Harry Seaward

FDCPA violations during litigation - Arizona

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Here is the scenario:

Sued by JDB and during the lawsuit, the JDB lawyer has emailed me several times and has not provided the required FDCPA disclosures.  Prior to litigation, this lawyer sent me a dunning letter that did contain the required notice.  The fact that he was attempting to collect the debt and identified himself as a debt collector (IMO) subjects him to the FDCPA.  (I have no doubt he "regularly" attempts to collect debts).  Also, JDB is vicariously liable for agents attempting to collect on its behalf.

 

Also, during discovery the JDB has admitted they applied interest to the account for an 18 month period following charge-off in which they did not own the debt.  The situation here is that prior to filing the lawsuit I was provided a statement of account that showed that interest was applied.  Going by the date I received this statement, the FDCPA SOL has expired.  However, the fact that the JDB is the one that applied the interest was revealed through responses to my RFA's in July of last year (still within SOL).

 

I was reading this thread and the discussion starting here:

 

http://www.creditinfocenter.com/community/topic/320695-suing-bursey-associates-for-filing-suit-on-midland-account-with-expired-sol/#entry1249949

 

I wanted to get some feedback on the "last opportunity to comply".  Specifically, whether or not violations committed during litigation create their own SOL clock.  Also, in the case of the interest, the SOL is well past going by the date the JDB applied the interest, but since I was not made aware of the violation until much later (and 5 months into litigation), does the SOL clock on this violation begin to run when I became aware the interest was in fact applied by the JDB?  Does the date they filed the lawsuit play into this one at all?

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Unfortunately the Litigation Privilege would apply. However Federal court may be worth a try. Anything related to litigation is shielded.

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what were the contents of the e-mail? that matters.

 

Not every communication is an attempt to collect a debt.  If he just said Hi Harry Seaward the case is on the calendar for next week, but I'm not appearing I have a previous engagement.  That wouldn't need the disclosures, since it's not an attempt to collect a debt and that would definitely fall under litigation privilege. 

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what were the contents of the e-mail? that matters.

 

Not every communication is an attempt to collect a debt.  If he just said Hi Harry Seaward the case is on the calendar for next week, but I'm not appearing I have a previous engagement.  That wouldn't need the disclosures, since it's not an attempt to collect a debt and that would definitely fall under litigation privilege. 

Ah, right you are.  I had assumed that the "this communication is from a debt collector" notice was required in all communications because they always include it.

 

Most of the emails were about discovery requests and things that in all reality would not qualify as a §1692(a)(2) "communication".  One of them, however, was a request to call their office to discuss settlement of "this case".  Probably a long shot since they didn't specifically reference the debt or say what they had in mind for settlement, but it could be argued that 'settlement' would be an attempt to collect the debt.  The SOL on this potential claim expires in 4 days from today.  I don't think I will pursue this one.

 

 

I'm still left with the question about the SOL clock on the charging of interest and whether or not the revelations made through discovery are privileged.

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I would definitely consider the email containing a settlement offer a possibility. I find it hard to believe that all attorneys do not have the "disclaimer" information on all of their correspondence. My attorney will send a one sentence email with a thousand word disclaimer, and we are on the same side. Debt collectors put disclaimers on their letters, websites and require employees to state it on the phone. I see no reason why it shouldn't also be included on emails also.

 

This attorney is just a debt collector with a diploma, so I see no reason why he should be exempt. I'll guarantee if you sue him and the JDB that he will be required to do it in the future. As long as the letter is within the SOL I wouldn't worry about the SOL on the other. 

 

I would also consider adding the legality of the interest if you sue. Not just the post charge off interest, but just the fact that they charged interest to begin with. It may be legal, but in an FDCPA case they will have to prove it. Even if they can prove its legal the interest also needs to be consistent on every letter they send. 

 

If you decide to sue the best advice I can give you is to hire the right attorney. Make sure you find one with a winning track record. You can do this pro se, but they will get much more motivated to settle if you have an attorney with federal case number sitting on their desk. Remember the cost analysis is about all they are going to consider. 

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@Harry Seaward

 

Supreme Court of the U.S.

 

The FDCPA applies to `attorneys who regularly engage in consumer-debt-collection activity, even when that activity consists of litigationHeintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995).

