Shabbat Shalom! Judge Rudofsky’s Demeanor

I am slammed with legal work. I have to write an appellate brief, maybe a petition for writ of certiorari to the Arkansas Supreme Court and an opposition to a motion for summary judgment.

My doctor just gave me the news that I have Hoshimoto’s Disease. We caught it early and I probably don’t have thyroid cancer. That is the good news.

The bad news is that I need to go on a gluten free, dairy free diet. No more (real) pizza. I’m not a fan of fake foods, like imitation cheese.

The other good news is that I ate this way for a four-year period and a two-year period, and those were the most energetic, pain free six years of my life. Maybe I’ll get back that vigor it takes to take down bad judges.

You know I am still a wobbler on Judge Lee P. Rudofsky.

Today he used a word that tips my judgment of him a bit back in the happy direction.

He granted me an extension of time to write an important and challenging document as a “courtesy”.

If Judge Susan Weaver knows that word, the only time she uses it is to demand that other people treat her with courtesy.

Portfolio Recovery Associates’ attorneys at the Rose Law Firm and Troutman Pepper will probably whine about me writing a blog post today, after asking for a weeklong extension.

Writing is therapy for me. Legal writing is no fun. For every one page I file, I rip up 10 more. (Now you know I’m old, because I still equate writing with papyrus.)

Plus, this informal, brainstorming helps my thoughts gel.

Today I am thinking about a concept that I think Judge R. got wrong. He said a plaintiff in an FDCPA case based on 15 U.S.C. 1692(e)(2)(A) has the burden of proving that the alleged debt was not owed. I said I believed that I did not owe the alleged debt, and if the defendant could show me credible evidence such as where I shopped and when, I might be swayed to thinking I did incur a debt to PRA’s predecessor that did not get paid.

My reasons for thinking there was no debt are many. Not in detail, here are a few. PRA’s documentation shows I made a last payment of $0.00. I usually paid off the entire balance of my credit cards in full. PRA’s documentation shows that two months after I made my last payment, I made my last purchase. Then, for the first time in ten years, according to PRA’s records, I went delinquent.

Judge Rudofsky’s rendition of the events that followed is this:

“On March 10, 2021, Ms. Hammett filed the instant lawsuit.[fn] On March 11, 2021, PRA,
LLC closed Ms. Hammett’s account and waived it ‘in light of the ongoing litigation’ brought by
Ms. Hammett.[fn] On April 1, 2021, Ms. Hammett received a letter from PRA, LLC dated March 18, 2021.[fn] The letter was addressed to a Laura Lyman (not Laura Lynn).[fn] The letter referenced
Lyman’s account number and said that PRA, LLC had ‘completed the investigation into your
dispute and your account has been closed.'”[fn]

Judge Rudofsky is a brilliant writer. He does tend to lose the details into the footnotes, which are profuse. For example, after stating that PRA sent the first closure letter “in light of the ongoing litigation”, as if it was the God given truth, Judge Rudofsky gave a footnote that said, “Ms. Hammett denies this but fails to offer any evidence to raise a genuine dispute of material fact on whether PRA, LLC waived the debt.”

Not true. First, the meaning of the letter to any reasonable person (other than Judge Rudofsky, of course) would be that PRA discovered it was wrong about the debt and closed the account. PRA did not say anything about waiving a debt. PRA waited about 20 days before posting the letter. PRA did not make an offer to waive the debt as partial settlement of the suit. The original creditor did not send a Form 1099-C, which is required when a bank forgives a debt.

What I just did is the same thing I did in my opposition papers to PRA and my deposition. I keep open to the opposition’s point of view. I hope they will prove me wrong or admit to their errors, settle or let a jury decide the value of the damages and move on.

If there is a remote chance the opposition is right, I don’t make absolute statements about my perspective of the events. I give the other side a chance to produce its best evidence. If they have no evidence, to me, they have no case.

Judge Rudofsky called it “trying to turn the tables”. I think a debt collector must have a reasonable expectation that a debt is valid before trying to collect, even through non-judicial means.

I think it is impossible to prove a negative. “You have a debt.” “Do not.” “Do too.”

Maybe, if it was not a 10-year-old debt, I would have documentation of my payments. I don’t even remember all the banks I used back then and don’t know if they are in business. If they still exist, their 10-year-old records probably do not. Do you think proving that there was no debt, more probably than not, meets the burden for a plaintiff in an FDCPA claim? Judge Rudofsky does not.

Back in the day, in California, writing about Commissioner Alan Friedenthal, his wife Stef Padilla and the gang of black robed thugs in L.A., readers reached out to me a lot more than they do here in Arkansas. I even had people typewrite tips and mail them to me.

If you are an attorney who is secretly rooting for me, or even a regular person who has intel, please send an email to bohemian_books@yahoo.com, or send snail mail to 16 Gold Lake Club Road, Conway, Arkansas, 72032.

I would never have ex parte communications with a judge, but today I am sending good vibes out to Judge Rudofsky.

Shabbat Shalom.