In the Law
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
In Our Firm
March 16, 2010 - VOICEMAIL VIOLATES FDCPA IN NJ
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.
March 18, 2011 - VOICEMAIL VIOLATES FDCPA IN SO. CALIFORNIA
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.
May 11, 2010 - VOICEMAIL VIOLATES FDCPA - Nicholas 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.
March 4, 2011 - SUMMARY JUDGMENT REVERSED 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.
April 4, 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 (under
court rule, unpublished decisions do not have constitute
precedent and cannot be cited by the court as the basis for its decision but
can be shown to judges).
August 12, 2011 - COLLECTION COMPLAINT DISMISS: 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)
August 9, 2011 - ATTORNEY CAN'T BE 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.’"
July 12, 2011 - IF 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."
August 28, 2011 - SLOPPY PAPERWORK DERAILS WELLS FARGO
FORECLOSURE
Wells Fargo Bank, N.A. v. Martin
insufficient affidavits. 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.
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."
HOW THE DEBT BUYER INDUSTRY OPERATES
The Federal Trade Commission released a comprehensive study of the
debt-buying industry, called "
The Structure and Practices of the Debt
Buying Industry." (Click here for another place to get the report.)
(973) 379-7500
Copyright 2009-2013 - All rights reserved
Philip D. Stern
Attorney at Law, LLC
(formerly known as Philip D. Stern & Associates, LLC)
Philip D. Stern Attorney at Law, LLC
697 Valley Street, Suite 2d
Maplewood, NJ 07040
ph: 973-379-7500
July 25, 2013 - SENIOR LEGAL SPECIALIST AT MIDLAND CREDIT
MANAGEMENT NOT COMPETENT 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."
September 27, 2013 - COURT CERTIFIES CLASS AGAINST PRESSLER
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.