The United States Court of Appeals for the Seventh Circuit recently held that the FDCPA does not prevent a debt collector from communicating with a debtor’s attorney after the debtor refuses payment and requests that the debt collector cease communications with the debtor.
After receiving demands from a debt collector for payment of a debt, a debtor retained a lawyer, who sent the debt collector a letter stating that the debtor refused to pay and lacked assets that the creditor could seize. The letter concluded: “we request that you cease all further collection activities and direct all future communications to our office.”
The debt collector refrained from calling or writing to the debtor, but did call the lawyer with a request for payment. The debtor then filed a lawsuit asserting violation of 15 U.S.C. §1692c(c) of the federal Fair Debt Collection Practices Act (“FDCPA”). The debtor alleged that by contacting the attorney the debt collector violated the FDCPA’s prohibition on contacting a debtor after he refuses to pay a debt. The district court found in favor of the debt collector, holding that the debtor’s lawyer was not a “consumer” as defined in the FDCPA and therefore that communications with him were not prohibited.
As you may recall, in relevant portion, §1692c(c) provides that where “a consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communication with the consumer” then “the debt collector shall not communicate further with the consumer” except under certain limited circumstances. Section 1692c(d) defines the word “consumer” for the purpose of §1692c. It provides that “consumer” includes “consumer’s spouse, parent (if the consumer is a minor), guardian, executor, or administrator.”
The debtor argued that whether or not a debtor’s lawyer was “the consumer,” the lawyer was the debtor’s agent, and therefore that communications to the lawyer should be treated as communications to the debtor. The debtor noted that 15 U.S.C. §1692a(2) defines “communication” as “the conveying of information regarding a debt directly or indirectly to any person through any medium.” The debtor then reasoned that anything a debt collector says to a debtor’s lawyer is an indirect communication to the debtor. The debtor therefore argued that once a debtor invokes his rights under §1692c(c), any communication to either the debtor or his lawyer is forbidden, unless it comes within one of the exceptions of the FDCPA. The Court noted that at least one district judge had accepted the argument made by debtor. However, the Court also noted that no appellate court had addressed the issue.
In rejecting the debtor’s argument, the Seventh Circuit held that subsections (a) and (b) of §1692c provided guidance as to whether a debtor’s attorney was intended to be included in the definition of “consumer.” Subsections (a) and (b) provide as follows in relevant portion:
"(a) Communication with the consumer generally
"Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt—
* * *
"(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer; or
* * *
"(b) Communication with third parties
"Except as provided in section 1692b of this title, without the prior consent of the consumer given directly to the debt collector, or the express permission of a court of competent jurisdiction, or as reasonably necessary to effectuate a postjudgment judicial remedy, a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer, his attorney, a consumer reporting agency if otherwise permitted by law, the creditor, the attorney of the creditor, or the attorney of the debt collector."
The Court stated that the debtor’s “argument makes hash of [subsections (a) and (b)], because if the word ‘consumer’ is replaced by ‘lawyer’ (whether because a lawyer is a ‘consumer’ or because a communication to a lawyer is an indirect communication to a consumer) both subsections become gibberish.” The Court further found that “[t]he problem is not simply that the words ‘consumer’ and ‘attorney’ must mean different things in this subsection,” but also that “the point of subsection (a)(2) is to tell the debt collector that it is OK to communicate with the debtor’s attorney even when it is forbidden to communicate with the debtor.”
The Seventh Circuit therefore ruled that to read §1692a(2) as prohibiting communications with a debtor’s attorney would be implausible. It noted that such a reading would prevent debt collectors from engaging in settlement negotiations with an attorney to avoid litigation. The Court questioned: “Why would Congress have provided that hiring a lawyer makes it impossible for the debtor and debt collector to communicate through counsel?”
Ultimately, the Court held Congress did not intend such a result. The Court reasoned that the debtor’s reading of the FDCPA “causes serious problems for the structure and operation of subsections (a)(2) and (b), and is not supported by subsection (d)—which. . . does not include the debtor’s lawyer in the definition of ‘consumer.’”
Therefore, the Court concluded that “§1692c as a whole permits debt collectors to communicate freely with consumers’ lawyers.”
