Looking to appeal Summary Judgment Unifund won against me

[Frustrated18]

I'm new to posting on this board, though I've read a lot of the issues that have been cited on here, and it has helped me a great deal.  So I hope I can get some guidance from here.

I had a strong case against Unifund CCR, LLC, in that they are not a licensed debt collector in my state, and such, should not legally be allowed to sue me.  They convinced the judge in a summary judgment hearing that none of the debt collection definitions within our state's statutes pertain to them.  They said that they "own the right to collect the debt" so they are not collecting for another; they are collecting for themselves.  They compared themselves to the way a mortgage is created.  The example they used was if a person takes out a mortgage loan from US Bank, the paperwork they receive will likely come from Centurion Mortgage or the like.  I tried to rebut, but the judge kept cutting me off and asking their opinion on why they are not a collector. All of their documentation that they have provided, in letters to me and in the Assignment they produced, they list the debt being owed to Distressed Asset Portfolio III, LLC, and they were assigned the account for "collection purposes only."  The judge also waived off my defense that the attorney is also acting as a debt collector.  He stated that they are licensed to practice law in the state and such have a right to commence the lawsuit. 

I live in a very small population state, and there are not any cases within the state that I can find to help me.  I also offered an objection to their affidavit, as it was produced by someone from Unifund and not the original creditor, so they cannot have personal knowledge of the account.  The judge said that the records fall under the hearsay exception, and my objection was overruled.  I objected to the balance, as the last 2 years of accounting were missing in the statements (as the account was in charge-off, and I was still making payments, and the documents don't clarify if other fees were added in that 2 year period).  He said that I needed to prove that the balance was different than what they have listed whether that's through statements or my records of payments made on the account.  Isn't it the Plaintiff's responsibility to prove the amount due?  I've spent around 20 hours or more a week finding case law and compiling documents with the caselaw to submit in my defense.  The opposing counsel submitted basic statements and their opinions in their documents, and no supporting laws, but yet win.  I want to file an appeal, but I'm not sure how to get the appellate court to see that Unifund CCR, LLC is a debt collector.  I also filed a motion for summary judgment.  The judge didn't rule on it at the hearing for their motion, and the date my reply for my motion was the date of their hearing.  (I didn't request a hearing on mine.)  I still submitted my reply to the Plaintiff's opposition after the judge ruled, as I didn't want to waive that right.   I know this is complex...and I'm just hoping someone can give me some direction.

-How can I prove Unifund CCR, LLC is a debt collector or acting as a collection agency to the appellate board?  If anyone has cases that they know of similar to mine that the court found that a company assigned debt for "collection purposes only" was a debt collector, I would greatly appreciate any citations to use in an appeal.

-We didn't have a court reporter, but I am looking at filing a Statement of the Evidence from the hearing on their motion for summary judgment on appeal.  How do I go about this?  Do I only include what my arguments were, file that, and request that the other party and judge do the same?  Or do I file a complete recollection and then they offer amendments?

-Can the judge make a ruling on their motion for summary judgment before mine was completely filed?

-Can I file an FDCPA claim after the ruling on a summary judgment?  The judge stated in the hearing that this would have needed to be filed within this case, but this court doesn't have the jurisdiction to hear federal cases...and I put in my documents that I reserved the right to file a complaint for FDCPA violations in a federal court at a later date.  Will this suffice?  Or will I not be able to seek relief if it wasn't filed as a counterclaim in this suit?

There is a lot of information that I have for this case, so I hope this snip-bit of information isn't too vague for answers.  My judge said it was one of the thickest files he had ever seen for a debt collection case.  Any help is greatly appreciated.  I've sought the help of attorneys through this whole process, but none seem to be taking new cases...I will continue to look for one for the appeal process, but since time is of the essence, I'd like to get as much information as I can, especially if I have to go at this alone.

