Author Topic: Suit from Fred Hanna, FIA, Magistrate Court, GA  (Read 13923 times)

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BellEbutton

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #120 on: March 20, 2016 08:41:17 PM »
I don't know that this rises to a bar complaint level, but I know if this were me, my complaint to the CFPB would include the fact that they sent this letter after the expiration of the SOL, as one of the provisions in the Hanna settlement was specifically that the attorneys must confirm that SOL has not run on the debt.

Where is that specified in the settlement?

Bruno the JDB Killer

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #121 on: March 21, 2016 02:11:39 PM »
I still don't see a violation in that letter. Basically they are saying they are taking over for Hanna and any plans etc remain in force. I see no demand for payment and no threat of litigation.  They are allowed to "ask" you to pay, even if the SOL is expired. As far as I know, the 11th hasn't ruled that creditors must include the SOL expiration disclosure.

For OP, they do not HAVE six months to sue you again, the dismissal is conditional upon them going to arbitration. If they refuse, they cannot go back to court. That would be a violation.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

fisthardcheese

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #122 on: March 21, 2016 03:01:08 PM »
I still don't see a violation in that letter. Basically they are saying they are taking over for Hanna and any plans etc remain in force. I see no demand for payment and no threat of litigation.  They are allowed to "ask" you to pay, even if the SOL is expired. As far as I know, the 11th hasn't ruled that creditors must include the SOL expiration disclosure.

For OP, they do not HAVE six months to sue you again, the dismissal is conditional upon them going to arbitration. If they refuse, they cannot go back to court. That would be a violation.

That may be the case if they did not technically threaten a lawsuit, but I contend that a letter from a law firm to the LSC IS a threat to sue, no matter what the specific language may contain.  This threat to sue on an SOL debt is not a violation per the 11th circuit or by statute, but by the CFPB settlement agreement specific to these particular attorneys only.

"The Hanna law firm and its principal partners would be prohibited from filing lawsuits or threatening to sue to enforce debts unless they have specific documents and information showing the debt is accurate and enforceable. "

http://www.consumerfinance.gov/newsroom/cfpb-takes-action-to-stop-illegal-debt-collection-lawsuit-mill/

As for the 6 month rule:  The court in Op's case did not order arbitration.  They merely put a stay in place, then the plaintiff attempted to remove the stay by saying the card agreement was incorrect and instead, Op was able to get plaintiff to voluntarily dismiss the case.  The Court rules state that any voluntary dismissal may be refiled within 6 months even if SOL expired during the course of the initial case.
10 Arb Settlements (9 AAA, 1 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

Bruno the JDB Killer

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #123 on: March 21, 2016 03:53:32 PM »
"The Hanna law firm and its principal partners would be prohibited from filing lawsuits or threatening to sue to enforce debts unless they have specific documents and information showing the debt is accurate and enforceable. "

First, these guys are not members of Hanna's firm any longer. Second, they never mentioned filing a suit nor did they threaten to do so. LSC only goes so far. If it ihn't oin the letter, it isn't in the letter.

Also, only the CFPB can enforce its own orders, OP cannot.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

fisthardcheese

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #124 on: March 21, 2016 04:38:48 PM »
"The Hanna law firm and its principal partners would be prohibited from filing lawsuits or threatening to sue to enforce debts unless they have specific documents and information showing the debt is accurate and enforceable. "

First, these guys are not members of Hanna's firm any longer. Second, they never mentioned filing a suit nor did they threaten to do so. LSC only goes so far. If it ihn't oin the letter, it isn't in the letter.

Also, only the CFPB can enforce its own orders, OP cannot.

The link I posted contains both the actual complaint and the Consent Judgement Order. Both of those documents specifically name the two attorneys in question and they are named as defendants.  It doesn't matter that they don't work directly for Hanna any longer, they are still under the stipulated order of the court.

I am not suggesting Op can or should enforce this order (although I did suggest letting the CFBP know what they are up to - especially if they go any further than just sending a dunning letter), but any violation of this consent judgement would be an action not legally allowed to be taken and therefore, it would be an FDCPA violation which the OP certainly can take action on.
10 Arb Settlements (9 AAA, 1 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

Bruno the JDB Killer

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #125 on: March 21, 2016 04:49:47 PM »
I'm not sure that a consent judgment has the effect of statutory law. If they violate it, it's up to the cfpb to fine them. I don't see how this translates into an FDCPA violation in and of itself; they would have to commit a legit violation, in which case you do your own enforcing as well as file a complaint.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

wombat_ma

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #126 on: March 21, 2016 06:14:38 PM »
I'm not sure that a consent judgment has the effect of statutory law. If they violate it, it's up to the cfpb to fine them. I don't see how this translates into an FDCPA violation in and of itself; they would have to commit a legit violation, in which case you do your own enforcing as well as file a complaint.

In Massachusetts, the courts would have almost certainly considered it a violation of MGL Ch.93(a), an unfair consumer practice, with a potential to recovering legal fees and treble damages etc. Is there a similar statute in the OP's state? I would have looked into it.
I am not an attorney. My posts here are not legal advice.

fisthardcheese

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  • They forced arbitration into your contract. Use it
Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #127 on: March 21, 2016 06:26:21 PM »
In Massachusetts, the courts would have almost certainly considered it a violation of MGL Ch.93(a), an unfair consumer practice, with a potential to recovering legal fees and treble damages etc. Is there a similar statute in the OP's state? I would have looked into it.

