Author Topic: Law Office of Mitchell N. Kay - A detailed analysis of how and why to sue them.  (Read 29361 times)

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dls7406

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Due to their actions in connection with an alleged account of mine, and their general abuse of consumers across the board, I have decided they warrant their own how-to.

I will be going over every communication I have recieved from them, and any form letters board members want to send me or post, with a fine tooth comb.

If this becomes what I intend it to be, it just might become the first agency specific sticky. We'll see.

So dig out your old dunning letters from LOMNK and post them here with your info redacted, and we can all pick them apart for violations.

dls7406

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Attached is an initial dunning notice, and its envelope, that I received from Law Office of Mitchell N. Kay.

I noticed a tradeline from them on my credit report and called them, recorded, to trigger the 5 day clock on the 1692g notice. They failed to provide it within the five days so we have our first violation. But they did get around to sending me a Dun eventually.

First lets look at its envelope, since they violate before you even open it.

Through the window of the envelope the name "Law Offices of Mitchell N. Kay, P.C." can be read. Since LOMNK has been in the news lately, its name is publicly know as that of a "debt collector". This is a violation of 1692f (8 ). Since I happen to share a common mailbox with others, this also violates 1692c (b).

There are also other violations of 1692f (8 ) in the form of the unneeded text and  graphic of the eagle printed on the envelope. The eagle is not a postmark, it is only designed to look like one. If you look closely you will see that the envelope in fact has no postmark besides the alphanumeric string printed along the bottom. The law says nothing but their address, and there is certainly more than that. Why? They want consumers to be intimidated by the articles appearance and open it, plain and simple.

The language about "don't open if not for you" is superfluous and violative since it is a federal offense to open the mail of another. Again, it is only there to garner unwarranted attention and create a false sense of urgency. This type of activity was part of the reason the FDCPA was created in the first place, and was discussed by congress while it was being drafted.

For the Washingtonians reading this, the envelope contains violations of RCW 19.16.250 (9) if it is seen by a third party. If that violation causes you embarrassment, there is also a violation of RCW 19.16.250 (12). The overall form of the envelope also constitutes a violation of RCW 19.16.250(13).

Since each violation of the FDCPA is a per se violation of the washington consumer protection act, we have 3 violations of the FDCPA, and 6 violations of the WACPA. The penaltie for CPA violations is $2000 each. So far, we have

WACPA=$12,000 and
FDCPA$1000.

Shall we open the letter now? OK. I'll start a new reply with the letter.
« Last Edit: September 28, 2009 12:42:26 AM by dls7406 »

dls7406

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This thread is on the violations contained in their initial Dun. It is attached to the last post and the back, and my violation checklist is attached to this post. Same as last time, I'll go over FDCPA first and then WA violations.

In the scan with my checklist you will see that I have created a simple "intake form" that I use to audit each and every CA/JDB letter I receive. I sit down with the letter and the FDCPA, as well as RCW 19.16.250 and highlight the violations, then staple it to the back for handy future reference and complaint writing.

The first violation is of 1692d, generally. The entire purpose of the letter is to intimidate and OPPRESS the consumer into paying the debt based on the appearance that the letter is from a law office. This carries with it the fear of being sued or other legal action, and acts to induce payment out of fear alone. In fact, the letter is not from an attorney or law office at all, but from a debt collector who has carefully crafted his business formation in a way that causes the appearance of an attorney's involvement. This is also a violation of legal ethical standards and that avenue will be pursued through the NY Bar association.


Next we have a violation of 1692e (2). Several actually. 1. In my case, they are persuing the wrong party on a debt that would be beyond the SOL if it was valid, therefore any amount requested is a misrepresentation of the debt. 2. They call T-Mobile their "client" representing either an attorney/client or agency/OC relationship. Neither is the case since they bought the debt, and were not assigned it. 3. Based on the facts described in #2, by using the sentence "This settlement offer will be valid as long as our client, referenced above, continues to authorize this office to accept this amount." LOMNK has misrepresented that the OC has some authority to decide what amount may be accepted, or has any rights or involvement for that matter.

Next up is violation of 1692e (5) by threatening to submit a negative report to a CRA concerning this account since they legally can't, because it's not my debt. Also, the letter as a whole constitutes a threat to take legal action. That is something they can't do since the SOL is up by their own admission, and that would also require the debt to actually be mine.

