Jury Awarded $82,000,000 Punitive Damages Against Portfolio Recovery Associates, LLC. It Didn’t Stop Them.
Portfolio Recovery Associates, LLC buys junk debt for pennies on the dollar, and then the army of attorneys file about 3,000 lawsuits per week against alleged debtors, knowing 90% won’t even go to court to protect themselves. PRA takes a default and starts garnishing bank accounts and wages. They even settled a claim by the attorney general of Massachusetts who said that the company took old folk’s pensions.
Some people might owe the alleged debts. It does not matter to PRA though whether the debt is a clerical error or the result of fraud. According to the Consumer Financial Protection Bureau, hundreds of thousands of people fall victim to PRA’s impermissible collection of inauthentic debt each year.
Federal District Court Judge Lee P. Rudofsky is presiding over a case in the Eastern District of Arkansas in which I am plaintiff against Portfolio Recovery Associates. It is not looking too good for me. I know I should win. I have known since before discovery and two years of research that I should win. But Judge Rudofsky already dismissed the vast majority of my claims on a motion for summary judgment.
I recently was dismissed as a defendant in a case where the plaintiff’s attorney, judge and court reporter fabricated hearing dialogue. Portfolio Recovery recently agreed to pay $12M in restitution and $12M in a civil fine for violating the same statutes against hundreds of thousands of victims that I claim they violated against me. So, why not believe them more than he believes me?
All I am asking for is to present my case to a jury. Another PRA victim sued the company in 2015 and was awarded $82M in punitive damages on top of $250,000 in actual damages and $1,000 in statutory damages. PRA appealed. The case was remanded after settlement and before the appellate court issued an opinion based on the briefs.
You can scroll down to download the original version of the trial court order below. The footnotes were deleted or made part of the text body in this cut and pasted version. I added a few comments of my own in straight parenthesis or red.
IN THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
AT KANSAS CITY
PORTFOLIO RECOVERY
ASSOCIATES, LLC, A LIMITED
LIABILITY COMPANY,
Plaintiff/Counterclaim Defendant,
Case No. 1216-CV34184
v. Division 9
GUADALUPE MEJIA,
Defendant/Counterclaim Plaintiff.
JUDGMENT/ORDER
Pending before the Court is Counterclaim Defendant Portfolio Recovery Associates,
LLC’s (“Defendant’s”) Motion For Judgment Notwithstanding The Verdict, Or In The
Alternative, To Amend, Modify, And/Or Remit The Judgment. The Motion is denied.
Background
On October 31, 2014, this Court entered Judgment for the Plaintiff on her malicious
prosecution counterclaim and her Fair Debt Collections Practices Act (“FDCPA”) counterclaim
and ordered that trial proceed on damages only. On May 4, 2015, this case came before the
Court for trial on damages only. On May 11, 2015, the jury awarded Maria Guadalupe Mejia
Alcantara (“Plaintiff”) $250,000.00 in compensatory damages and $1,000.00 in statutory
damages on her FDCPA claim. The jury also awarded her $250.000.00 in compensatory damages on her malicious prosecution claim and found Portfolio liable for punitive damages.
After further deliberation, the jury awarded $82,009,549.00 in punitive damages.
Following trial, the Court entered Judgment in favor of Plaintiff and against Defendant
for punitive damages in the amount of $82,009,549.00, compensatory damages in the amount of
$250,000.00, statutory damages in the amount of $1,000.00. The Court further awarded Plaintiff
attorney’s fees and expenses as follows: (a) actual damages in the amount of $9,995.00 for the
attorney’s fees associated with the her defense; (b) attorney’s fees in the amount of $276,025.00
under the FDCPA; and (c) expenses in the amount of $33,222.97 under the FDCPA.
The pending motion was timely filed and contains numerous issues. The Motion is
denied, but the Court will specifically address the Defendant’s request for review of the jury’s
punitive damage award.
The Court acknowledges the purpose of punitive damages is to serve the State’s interest
in punishment and deterrence, and that these interests cannot be served unless potential
defendants have fair notice, not only of the conduct that will subject them to punishment, but
also of the severity of the penalty that a State may impose. “The decision to punish a tortfeasor
through an award of punitive damages is an exercise of state power that must comply with the
Due Process Clause of the Fourteenth Amendment of the United States Constitution and with
Article I, section 10, of the Missouri Constitution.” Mansfield v. Horner, 443 S.W.3d 627, 643
(Mo. Ct. App. 2014) (internal quotations and citations omitted).