Not really.  The consumer laws in GA are really weak.  The GA Fair Business Practices Act only allows recovery of actual damages for deceptive practices of a business.  Actual damages can be trebled for willful acts, but no other punitive or statutory damages exist in state consumer law.
10 Arb Settlements (9 AAA, 1 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

BellEbutton

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #128 on: March 21, 2016 07:07:30 PM »
That may be the case if they did not technically threaten a lawsuit, but I contend that a letter from a law firm to the LSC IS a threat to sue, no matter what the specific language may contain. 


Circuit Courts of Appeals have ruled that if a disclaimer is printed on the front of a letter stating something to the effect of "[a]t this time, no attorney with this firm has personally reviewed the particular circumstances of your account", a letter from an attorney would not be threatening or misleading.

In regard to the CFPB Consent Order and the letter received by the OP, the letter does not request payment.  It's for informational purposes only.

Pinson v. Albetertelli Law Partners, LLC  11th Circuit Court of Appeals, 2015

"There was no reference to the amount owed, no implicit or explicit demand for payment, and no discussion of the repercussions if payment was not tendered. The intent of the letter was to obtain the form that Pinson forgot to attach; it was not an attempt to collect a debt."

Bruno the JDB Killer

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #129 on: March 22, 2016 01:30:48 PM »
In Massachusetts, the courts would have almost certainly considered it a violation of MGL Ch.93(a), an unfair consumer practice, with a potential to recovering legal fees and treble damages etc. Is there a similar statute in the OP's state? I would have looked into it.


From 93 A:

Exemptions

Section 7. No provision of this Act shall apply to (a) Any activities which are exempt from any of the federal antitrust laws or the Federal Trade Commission Act other than by reason of the absence of a sufficient involvement of or impact upon interstate commerce; (b) Any activities which are subject to regulation or supervision by state or federal agencies; or (c) Any activities authorized or approved under federal, state or local law.


Law firms are regulated by the state bar association, so they should be exempt from 93A. In CT you can sue an attorney for unfair trade practices only if it relates to billing, organization, advertising, etc., not the actual practice of law.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

wombat_ma

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #130 on: March 22, 2016 02:20:08 PM »

From 93 A:

Exemptions
 (b) Any activities which are subject to regulation or supervision by state or federal agencies;

Law firms are regulated by the state bar association, so they should be exempt from 93A. In CT you can sue an attorney for unfair trade practices only if it relates to billing, organization, advertising, etc., not the actual practice of law.

State Bar associations are NOT government agencies, so this exception does not apply. And a very recent case, McDermott v Marcus in the First Circuit held a MA law firm liable under 93(a) for things like communicating directly with a debtor who was represented by an attorney.
I am not an attorney. My posts here are not legal advice.

Bruno the JDB Killer

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #131 on: March 22, 2016 02:48:35 PM »
The judge reversed herself in that case.


A law firm that violated the Fair Debt Collection
Practices Act while seeking to collect
unpaid condominium fees on behalf of its
condo association client could not be held liable
under Chapter 93A, a U.S. magistrate
judge has found. Following a bench trial, U.S.
Magistrate Judge Marianne B. Bowler found
that the defendant law firm — Marcus, Errico,
Emmer & Brooks, or MEEB — violated the
FDCPA by communicating directly with the
plaintiff condo owner instead of through his
attorney and by communicating with the
plaintiff’s mortgagees without his consent.
As a result, Bowler found the Braintree firm
per se liable under Chapter 93A pursuant to
state regulation. The law firm argued in a Rule
59(e) reconsideration proceeding that it could
not be held liable under 93A absent a showing
that its conduct arose in the course of trade or
commerce.
Bowler agreed, noting that she issued her
earlier order prior to the Supreme Judicial
Court’s 2013 Klairmont v. Gainsboro Restaurant,
Inc. decision, in which the SJC indicated
that Massachusetts regulations do not, in fact,
mandate per se 93A liability when a consumer
protection law has been violated.
“[The SJC’s] intervening change in the controlling
law provides a basis for Rule 59(e) relief,”
Bowler wrote, amending her earlier judgment.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

wombat_ma

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #132 on: March 22, 2016 03:11:16 PM »
The judge reversed herself in that case.


And was in turn partially reversed by a First Circuit Appeal Panel that remanded the case with an order to reimpose the 93(a) liability.

If you read the Appeal Panel analysis, it does not leave any doubt that lawyers and law firms might become subject of 93(a) for the way they practice law, and that basically any FDCPA violation is a 93(a) violation, the discussion is mostly about the specifics of the case.

See http://media.ca1.uscourts.gov/pdf.opinions/13-2181P-01A.pdf
I am not an attorney. My posts here are not legal advice.

Bruno the JDB Killer

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Re: Suit from Fred Hanna, FIA, Magistrate Court, GA
« Reply #133 on: March 22, 2016 04:51:51 PM »
Okay, I see what they did, it's a per se violation. They never even argued the exemption language.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

 

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