instance, determine: (1) Whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery; and (2) whether the emotional distress suffered by plaintiff is in such extreme degree the law must intervene because the distress inflicted is so severe that no reasonable person should be expected to endure it.”

After examining the facts and circumstances of the present case, we hold that neither threshold requirement was shown to have been met and summary judgment in favor of defendant on this claim for wrongful debt collection practices was properly entered.

In summary we reverse the judgment in favor of defendant on plaintiff's claim based on the FCRA, K.S.A. 50-701, et seq., and *1000 remand for further proceedings; we affirm the judgment in favor of defendant on plaintiff's claims based on alleged violations of the FDCPA, 15 U.S.C.A. s 1692, et seq. (1981), and on wrongful debt collection practices.

Kan.App., 1981.

Peasley v. Telecheck of Kansas, Inc.

6 Kan.App.2d 990, 637 P.2d 437

_________________

David Szwak

Chairman, Consumer Protection Section, Louisiana State Bar Association

Bodenheimer, Jones & Szwak, LLC

416 Travis Street, Suite 1404

Mid South Tower

Shreveport, Louisiana 71101

318-424-1400

Fax 318-221-6555

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 94,380

MBNA AMERICA BANK, N.A.

Appellant,

v.

LORETTA K. CREDIT

Appellee.

SYLLABUS BY THE COURT

1. Under the Federal Arbitration Act, an arbitration award may be challenged through a motion to vacate filed within 3 months after the award was filed or delivered. The federal act is silent on the proper methods for filing or delivery. The Kansas version of the Uniform Arbitration Act provides that the arbitrators shall deliver a copy of the award to each party personally or by registered mail, or as provided in the parties' arbitration agreement. Any application to vacate the award must be made within 90 days after delivery of the award to the applicant.

2. The Federal Arbitration Act requires a party moving to confirm an arbitration award to attach a copy of the agreement to arbitrate to the motion.

3. An appellant must designate a record on appeal regarding an arbitration award that is adequate to substantiate contentions made to the reviewing court. Without an adequate record, any claim of alleged error fails.

4. On the record in this case, the district court was empowered to vacate the arbitration award.

Appeal from Butler district court; CHARLES M. HART, judge. Opinion filed April 28, 2006. Affirmed.

David J. Weimer, of Kramer & Frank, P.C., of Kansas City, Missouri, argued the cause, and Jason J. Lundt, of the same firm, was with him on the briefs for appellant.

Loretta K. Credit, appellee, argued the cause and was on the brief pro se.

The opinion of the court was delivered by

BEIER, J.: This appeal arises out of a district court's decision vacating an arbitration award and its ruling that no arbitration agreement existed between plaintiff MBNA America Bank (MBNA) and defendant Loretta K. Credit.

MBNA submitted a dispute regarding what it alleged to be defendant Credit's credit card debt in excess of $21,000 to arbitration. Credit's participation in the arbitration was limited to sending a letter to the arbitrator, objecting to the proceeding because she believed there was no agreement to arbitrate. There is no copy of this letter in the record on appeal or any information about how, if at all, Credit's objection was considered in the arbitration.

The record does reflect that, on September 7, 2004, an arbitration award in the amount of $21,094.74 was entered in favor of MBNA. The award, which states "the Parties entered into an agreement providing that this matter shall be resolved through binding arbitration," was signed by arbitrator Henry Cox and by Harold Kalina, Director of Arbitration for the National Arbitration Forum in Minneapolis, Minnesota. The fact that the same date appears on the document near each signature, when Cox and Kalina would have been in two states distant from one another is unexplained.

The award also contains the following language above the signature of Kalina:

"ACKNOWLEDGMENT AND CERTIFICATE OF SERVICE

This Award was duly entered and the Forum hereby certifies that a copy of this Award was sent by first class mail postage prepaid to the parties at the above referenced addresses on this date."

Other than this language, there is nothing in the record on appeal tending to show that Credit received a copy of the award or, if so, when. Credit acknowledged at oral argument before this court, however, that the address set forth for her on the award was correct at that time. She said she did not know whether she ever received a copy.