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The settlement offer I'd say would require the disclosure that he is a debt collector attempting to collect a debt.  The e-mails about discovery requests would not require the disclosures.

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@BV80

@Harry Seaward

 

Supreme Court of the U.S.

 

The FDCPA applies to `attorneys who regularly engage in consumer-debt-collection activity, even when that activity consists of litigationHeintz v. Jenkins, 514 U.S. 291, 299, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995).

 

Yeah, good one.  I had read this case a few times but not in this context or any time recently so I would have never recalled it for this purpose.  Thanks!

 

This issue I will have is arguing that what they had to say in any of the emails were "communications" per §1692a(3).  I'm fairly sure I could survive a MTD on the 'settlement' email, but the rest really aren't anything to do with the debt per se, unless the judge agrees that since their lawsuit is about a debt, any communication from them in regards to the lawsuit is de facto a communication regarding the debt.

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A few months ago I came across the Simkus v. Cavalry case and the judge when ruling on Cavalry's MTD in 2012 found that charging interest post-charge-off  "may" state a claim upon which relief could be granted and denied the MTD.

 

Plaintiff and Defendant later filed a MSJs again making the waiver of right arguments.  What's interesting (for me) about the case is that, even though it's in Illinois District Court, the parties agreed that Arizona law governs the contract, so there is a lot of analysis using AZ caselaw, and per that AZ caselaw, the court just determined earlier this year that a waiver of a right is a question of fact for trial and denied both parties MSJ on those grounds.

 

SIMKUS v. CAVALRY PORTFOLIO SERVICES, LLC, Dist. Court, ND Illinois 2014

 

http://scholar.google.com/scholar_case?case=5491946324385968036

 

 

In addition to using these caselaws in a suit against them, I can also use them in my appeal to show the court erred when it granted Plaintiff's MSJ after I argued the OC waived its right to collect interest.

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A few months ago I came across the Simkus v. Cavalry case and the judge when ruling on Cavalry's MTD in 2012 found that charging interest post-charge-off  "may" state a claim upon which relief could be granted and denied the MTD.

 

Plaintiff and Defendant later filed a MSJs again making the waiver of right arguments.  What's interesting (for me) about the case is that, even though it's in Illinois District Court, the parties agreed that Arizona law governs the contract, so there is a lot of analysis using AZ caselaw, and per that AZ caselaw, the court just determined earlier this year that a waiver of a right is a question of fact for trial and denied both parties MSJ on those grounds.

 

SIMKUS v. CAVALRY PORTFOLIO SERVICES, LLC, Dist. Court, ND Illinois 2014

 

http://scholar.google.com/scholar_case?case=5491946324385968036

 

 

In addition to using these caselaws in a suit against them, I can also use them in my appeal to show the court erred when it granted Plaintiff's MSJ after I argued the OC waived its right to collect interest.

The ND of IL has issued a number of "consumer friendly" decisions in recent years.  There are also a number of excellent consumer lawyers who practice there.

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The ND of IL has issued a number of "consumer friendly" decisions in recent years.  There are also a number of excellent consumer lawyers who practice there.

Yes, my hero Daniel Edelman is up there.

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 Curtis Warner is also a very fine lawyer.  He took time to advise me by email about illegal debt collection calls I had been receiving, even though I am nowhere near IL.  He has won a number of notable cases.

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I would definitely consider the email containing a settlement offer a possibility. I find it hard to believe that all attorneys do not have the "disclaimer" information on all of their correspondence. My attorney will send a one sentence email with a thousand word disclaimer, and we are on the same side. Debt collectors put disclaimers on their letters, websites and require employees to state it on the phone. I see no reason why it shouldn't also be included on emails also.

This was exactly where my brain was when I assumed that the disclosure was always required when a debt collector communicated with a consumer. Turns out, @usctrojanalum is right. The only caselaw I could find on the subject of §1692e(11) disclosures says that the disclosure is only required when the communication falls under the definition given in §1692a(2).

 

When they don't make a practice of automatically including the §1692e(11) disclosures in their emails it seems like it would be very easy for someone to lure them into a violation by asking them to email an accounting of the debt or something like that.

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 When they don't make a practice of automatically including the §1692e(11) disclosures in their emails it seems like it would be very easy for someone to lure them into a violation by asking them to email an accounting of the debt or something like that.