Monday, February 21, 2011
Friday, February 18, 2011
Foreclosure Case
BALLINGER v. BAY GULF CREDIT UN., 2D09-4561 (Fla.App. 2 Dist. 12-15-2010) BALLINGER v. BAY GULF CREDIT UN., 2D09-4561 (Fla.App. 2 Dist. 12-15-2010) SAMUEL W. BALLINGER, Appellant, v. BAY GULF CREDIT UNION, Appellee. Case No. 2D09-4561. District Court of Appeal of Florida, Second District. Opinion filed December 15, 2010. Appeal from the Circuit Court for Hillsborough County; Martha J. Cook, Judge. Robert A. Carr of Resolute Law Group, LLC, Tampa (withdrew after briefing); Leon A. Williamson, Jr., of Leon A. Williamson, Jr., P.A., Tampa, (substituted as counsel of record), for Appellant. Keith D. Skorewicz and Jamie L. Weatherholt of Bush Ross, P.A., Tampa, for Appellee. MORRIS, Judge. Samuel W. Ballinger appeals a final summary judgment entered in favor of Bay Gulf Credit Union. While we find no error in two of the issues raised by Ballinger, we must reverse because the verified complaint was insufficiently pleaded and, therefore, final summary judgment was improvidently entered. This case involves Bay Gulf’s actions in seeking to repossess three luxury vehicles which Ballinger financed through Bay Gulf. In Bay Gulf’s verified complaint, a Bay Gulf employee, Sharmon Lenth, stated that Lenth read everything and that the facts stated were “true to the best of my knowledge and belief.” During the course of the proceedings, Bay Gulf sought summary judgment, and although Ballinger attempted to file an affidavit in opposition to Bay Gulf’s motion for summary judgment, the trial court refused to accept the affidavit because it had not yet been filed with the trial court at the time of the summary judgment hearing. The court then rejected Ballinger’s argument that the verified complaint — standing alone — was insufficient as a matter of law to support a final summary judgment. In doing so, the court noted that the complaint “says it is verified.” We acknowledge that “[a] verified complaint may serve the same purpose as an affidavit supporting or opposing a motion for summary judgment.” Boettcher v. IMC Mortg. Co., 871 So. 2d 1047, 1049 n. 2 (Fla. 2d DCA 2004). “However, in order to be so considered, the allegations of the verified complaint must meet the requirements of the rule governing supporting and opposing affidavits.” Id. (citing Fla.R.Civ.P. 1.510(e)). Rule 1.510(e), in turn, provides that affidavits must be based on personal knowledge and shall “show affirmatively that the affiant is competent to testify to the matters stated therein.” A verification which is improperly based on information and belief is insufficient to entitle the verifying party to relief because the verification is qualified in nature. See Muss v. Lennar Fla. Partners I, L.P., 673 So. 2d 84, 85 (Fla. 4th DCA 1996); Barton v. Circuit Court of the Nineteenth Judicial Circuit, 659 So. 2d 1262, 1263 (Fla. 4th DCA 1995); Thompson v. Citizens Nat’l Bank of Leesburg, Fla., 433 So. 2d 32, 33 (Fla. 5th DCA 1983). In this case, the verification reflects it was not based on Lenth’s personal knowledge. Bay Gulf asks this court to construe the verification as if it were based on Lenth’s personal knowledge because the verification does not say it was based on Lenth’s “information and belief” but, rather, states it was based on Lenth’s “knowledge and belief.” However, we decline to impose such a construction because the fact that the verification included the word “belief” indicates it was not based on Lenth’s personal knowledge. And, in fact, it is apparent from the record that Lenth could not state she had personal knowledge of the loan documents in question. The qualified verification here fails to meet the requirements of rule 1.510(e) and, therefore, should not have been considered by the trial court on a motion for summary judgment. See Thompson, 433 So. 2d at 33. Reversed and remanded. WALLACE and KHOUZAM, JJ., Concur. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
New York Foreclosure Legal Assistance
Mortgages (BNA 02/16/2011)
New York to Provide Legal Assistance In Foreclosure Cases, Chief Judge Says
ALBANY, N.Y.-New York state will create a program this year to ensure that homeowners who cannot afford a lawyer are provided with free legal assistance at their foreclosure settlement conferences, Judge Jonathan Lippman, the state's chief judge, announced Feb. 15 in his annual State of the Judiciary address.