Thus, the Court must review the punitive damage award to determine whether it is
“grossly excessive.” Id. Such analysis includes review of three guideposts: 1) the degree of
reprehensibility of a defendant’s conduct, 2) the ratio of the punitive award to the actual and
potential harm from the defendant’s wrongdoing, and 3) the criminal and regulatory sanctions for
comparable misconduct. BMW of North America v. Gore, 517 U.S. 559, 574-75 (1996).
[Such as the 2015 civil fine against PRA for $8,000,000 and the agreement to pay a civil fine of $12,000,000 made on March 23, 2023.]
Guidepost One
“The most important indicium of the reasonableness of a punitive damages award is the
degree of reprehensibility of the defendant’s conduct.” State Farm Mut. Auto. Ins. Co. v.
Campbell, 538 U.S. 408, 419 (2003) (internal quotation and citation omitted). The Supreme
Court suggested several factors should be considered when determining reprehensibility of
conduct: “the harm caused was physical as opposed to economic; the tortious conduct evinced an
indifference to or a reckless disregard of the health or safety of others; the target of the conduct
had financial vulnerability; the conduct involved repeated actions or was an isolated incident;
and the harm was the result of intentional malice, trickery, or deceit, or mere accident.” Id. at 419
(citation omitted).
Here, although the potential harm to the Plaintiff may be considered economic, there was evidence Defendant’s conduct had a physical and health-related impact on this particular Plaintiff, her financial vulnerability was particularly concerning. Plaintiff, although working, was in financial distress. She spoke limited English. She did not understand the legal system and had no
financial ability to hire an attorney. She was afraid she would lose all she had worked for – her
home of twenty years, her family, and her freedom. And, throughout this litigation, Defendant
preyed upon those fears. Further, Defendant’s conduct “involved repeated actions” in many
respects.
From the beginning of the litigation, Defendant attempted to use the fact Plaintiff had no
social security number to intimidate her. Defendant represented to the Court and Plaintiff it
could not mount a defense to Plaintiff’s claims or dismiss its claim against her until her social security number was revealed.
[In my case, PRA is well aware that I have had biased judges make Draconian orders against me and that I dread fighting anymore of my own cases without an attorney to represent me.]
Eventually it was discovered an attorney had disclosed to Defendant, before Plaintiff filed her counterclaim, Plaintiff had no social security number. And at trial, evidence established Defendant resolved claims, in many instances, without disclosure of
a social security number.
[PRA demanded that I tell them the last four digits of my social security number before they would tell me what company was calling me.]
Defendant repeatedly was put on notice Plaintiff was not the correct person, but pressed
forward with the lawsuit against her anyway. To locate the debtor account holder, Defendant
relied on a Lexis Nexis search of a very common Hispanic name – the accuracy of which was
specifically disclaimed. Defendant was warned it should independently verify the information.
Defendant’s collection law firm, Gamache and Meyers, P.C., reviewed an Experian report that
did not verify Plaintiff’s address, and in fact, indicated a Kansas address.
The day after the collection suit was served on Plaintiff, she appeared at legal aid
distraught and crying. Suzanne Gladney, a practicing attorney for thirty-seven years, testified
she spoke to three people at Gamache and Meyers and told them they had the wrong person,
gave them identifying details about Plaintiff (she lived in Missouri, owned her home, never had a
credit card) and attempted to fax to the law firm Plaintiff’s passport, which the firm refused. She
told them Plaintiff did not have a social security number, and Gladney attempted to obtain the
fraud affidavit Defendant wanted filled out. In response, Defendant arrived in Court prepared to
seek a default judgment against Plaintiff.
[PRA and Judge Rudofsky faulted me for not filling out the fraud affidavit presented to me, as if filling it out would make one bit of difference.]
As the lawsuit progressed, Defendant obtained account documents showing credit card
payments were being made on the account from the Kansas address, as opposed to Plaintiff’s
address.