 

People are not luring them into anything when they have no respect for following a simple law. I'm guessing the reason he does it this way is because he has never been called out on it. Its just plain lazy not to do something so easy. A one time copy and paste is all it would take assuming he can figure out how to do it  :hmm: 

 

I would probably not file a claim just based on this, but if you have other violations it could work to your advantage. 

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I recently appealed a Phoenix federal court order dismissing my FDCPA claims against Midland for violations during the justice court litigation.    

 

Judge Campbell decided that the Midlan filing of the justice court lawsuit was the "last opportunity" to comply with the FDCPA as discussed in Naas.   That's of course totally crazy and essentially it means that a collector could literally break your legs a year after filing a lawsuit against you and it wouldn't violate the FDCPA because the filing of the lawsuit was "the last opportunity to comply."   

 

In my case, the Midland attorneys submitted evidence in violation of court rules and a paralegal for Bursey & Associates promised to email their filings and then did NOT email them, hoping that I wouldn't be able to respond timely because I only get my mail every few weeks.   Talk about lowlife lawyer scum ...

 

My opening brief is due in June and I will be asking attorneys and consumer organizations for assistance because this is far too important to stand. 

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@Christine

 

If your judge thought that "[f]iling a complaint is the debt collector's last opportunity to comply with the Act" meant that a debt collector doesn't have to comply with the FDCPA during litigation, he misread Naas.

"[A] debt collector's last opportunity to comply with the Act" has been referenced in cases in which the courts had to determine the start of the SOL of a violation.  

In Naas, the plaintiff filed an FDCPA suit alleging that the defendant's collection suit was a violation.  The case was dismissed because it was outside the one-year SOL.  

The plaintiff argued that the SOL began the day the court made a decision on the collection lawsuit, while the defendant argued that it began on the date the collection lawsuit was filed.  The court ruled in favor of the defendant because the one-year SOL begins on the date the violation occurs which was the date of the filing.

Actually, a debt collector's last chance to comply is right before he commits the violation.  BUT, for the purpose of determining the start of the one-year SOL, his last opportunity to comply is when he commits the violation.  

Anyway, the court's ruling that the filing of the complaint was the debt collector's last opportunity to comply with the FDCPA had nothing to do with whether or not a debt collector must comply with the FDCPA during litigation.

That phrase has been applied to actions other than filing a complaint.  For instance, in Mattson v. US West Communications, Inc., the 8th Circuit Court of Appeals applied that same phrase to determine when the SOL began on a debt collection letter.

"Once SIC placed the letters in the mail, its conduct with respect to any violation of the FDCPA was complete.  The date on which SIC mailed the letters was its last opportunity to comply with the FDCPA, and the mailing of the letters, therefore, triggered section 1692k(d)."

Mattson argued that the SOL began when she received the letter.  The court ruled that it began when the letters were mailed.

If you read the cases associated with that phrase ("last opportunity to comply with the Act"), the court is determining the start of the SOL on the violation.

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In my case, the Midland attorneys submitted evidence in violation of court rules and a paralegal for Bursey & Associates promised to email their filings and then did NOT email them, hoping that I wouldn't be able to respond timely because I only get my mail every few weeks.   Talk about lowlife lawyer scum ...

 

Actually it is NOT the law firm's problem that you only pick up your mail every few weeks.  They are required to send documents according to the rules of civil procedure and if your court requires they be mailed that is ALL they have to do.  Your personal issues are yours to deal with and it doesn't make them scum because you have them.  COULD they have emailed copies:  yes but that presumes they have electronic copies to do so.  

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@Clydesmom

Actually it is NOT the law firm's problem that you only pick up your mail every few weeks.  They are required to send documents according to the rules of civil procedure and if your court requires they be mailed that is ALL they have to do.  Your personal issues are yours to deal with and it doesn't make them scum because you have them.  COULD they have emailed copies:  yes but that presumes they have electronic copies to do so.  

I would argue that when a person does something a certain way several times in a row, it rightfully creates an expectation for future events.

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@Clydesmom

I would argue that when a person does something a certain way several times in a row, it rightfully creates an expectation for future events.

 

You would lose under this circumstance.  Their expectation for future events does not mean they get to circumvent the rules of civil procedure.  Some courts DO allow for emailing of documents and it meets the RCP for service.  As more move towards e-filing this will be possible to serve someone RFAs etc via the internet and they can download the documents.  

