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
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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
Decision (not yet available)
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
The court dismissed the bank's foreclosure for lack of paperwork and
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.
December 7, 2011 - DEBT MUST HAVE WITNESS WITH SUFFICIENT
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."