Collection Firm Appeals Attorney Involvement Misrepresentation Decision

Bock Appeal

Bock v. Pressler & Pressler, LLP

The federal district court ruled that NJ’s largest debt collection law firm violated the Fair Debt Collection Practices Act by misrepresenting that its collection complaint was the product of an attorney’s professional judgment after a reasonably inquiry. On the day in question, a single attorney approved more than 600 complaints prepared by non-attorney staff and had Mr. Bock’s electronic file open for four seconds when he approved the filing of a lawsuit against Mr. Bock.

Pressler appealed and filed its Brief today.

Seeing Home by Ed Lucas and Christopher Lucas

I am a firm believer in local volunteer service organizations and am an active
downloadmember in the Maplewood Lions Club. Seeing Home was released on April 21, 2015. It is a book about the life of Ed Lucas who, at 12 years old, was struck in the head by a baseball and lost his sight—  but baseball gave him his life.

It is an inspiring story and beautifully reveals the importance that we all stay involved and give back to help those less fortunate.

Collection Attorney’s 4-second Review of Complaint is an Unfair Debt Collection Practice

Daniel Bock v. Pressler and Pressler, LLP
U.S. District Court, District of New Jersey
New Jersey’s largest debt collection law firm downloaded basic electronic
information about its debt-buyer client’s debt, sent an initial collection
letter, and “scrubbed” to ensure that the debtor was alive, not bankrupt
and had a valid address. No one reviewed the cardholder agreement, billing
statements, or assignment documentation. A non-lawyer department
prepared a complaint. The first lawyer to look at the case approved the
complaint for filing in 4 seconds by comparing the complaint on one
monitor with the information imported into the law firm’s files appearing
on the adjacent monitor.
In granting summary judgment for Bock, the court held that Pressler
violated the FDCPA by misrepresenting that an attorney had been
meaningfully involved. The the court’s
Opinion, at page 22, stated the
following standard:

[A] signed complaint is inherently false and misleading, in violation of 15 U.S.C. 1692e, where, at the time of signing, the attorney signing it has not
1) drafted, or carefully reviewed, the complaint; and
2) conducted an inquiry, reasonable under the circumstances, sufficient to form a good faith belief that the claims and legal contentions in the complaint are supported by fact and warranted by law.

Papers filed on Bock’s Motion (11mb) and on Pressler’s Motion (6.5mb).

[Original posted June 30, 2014.]

NJ Appellate Division Offers Guidance on Admissible Evidence in Debt-Buyer Collection Lawsuits

New Century Financial Services, Inc. v. Oughla (pronounced “oo-lah”)
MSW Capital v. Zaidi
Superior Court of New Jersey, Appellate Division
In a consolidated unpublished opinion, the court held that one of the debt
buyers failed to submit evidence sufficient to establish the necessary
components of its case. In the other, review by the Supreme Court is being
petitioned.

[Note: After the New Jersey Supreme Court refused to review this decision, the Appellate Division decision was approved for publication.]

Class Action Certified against Pressler Law Firm for Sending Allegedly Deceptive Settlement Letters

Williams vs. Pressler and Pressler, LLP
United States District Court for the District of New Jersey
In a 19-page Opinion, the court granted class certification. The class
consists of consumers who defended themselves in a collection suit
brought on behalf of debt-buyer New Century Financial Services, Inc., and
then received a settlement letter from Pressler suggesting that settlement
would positively affect the consumers’ credit. New Century either does not
credit report or, when it does report, automatically deletes the report when
the consumer files an answer to the collection complaint. 

[Original posted September 27, 2013.]

Mycah Struck, Senior Legal Specialist at Midland Credit Management is Held to be Incompetent to be a Foundation Witness

Midland Funding, LLC vs. Berry
Superior Court of New Jersey, Law Division, Special Civil Part
Following a two-day bench trial in which Midland called two witnesses: the
defendant and Mycah Struck, the court dismissed Midland’s claims with
prejudice because Midland failed to prove “that it has standing to sue via a
valid assignment and has failed to provide this Court with valid business
records substantiating such an alleged assignment.” The Court’s
decision
found, “In this case, the Plaintiff s foundation witness lacked sufficient
knowledge to authenticate either the essential assignment documents or
the various predecessor assignor’s records.”

[Originally posted July 25, 2013]

Requisites for Witness’s Knowledge of Records

Calvary Portfolio Services, LLC v. Kumbaris
In an unpublished decision (which means it cannot be cited by a court as precedent), the NJ Appellate Division held that the witness offered to
prove the authenticity and admissibility of the original creditor’s business
records need not be an employee of that original creditor but, quoting
Hahnemann Univ. Hosp. v. Dudnick, said, “A witness is competent to lay
the foundation for systematically prepared computer records if the witness
(1) can demonstrate that the computer record is what the proponent claims
and (2) is sufficiently familiar with the record system used and (3) can
establish that it was the regular practice of that business to make the
record.”

[Original posted October 12, 2011.]

Sloppy Paperwork Derails Wells Fargo Foreclosure

Wells Fargo Bank, N.A. v. Martin
The homeowner argued that it did not receive the required pre-suit notice of intent to foreclose sent to an incorrect address where the bank had no proof that its certified letter was received. As the bank bears the burden of proving compliance with notice requirement under the Fair Foreclosure Act, its complaint had to be dismissed. There were also problems with a lost promissory note and gaps in the chain of title. “Parenthetically, the Court notes that over the last several years, court cases nationwide, together with national media reports, have thoroughly documented the incompetence and negligence of the major lending institutions in their failure to adhere to basic business practices and bookkeeping and record keeping. This case appears to be another example of the thundering herd of such out of control cases.” See the entire decision.

[Original posted August 28, 2011.]