Next is 1692e (8 )They threaten to report credit information which they know, or should know, to be false and have failed to report that I disputed the debt.

1692e (9) is violated by the same sentence that violates 1692e (2) as described above. They have distributed a written communication which creates a false impression as to its source, authorization, or approval.

1692e (10) is like shooting fish in a barrel. For a better description see here:  http://www.youtube.com/watch?v=Pd-MpXCMcIs

As already explained, they have violated 1692e (12).

By acting like T-Mobile owns the account they are violating 1692e (14).1692f (1) is violated because there is NO AGREEMENT upon which their claim is based which expressly authorises such amount, and I have never come across a law that expressly permits them to collect $300++ dollars from me.

I already covered the 1692f (8 ) violations in the envelope section.

The language about their settlement offer only lasting as long as their clients approval of such violates1692g generally by overshadowing my rights to request validation and causes the LSC to rush to get in a payment.

I will start a new reply for the WA violations because the jumping box is driving me nuts.
« Last Edit: September 28, 2009 02:15:45 AM by dls7406 »

dls7406

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 VIOLATIONS OF WASHINGTON CONSUMER PROTECTION ACT
Above and beyond all other violations, LOMNK is in violation of the Postal laws in the way they conduct business. Due to the fact that I will be persuing federal charges I will simply add a link to the USPS website that provides a nonexhaustive list of statutes enforced by them, and let you do your own reading on the issue. This of course is a violation of RCW 19.16.250 (2).

https://postalinspectors.uspis.gov/aboutus/laws.aspx

OTHER VIOLATIONS OF RCW 19.16.250:

No licensee or employee of a licensee shall:
 (7) Use any name while engaged in the making of a demand for any claim other than the name set forth on his or its current license issued hereunder.

Violated by using the name of T-mobile, a party not involved in the demand for payment.

     (8) Give or send to any debtor or cause to be given or sent to any debtor, any notice, letter, message, or form which represents or implies that a claim exists unless it shall indicate in clear and legible type:
     (a) The name of the licensee and the city, street, and number at which he is licensed to do business;
This information does not appear anywhere on the letter. Pretty cut and dry.   
     (c) If the notice, letter, message, or form is the first notice to the debtor or if the licensee is attempting to collect a different amount than indicated in his or its first notice to the debtor, an itemization of the claim asserted must be made including:
   (i) Amount owing on the original obligation at the time it was received by the licensee for collection or by assignment;

     (ii) Interest or service charge, collection costs, or late payment charges, if any, added to the original obligation by the original creditor, customer or assignor before it was received by the licensee for collection, if such information is known by the licensee or employee: PROVIDED, That upon written request of the debtor, the licensee shall make a reasonable effort to obtain information on such items and provide this information to the debtor;

     (iii) Interest or service charge, if any, added by the licensee or customer or assignor after the obligation was received by the licensee for collection;

     (iv) Collection costs, if any, that the licensee is attempting to collect;

     (v) Attorneys' fees, if any, that the licensee is attempting to collect on his or its behalf or on the behalf of a customer or assignor;

     (vi) Any other charge or fee that the licensee is attempting to collect on his or its own behalf or on the behalf of a customer or assignor.

Not included in the letter. Again, pretty cut and dry violations.
(9) Communicate or threaten to communicate, the existence of a claim to a person other than one who might be reasonably expected to be liable on the claim in any manner other than through proper legal action, process, or proceedings except under the following conditions:
By showing their name, which identifies them as a collection agency and communicates the existance of a claim, through the clear portion of the envelope, they have violated this statute. None of the excepted conditions apply.


    (10) Threaten the debtor with impairment of his credit rating if a claim is not paid.
This violation stands out in the letter like a sore thumb. Again, pretty cut and dry.

    (12) Communicate with a debtor or anyone else in such a manner as to harass, intimidate, threaten, or embarrass a debtor, including but not limited to communication at an unreasonable hour, with unreasonable frequency, by threats of force or violence, by threats of criminal prosecution, and by use of offensive language. A communication shall be presumed to have been made for the purposes of harassment if:

The third party disclosure caused me embarrassment, hence a violation. The letter as a whole offers other violations as well.
     (a) It is made with a debtor or spouse in any form, manner, or place, more than three times in a single week;

     (b) It is made with a debtor at his or her place of employment more than one time in a single week;

     (c) It is made with the debtor or spouse at his or her place of residence between the hours of 9:00 p.m. and 7:30 a.m.