[Harry Seaward]

There's good caselaw (granted from other states) that says debt buyers are not "debt collectors" under the FDCPA. What Unifund has argued is just the next natural progression from that law. It would depend on how your local statutes are worded, but if it specifically says "debts due another", i don't see how you could have prevailed on this point. 

1 hour ago, Frustrated18 said:

Isn't it the Plaintiff's responsibility to prove the amount due?

They did with account statements. You have to come up with something more compelling than bank statements to establish those statements as defective. You said you made payments after the dates on their statements. Did you show your receipts for those payments to the judge? 

1 hour ago, Frustrated18 said:

I know this is complex

It's pretty cut and dry, actually. With some rare geographical exceptions, nearly every one of these cases that stay in court end up exactly this way. 

1 hour ago, Frustrated18 said:

Can the judge make a ruling on their motion for summary judgment before mine was completely filed?

Sure. Your opposition to their MSJ is your opportunity to show material facts in dispute. If you can't accomplish that in an opposition, there's no way you're going to convince that same judge that there's no facts in dispute in your favor.

1 hour ago, Frustrated18 said:

Can I file an FDCPA claim after the ruling on a summary judgment?

Probably, especially if you local court declined jurisdiction.

Out if curiosity, what will be your FDCPA claims against Unifund? 

1 hour ago, Frustrated18 said:

I've sought the help of attorneys through this whole process, but none seem to be taking new cases

This is really all you need to know. Any consumer attorney will make time for a winning case; especially when you're standing there ready to stroke a check. Not many of them will touch a case they know they can't win when the client insists on fighting it. 

Not to pour salt into the wound, but is there a reason you didn't use arbitration? 

[Frustrated18]

There is also good case law that shows that Unifund is doing business a debt collector.  The question is, how do I prove that in appeal?

10 minutes ago, Harry Seaward said:

They did with account statements. You have to come up with something more compelling than bank statements to establish those statements as defective. You said you made payments after three dates on their statements. Did you show your receipts for those payments to the judge? 

This account was charged off 5 years ago.  I've been through a divorce since then, and I have no records to the account that I paid from or from the creditor.  I submitted a Laches defense, but it was discarded.

13 minutes ago, Harry Seaward said:

Out if curiosity, what will be your FDCPA claims against Unifund? 

I'm still researching that, and it will depend on whether I am effectively able to appeal.

 

14 minutes ago, Harry Seaward said:

This is really all you need to know. Any attorney has time for a winning case. None of them will touch a case they know they can't win. 

I call an attorney, and say that I need assistance in a debt collection case.  They say they aren't taking new cases.  This means that all debt collection cases are a waste of time and unwinnable?  

[Harry Seaward]

1 minute ago, Frustrated18 said:

There is also good case law that shows that Unifund is doing business a debt collector. 

What are those cases?

1 minute ago, Frustrated18 said:

This account was charged off 5 years ago.  I've been through a divorce since then, and I have no records to the account that I paid from or from the creditor.  I submitted a Laches defense, but it was discarded.

The judge just can't take your word that you made payments.

3 minutes ago, Frustrated18 said:

This means that all debt collection cases are a waste of time and unwinnable?  

Pretty much. Debt collectors don't make mistakes at anywhere near the same rate that they once did. Attorneys know this and can get to the meat of the case with a couple seemingly nebulous questions. Also, they assume if the debt collector screamed obscenities at the consumer, the consumer would lead off with that instead of saying they needed assistance with a debt collection case. Even if the attorneys asked no questions, their instincts turned out to likely be correct in your case. What other reasons would an attorney have for turning away guaranteed money? 

Is there a reason you didn't use arbitration? 

[Frustrated18]

7 minutes ago, Harry Seaward said:

Is there a reason you didn't use arbitration? 

The card agreement they provided states that the person who elects arbitration will have to pay for it.

[Pericles]

1 hour ago, Frustrated18 said:

that none of the debt collection definitions within our state's statutes pertain to them.