Lippman said the program would begin in Queens, N.Y., in conjunction with the Legal Aid Society of Queens, and in Orange County, N.Y., with Hudson Valley Legal Services. The program will expand statewide by the end of the year, he said.
"A truly glaring problem ... is that the foreclosure process presents a need for legal counsel at precisely the moment when a lawyer is least affordable,'' Lippman said in his prepared State of the Judiciary report.
"Far too many homeowners enter our courts without legal help and with little understanding of the legal process. Many are so intimidated by the process and its consequences that they don't show up at all.''
The program is the second effort by Lippman and the state court system to address problems associated with foreclosures. In October, the New York State Unified Court System promulgated a rule requiring that attorneys for plaintiffs in residential foreclosure proceedings file an affirmation certifying that they have taken reasonable steps to verify the accuracy of documents related to the case.
The legal assistance program was applauded by the New York State Bar Association. "We are pleased with the chief judge's pilot program and his plans to later expand this innovative program statewide,'' Stephen P. Younger, president of the association, said in a statement.
"Nearly two-thirds of homeowners facing foreclosure are not represented by attorneys at their settlement conferences,'' Younger said.
Under a 2008 state law, courts must schedule a mandatory settlement conference with the parties in foreclosure proceedings involving certain subprime loans.
Lippman to Assign Attorneys
Lippman said, under the new program, he would assign legal services attorneys with foreclosure expertise to courts in the counties involved in the program. "After a screening process designed to make sure that the foreclosure settlement conferences are as meaningful as possible, these legal services attorneys will provide legal assistance or representation to unrepresented homeowners at the initial conference in as many cases as possible,'' he said.
"Thereafter, the attorney will either keep the case and continue with representation or refer the homeowner to a network of legal services, pro bono or law school clinic counsel who will be standing by to provide additional legal assistance in support of this project.''
By Gerald B. Silverman
http://www.nytimes.com/2011/02/16/business/16housing.html?_r=2
New York to Provide Legal Assistance In Foreclosure Cases, Chief Judge Says
ALBANY, N.Y.-New York state will create a program this year to ensure that homeowners who cannot afford a lawyer are provided with free legal assistance at their foreclosure settlement conferences, Judge Jonathan Lippman, the state's chief judge, announced Feb. 15 in his annual State of the Judiciary address.
Lippman said the program would begin in Queens, N.Y., in conjunction with the Legal Aid Society of Queens, and in Orange County, N.Y., with Hudson Valley Legal Services. The program will expand statewide by the end of the year, he said.
"A truly glaring problem ... is that the foreclosure process presents a need for legal counsel at precisely the moment when a lawyer is least affordable,'' Lippman said in his prepared State of the Judiciary report.
"Far too many homeowners enter our courts without legal help and with little understanding of the legal process. Many are so intimidated by the process and its consequences that they don't show up at all.''
The program is the second effort by Lippman and the state court system to address problems associated with foreclosures. In October, the New York State Unified Court System promulgated a rule requiring that attorneys for plaintiffs in residential foreclosure proceedings file an affirmation certifying that they have taken reasonable steps to verify the accuracy of documents related to the case.
The legal assistance program was applauded by the New York State Bar Association. "We are pleased with the chief judge's pilot program and his plans to later expand this innovative program statewide,'' Stephen P. Younger, president of the association, said in a statement.
"Nearly two-thirds of homeowners facing foreclosure are not represented by attorneys at their settlement conferences,'' Younger said.
Under a 2008 state law, courts must schedule a mandatory settlement conference with the parties in foreclosure proceedings involving certain subprime loans.
Lippman to Assign Attorneys
Lippman said, under the new program, he would assign legal services attorneys with foreclosure expertise to courts in the counties involved in the program. "After a screening process designed to make sure that the foreclosure settlement conferences are as meaningful as possible, these legal services attorneys will provide legal assistance or representation to unrepresented homeowners at the initial conference in as many cases as possible,'' he said.
"Thereafter, the attorney will either keep the case and continue with representation or refer the homeowner to a network of legal services, pro bono or law school clinic counsel who will be standing by to provide additional legal assistance in support of this project.''