 

Show me ONE statute that requires the law firm to email the documents to the defendant because they visit their P.O. box every 3-4 weeks to check for mail?

 

Your argument works when it involves something like child custody and the pick up spot has always been the McDonalds on 4th and main for the past 6 months and now due to a squabble the custodial parent wants to move it to a place 50 miles away that is not convenient to the other parent.  THAT expectation the courts would enforce.  Deviating from the RCP because someone doesn't want to make the drive to their PO box?  Nope.  Get your mail at home or go more often.  It doesn't get you a pass.

 

Another reason the OP's argument about not getting mail doesn't hold water is well over a year ago the USPS started a service for box holders where you can sign up and they email you each morning to tell you if you have mail.  You can also pre-sign for CMRR letters coming to you so that you can pick them up at convenience and the Post Office signs on your behalf.  There are many ways they could have avoided unnecessary trips to a distant PO but it still doesn't obligate the law firm to capitulate to their lifestyle choice. 

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I totally agree with BV80 that Naas only establishes the SOL for the violation of filing the lawsuit and I also cited another case with the phrase "last opportunity to comply" that was about a call or letter, but this just goes to show how corrupt the courts are and that's why I appealed.

 

With respect to Clydesmom arguing for Midland, that's why I post so rarely here.  The FDCPA clearly states that collectors may not make false promises, yet just like Midland, Clydesmom argues that just because the court rules don't require service my email, a collector can promise such service and then break their promise -- all to get an unfair advantage.

 

Very sad to see this board infiltrated by collector advocates.

 

I have to respond to their motion to dismiss my FCRA claims now and I'm too busy to waste my time on idiotic arguments like that.

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You would lose under this circumstance.  Their expectation for future events does not mean they get to circumvent the rules of civil procedure.  Some courts DO allow for emailing of documents and it meets the RCP for service.  As more move towards e-filing this will be possible to serve someone RFAs etc via the internet and they can download the documents.  

 

Show me ONE statute that requires the law firm to email the documents to the defendant because they visit their P.O. box every 3-4 weeks to check for mail?

 

Your argument works when it involves something like child custody and the pick up spot has always been the McDonalds on 4th and main for the past 6 months and now due to a squabble the custodial parent wants to move it to a place 50 miles away that is not convenient to the other parent.  THAT expectation the courts would enforce.  Deviating from the RCP because someone doesn't want to make the drive to their PO box?  Nope.  Get your mail at home or go more often.  It doesn't get you a pass.

 

Another reason the OP's argument about not getting mail doesn't hold water is well over a year ago the USPS started a service for box holders where you can sign up and they email you each morning to tell you if you have mail.  You can also pre-sign for CMRR letters coming to you so that you can pick them up at convenience and the Post Office signs on your behalf.  There are many ways they could have avoided unnecessary trips to a distant PO but it still doesn't obligate the law firm to capitulate to their lifestyle choice. 

 

Forget about the reasons she asked for e-mail service.  The fact is there was an agreement between the parties to serve documents via email.  Service of filings by email is not "circumventing the rules of procedure".

 

 

FRCivP 5( B) SERVICE: HOW MADE.

(2) Service in General. A paper is served under this rule by:

    (E) sending it by electronic means if the person consented

    in writing—in which event service is complete upon

    transmission, but is not effective if the serving party

    learns that it did not reach the person to be served; or

 

 

If a party consents to service by some alternative means, and another party routinely uses those means, I say again, an expectation is created for how that party will behave in future transactions. (And I don't see much difference between this scenario and the one you used with the squabbling parents).  I think it's a reasonable argument and I don't know you can unequivocally declare that I would lose it.  Especially when one of the parties is a debt collector and the other is a pro se consumer that has alleged the debt collector has in the past unfairly used the lawsuit as a means to collect their debt.

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I totally agree with BV80 that Naas only establishes the SOL for the violation of filing the lawsuit and I also cited another case with the phrase "last opportunity to comply" that was about a call or letter, but this just goes to show how corrupt the courts are and that's why I appealed.

 

With respect to Clydesmom arguing for Midland, that's why I post so rarely here.  The FDCPA clearly states that collectors may not make false promises, yet just like Midland, Clydesmom argues that just because the court rules don't require service my email, a collector can promise such service and then break their promise -- all to get an unfair advantage.