Which are the state statutes?  The definitions are relevant.

Unifund claims to be a debt collector on their website, but that disclosure is distinct from meeting a statutory definition.

And there might be one standard in order to meet the definition of  a "debt collector" for the purposes of doing certain types of activity within a state, and yet another standard to meet the definition of a "debt collector" for the purposes of the fdcpa.  Although state statutes often mirror at least some language within the fdcpa.

For the purposes of the fdcpa, post Henson, the relevant test to apply is the principal purpose test.  There have been fdcpa decisions that have come down on both sides of this, when the test is applied to debt buyers.

 

1 hour ago, Frustrated18 said:

If anyone has cases that they know of similar to mine that the court found that a company assigned debt for "collection purposes only" ...

This case discusses the distinction between purchasing title to an entire account versus just purchasing the receivables.  But that may not be exactly what is going on in your case.

[Harry Seaward]

37 minutes ago, Frustrated18 said:

The card agreement they provided states that the person who elects arbitration will have to pay for it.

That's unfortunate because this is an unenforceable provision. AAA rules unambiguously cap the consumer's portion of arb fees at $200. In any event, we've never seen a JDB push a case past the second fee invoice. 

1 hour ago, Frustrated18 said:

There is also good case law that shows that Unifund is doing business a debt collector.

What are those cases? (The ones you cited in your opposition to MSJ)

[Harry Seaward]

43 minutes ago, Pericles said:

This case discusses the distinction between purchasing title to an entire account versus just purchasing the receivables.

There are several hurdles OP would have to overcome, the highest of which is that he can't make these arguments on appeal if they weren't raised in the lower court. 

[Frustrated18]

50 minutes ago, Pericles said:

Which are the state statutes?

These are our statute definitions:

(iii) "Collection agency" means any person who:

(A) Engages in any business, the purpose of which is the collection of any debts for Wyoming creditors;

(B) Regularly collects or attempts to collect for Wyoming creditors, directly or indirectly, debts owed or due or asserted to be owed or due another;

(C) Takes assignment of debts for the purpose of collecting such debts;

(D) Directly or indirectly, solicits for collection debts owed or due or asserted to be owed or due a Wyoming creditor;

(E) Uses a fictitious name or any name other than their own name in the collection of their own accounts receivable; or

(F) Collects debts incurred in this state from debtors located in this state by means of interstate communications, including telephone, mail or facsimile or any other electronic method, from the debt collector's location in another state.

(viii) "Debt collector" means any person employed or engaged by a collection agency to perform the collection of debts owed or due or asserted to be owed or due to another, including any owner or shareholder of the collection agency business who engages in the collection of debts;

(viii) Any licensed attorney acting in an attorney-client relationship with the creditor, and who conducts the collection in the true name of the client.

I argued the underlined applied...the opposing counsel argued the same argument in my original post for all of them...other than they are an attorney so they aren't subject to debt collection licensure.

Thank you for the case law reference.

[BV80]

@Frustrated18

From the Wyoming Collection Agency Board:

If I purchase bulk debt, do I need to be licensed?  

Yes, the Wyoming Collection Agency Board has determined that if you purchase bulk debt, you will need to be licensed in the State of Wyoming.  

Any person attempting to collect debts that originated with another and that are already in default at the time of purchase or assignment is to be licensed as a collection agency.  If however, the debts are not in default at the time of assignment or purchase, the person could potentially be classified as a creditor collecting his own debt, and would not need a collection agency license. 

https://sites.google.com/a/wyo.gov/collection/boards/cab---frequently-asked-questions#TOC-If-I-purchase-bulk-debt-do-I-need-to-be-licensed-

[Frustrated18]

40 minutes ago, Harry Seaward said:

What are those cases? (The ones you cited in your opposition to MSJ)

LeBlanc v. Unifund CCR Partners, G.P., 552 F. Supp. 2d 1327, 1337 (M.D. Fla. 2008)