Under the Federal Arbitration Act, Credit would have had 3 months after the award was "filed or delivered" in which to challenge it. 9 U.S.C. § 12 (2000). The federal act is silent on the proper methods for filing or delivery of the award. The Kansas version of the Uniform Arbitration Act is somewhat more specific. "The arbitrators shall deliver" a copy of the award "to each party personally or by registered mail, or as provided in the agreement." K.S.A. 5-408(a). Any application to the court to vacate an award "shall be made within ninety (90) days after delivery of a copy of the award to the applicant." K.S.A. 5-412(B).

It is undisputed that Credit did nothing to respond to the award at issue in this case until MBNA filed a motion to confirm it in late December 2004 in the district court in Butler County. When notified of MBNA's motion to confirm, Credit filed several pro se pleadings, which, MBNA concedes, may be read together to constitute a motion to vacate the award. In these pleadings, Credit again asserted that there was no arbitration agreement between her and MBNA. In an affidavit filed with the district court, she specifically said that MBNA had not provided her with a copy of the alleged agreement. MBNA had not attached a copy of any agreement to its motion to confirm the award, although the Federal Arbitration Act requires a copy to be attached. No copy of any agreement appears anywhere else in the record on appeal.

Approximately 6 weeks after Credit filed her responsive pleadings, and a day after the district court judge resolved a discovery dispute in her favor, he vacated the arbitration award, ruling that "there is no existing agreement between the parties to arbitrate and therefore the award entered against Defendant is null and void."

On this appeal, MBNA advances various arguments on what it characterizes as three issues. We discern but one controlling question: Did Credit's effort to thwart confirmation of the award come too late? If so, the district court did not have authority to vacate the award. If not, the district court had the authority it needed to enter its rulings.

Before addressing this issue, we note that MBNA takes the position that the Federal Arbitration Act, see 9 U.S.C. § 1 et seq. (2000), is controlling. It nevertheless invokes the Kansas Uniform Arbitration Act, see K.S.A. 5-401 et seq., and Kansas cases. MBNA also acknowledges that Kansas procedure governs as long as it is not in conflict with substantive federal law. See U.S. Const. art. 6, cl. 2; Southland Corp. v. Keating, 465 U.S. 1, 79 L. Ed. 2d 1, 104 S. Ct. 852 (1984). We have therefore evaluated both federal and state law as well National Arbitration Forum rules when relevant to our resolution of this case.

The record before us is extremely sparse. MBNA's argument on the timeliness of Credit's motion to vacate the award is doomed both by what it fails to contain and what it does contain. An appellant must designate a record on appeal regarding an arbitration award that is adequate to substantiate contentions made to the reviewing court. K.S.A. 5-401 et seq., 5-412(a), 5-418(a)(3), (B); Rural Water Dist. No. 6 v. Ziegler Corp., 9 Kan. App. 2d 305, Syl. ¶ 4, 677 P.2d 573, rev. denied 235 Kan. 1042 (1984); see also Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 777, 27 P.3d 1 (2001). Without an adequate record, any claim of alleged error fails. In re B.M.B., 264 Kan. 417, 435, 955 P.2d 1302 (1998).

We note first that MBNA cannot rely on Credit's tardiness in challenging the award if the arbitrator never had jurisdiction to arbitrate and enter an award. An agreement to arbitrate bestows such jurisdiction. When the existence of the agreement is challenged, the issue must be settled by a court before the arbitrator may proceed. See 9 U.S.C. § 4; K.S.A. 5-402.

All we have in the record is Credit's assertion that she sent an apparently timely objection to the arbitrator, contesting the existence of an agreement to arbitrate. Although no copy of this objection is in the record, MBNA's counsel admitted at oral argument before this court that his client "probably" has a copy of the objection; thus we look to MBNA as the appellant to demonstrate that the objection was somehow ineffective to trigger its responsibility to seek court intervention to compel arbitration. See 9 U.S.C. § 4; K.S.A. 5-402. In the absence of such a demonstration, we, like the district court, have no choice but to accept Credit's version of events.