[The account documents in my case did not even show where any purchase was made. For the first eight months of litigation PRA claimed there were no statements at all. Then they claimed to find the “charge-off statement” but did not produce any statements that showed payments or purchases. It seems likely that PRA has those statements, and they would show that the charges were made by some other “Laura Lynn”, someone named “Laura Lyman” whom PRA named on one letter it addressed to me, or one of my less than honest exes. Like, if the charge was made at a brothel in Nevada while I was at a family function in Los Angeles, it was probably made by the fraudster Mike Pietrczak who wrote that his lawsuit against me was part of a fraudulent scheme.]
Plaintiff denied the debt in her Answer and responded, under oath, to interrogatories,
document requests, and requests for admissions (63 questions but ironically Defendant did not
request Plaintiff’s date of birth or social security number) providing even more personal
information establishing Plaintiff was not the debtor Defendant was seeking. But, Defendant
continued to pursue its suit.
At trial, Defendant admitted it maintained its lawsuit against Plaintiff, not merely to
collect the $1,137.14 credit card debt owed, but because she filed a counterclaim.
[PRA attorney James Trefil of Troutman Pepper said it zeroed out my balance “in light of” the lawsuit I filed.]
When Defendant did dismiss the case against Plaintiff, it did so “without prejudice” and threatened to
refile against her even though it had no reason to question her and the conclusive evidence she
was not the debtor.
[PRA said it waived the alleged debt against me, but, after seeing how partial Judge Rudofsky was to them, tried to intimidate me into confessing to the debt.]
Defendant testified through its attorneys and corporate representative that its business
model did not include independent investigation of an accused’s claim she did not owe the debt
at any point from purchase of the debt to litigation – even if legitimate concerns were raised. It
maintained it is the wrongly accused’s burden to dispute the debt, prove it is not theirs, and
provide to Defendant personal information.
[And Judge Rudofsky agrees with PRA.]
Defendant testified the fault for the present litigation was Plaintiff’s. Defendant made no apologies, testified its policies were sound, and no changes were anticipated.
[All the while, as in my case, PRA was negotiating with the CFPB to curtail its miscreant conduct.]
Throughout the case, Defendant demonstrated a disrespect for the law. Numerous
discovery abuses resulted in the Court sanctioning Defendant. Defendant argued at trial, had
Plaintiff merely filled out a “fraud affidavit,” the case could have been resolved.
[Pff.]
However, that fraud affidavit would have required Plaintiff to perjure herself, a fact communicated to
Defendant through Plaintiff’s counsel.
[PRA did not tell me anything about where or on what my alleged debt was incurred; they wanted me to swear under penalty of perjury who I suspected made the charge. I mean, come on guys, give me a little hint here.]
During trial, collection counsel testified about a manufactured letter, supposedly representative of a letter sent to Gladney, but containing an address different than the address provided by Gladney. Counsel acknowledged that the original should have been maintained but was “lost.”
[PRA has a bit of practice now. Since there was no Old Account Level Documentation on my account, PRA “found” a statement eight months after their investigation was supposedly “completed”.]
Evidence was presented establishing Plaintiff’s experience was not an isolated incident.
Brian Logan, an active member of the military, was harassed for years by the Defendant until he
complained to the Missouri Attorney General’s Office. He offered to fill out a fraud affidavit
and when he provided his address for that purpose, he received only bills and no fraud affidavit.
Defendant accused Logan’s wife of having an affair as an explanation for the existence of the
account.
Dr. Ronald Harstad and his wife were harassed and berated by Defendant even though
he disputed the debt in writing. His hiring of an attorney and filing of a counterclaim finally
ended the matter, and he did not have to fill out a fraud affidavit. Evidence showed Defendant
receives more complaints than any debt buyer in Missouri. And, at least 375 mistaken identity
claims have been raised against Defendant. These claims were the subject of discovery abuse litigation. The Court read an adverse
inference instruction because it was determined Defendant never did provide all the claims
discovery as ordered by the Court.
[Portfolio Recovery did not tell me who provided their phone service and Judge Rudofsky acted like their own notes would suffice as evidence of when and how many calls they made to me.]
Based on the evidence before it, the Court finds
Defendant’s conduct to be intentional and malicious.