Attorney Can’t Be the Witness to Prove Client’s Documents

Deutsche Bank Nat. Trust Co. v. Mitchell
In a published decision, the NJ Appellate Division held that the plaintiff’s
foreclosure complaint should be dismissed because the mortgage was not
assigned to the plaintiff prior to filing the complaint. Consequently, the
court held that the plaintiff lacked standing to sue. The court then
commented on the submission of plaintiff’s records attached to an affidavit
made by plaintiff’s attorney. The court wrote, “Attorneys in particular
should not certify to ‘facts within the primary knowledge of their clients.’”

[Original posted August 9, 2011.]

If it ain’t Enough for a Default Judgment, Then it ain’t enough for Summary Judgment

LVNV Funding, LLC v. Colvell
In a published decision, the NJ Appellate Division reversed summary
judgment entered in favor of a debt buyer. The court concluded that the
evidence submitted would not even satisfy the requirements for a
judgment by default where a “creditor must prove more than merely the
total amount remaining unpaid. Instead, … the creditor must set forth the
previous balance, and identify all transactions and credits, as well as the
periodic rates, the balance on which the finance charge is computed, other
charges, if any, the closing date of the billing cycle, and the new balance.”

[Original posted July 12, 2011]

Failure to Name Lender in Foreclosure Notice Bars Foreclosure

In another win for a pro se consumer, the court held that the failure to
name the lender in the pre-foreclosure notice required under NJ’s Fair
Foreclosure Act was a bar to the foreclosure action. The
decision was
approved for publication which means that it can be cited by a court as
precedent.

Note: Under court rule, unpublished decisions do not constitute
precedent and cannot be cited by the court as the basis for its decision but
can be shown to judges.

[Original posted April 4, 2011]

Collection Complaint Dismissed: No Standing

Midland Funding , LLC vs. Cheryl E. Williams
Superior Court of New Jersey, Law Division, Special Civil Part
Simultaneous with the filing of the Answer, we filed a Motion for Summary
Judgment. In opposition, Plaintiff’s counsel, Pressler and Pressler, LLP,
submitted its own affidavit attaching alleged copies of account documents
but nothing as to Plaintiff’s purchase of the account. The Court ruled that,
even if the attorney’s affidavit were accepted, there was no proof as to
Plaintiff’s standing.
Complaint
Answer
Summary Judgment Motion
Summary Judgment Motion – Opposition (redacted)
Summary Judgment Motion – Reply
Summary Judgment Motion – Supplemental Reply
Summary Judgment Motion – Supplemental Opposition
Order Granting Summary Judgment (subsequently replaced by  a Consent
Judgment which dismissed the case with prejudice thereby avoiding any
appeals)

[Original posted August 12, 2011]

Summary Judgment Where Debt Buyer Lacked Evidence

A big win for a consumer representing himself!
A debt-buyer won a judgment against the consumer but, on appeal, the
judgment was reversed. In an
unpublished decision, the court held:

Consequently, a purported assignee of a credit card account must
show by competent evidence the existence of the account, the
charges and payments under the account that resulted in the
account balance claimed by the assignee, and a valid assignment.
The Velardo certification and Pagni affidavit clearly did not
provide such evidence.

[Originally posted March 4, 2011.]

 

U.S. Court in San Diego says Voicemail Violates FDCPA

Michael P. Koby, et al. vs. ARS National Services, Inc.
U.S. District Court, Southern District of California
We defeated the debt collector’s motion for judgment on the pleadings.
The
order by the Honorable John A. Houston, U.S.D.J., was the first in the
Southern District of California to adopt the principle that messages left by
debt collectors for debtors must meaningfully disclose the debt collector’s
identity. ARS’s attempts to obtain immediate review in the U.S. Court of
Appeals for the Ninth Circuit  was
rejected today.

[Originally posted March 18, 2011.]

Debt Buyer has no proof of debt

New Century Financial Services, Inc. vs. David Shaler
Superior Court of New Jersey, Law Division
This elderly gentleman was sued by a debt buyer who claimed to have
purchased the account from another debt buyer who purchased it from the
original creditor. Today, the Honorable Robert J. Brennan, J.S.C., granted
our Summary Judgment Motion based on the lack of admissible evidence
to prove the debt as well as to ownership of the alleged debt.
Complaint
Answer
Deposition of Debt Buyer’s Representative
Motion for Summary Judgment
Opposition to Motion
Reply
Reply – Supplemental
Sur-Reply
Order Granting Summary Judgment (filed March 18, 2011)
Transcript of Decision Granting Summary Judgment

[Originally posted March 18, 2011.]

Voicemail Violates FDCPA: Nicholas Decision Reaffirmed

Dolores Krug, et al., vs. Focus Receivables Mgt., LLC
U.S. DIstrict Court, District of New Jersey
Following and elaborating on the analysis in Nicholas vs. CMRE Financial Services (see March 16, 2010 entry below), the Honorable Irenas, U.S.D.J., rendered a decision finding that the consumers stated a proper complaint for violations of the FDCPA when the debt collector left messages failing to meaningfully identify themselves or disclose that it is a debt collector.

[Originally posted May 11, 2010.]

Collector’s Voicemail Violates FDCPA

Christine M. Nicholas vs. CMRE Financial Services, Inc.
U.S. District Court, District of New Jersey
We defeated the debt collector’s attempt to dismiss the complaint leading to the first decision in the District of New Jersey deciding that, when a debt collector leaves a voicemail message for the debtor when attempting to collect the debt, it must meaningfully identify itself and disclose that it is a debt collector. The opinion by the Honorable Dennis M. Cavanaugh,  U.S.D.J., also held that, under the FDCPA’s class action “cap,” the possibility of a de minimis recovery to each class member is not a per se bar to maintaining a class action.

[Originally posted March 16, 2010.]

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