Under both federal and state law, Credit's objection to the arbitrator meant the responsibility fell to MBNA to litigate the issue of the agreement's existence. See 9 U.S.C. § 4; K.S.A. 5-402. Neither MBNA, as the party asserting existence of an arbitration agreement, nor the arbitrator was simply free to go forward with the arbitration as though Credit had not challenged the existence of an agreement to do so.

"If there is a challenge to the arbitration, it is for the courts, not the arbitrator, to decide whether the agreement to arbitrate exists and whether the issue in dispute falls within the agreement to arbitrate.

. . . .

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"Under either the Federal Act or the Kansas Act, the arbitrator's power to resolve the dispute must find its source in the agreement between the parties. The arbitrator has no independent source of jurisdiction apart from consent of the parties. . . . Dreyer, Arbitration Under the Kansas Arbitration Act: The Role of the Courts, 59 J.K.B.A. 33, 35 (May 1990).

"Substantive arbitrability is concerned with the question of whether the parties have contractually agreed to submit a particular dispute to arbitration. The courts decide this question because no one must arbitrate a dispute unless he has so consented." (59 J.K.B.A. at 35 n.42 quoting Denhardt v. Trailways, Inc., 767 F.2d 687, 690 [10th Cir. 1985]).

The record, such as it is, also undercuts any assertion that Credit was properly served with a copy of the award. The Acknowledgment and Certificate of Service signed by Kalina states only that the award was served on September 7, 2004, by first class mail, postage prepaid. Unless the parties' agreement to arbitrate–which, again, is not in the record–provided for this method of service, it did not meet the clear requirement of K.S.A. 5-408. We are not willing, despite MBNA's urging, to apply any common law presumption of receipt of a document after first class, postage prepaid mailing when there is a statute that appears to dictate specific alternate methods for service.

The Kansas statute also requires that Credit have been served by "the arbitrators," and it is unclear exactly what Kalina's personal role in the arbitration, if any, was. See K.S.A. 5-408. He may have qualified as one of "the arbitrators," but the ambiguity of the award itself leaves room for a contrary argument.

Also, in the absence of proof in the record of proper service of a copy of the award on Credit on any date, it is obvious that neither the district court judge nor we could have arrived at the conclusion that proper service of the award was effected on a date more than 3 months or more than 90 days before Credit filed her first pro se pleadings to vacate the award. A copy of the award must have been properly served on Credit by that time in order for MBNA's timeliness argument to have any merit.

As mentioned above, MBNA failed to attach a copy of the arbitration agreement to its motion to confirm the award. This violated the Federal Arbitration Act for which MBNA intermittently expresses respect. See 9 U.S.C. § 13 (2000). This alone would have justified the district court in its decision to deny MBNA's motion to confirm the award.

Should the district court have taken the additional step of vacating the award on the scanty record before it? That action was proper as well. In addition to failing to attach a copy of the agreement to arbitrate when it filed its motion to confirm, MBNA filed no response to Credit's various pleadings adding up to a motion to vacate. Its only further pleading was a motion for protective order and suggestions in support when she sought discovery. The filings on the protective order issue asserted entitlement to confirmation, but they did so primarily because of the timeliness issue, which, on this record, is without merit.

In these circumstances, K.S.A. 5-412(5) permitted Credit to file a timely motion to vacate and raise the argument that no arbitration agreement existed. MBNA made no legally sufficient response to her arguments. Approximately 6 weeks passed. The district court judge finally ruled in Credit's favor. MBNA's assertion that this ruling came without warning or adequate time for response also is without merit. We therefore conclude that the district court did not err.

Finally, we note that a panel of our Court of Appeals has reached a similar conclusion on similar facts in another case involving MBNA's efforts to arbitrate a dispute. See MBNA America Bank v. Barben, No. 92,085, unpublished opinion filed May 20, 2005. We also note that these Kansas cases appear to reflect a national trend in which consumers are questioning MBNA and whether arbitration agreements exist. See e.g., MBNA America Bank, N.A. v. Boata, 94 Conn. App. 559, 893 A.2d 479 (2006); MBNA America Bank, N.A. v. Rogers, 838 N.E.2d 475 (Ind. App. 2005); MBNA America Bank, N.A. v. Hart, 710 N.W.2d 125 (N.D. 2006); MBNA Am. Bank, N.A. v. Terry, 2006 WL 513952 (Ohio); MBNA America Bank, N.A. v. Berlin, 2005 WL 3193850 (Ohio App.); MBNA America Bank, N.A. v. Perese, 2006 WL 398188 (Texas App.). Given MBNA's casual approach to this litigation, we are not surprised that the trend may be growing.