Guidepost Two
In awarding punitive damages, “courts must ensure that the measure of punishment is
both reasonable and proportionate to the amount of harm to the plaintiff and to the general
damages recovered.” Campbell, 538 U.S. at 426. The Court has repeatedly rejected that the
difference between a reasonable and grossly excessive award can be determined by “a simple
mathematical formula, even one that compares actual and potential damages to the punitive
award.” Id. at 424-25 (internal quotation and citation omitted). And, while the Supreme Court
noted “[s]ingle-digit multipliers are more likely to comport with due process, while still
achieving the State’s goals of deterrence and retribution, than awards with ratios in range of 500
to 1,” id. at 425 (citation omitted), due process may still be satisfied by a higher ratio where “a
particularly egregious act has resulted in only a small amount of economic damages,” id.
(citation omitted), or “where the injury is hard to detect or the monetary value of noneconomic
harm might have been difficult to determine.” Gore, 517 U.S. at 582.
Where larger discrepancies between the size of the compensatory damages and punitive
damages have been allowed, the Court has relied on the idea that they must weigh the actual and
potential harm to the plaintiff the defendant’s conduct caused. See TXO Prod. v. Alliance Res.
Corp., 509 U.S. 443, 460 (1993) ($19,000 in actual damages and $10 million in punitive
damages, a 526-to-1 ratio, for slander of title); see also, Lynn v. TNT Logistics N. Am. Inc., 275
S.W.3d 304, 311-13 (Mo. Ct. App. 2008) (9 to 1 ratio applied by the trial court too low to punish
and deter a defendant; 75 to 1 ratio applied); Estate of Overbey v. Chad Franklin Nat’l Auto
Sales, 361 S.W.3d 364, 373 (Mo. 2012) (ratio of 111 to 1 upheld); Lewellen v. Franklin, 441
S.W.3d 136 (Mo. 2014) (double-digit ratio endorsed after considering defendant’s lack of
remorse, refusal to rectify reckless practices, and refusal to comply with discovery); Smith v.
New Plaza Pontiac Co., 677 S.W.2d 941 (Mo. Ct. App. 1984) ($400 in actual and $30,000 in
punitive damages, a 75-to-1 ratio, for making misrepresentations about the condition of a used
car); Kemp v. Am. Tel. & Tel. Co., 393 F.3d 1354 (11th Cir. 2004) ($115 in compensatory
damages and $250,000 in punitive damages, a 2,172-to-1 ratio, for fraudulent billing practices);
Parrott v. Carr Chevrolet, Inc., 107 P.3d 473 (Or. 2001) ($11,496 in compensatory damages and
$1 million in punitive damages, an 86-to-1 ratio, for misrepresentations related to the sale of a
vehicle). Here, the Court finds the Defendant’s actions are particularly egregious. After review
of the jury’s awards and the evidence before the Court, the measure of punishment is both
reasonable and proportionate to the amount of harm and potential harm to the plaintiff and to the
general damages recovered.
Guidepost Three
“A reviewing court engaged in determining whether an award of punitive damages is
excessive should ‘accord ‘substantial deference’ to legislative judgments concerning appropriate
sanctions for the conduct at issue. ’” BMW of North America, Inc., 517 U.S. 559, 583 (1996)
(quoting Browning–Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 301
(1989)) (O’Connor, J., opinion concurring in part and dissenting in part). There are no
comparable criminal penalties to be considered here.
Conclusion
The Court finds the harm to Plaintiff was the result of intentional malice and not mere
accident. This Defendant owns debt in all 50 states – 750,000 accounts in Missouri, 37,500 of
which are in litigation. It shows no remorse. It’s business model is irresponsible and preys
against the financially vulnerable. The Court does not intend to make any comment on the debt buying industry generally and is
limiting its analysis to the evidence presented in this case about this Defendant.
This Defendant does not respect the Court’s rules. And,
especially reprehensible is Defendant’s use and abuse of our court system to harm the Plaintiff.
Under the facts presented in this case, the Court cannot find that the jury’s punitive damage
award – equating to half of Defendant’s net profits for one year – is grossly excessive. The Court is not relying on the wealth of the Defendant to justify the award, but rather the reprehensibility of Defendant’s conduct.