By Gerald B. Silverman
http://www.nytimes.com/2011/02/16/business/16housing.html?_r=2
Interesting Articles
http://money.cnn.com/2010/10/28/real_estate/robosigner/index.htm
http://stopforeclosurefraud.com/2011/02/15/foreclosure-law-firm-lays-off-nearly-half-of-its-staff-after-losing-fannie-mae/
http://stopforeclosurefraud.com/2011/02/14/bloomberg-merscorp-lacks-right-to-transfer-mortgages-judge-says/
http://stopforeclosurefraud.com/2011/02/12/dailyfinance-when-banks-outsource-foreclosures-nothing-good-happens/
http://stopforeclosurefraud.com/2011/02/15/foreclosure-law-firm-lays-off-nearly-half-of-its-staff-after-losing-fannie-mae/
http://stopforeclosurefraud.com/2011/02/14/bloomberg-merscorp-lacks-right-to-transfer-mortgages-judge-says/
http://stopforeclosurefraud.com/2011/02/12/dailyfinance-when-banks-outsource-foreclosures-nothing-good-happens/
More Accused Robo Signers
Lisa Markham signs for Deutsche Bank and for CitiMortgage and CR Title
Pite Duncan the California equal of David Stern in FL
STEVEN J. BAUM &
FEIN, SUCH & CRANE NY NJ David Stern
Treva Moreland
Pam January
Tishana S. Gibbs
G. Soberanis for Deutsch bank National Trust and Carrington Mortgage
Cecelia Knox Josh Lade Topako Love Reginald Lynch Greg Lyons Nathan Miller Bill …
http://www.scribd.com/doc/35783291/Other-Court-Sample-Doc-s-Topaka-MERS-Employee
eileen j gonzales where can i send them vp of first franklin vp of mers
Angelica Alanis and Gloria E Coleman-Benson. Alanis signed for Mers and Gloria was the notary. We have traced Alanis to a Household
Jeannette Love-Hadden, Anne Neely and just an FYI my assignment was signed by Kevin Prieshoff Assistant secretary for MERS. Please refer to the Shelli Hill deposition who confirms that he is an employee of the foreclosing law firm Lerner Sampson and Rothfuss. Also the notary was Karen James confirmed as an employee as well.
Pamela K Troxell
Chamagne Williams
cardless dixon – lisa gerard – jerrie moton – rashonda lynn turner – kimley godfrey – carolyn mcleod – van johnson – beverly clark
MARCIA MORGAN OR RICHARD E. PRICE
RACHEL WARMACK
http://mylandrecords.appspot.com/pdf/ma017-22964-295/axbsdrW33HB/certificate.pdf?actual=1292689034
SYLWIA DRAPALSKI
Pite Duncan the California equal of David Stern in FL
STEVEN J. BAUM &
FEIN, SUCH & CRANE NY NJ David Stern
Treva Moreland
Pam January
Tishana S. Gibbs
G. Soberanis for Deutsch bank National Trust and Carrington Mortgage
Cecelia Knox Josh Lade Topako Love Reginald Lynch Greg Lyons Nathan Miller Bill …
http://www.scribd.com/doc/35783291/Other-Court-Sample-Doc-s-Topaka-MERS-Employee
eileen j gonzales where can i send them vp of first franklin vp of mers
Angelica Alanis and Gloria E Coleman-Benson. Alanis signed for Mers and Gloria was the notary. We have traced Alanis to a Household
Jeannette Love-Hadden, Anne Neely and just an FYI my assignment was signed by Kevin Prieshoff Assistant secretary for MERS. Please refer to the Shelli Hill deposition who confirms that he is an employee of the foreclosing law firm Lerner Sampson and Rothfuss. Also the notary was Karen James confirmed as an employee as well.
Pamela K Troxell
Chamagne Williams
cardless dixon – lisa gerard – jerrie moton – rashonda lynn turner – kimley godfrey – carolyn mcleod – van johnson – beverly clark
MARCIA MORGAN OR RICHARD E. PRICE
RACHEL WARMACK
http://mylandrecords.appspot.com/pdf/ma017-22964-295/axbsdrW33HB/certificate.pdf?actual=1292689034
Robo Signers
http://www.foreclosureself-defense.com/2010/11/robo-signer/
This Site has a list of Robo Signers with links and hints.
This Site has a list of Robo Signers with links and hints.
B of A Alledged Robo Signers
I don't guarantee spellingis correct the list was hard to read.