Affirmed.

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Date

Your Name

Your Address, City, State, Zip Code

Your Account Number

Name of Credit Card Issuer

Billing Inquiries

Address, City, State, Zip Code

Dear Sir or Madam:

I am writing to dispute a billing error in the amount of $______on my account. The amount is inaccurate because the merchandise I ordered was not delivered. I ordered the merchandise on (date) . The merchant promised to deliver the merchandise to me on (date) , and the merchandise was not delivered. (In addition, when I ordered the merchandise, the merchant did not tell me that it would charge before shipping.)

I am requesting that the error be corrected, that any finance and other charges related to the disputed amount be credited to my account, and that I receive an accurate statement.

Enclosed are copies of (use this sentence to describe any enclosed information, such as sales slips, payment records, documentation of shipment or delivery dates) supporting my position and experience. Please correct the billing error promptly.

Sincerely,

Your name

Enclosures: (List what you are enclosing.)

Anything i post is for my own use only

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IN THE DISTRICT COURT OF SHAWNEE COUNTY KANSAS

YOUR BANKS NAME (USA)NA

Plaintiff, Case No:

Vs.

john doe

Defendant.

DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS

DIRECTED TO PLAINTIFF YOUR BANKS NAME

COMES NOW DEFENDANT,”PRO SE”,and pursuant to K.S.A. §61.3106 and K.S.A.

§60.234, requests Plaintiff,to produce and permit Defendant to inspect and

photocopy,within thirty (30) days after the date of service,at the offices of Plaintiff’s counsel,the documents described herein.

1. The alleged credit application from “”Account””, bearing the plaintiff’s, and defendants signature;

2. The alleged credit card agreement from “”Account”” that states interest rates, grace period, terms of repayment;

3. Itemized statements or credit card statements from “”Account”” that demonstrates how the alleged amount of $X,XXX was calculated;

4. A contract, agreement, assignment, or other means demonstrating that Plaintiffs name. had the authority and capacity, and was legally entitled to collect on the alleged debt from “”Account””;

5. Letter(s) sent to Defendant by Banks name and Plaintiffs law office, demonstrating an attempt to collect on the alleged debt, “”Account””;

6. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally;

7. Please produce the forward flow receivable sale agreement,with Defendants name, amounts and dates showing;

8. Please produce a copy of the Bill of Sale and Assignment, Asset Schedule,and the Account Purchase information showing defendant's specific account was purchased by plaintiff;

9. Any and all written communication,contracts,letters to show that you were hired by XXXX Bank to collect a debt from defendant;

10.The name and address and phone number of the affiant where they can be served.

CERTIFCATE OF SERVICE:

I Certify that i mailed/delivered a copy of this DEFENDANT’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF to the Shawnee County District Court and Plaintiff whoever at the address 1111 Topeka blvd Topeka Ks 66611

MY NAME:

MY ADDRESS:

MY CITY: TOPEKA

MY STATE:Kansas

MY PHONE:

TODAYS DATE

Respectfully submitted,

YOUR NAME

This form is for my information only.

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WHATEVER BANK (USA)NA

Plaintiff,

Divison:K.S.A chapter 61

Case No:

Vs.

your name

Defendant Pro' se

DEFENDANT’S FIRST SET OF INTERROGATORIES

DIRECTED TO PLAINTIFF WHATEVER BANK

COMES NOW DEFENDANT,”PRO SE” and pursuant to K.S.A. §61-3101, propounds

The following Interrogatories to Plaintiff,WHATEVER bank,to be answered separately and

in writing,in accordance with the Interrogatories should be signed by the person making

them,and a copy of the answers should be served on Defendant no later than fifteen (15)

days subsequent to the service of these Interrogatories.