 

Very sad to see this board infiltrated by collector advocates.

 

I have to respond to their motion to dismiss my FCRA claims now and I'm too busy to waste my time on idiotic arguments like that.

 

I am not a collector advocate.  I am a REALITY advocate.

 

It isn't a false promise but I am sure you want to convince yourself it is.  The FIRST rule if you are going to defend yourself pro-se is LEARN THE RULES OF CIVIL PROCEDURE.  The reason is that sword cuts both ways.  You are both bound by them and the law firm is not going to risk their license to practice by not serving  you according to the rules of the court.  After all if they did capitulate to your demand to be emailed you could claim they violated the RCP and the evidence was inadmissible.  The court would have no choice but to grant the motion.  THAT is why they didn't comply.

 

So far I hear a LOT of excuses from you about why you shouldn't lose but no actual evidence.  You cannot just cut and paste stuff you read on the internet and expect it to sail right through if you don't have the legal basis to back it up.

 

If a party consents to service by some alternative means, and another party routinely uses those means, I say again, an expectation is created for how that party will behave in future transactions. (And I don't see much difference between this scenario and the one you used with the squabbling parents).  I think it's a reasonable argument and I don't know you can unequivocally state that I would lose it.  Especially when one of the parties is a debt collector and the other is a pro se consumer that has alleged the debt collector has in the past unfairly used the lawsuit as a means to collect their debt.

 

@HarrySeaward  quote that entire statute not the piece you believe supports what you are saying.  I do NOT trust partial quotes because there is a tendency to only quote the part that someone believes supports their argument and leaving out something that is key to spelling out why it won't work.

 

WHO the parties are makes no difference.  While the litigants CAN send document electronically it does not mean they are required to.

 

IF I was being sued in a lawsuit the first thing I would be doing is monitoring the court website and checking my mail at least 3 times per week to ensure I don't miss ANY documents.  I would NEVER rely on the opposing party to do what they say and compromise my defense.  At some point you have to take responsibility for protecting yourself.  Sitting back and expecting a JDB and their lawyer to do it for you is legal suicide.

 

I realize that you as a consumer who has lost their case believes that a creditor using the courts to enforce their right to collect is unfair but the reality is the law provides that remedy.  Do you also believe it is unfair for a consumer to enforce their rights by suing for a single FCDPA violation?

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@Clydesmom

@HarrySeaward  quote that entire statute not the piece you believe supports what you are saying.  I do NOT trust partial quotes because there is a tendency to only quote the part that someone believes supports their argument and leaving out something that is key to spelling out why it won't work.

 

I cited the rule that supports my position.  If you believe there is one that counters that, you're welcome to do your own research just like I did.  It shouldn't be hard.  I gave you the rule number.

 

 

WHO the parties are makes no difference.

 

Who the parties are matters when there are statutes that says one of the parties activities in litigation could create a liability to the other party.

While the litigants CAN send document electronically it does not mean they are required to.

Correct, they are not required to, but when they do it repeatedly it creates a realistic expectation.

 

 

IF I was being sued in a lawsuit the first thing I would be doing is monitoring the court website and checking my mail at least 3 times per week to ensure I don't miss ANY documents.  I would NEVER rely on the opposing party to do what they say and compromise my defense.  At some point you have to take responsibility for protecting yourself.  Sitting back and expecting a JDB and their lawyer to do it for you is legal suicide.

 

I agree and this is how I would proceed but that does not mean a JDB failing to do what they said they would is not a violation.  And even if I check my regular mail and was not harmed by the debt collector sending the pleading there, I would still argue that it was a violation.

 

 

I realize that you as a consumer who has lost their case believes that a creditor using the courts to enforce their right to collect is unfair but the reality is the law provides that remedy.  Do you also believe it is unfair for a consumer to enforce their rights by suing for a single FCDPA violation?

 

You're grossly misstating my position.  I absolutely do not think "a creditor using the courts to enforce their right to collect is unfair", and challenge you to find any example where I have actually taken this position.  What I was actually saying (and I'm sure you already know this) is that there were allegations that the debt collector had used unfair methods of debt collection during the litigation process.

 

What is the relevance of the number of FDCPA violations?  We're talking about unfair (unethical) litigation practices that would never fly if the consumer was represented by an attorney.  I don't get your analogy.

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