It is hereby ORDERED Counterclaim Defendant Portfolio Recovery Associates, LLC’s Motion For
Judgment Notwithstanding The Verdict, Or In The Alternative, To Amend, Modify, And/Or
Remit The Judgment is denied.
JOEL P. FAHNESTOCK, JUDGE
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing was hand delivered/faxed/emailed/mailed and/or sent
through the eFiling system to the following on 4th day of November, 2015:
EDWARD J. MYERS, Attorney for Plaintiff, GAMACHE & MYERS PC, 1000 CAMERA AVE – STE
A, SAINT LOUIS, MO 63126, (314) 835-6604, EdwardMyers@GMCollects.com
GINA MARIE CHIALA, Attorney for Defendant, 1627 MAIN STREET, SUITE 900, KANSAS CITY,
MO 64108, (816) 531-2147, GinaChiala@jobsandfreedom.org
SUNMIN JEREMIAH HONG, Attorney for Plaintiff, 231 S BEMISTON AVE, SUITE 1111, ST LOUIS,
MO 63105,
DALE K IRWIN, Attorney for Defendant, SLOUGH CONNEALY IRWIN, & MADDEN LLC, 1627
MAIN STREET, SUITE 900, KANSAS CITY, MO 64108, (816) 531-2147, dirwin@scimlaw.com
JOSHUA C DICKINSON, Attorney for Plaintiff, 1000 WALNUT ST STE 1400, KANSAS CITY, MO
64106, (816) 474-3216, jdickinson@spencerfane.com
KERSTEN LEIGH HOLZHUETER, Attorney for Plaintiff, SPENCER FANE BRITT & BROWN LLP,
1000 WALNUT STREET, SUITE 1400, KANSAS CITY, MO 64106, (816) 474-3216,
FRED L SLOUGH, Attorney for 3rd Party, SLOUGH CONNEALY IRWIN & MADDEN, 1627 MAIN
SUITE 900, KANSAS CITY, MO 64108, (816) 531-2147, fslough@scimlaw.com
ELIZABETH C CARVER, Attorney for Plaintiff, BRYAN CAVE 3600, 211 N BROADWAY, ST
LOUIS, MO 63102-2733,
ROBERT M. THOMPSON, Attorney for Plaintiff, ONE KANSAS CITY PLACE, 1200 MAIN ST, STE
3800, KANSAS CITY, MO 64105, (816) 855-3233, rmthompson@bryancave.com
Law Clerk, Division 9
Portfolio Recovery Associates, LLC Caught Again
This is a press release from the Consumer Financial Protection Bureau. I am suing PRA for violating the FDCPA on an alleged debt against me. Thus far, Cornell and Harvard educated Federal District Court Judge Lee P. Rudofsky has swallowed every lie told by PRA’s attorneys from Rose Law Firm and Troutman Pepper, hook line and sinker.
CFPB Orders Repeat Offender Portfolio Recovery Associates to Pay More Than $24 Million for Continued Illegal Debt Collection Practices and Consumer Reporting Violations
Debt collection giant filed lawsuits even when it lacked documentation about the debt
MAR 23, 2023
SHARE & PRINT
WASHINGTON, D.C. – The Consumer Financial Protection Bureau (CFPB) took action today against Portfolio Recovery Associates, one of the largest debt collectors in the nation, for violating a 2015 CFPB order and engaging in other violations of law. The CFPB filed a proposed order today that, if entered by the court, would require Portfolio Recovery Associates to pay more than $12 million to consumers harmed by its illegal debt collection practices, in addition to a $12 million penalty that would be deposited into the CFPB’s victims relief fund. Portfolio Recovery Associates violated the 2015 order by collecting on unsubstantiated debt, collecting on debt without providing required documentation and disclosures to consumers, suing or threatening legal action against consumers without offering or possessing required documentation, and suing to collect on debt outside the statute of limitations. Portfolio Recovery Associates also failed to properly investigate and resolve consumer disputes about the company’s credit reporting. Today’s action is one of many actions the CFPB has recently taken to hold repeat offenders accountable.