INSTRUCTIONS FOR USE

1.If any of following Interrogatories cannot be answered by Plaintiff in full,please answer

to the extent possible and set forth the reason or reasons for the inability to answer the

remainder and the efforts made to obtain information relating therto.

2. The following Interrogatories shall be deemed continuing in nature,requiring Plaintiff

to set forth by a supplemental answer all information,knowledge or facts within the

scope herof as may be acquired by Plaintiff following the filing of the original answers

to these Interrogatories and not included herin,all within fifteen (15) days after receipt of such information and in no event later than one week prior to the date trial is to commence.

3. In answering these Interrogatories,in each instance wherein Plaintiff is asked to identify

a document,in lieu of identifying the document,Plaintiff may furnish as an exhibit to and

part of its response,a copy of the document,designating with respect to each such document furnished, the number of the Interrogatory or Interrogatories to which the identification of the document is responsive

DEFINITIONS

1. "Plaintiff", or "you" or "your" or "yours" shall refer to and include Plaintiff, as well as agents, servants, employees, associates, investigators, attorneys, representatives, shareholders, directors, officers and all others who may have obtained information for or on behalf of those named above.

2. "Identify" or "state the identity of":

2.1. When used in reference to a natural person means: that person's full name, present or last known business and residence address, present or last known business and residence telephone number, present or last known occupation, employer, and position and that person's occupation or position during the time relevant to the particular interrogatory.

2.2. When used in reference to an entity means: its full and complete name, its type of entity (i.e., corporation, partnership, unincorporated association, trade name, etc.), the location of its principal place of business, its mailing address, and its telephone number.

2.3. When used in reference to a document means: a description of the type of document, the identity of the person or persons who authored, prepared, signed, and received the document, the date, title, and general description of the subject matter of the document, present location or custodian of the original and each copy of the document, the identity of any persons who can identify the document, and if a privilege is claimed, the specific basis for such claim, in addition to the information set forth above.

3. The word "document" is used herein in its broader sense to mean every book, document or other tangible thing, including without limitation the following items, whether printed, typed, recorded, photographed, filmed or reproduced by any process, namely: agreements, communications, letters, memoranda, magnetic tapes, computer readable material, business records, notes, reports, photographs, and/or summaries of investigations, drawings, corporate records, desk calendars, appointment books, and any other information containing papers, writings or physical things.

4. The word "describe", used in connection with any act, occurrence, or physical facts, shall include but not be limited to the following: the identity of every person known to have been involved in or to have witnessed the act or occurrence, the date or dates of any such act or occurrence, and a description of any documents, records, or things documenting or involved in such act, occurrence, or fact.

5. The word “Incident” shall mean the facts and circumstances set forth in the Complaint giving rise to this action.

INTERROGATORIES

INTERROGATORIE ONE:Please identify your function as the person signing the documents, and identify the basis of your personal knowledge. Do you use any other titles in the course of signing documents? If yes please identify the titles and purpose of using multiple titles.

INTERROGATORIE TWO:Please identify your employer of record as evidenced by the entity that issues your paycheck. Please explain who has authorized you to make the affidavit and who has requested the affidavit that was provided and the dates of those requests.

INTERROGATORIE THREE:How many affidavits do you prepare and sign in a normal workday? How many Affidavits did you sign on Month Date Year

INTERROGATORIE FOUR: Please provide the following information For each agreement you contend was offered to and accepted by the defendant,including but not limited to the original account agreement,any amendment to the agreement,any notice of a change in any term of the agreement,or any schedule of interest rates or fees applicable to the account,explain how the agreement was offered to and accepted by the defendant.

INTERROGATORIE FIVE:For each document you have produced that you contend applies to the account that does not contain the defendant’s identifying information, such as the defendant’s name, social security number, account number, or signature, and that was created by someone other than you, identify the source of the document by stating the date you obtained the document and identifying the person from whom you obtained the document.

INTERROGATORIE SIX:Please explain the process and procedure to access the records used to verify the accounts you provide affidavits for. Where are these documents kept in relation to the location of your office? Are files brought to you or do you have to retrieve them yourself?