    (14) Communicate with the debtor and represent or imply that the existing obligation of the debtor may be or has been increased by the addition of attorney fees, investigation fees, service fees, or any other fees or charges when in fact such fees or charges may not legally be added to the existing obligation of such debtor.
By failing to itemize the account as required above they have violated this statute. PM me for case law, it's pretty cut and dry.

     (15) Threaten to take any action against the debtor which the licensee cannot legally take at the time the threat is made.
First, by being vauge lying about the timeframe in which the "offer" is available they have overshadowed, and therefore threatened to deny me of my right to dispute. Secondly, the threat of reporting to the CRA violates because it is not my debt.
   
   (18) Collect or attempt to collect in addition to the principal amount of a claim any sum other than allowable interest, collection costs or handling fees expressly authorized by statute, and, in the case of suit, attorney's fees and taxable court costs. A licensee may collect or attempt to collect collection costs and fees, including contingent collection fees, as authorized by a written agreement or contract, between the licensee's client and the debtor, in the collection of a commercial claim. The amount charged to the debtor for collection services shall not exceed thirty-five percent of the commercial claim.
Again, failure to itemize as described above violates this statute.

     (19) Procure from a debtor or collect or attempt to collect on any written note, contract, stipulation, promise or acknowledgment under which a debtor may be required to pay any sum other than principal, allowable interest, except as noted in subsection (18) of this section, and, in the case of suit, attorney's fees and taxable court costs.
The bolded part in the letter about the " economic situation" violates this statute.

decamp

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Above and beyond all other violations, LOMNK is in violation of the Postal laws in the way they conduct business

Extortion (18 USC 873, 876 & 877)
Postal Inspectors investigate extortion and blackmail when demands for ransoms or rewards are sent through the U.S. Mail. Inspectors also strictly enforce laws prohibiting mail that contains threats of kidnapping, physical injury, or injury to the property or reputations of others.


Mailing a dunning letter demanding payment for a debt and threatening to report that debt to your personal credit report when they cannot legally do so - would that be a threat to injure your reputation?

dls7406

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I'd sure as marshmellow Peeps say so. But the federal charges are for something else. What you mention is just good grounds for proving some of my civil claims, and Tort claims as well. Just wait till they see that I am claiming damages in excess of $2,000,000 because I was denied a loan on a multifamily property due to their tradeline. Can you say defamation??

decamp

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I'd sure as marshmellow Peeps say so. But the federal charges are for something else. What you mention is just good grounds for proving some of my civil claims, and Tort claims as well. Just wait till they see that I am claiming damages in excess of $2,000,000 because I was denied a loan on a multifamily property due to their tradeline. Can you say defamation??

Interesting.. I'm going to throw that one on the pile of violations and see if my attorney will include it. They dunned me for an SOLR AND SOR-extinguished debt and said it WILL get reported to my personal credit report if I don't pay up.

I've lost count of all the violations this CA has piled up.

dls7406

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In response to their Dunning letter I sent them a VOD. A copy (without their name, dates etc. since it is my boilerplate VOD) can be seen in this link:

http://debtorboards.com/index.php/topic,8266.0.html

They recieved the letter (certified) and chose to send the attached letter, which I will simply call their WTF notice. Now, if you took the time to look at my VOD you can clearly see that I requested verification of the debt. At the point they sent their WTF notice they had not even attempted to provide verification.

Who else sees a glaring violation of 1692g (b)? Thought so. But what exactly was their reason to send me the WTF notice? Harrassment? Oppressive tactics? There certainly is no logical reason, statutory requirement, or statutory authorization to do so.

The WTF notice contains roughly half of the violations contained in their initial Dun.

Also, behind the scenes but present, is a violation of RCW 19.16.250 (9) (a) which says in pertinent part:

 if the licensee or employee of a licensee reports a claim to a credit reporting bureau, the licensee shall upon receipt of written notice from the debtor that any part of the claim is disputed, forward a copy of such written notice to the credit reporting bureau
Here's a little hint: I have written, as well as recorded phone call, from each CRA they reported to showing that this has not been done. In fact, they never follow this statute and that class action will be a fun one for them.

