Spoliation and Cover-up by Portfolio Recovery Associates and Judge Lee P. Rudofsky

The jury is still out, so to speak, on the motivations for Trump appointed judge Lee P. Rudofsky to allow for Portfolio Recovery Associates to deem so much evidence in my case against them as “confidential”, and worse, to allow the evidence to be filed under seal. Turning the case into a Star Chamber is probably legal error. It definitely flies in the face of our Founding Father’s stated intent to give justice to all through a transparent legal system.

For fear of violating a court order, my report will lack my usual detail of the evidence. I feel comfortable telling you what is not in the sealed evidence.

Basic background: My claim is that the Goliath debt collector violated the FDCPA. Portfolio Recovery Associates,LLC is a wholly owned subsidiary of publicly traded PRA Group, Inc. I had no outstanding debt to them or the original creditor. PRA changed the balance on my account to zero, but only after I filed litigation against them. The FDCPA is a strict liability statute and I have a right to allow a jury to decide what the damages are. Instead of proceeding to trial, PRA filed a motion for summary judgment. The Court agreed to dismiss the majority of my claims based upon the evidence presented to the court, claiming no reasonable juror could find otherwise. Judge Rudofsky did allow me to proceed on one issue and a motion for reconsideration of the other issues, but did not allow me to discuss the evidence or lack of evidence openly with the public. This is concerning, since I showed the Federalist Society judge copies of similar evidence filed in other PRA cases.

I contend that some of the evidence is inconsistent and the company records have been altered.

Usually in a lawsuit, when one party starts shredding the evidence, the court will impose sanctions against them. But, up until recently, many courts opined that the spoliation must take place after litigation is filed. A wise appellate court justice in Massachusetts recently found how illogical this was and made the following order:

“Notice of docket entry received from Appeals Court Please take note that on January 30, 2023, the following entry was made on the docket of the above-referenced case: ORDER (RE #1): The plaintiffs JFF Cecilia LLC and Suffolk Construction Co., Inc. seek interlocutory review pursuant to G.L. c. 231, s. 118 (par. 1) of a January 6, 2023 order issued by a judge in the Business Litigation Session of the Suffolk Superior Court denying their motion for spoliation sanctions against the defendants Weiner Ventures LLC, and Stephen and Adam Weiner. As relief, the plaintiffs request that the single justice reverse the order or authorize the taking of an interlocutory appeal to a panel. ‘The doctrine of spoliation permits the imposition of sanctions and remedies where a litigant or its expert negligently or intentionally loses or destroys evidence that the litigant (or expert) knows or reasonably should know might be relevant to a possible action, even when the spoliation occurs before an action has been commenced.’ Scott v. Garfield, 454 Mass. 790, 798 (2009). Because the decision denying the motion notes the correct standard and also states that the ‘potential litigation must be probable . . . and not merely possible,’ and that the Weiners did not have an obligation to preserve evidence because ‘[a] reasonable person in the same position would, at that point, not think it very likely that they would be sued,’ I cannot tell if the judge applied the correct standard. Accordingly, the matter is remanded for the judge to determine if the defendants knew or reasonably should have known that evidence might have been relevant to a possible action. If the judge determines that the defendants spoliated evidence, they should then determine if it prejudiced the defendant. If so, they should determine if sanctions are appropriate. The order after remand is requested to be transmitted to this court within 30 days at MACClerkMatter@jud.state.ma.us. I also note that the plaintiffs request that they be permitted to present evidence of defendants’ alleged spoliation to the jury. I note that even where a judge denies a party’s motion for sanctions for spoliation, a plaintiff alleging spoliation is ‘free to argue that a trier of fact should hold the [defendant’s] failure to return [the documents] against the [defendant].’ Zaleskas v. Brigham & Women’s Hosp., 97 Mass. App. Ct. 55, 76 (2020). (Henry, J.) *Notice/attest/Salinger, J.”

Why have so many of the thousands of attorneys who have filed FDCPA cases against Portfolio Recovery Associates LLC and other junk debt buyers failed to question the practice of credit card companies and their successors of destroying the record before it is needed for litigation, even though there is a good probability that the documents will be needed?

In the cases connected to the collection of debt that are brought by the debt collectors, which vastly outnumber the cases against the debt collectors, the debt collector is tasked with producing enough documentation to verify the debt. Unfortunately judges like Lee P. Rudofsky hold the alleged debtor responsible for proving that the debt was either a clerical error or a fraudulent transaction, even though the old account level documentation was destroyed by the original creditor or its successors, and the statute of limitations for being sued on the debt has expired.

In my case, Portfolio Recovery took their destruction of evidence a step further. The records produced are not consistent. It is clear. A person of limited intelligence can look at one document and see that an event was documented and look at another document that covers the same time period and see that there is no indication of the same event.

Someone who has way too much time on their hands can look at my request for production of documents and see that certain documents requested were not produced on the open record. One of these is the company policy manuals. The public cannot look through my case file and learn what Portfolio Recovery Associates policies and procedures are. The public will not know from this case whether or not PRA representatives are required to log each time they make a phone call or not. The public will not know from this case whether or not PRA complies with 26 CFR section 1.6050P by issuing a 1099-C whenever it cancels debt, heeding the warning found in the IRS instructions, “Do not file Form 1099-C when fraudulent debt is canceled due to identity theft. Form 1099-C is to be used only for cancellations of debts for which the debtor actually incurred the underlying debt.”

PRA attorney from the firm of Troutman Sanders, LLP said in open court that PRA did not issue a 1099-C to me “in light of the litigation” but that should not be admissible as evidence because lawyers’ statements are not testimony. Because Judge Rudofsky hid most of the evidence from public scrutiny, when I report to the IRS, I can only tell them what happened to me, not what is in the record. That I did not receive a 1099-C ever in my life, but I had lawyers for Portfolio Recovery Associates LLC say there was a valid, not fraudulent debt and PRA waived it. Oh, and they waived it without including their largesse as part of a settlement.