INTERROGATORIE SEVEN:

Please provide the following information for each person known to the plaintiff who has knowlege of facts relevant to this account,give a brief description for each person you will call as a witness in this case.

1.Name,address,phone number.

2.Place of employment

3.Relationship to plaintiff

4.The subject of testimony of any witness.

INTERROGATORIE EIGHT: Do you have authorized access to original documents within WHATEVER Bank USA? Identify the person(s) who conferred that authorization upon you.

INTERROGATORIE NINE: Please describe in detail valid proof of assignment to show standing in this case.

INTERROGATORIE TEN:Please describe in detail your unbroken chain of title or assingnment going back to original creditor to the creditor bringing this law suit. If the agreement, or any schedule of interest rates or fees applicable to the account, explain how the agreement was offered to and accepted by the defendant.

CERTIFCATE OF SERVICE:

I Certify that i mailed/delivered a copy of this DEFENDANT’S FIRST SET OF INTERROGATORIES DIRECTED TO PLAINTIFF to the Shawnee County District Court and to the "plaintiff" at address 1111 topeka blvd Topeka Ks 66600

MY NAME:

MY ADDRESS:

MY CITY:

MY STATE:

MY PHONE:

TODAYS DATE

Respectfully submitted,

YOUR NAME

The information that i post is FOR MY USE ONLY.

Edited by racecar

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My postings are for my personal use.

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Debt validation 15USC §1692g

To:

Address:

creditor Account#Ending in XXXX

From:

name:

address:

To Whom It May Concern:This letter is being sent to you in response to a notice sent to me on 08/ 27/2012.The alleged "BANKS NAME" account and debt are disputed in their entirety.Debt Validation is requested.All telephone calls to me are inconvenient. Please only communicate with me by US Mail only."optional"I ELECT arbitration via JAMS to resolve all of our disputes.

Best Regards,

My typed Name

CERTIFCATE OF SERVICE

I Certify that on this day of 08/27/2012 I mailed this debt validation letter certified return reciept to "Central Portfolio Control" 6640 Shady Oak Road, Suite 300 Eden Prairie, MN 55344.

My typed Name

MY POSTS ARE FOR MY USE ONLY.

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BENSON v. ASSET ACCEPTANCE LLC AS ASSIGNEE OF CITIBANK

BENSON v. ASSET ACCEPTANCE, LLC, AS ASSIGNEE OF CITIBANK, U.S.A., N.A.

A11A0142.

-- June 15, 2011

This appeal results from our grant of Sandra Benson's application for interlocutory review of the trial court's denial of her summary judgment motion in a suit on open account brought against her by Asset Acceptance, LLC (“Asset Acceptance”), as assignee of Citibank, U.S. A., N.A. (“Citibank USA”). Benson contends that she was entitled to summary judgment in her favor because Asset Acceptance failed to present evidence showing that it was a real party in interest entitled to bring this suit against her. We agree and therefore reverse.

The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it. A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. But an assignment must be in writing in order for the contractual right to be enforceable by the assignee. Further, the writing must identify the assignor and assignee.

(Citations and punctuation omitted.) Wirth v. Cach, LLC, 300 Ga.App. 488, 489 (685 S.E.2d 433) (2009). In this case, the record shows that Citibank (South Dakota), N.A. (“Citibank South Dakota”) issued a Diner's Club credit card to Benson. It also shows that Citibank USA assigned its rights under certain accounts to Asset Acceptance. It fails to demonstrate, however, that Citibank South Dakota assigned its rights in Benson's account to Citibank USA or that Citibank USA otherwise acquired the rights to Benson's account with Citibank South Dakota.1 Accordingly, the trial court erred by denying Benson's motion for summary judgment grounded upon a lack of evidence that Asset Acceptance was the real party in interest. Hutto v. CACV of Colorado, 308 Ga.App. 469(1) (707 S.E.2d 872) ( 2011);  Green v. Cavalry Portfolio Svcs., 305 Ga.App. 843, 844 (700 S.E.2d 741) (2010);  Wirth, supra, 300 Ga.App. at 489–491.

Judgment reversed. Mikell and Dillard, JJ., concur.