Mark Acosta
Carrie Erbe
Catherine M Gorlewski
Jeanette Grodsky
Suzanne M Haumesser
Cynthia A Mech
Brandon Sciumbato
John S Smith
David P Sunlin
Christine Albert
Lisa Alliason
Micall Bachman
Lance Bell
Donald R Clark
Kimberly Dawson
Renee Hertzler
Lancia Herog
Mary Joos
Mary Kist
Michael Prindle
Rhoena Rice
Sheri Sohum
Melissa Viveros
Rhonda Weston
Jill Wosnak
Ted Cassell
Aaron Fozmby
Serena Harman
Gregory Higeons
Michael Holtz
Kaneisha Hunley
Holly M jarmusz
Deborah A jurek
Barbara Komisarof
Bridget Left
Cody mahon
Cheryl Mallory
Susan McCaughan
Timothy E Moran
Roxanne Nowicki
Frances Pecoraro
David M Perez
Laura m Pirritano
Tania Ramos
Robert Rybarczyk
Ken Setsky
Joyce Schithbato
Keri Selman
Teresa Skinner
TiaQuanda Turner
Sandra Williams
Ashley Barraza
Destiny Bentley
Tyria Garrison
Benjamin Hillis
Julia Myra
Gregory J Price
Donna Powell
Kathy Repka
Gail Stein
Vicki Lynn Vasquez
Lisa Wickser
Rachelle Wickware
Angelica B Williams
Diane Young
http://www.scribd.com/doc/40927249/Bank-Of-America-Robo-signer-List
Mark Acosta
Carrie Erbe
Catherine M Gorlewski
Jeanette Grodsky
Suzanne M Haumesser
Cynthia A Mech
Brandon Sciumbato
John S Smith
David P Sunlin
Christine Albert
Lisa Alliason
Micall Bachman
Lance Bell
Donald R Clark
Kimberly Dawson
Renee Hertzler
Lancia Herog
Mary Joos
Mary Kist
Michael Prindle
Rhoena Rice
Sheri Sohum
Melissa Viveros
Rhonda Weston
Jill Wosnak
Ted Cassell
Aaron Fozmby
Serena Harman
Gregory Higeons
Michael Holtz
Kaneisha Hunley
Holly M jarmusz
Deborah A jurek
Barbara Komisarof
Bridget Left
Cody mahon
Cheryl Mallory
Susan McCaughan
Timothy E Moran
Roxanne Nowicki
Frances Pecoraro
David M Perez
Laura m Pirritano
Tania Ramos
Robert Rybarczyk
Ken Setsky
Joyce Schithbato
Keri Selman
Teresa Skinner
TiaQuanda Turner
Sandra Williams
Ashley Barraza
Destiny Bentley
Tyria Garrison
Benjamin Hillis
Julia Myra
Gregory J Price
Donna Powell
Kathy Repka
Gail Stein
Vicki Lynn Vasquez
Lisa Wickser
Rachelle Wickware
Angelica B Williams
Diane Young
http://www.scribd.com/doc/40927249/Bank-Of-America-Robo-signer-List
Commit Bankruptcy Fraud go to Prison
As of early last year, criminal charges had been filed in just 24 of the 1,611 cases referred for prosecution nationwide in 2009.
http://www.tampabay.com/news/in-bankruptcy-debtors-hide-assets-and-pay-the-price/1151779
In 2006, authorities say, Richard Likane of Tampa got a mortgage after telling the lender he was making $12,324 a month as manager of an Italian restaurant.
But tax returns submitted in his 2008 bankruptcy case correctly stated that the only income he had in 2006 was $44.
After the FBI investigated those and other discrepancies between mortgage applications and Likane's bankruptcy filing, he was indicted last year on a charge of mail fraud affecting a financial institution — and faces up to 30 years in prison.
Are you listening South Florida?
In 2006, authorities say, Richard Likane of Tampa got a mortgage after telling the lender he was making $12,324 a month as manager of an Italian restaurant.
But tax returns submitted in his 2008 bankruptcy case correctly stated that the only income he had in 2006 was $44.
After the FBI investigated those and other discrepancies between mortgage applications and Likane's bankruptcy filing, he was indicted last year on a charge of mail fraud affecting a financial institution — and faces up to 30 years in prison.
Are you listening South Florida?
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