“After getting caught red-handed in 2015, Portfolio Recovery Associates continued violating the law through intimidation, deception, and illegal debt collection tactics and lawsuits,” said CFPB Director Rohit Chopra. “CFPB orders are not suggestions, and companies cannot ignore them simply because they are large or dominant in the market.”
Portfolio Recovery Associates is a wholly-owned subsidiary of publicly traded PRA Group (NASDAQ: PRAA), and is one of the largest debt collectors in the United States. The company’s principal headquarters is in Norfolk, Virginia. PRA Group reported net income of over $183 million in 2021.
In September 2015, the CFPB ordered Portfolio Recovery Associates to pay more than $27 million in consumer refunds and penalties for deceptive debt collection tactics. In that case, the CFPB found that Portfolio Recovery Associates collected on unsubstantiated debt, filed misleading affidavits in debt-collection actions, misrepresented that it intended to prove debts if consumers contested them, and misrepresented that the company had legally enforceable claims to debts outside of the applicable statutes of limitations.
The 2015 order required Portfolio Recovery Associates to adhere to provisions including prohibitions on:
- Collecting debts without a reasonable basis,
- Selling debt,
- Threatening or filing collection lawsuits without an intent to prove the debt,
- Filing false or misleading affidavits in debt-collection actions,
- Making false or misleading representations, and
- Collecting or suing on debt that was outside the statute of limitations.
In today’s complaint, the CFPB charged Portfolio Recovery Associates with violating numerous requirements of the 2015 order during the five-year period the order was in effect and engaging in deceptive conduct in violation of the Fair Debt Collection Practices Act and the Consumer Financial Protection Act, including:
- Making representations about unsubstantiated debts: Portfolio Recovery Associates made at least tens of thousands of representations about unsubstantiated, disputed debts, failing to review the required documentation to support the claim.
- Threatening consumers with potential legal actions and initiating debt collection lawsuits without offering or possessing required documentation: Portfolio Recovery Associates’ lawyers sent millions of form letters to consumers notifying them of potential legal action without offering to provide all required documents. Portfolio Recovery Associates also initiated thousands of legal actions against consumers when it lacked proper documentation about the debt.
- Misrepresenting that it would provide certain documents within thirty days: The form letter notifying consumers of potential legal action stated that, upon receipt of a written request from the consumer, Portfolio Recovery Associates would provide within 30 days of request the proof of documentation mentioned in the letter. On numerous occasions, Portfolio Recovery Associates failed to timely provide these documents after receiving a consumer’s written request for them. This impeded consumers’ ability to determine whether a debt was truly owed and how they should respond to allegations of outstanding debts.
- Collecting on time-barred debt without making required disclosures: On numerous occasions, Portfolio Recovery Associates did not provide the required disclosures to consumers when collecting on debts beyond the statute of limitations. When the company purchased debt, it estimated the statute of limitations that governed the debt, and in some cases that date was later than the actual statute of limitations.
- Suing to collect on time-barred debt: Portfolio Recovery Associates initiated at least dozens of lawsuits for debt that was too old to legally enforce. In doing so, Portfolio Recovery Associates falsely represented that those consumers had legally enforceable obligations to pay those debts when in fact they did not because the debt was outside the statute of limitations.
The CFPB also alleges that Portfolio Recovery Associates committed numerous violations of the Fair Credit Reporting Act and its implementing Regulation V, which include:
- Failing to inform consumers about investigation outcomes: On numerous occasions when Portfolio Recovery Associates determined that a consumer’s dispute was frivolous or irrelevant, it failed to timely inform the consumer about what information would be necessary for Portfolio Recovery Associates to investigate the dispute.
- Failing to timely resolve disputes: On at least tens of thousands of occasions, Portfolio Recovery Associates failed to resolve disputes within the required time.
- Conducting unreasonable investigations: On numerous occasions when a consumer alleged fraud or identify theft, Portfolio Recovery Associates did not conduct a sufficient investigation that considered all necessary information.
Enforcement Action
Under the CFPA, the CFPB has the authority to take action against institutions violating consumer financial laws, including engaging in unfair, deceptive, or abusive acts or practices. The CFPB alleges that Portfolio Recovery Associates violated the 2015 order, the CFPA’s prohibition on deceptive conduct, the FDCPA, FCRA, and Regulation V.