FOOTNOTES

1. FN1. Asset Acceptance submitted an affidavit from one of its lawyers stating that he found a public record during “research” titled “Community Reinvestment Act Performance Evaluation.” A portion of this 11–page document states, “Then, Citibank USA acquired all of the ․ Diner's Club activities of affiliate Citibank (South Dakota), N. A.” We cannot rely on the hearsay within this unauthenticated document to establish that Citibank USA acquired an interest in Benson's Diner's Club account held by Citibank South Dakota. See McKinley v. State, 303 Ga.App. 203, 208(2) (692 S.E.2d 787) (2010). “Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment.” (Citation, punctuation and footnote omitted.) Latimore v. City of Atlanta, 289 Ga.App. 85, 86(2) (656 S.E.2d 222) (2008).

Smith, Presiding Judge.

Edited by racecar

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1. When ruling on a motion for judgment as a matter of law, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for judgment as a matter of law.

2. When a district court makes a negative factual finding, it signifies the party having the burden of proof did not meet its burden. Such a finding will not be disturbed by an appellate court absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice.

3. In an action for breach of contract, the burden of proof is on the plaintiff to show: (1) execution and existence of the contract alleged in the petition; (2) sufficient consideration to support the contract; (3) performance or willingness to perform in compliance with the contract alleged; and (4) the defendant's breach insofar as such matters are in issue.

4. Identity of name is prima facie evidence of identity of person, and proof must be offered to overcome that presumption.

Appeal from Sedgwick District Court; MARK A. VINING judge. Opinion filed October 14, 2005. Reversed and remanded.

Keith J. Shuttleworth, of Cohen McNeile Pappas & Shuttleworth P.C., of Leawood, for appellant.

Barry L. Arbuckle, of Wichita, for appellee.

Before GREENE, P.J., PIERRON and BUSER, JJ.

BUSER, J.: Student Loan Marketing Association, by and through its servicing agent, Sallie Mae Servicing, L.P. (SLMA), filed suit against Richard D. Hollis for default on seven separate promissory notes. These notes, in the principal amount of $83,730, were made available by the United States Department of Health and Human Services' Federal Health Education Assistance Loan Program (HEAL). SLMA appeals the district court's holding that Hollis was entitled to judgment as a matter of law due to SLMA's failure to make a prima facie case that the defendant, Hollis, was the same individual who applied for, signed or authorized the notes, and received the proceeds from these loans. We reverse and remand.

Factual and Procedural Background

In January 2003, SLMA filed a petition in Sedgwick County District Court against Hollis alleging that he defaulted on seven promissory notes. Hollis filed a pro se answer and motion to dismiss in February 2003. In his answer and attached affidavit, Hollis denied owing any money to SLMA or that SLMA lent any money to him. Hollis also denied "any signature on any alleged copy of the alleged 'original' document or instrument being used against me." Among his affirmative defenses, Hollis claimed the notes were void due to fraud in the inducement. In particular, Hollis claimed the lender made deliberate misrepresentations "for the purpose of defrauding Defendant." After retaining counsel, Hollis filed an amended answer June 2003, wherein he restated many of his affirmative defenses.

In March 2004, the district court filed a pretrial conference order based upon the parties' completion of pretrial questionnaires. Among the issues of law identified by Hollis were: "What is the duty or obligation or undertaking by the lenders in these promissory notes, and is that duty satisfied if the lender used the Defendant's notes to be the actual funding source of any credit or money advanced to the Defendant?" Another issue of law presented by the defense was: "What is the legal effect of the Defendant's notice of renunciation?"

Hollis raised three issues of fact that were incorporated into the pretrial order. These issues dealt with whether SLMA or the various lenders used "Defendant's notes as the funding source of the alleged loans made to Defendant"; whether Hollis was "fraudulently induced to enter into these alleged loan transactions based upon misrepresentations by the various lenders"; and "Did the Defendant sign the various notes instruments?" No issue of law or fact was raised by Hollis addressing whether he was, in fact, the "Richard D. Hollis" who applied for and obtained the seven promissory notes and received but did not repay the proceeds.