Heintz v. Jenkins, 514 U.S. 291 (1995)

Finch v. LVNV FUNDING LLC, 71 A. 3d 193- Md: Court of Special Appeals 2013

LVNV Funding, LLC v. Trice, 352 Il1.Dec. 6, 952 N.E.2d 1232 (Ill.App.2011)

[BV80]

8 minutes ago, Frustrated18 said:

LeBlanc v. Unifund CCR Partners, G.P., 552 F. Supp. 2d 1327, 1337 (M.D. Fla. 2008)

Heintz v. Jenkins, 514 U.S. 291 (1995)

Finch v. LVNV FUNDING LLC, 71 A. 3d 193- Md: Court of Special Appeals 2013

LVNV Funding, LLC v. Trice, 352 Il1.Dec. 6, 952 N.E.2d 1232 (Ill.App.2011)

Those will have no effect in your state. 

[Frustrated18]

1 minute ago, BV80 said:

Those will have no effect in your state.

Unfortunately, my state has very limited case law, so I have to use case law from other jurisdictions.

[Pericles]

33 minutes ago, Harry Seaward said:

There are several hurdles OP would have to overcome, the highest of which is that he can't make these arguments on appeal if they weren't raised in the lower court. 

It's not clear what was raised or not.  OP seems to recount some type of oral argument (for which there is no record) where these issues were argued.

My reply was only an attempt to answer the specific question immediately quoted above that portion of my reply.  OP will have to incorporate whatever can be gleaned (from that case) into the complete knowledge of was has transpired in OP's case, and combine that with whatever rules govern how the appeal is conducted.

At first blush, it seems to be a loser on appeal.  But I'm not familiar with the licensing statutes in WY, and their application to debt buyers vis-a-vis the filing of a lawsuit.  If it is a problem, history should have some evidence.  OP might do well to research fdcpa cases filed in the district. 

[Harry Seaward]

11 minutes ago, BV80 said:

Yes, the Wyoming Collection Agency Board has determined that if you purchase bulk debt, you will need to be licensed in the State of Wyoming.  

There is generally no private right to action on state licensing violations. The typical process is violators are reported to the licensing agency who then conducts an investigation and determines if a penalty will be levied. I understand you are arguing they shouldn't be collecting without a license, but that has yet to be determined by your state officials. 

17 minutes ago, Frustrated18 said:

(F) Collects debts incurred in this state from debtors located in this state by means of interstate communications, including telephone, mail or facsimile or any other electronic method, from the debt collector's location in another state.

This is interesting. This one might have some legs on appeal. 

[Harry Seaward]

3 minutes ago, Pericles said:

It's not clear what was raised or not.

I didn't allege what was and wasn't raised, but he can't raise something on appeal that wasn't raised in the lower court. 

[BV80]

4 minutes ago, Frustrated18 said:

 

 

Unfortunately, my state has very limited case law, so I have to use case law from other jurisdictions.

Case law from other jurisdictions would not help you with your licensing claim that Unifund is a debt collector as defined by Wyoming law. 

[Pericles]

1 minute ago, Harry Seaward said:

I didn't allege what was and wasn't raised. 

I didn't say that you did.

My participation on this forum ends here.

[BV80]

3 minutes ago, Harry Seaward said:

There is generally no private right to action on state licensing violations. The typical process is violators are reported to the licensing agency who then conducts an investigation and determines if a penalty will be levied. I understand you are arguing they shouldn't be collecting without a license, but that has yet to be determined by your state officials. 

I agree about a private right of action.  But, it could help in determining whether or not Unifund had the right to bring a lawsuit.  It might also still be an FDCPA violation for taking an action they were not allowed to take. 

[Frustrated18]

7 minutes ago, Harry Seaward said:

There is generally no private right to action on state licensing violations. The typical process is violators are reported to the licensing agency who then conducts an investigation and determines if a penalty will be levied. I understand you are arguing they shouldn't be collecting without a license, but that has yet to be determined by your state officials. 

