Case No.: 23-2638, -3093, -3432

IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

LAURA LYNN HAMMETT,                   Plaintiff-Appellant,

v.

PORTFOLIO RECOVERY ASSOCIATES, LLC; DOES 1-99                   Defendant-Appellees

On Appeal from the United States District Court for the Eastern District of Arkansas

No. 4:21-cv-00189-LPR

[] Lee P. Rudofsky, District Judge

PLAINTIFF-APPELLANT’S PETITION FOR REHEARING EN BANC

Federal Rules of Appellate Procedure Rule 35(b) Statement

    The proceeding involves many questions of exceptional importance. (FRAP Rule 35(b)(1)(B)) This petition focuses on three.

1. Whether pro se litigants with meritorious cases lose because of what appears to be a bias against them.
2. Whether the United States District Court for the Eastern District of Arkansas discriminates systemically against litigants who can’t afford attorneys, by forbidding pro se litigants from filing electronically based solely upon class, instead of criteria that will allow everyone who is technically and ethically qualified access to this valuable tool.
3. Whether the regulatory opinions resulting from civil investigations by the Consumer Financial Protection Bureau are authoritative and may be used as evidence of the respondents’ practices.

    The panel decision conflicts with the following decisions of the United States Supreme Court and the United States Court of Appeals for the Eighth Circuit and consideration by the full court is therefore necessary to secure and maintain uniformity of the court’s decisions. (FRAP Rule 35(b)(1)(A))

1. Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), well settled.

“Common-law right of access to judicial records provides a measure of accountability to the public at large, which pays for the courts.”

• Whittington v. Tyson Foods, Inc., 21 F.4th 997, 1000 (8th Cir. 2021), well settled.

“Summary judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’  Fed. R. Civ. P. 56(a).”

• U.S. v. Melton, 738 F.3d 903 (8th Cir. 2013)

“The recusal statute sets forth an objective standard for assessing a judge’s duty to recuse: the question is whether the judge’s impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a case. 28 U.S.C.A. § 455(a).”

• U.S.A. v. Taleb Jawher, No. 22-2844 (8th Cir. 2023)

A party’s fabrication of business records exemplifies knowledge that the authentic evidence is adverse to that party. Extrapolating, spoliation of evidence gives a reasonable inference that the spoiled evidence is adverse to the party that altered or destroyed it.

• Friedman v. Farmer, 788 F.3d 862 (8th Cir. 2015), well settled.

“A district court ‘should freely give leave [to amend] when justice so requires.’ Fed.R.Civ.P. 15(a).”

Single Page Summary of Case Verbatim from Appellant’s Opening Brief

   Debt Collector Portfolio Recovery Associates’ willful and wanton violation of the FDCPA and a Consent Order injured me. The Court shrugged.

    No justice against PRA’s extortionist enterprise was attained. The Court failed. PRA intruded upon my seclusion, annoyed, and harassed me. Adverse verdicts and settlements against PRA total over $130,000,000 for similar conduct. PRA’s spoliation of evidence shows it knew its pattern and practice was unacceptable.

   I sent its calls to voicemail, blocked them, begged these strangers to stop and finally, in November 2020, acquiesced to answering questions on a recorded line. It didn’t help. My only option was to pay an invalid debt or file a lawsuit. I filed.

  PRA sent a letter saying it “has concluded its investigation of your dispute and is closing your account” with a balance of zero. Eight months later, for the first time, PRA said the debt had been “waived”. But PRA chose not to issue a form 1099-C.

  PRA was allowed to subpoena my entire physical and mental health record, despite the irrelevance, and published false, defamatory accusations against me.

  The Court granted summary judgment based on insufficient discovery, PRA’s inadmissible evidence, and disregard of my evidence. The grant of summary judgment is reserved for exceptional cases, emphasizing the court’s preference for full trials and thorough examination of evidence. Please grant me a jury trial.

  If it pleases this Court, I will attend oral argument for rebuttal and questions.