Also, since I have requested in writing that they provide me the itemization as required in RCW 19.16.250 and they failed to provide it again in this letter, every violation occurred again.

Their WTF Notice was essentially a "here, have another cause of action or twenty" letter. Total civil penalties under WA law: Over $30,000.

Since this is the form letter they send out in response to VOD, having a class certified should be easy.

And in case there was any doubt, it says right on the back that it is an attempt to collect a debt. Thanks LOMNK for making that clear for the court.

dls7406

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I would like to take a moment to point out that Mitchell N. Kay likes to play debt collection checkers when dealing with consumers. They think they are good at it, and for too long they have gotten away with it.

I would recommend playing chess with them. It is outside their usual experience and skillset. As an example I would recommend reading the following thread I wrote four months ago, and about ten days prior to my initial letter to them:

http://debtorboards.com/index.php/topic,324.0.html

http://en.wikipedia.org/wiki/Fork_%28chess%29

Before you engage the enemy, know his lands better than he does and you shall prevail.
« Last Edit: September 28, 2009 07:49:44 AM by dls7406 »

artistickat

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Hi DLS:

here is what LOOMNK sent me:

Creditor (OC)

Please be advised that your account, as referenced above, is being handled by this office.

We have been authorized to offer the oppurtunity to settle this account with a lump sum payment, equal to 40% of the balance due- which is $xxxxx!

This offer will be valid as long as our client, referenced above, continues to authorize this program. We are not obligated to renew this offer.

Unless you notify this office within 30 days after receving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office in writing within 30 days from receiving this notice that you dispute the validity of this debt or any portion thereof, this office will: Obtain verification of the debt or obtain a copy of a judgement and mail you a copy of such judgement or verification. If you request this office in writing within 30 days after receiving this notice, this office will provide you with the name and address of the original creditor, if different from the current creditor.

You are invited to visit our website www.lawofmnk.com to resolve this debt privately, or write to us to update your personal information. At this point, no attorney with this firm has personally reviewed the particular circumstances of your account
.

It also had the "eagle" postmark first class presort US postage paid. The date of the letter was about a week earlier than when it actually showed up in my mailbox.

Comment to your heart's content. I'll be sending my denial/validation letter next week.

dls7406

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That looks very similar to the one I posted. Did you look? Are they in fact the same letter? There is a form letter ID number printed on the bottom right corner of each LOMNK letter.

Follow the link in the post about chess/ checkers. Then call them recorded and ask this question:

Did you buy the account or was it assigned to you?

Then call the OC recorded and ask them the same question.

Then sue.

DFS

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This is interesting.  Re an envelope, 1692f(8) says "except that a debt collector may use his business name if ...

My question, if the attorneys business name is Dave B. Daver, P.C. (as looked up in state business records and it DOES NOT INCLUDE LAW OFFICE OF), and they put on the envelope in the return address:
Law Office of
Dave B. Daver
Rest of Address

Does this mean that "Law Office of" would be considered extra language?  (I have about a dozen envelopes with this on it.)

dls7406

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They would also be using a name other than that which is on their license. Big no-no.

DFS

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Ok, the next question is:

Don't most, if not all, of the attorneys collecting for the OC use this in the return address to get the attention of the debtor?

This seems too good to be true - but hey, I'm ready to file a lawsuit against them if they are intentionally (or even unintentionally) violating FDCPA.

DFS

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I was preparing a ITS for the collection attorney using Law Office of [Name] when I decided to do a little more research on 808(8)

Section 808(8) prohibits showing anything other than the debt collector's address, on any envelope in any written communication to the consumer, except that a debt collector may use his business name if it does not indicate that he is in the debt collection business.

Then I saw this:  Harmless words or symbols. A debt collector does not violate this section by using an envelope printed with words or notations that do not suggest the purpose of the communication. For example, a collector may communicate via an actual telegram or similar service that uses a Western Union (or other provider) logo and the word "telegram" (or similar word) on the envelope, or a letter with the word "Personal" or "Confidential" on the envelope.

Would this apply to them saying "Law Office of [name]?" 

Is there any case law on this one - seems to me all attorneys (well, maybe alot) would use this to get your attention?