I am in the process of submitting a complaint to the Collection Board.  I started the complaint process, and now they are sending me paperwork to fill out and notarize. Unfortunately, I won't have these answers until the notice of appeal and subsequent paperwork need to be filed.  If they do come back and say that they needed to be licensed, I could potentially have an FDCPA claim.

[Harry Seaward]

2 minutes ago, BV80 said:

But, it could help in determining whether or not Unifund had the right to bring a lawsuit.  It might also still be an FDCPA violation for taking an action they were not allowed to take. 

For sure, but someone has to first determine whether or not the licensing statutes apply to unifund. The appellate court could make this determination, but i think it would be infinitely more beneficial to have an affirmative determination from the licensing agency. 

4 minutes ago, Frustrated18 said:

Unfortunately, I won't have these answers until the notice of appeal and subsequent paperwork need to be filed.

You can file the notice by the deadline, and if the collection board says they don't need a license, you can just leave this out of your appeal memorandum, or abandon your appeal altogether. 

[texasrocker]

4 hours ago, Frustrated18 said:

I've sought the help of attorneys through this whole process, but none seem to be taking new cases...I will continue to look for one for the appeal process, but since time is of the essence, I'd like to get as much information as I can, especially if I have to go at this alone.

You definitely need an attorney for an appeal.  Look through public court records at your court house and find one who has won against JDB's.

[Harry Seaward]

17 minutes ago, texasrocker said:

You definitely need an attorney for an appeal. 

I disagree. Appeals are a different ballgame, but not impossible for self-represented litigants to navigate. Procedure are where the sticky widgets lie, so knowing and understanding the rules is a must. 

[Harry Seaward]

I just read through this again:

4 hours ago, Frustrated18 said:

(iii) "Collection agency" means any person who:

...

(F) Collects debts incurred in this state from debtors located in this state by means of interstate communications, including telephone, mail or facsimile or any other electronic method, from the debt collector's location in another state.

(viii) "Debt collector" means any person employed or engaged by a collection agency to perform the collection of debts owed or due or asserted to be owed or due to another, including any owner or shareholder of the collection agency business who engages in the collection of debts;

F says a "debt collector" that collects debts from another state is considered a "collection agency".  Section viii then defines "debt collector" as someone that collects debts owed to someone else.  It seems pretty clear to me that WY legislature never intended for businesses collecting their own debts to be classified as "debt collectors" or "collection agencies".

I found only one WY appeal case analyzing 33-11-101, and it had nothing to do with the terms "debt collector" or "collection agency".  If you appeal this, you'll potentially be establishing caselaw.  Whether it will be favorable to consumers or to JDBs remains to be seen.

[Frustrated18]

12 hours ago, Harry Seaward said:

F says a "debt collector" that collects debts from another state is considered a "collection agency".  Section viii then defines "debt collector" as someone that collects debts owed to someone else.  It seems pretty clear to me that WY legislature never intended for businesses collecting their own debts to be classified as "debt collectors" or "collection agencies".

I found only one WY appeal case analyzing 33-11-101, and it had nothing to do with the terms "debt collector" or "collection agency".  If you appeal this, you'll potentially be establishing caselaw.  Whether it will be favorable to consumers or to JDBs remains to be seen.

Like any law, I guess it's up for interpretation.  Still weighing all of my options.  I see that it would be potentially good to have some caselaw within the state on the matter, as I have not seen any on it....and I'm sure someone in my position would appreciate to have something for reference in the future.  I just don't know how I'm going to do all of it.  Considering filing bankruptcy and if the collection board comes back and says they should have been licensed, then potentially filing an FDCPA claim.  But I don't know if that's even an option.  They filed the suit the end of May and served me the end of June...so I would only have until then to file the suit...and not sure if I would be able to on the collection board determination or if I would need to have it documented in the appeal....but the appeal might take that long to get through.