Panel Activity

     This case was originally “Before GRUENDER, ERICKSON, and STRAS, Circuit Judges”, called here “The Panel”. Unlike another case The Panel agreed should be heard en bank, this is the perfect vehicle for answering “momentous” questions. (Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339, 359 (7th Cir. 2017) (en banc) (Sykes, J., dissenting), as cited by STRAS, Circuit Judge, with whom GRUENDER, ERICKSON, GRASZ and KOBES, Circuit Judges, join, dissenting from the denial of rehearing en banc, Dylan Brandt, et al v. Leslie Rutledge, et al, No. 21-2875 (8th Cir. 2022)). “In light of the importance of the issue[s], and recognizing the power of the full court to overrule earlier decisions and to bring [Circuit] law into conformity with the Supreme Court’s teachings, a majority of the judges in regular active service voted to rehear this case en banc.” (Hively).

     The Panel failed to correct errors that denied Hammett equality and transparency in proceedings. In doing so, they slammed the doors of justice on those who can’t afford an attorney and helped the District Court take back what he called an “unconstitutional power grab” by the Consumer Financial Protection Bureau (“CFPB”). (Br. 72)

     The panel decision was notably imprecise and devoid of explanation.

     The Panel gave a 225-word opinion. The “reasoning”, omitting citations, amounts to this: “After careful review of the record and the parties’ arguments on appeal in the other matters, we agree with the district court’s thorough and well-reasoned analysis of Hammett’s claims; and we discern no error in the grant of costs. As to Hammett’s arguments challenging the district court’s rulings on a host of other issues, we find no basis for reversal.”

     The Panel then disposed of motions to unseal the spoiled evidence prepared by PRA and recordings of hearings that were transcribed improperly on another Hammett pro se case thus: “We also deny her pending motions.”

     Hammett intends to take this case, if not reversed, to the United States Supreme Court upon petition for writ of certiorari. They may have this to say:

     “It is to be regretted, that the case referred to had not been more fully reported. As it is not preceded by any statement of facts, abstracts of the history and laws of this society, or the arguments of counsel, the insulated unexplained opinion of the Court, as it is printed, must be ever unintelligible to all descriptions of readers, except those whose professional duties lead them to the study of the novel and extensive institution whose interests are involved in it.” (Mutual Assur. Soc. V. Faxon, 19 U.S. 606, 1821 WL 2164, 5 L.Ed. 342, 6 Wheat. 606.)

     The United States Supreme Court reviewed a decision by the Ninth Circuit Court of Appeals and reversed. “The Court of Appeals for the Ninth Circuit [decided] in a three-paragraph unpublished memorandum opinion. 389 Fed.Appx. 640 (2010). In so doing, the court did not discuss any specific facts or mention the reasoning of the other three courts that had rejected Jackson’s claim. Instead, after setting forth the basic background legal principles in the first two paragraphs, the Court of Appeals offered a one-sentence conclusory explanation for its decision:

‘The prosecutor’s proffered race-neutral bases for peremptorily striking the two African–American jurors were not sufficient to counter the evidence of purposeful discrimination in light of the fact that two out of three prospective African–American jurors were stricken, and the record reflected different treatment of comparably situated jurors.’ Id., at 641.

     “That decision is as inexplicable as it is unexplained. It is reversed.” (Felkner v. Jackson, 562 U.S. 594, 131 S.Ct. 1305, 179 L.Ed.2d 374.)

     This Eighth Circuit decision is stark in comparison. Especially because the Ninth Circuit could look back on lower appellate court review. Hammett detailed with specificity the errors made sua sponte by the District Court, which will be touched upon in the sections titled “Consistency” and “Fairness”. The Panel failed to find specific flaws in Hammett’s rebuttal of the orders.

     The Panel did not address Hammett’s argument about why her NOA of the order on her post judgment motion to revive a subpoena was timely. (Br. 24)

     “Kuntz v. Rodenburg LLP, 838 F.3d 923, 924 (8th Cir. 2016) (standard of review)”, on summary judgment. Hammett gave specific citations to evidence that raised a genuine dispute of material facts in her brief.