Shortly before trial, the district court entered an agreed-upon order granting SLMA's motion to amend its pleading changing its name, as plaintiff, from Sallie Mae Servicing, L.P. to the correct name of Student Loan Marketing Association, by and through its servicing agent, Sallie Mae Servicing, L.P.

The district court held a bench trial in April 2004. At the outset of the trial, Hollis moved the court for judgment on the pleadings and failure to join a necessary party. Hollis claimed Sallie Mae, Inc., a Delaware corporation, had not been made a party to the proceedings, making the original and amended pleadings defective on their face. The court overruled Hollis' motion because "[t]here was no claim set out to preserve that issue."

In its case-in-chief, SLMA called as its only witness, Robin Zimmerman, an employee of SLMA who worked on the health education loan litigation accounts. According to Zimmerman, SLMA was servicing seven HEAL promissory notes signed by Richard D. Hollis.

All seven promissory notes signed by Richard D. Hollis were admitted into evidence over Hollis' objection that Zimmerman had admitted she did not personally witness Hollis sign the documents. Six loan applications with Richard D. Hollis listed as the prospective borrower were also admitted into evidence over Hollis' objection.

Zimmerman testified that SLMA acquired each promissory note from various

lenders. Bills of sale or purchase agreements for each promissory note were admitted into evidence over Hollis' objection. Five letters notifying the borrower of SLMA's purchase of his loans, which were sent to Richard D. Hollis, were also admitted. Zimmerman testified that SLMA did not receive any payment from Hollis after sending these letters. All seven notes went into default for nonpayment in September 2002. An amortization schedule for each note was admitted into evidence. SLMA rested after Zimmerman's testimony.

Hollis renewed his motion for judgment on the pleadings and raised an oral motion that "there has been no testimony whatsoever that's come forth in their presentation or in any of the evidence that has verified that this is Mr. Hollis' signature." SLMA countered that it was Hollis' burden to present evidence that the signatures on the notes were not his signatures. The district court ruled: "With the absence of any evidence that ties these documents that have been admitted, these notes and various purchasing promissory notes and applications, essentially, the Court has no way to find that the defendant, Mr. Hollis, is the same one whose signature appears on the documents in question." The court granted Hollis' motion for judgment as a matter of law. SLMA requested permission to reopen its case-in-chief to call Hollis as an adverse witness. The court denied the motion.

In its journal entry of judgment, the district court found that Hollis was entitled to judgment as a matter of law because SLMA failed to carry its burden of proof as to the matters set forth in the pleadings. In particular, the court found: (1) SLMA had no independent knowledge of whether Hollis received any benefit from the promissory notes; (2) SLMA's witness did not establish personal knowledge that the notes were signed by Hollis; (3) SLMA presented no evidence to establish that Hollis is the same Richard D. Hollis who signed the notes; and (4) SLMA failed to call Hollis as an adverse witness to establish that he signed the notes.

SLMA timely appealed the court's judgment.

Standard of Review

In 1997 the legislature modified K.S.A. 60-250 renaming a motion for a directed verdict as a motion for judgment as a matter of law. See L. 1997, ch. 173, sec. 26; K.S.A. 2004 Supp. 60-250. Accordingly, the same standard of review for a directed verdict applies to a motion for judgment as a matter of law. Stover v. Superior Industries Int'l, Inc., 29 Kan. App. 2d 235, 237, 29 P.3d 967, rev. denied 270 Kan. 903 (2000).

"'When ruling on a motion for directed verdict, the trial court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. A similar analysis must be applied by an appellate court when reviewing the grant or denial of a motion for directed verdict.' [Citation omitted.]" Wilkinson v. Shoney's, Inc., 269 Kan. 194, 202, 4 P.3d 1149 (2000).

The district court determined Hollis was entitled to judgment as a matter of law because SLMA failed to sustain its burden of proof. When a district court makes a negative factual finding, it signifies the party having the burden of proof did not meet its burden. Such a finding will not be disturbed by an appellate court absent proof of an arbitrary disregard of undisputed evidence, or some extrinsic consideration such as bias, passion, or prejudice. Mynatt v. Collis, 274 Kan. 850, 872, 57 P.3d 513 (2002).

Edited by racecar

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