    “Dindinger v. Allsteel, Inc., 853 F.3d 414, 431 (8th Cir. 2017) (standard of review)”, costs. The Panels citation refers to 28 U.S.C.A. §1920. This code makes taxation of costs discretionary by use of the word “may”. It is an abuse of discretion to charge any costs to Hammett when PRA agreed that it only agreed to a zero balance “in light of the litigation”.

    Ironically, the Court gave PRA an excuse to resume collection activity.

    The point should be moot when summary judgment orders are reversed.

    A decision by the full court can provide a more comprehensive and authoritative ruling.

    Rehearing en banc is crucial for maintaining judicial consistency and fairness.

Consistency

     The robust citation to authorities throughout Hammett’s opening brief point to the inconsistencies with Eighth Circuit cases as well as cases nationwide. Of particular note are the $82M Jury Verdict Mejia case, Portfolio Recovery Associates, LLC v. Guadelupe Mejia, 2016 WL 3460177 (Mo.App. W.D.) Appeal No. WD79175 (Br. 28, 57, 64, 67, 88 and Reply Br. 17, 31, 38, 39) and another pro se case called Green, Mazie Green v. Portfolio Recovery Associates, LLC, Court of Appeals of Virginia, Record No. 0144-22-3, February 20, 2024 (Reply Br. 18, 19).

     The CFPB investigated PRA twice. The first resulted In the Matter of Portfolio Recovery Associates, LLC, ADMINISTRATIVE PROCEEDING File No. 2015-CFPB-0023 [AKA Consent Order]. The CFPB found that the portfolios PRA bought before 2015, which might include the portfolio PRA claims it purchased from Capital One that purportedly had a line item for The Debt, were full of inaccuracies. PRA agreed to cease collections on debts like Hammett’s that lacked Old Account Level Documentation. (Br. 2)

     Hammett filed her suit in early 2021, claiming that PRA violated the Consent Order by its conduct toward her.

     In 2023, the CFPB filed a complaint against PRA that mimicked Hammett’s complaint, but said the bad conduct effected hundreds of thousands of consumers. (CFPB v. Portfolio Recovery Associates, LLC, Case 2:23-cv-00110, U.S.D.C. Eastern District of Virginia [AKA CFPB Complaint and Stipulated Judgment]) (Br. 31, 63, 64, 70)

Fairness

     Pro se litigants are at a disadvantage. They do not have a formal legal education. Many are not gifted communicators.

     The District Court noted that Hammett communicates well. She has a good lifetime record of staying out of court and prevailing when she is forced to resort to litigation pro se. Her case is a good vehicle to try to right some of the injustices that pro se litigants commonly suffer.

     Hammett was denied the electronic filing tool by the Eastern District of Arkansas. It would make as much sense for the Court to demand Hammett brush off the typewriter she used in college and use it instead of a computer with a word processor. Or, like pro se inmates, hand write her documents.

     Hammett was not allowed to hear the recording of a hearing she recalled quite differently than the transcript portrays it. It is common to allow attorneys to play back the recordings when they ask.

     The Court participated in a cover-up of documentary evidence that is inconsistent. PRA clearly created a phone log that does not have all the calls on it, a communication log that has far fewer entries than the phone log and produced fewer recordings of calls than the number that were connected. Evidence used to make a summary judgment determination should be made public as if it was seen by a jury. Especially since the forms were produced in other cases.

     The judge that was counsel to WalMart, who partners with Capital One on branded credit cards and who sells portfolios of debt to PRA, should have disclosed this relationship and recused himself.

     Instead, the Court told numerous falsities, including truncating a sentence to bolster the lie that Hammett agreed she owed The Debt.

Conclusion

     Petitioner-Appellant begs the Eighth Circuit to rehear this appeal, including two motions, en banc and to give a reasoned opinion as to why Hammett’s plethora of arguments presented in her briefs are wrong.

Respectfully submitted,

June 18, 2024                                                 Laura Lynn Hammett