If entered by the court, the order would require Portfolio Recovery Associates to:
- Provide redress to consumers: Portfolio Recovery Associates would pay at least $12.18 million to consumers harmed by its illegal collection practices.
- Clean up its faulty operations: The order prohibits Portfolio Recovery Associates from collecting debts unless it has access to certain documents that meet its obligation to have a reasonable basis to believe it is collecting debts that consumers actually owe.
- Fix its failures to properly respond to consumers: The order requires Portfolio Recovery Associates to improve their response when consumers report that they do not owe a debt because of fraud or identity theft. And it ensures that Portfolio Recovery Associates adequately responds to consumer disputes in a timely manner about information Portfolio Recovery Associates has furnished to consumer reporting agencies.
- Pay $12 million in penalties: Portfolio Recovery Associates would pay a $12 million penalty to the CFPB, which would be deposited into the CFPB’s victims relief fund.
Read the 2015 order against Portfolio Recovery Associates.
In December, the CFPB proposed a new registry to help detect and deter repeat offenders like Portfolio Recovery Associates. The public can submit comments on the proposal until March 31, 2023.
If you or someone you know needs help dealing with a debt collector, the CFPB publishes resources on how to protect your legal rights and navigate your financial future.
Consumers can submit complaints about financial products or services by visiting the CFPB’s website or by calling (855) 411-CFPB (2372).
Employees of companies who they believe their company has violated federal consumer financial laws are encouraged to send information about what they know to whistleblower@cfpb.gov.###
The Consumer Financial Protection Bureau (CFPB) is a 21st century agency that helps consumer finance markets work by making rules more effective, by consistently and fairly enforcing those rules, and by empowering consumers to take more control over their economic lives. For more information, visit www.consumerfinance.gov.
Attorneys for Portfolio Recovery Associates Lie
When an attorney signs a court document or contributes to the advocacy of that document, the attorney is certifying that “the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.” This is found in Federal Rules of Civil Procedure 11, and most state courts have a similar rule.
I am not an attorney, this is not legal advice, but what it means to me is that an attorney is not allowed to knowingly lie on court documents.
I filed a lawsuit against a debt collector named Portfolio Recovery Associates LLC because PRA called me hundreds of times from neighbor spoofing telephone numbers, wouldn’t say the company name or what it was about unless I agreed to a tape-recorded interrogation beforehand, and (not that it should matter), I did not owe the alleged debt they were calling about.
Attorneys for Portfolio Recovery, David Mitchell from Rose Law Firm in Arkansas, John “Jed” Komisin and James Trefil of Troutman Pepper Hamilton Sanders in Virginia responded by saying, among other lies, that I owed $2,297.63 when the calls were made and that PRA waived the debt “in light of” the litigation I filed.
This is preposterous on its face. Why would a debt collector waive a debt because someone filed a lawsuit and not use the waiver as a bargaining chip for a settlement? They wouldn’t.
Interestingly, a Trump appointed judge named Lee P. Rudofsky accepted the silly lie by PRA’s attorneys as true.
At the time the lawyers wrote and filed their lie, PRA had no documentation of the alleged debt. They did not even produce the alledged portfolio that allegedly had a single line item on a list of millions of debts. PRA could never find documentation of what or where a purchase was made with the credit card associated with the account. They could find no contract between me and the credit card company that they were willing to share. (That may be because the credit card agreement, if it existed, had an arbitration clause and PRA does not like to arbitrate against self-represented litigants.)
The first form letter PRA sent to me which showed a balance of zero had someone else’s name and account number on it. Supposedly there was a clerical error inputting data. Does anyone else see the irony? Attorneys are defending the legitimacy of an alleged debt and in the same breath, claiming there was a simple data entry error made on the account, where someone else’s data was swapped in for the data on my account.
Portfolio Recovery is notorious for trying to collect debts from portfolios they and their attorneys know are riddled with errors.
The CFPB has obtained multi-million-dollar settlements against PRA for the exact conduct. In fact, the debt they tried to collect from me was from one of the portfolios that resulted in a settlement in 2015. After this post was originally written, PRA settled with the CFPB for another $24 Million for allegations that PRA violated the 2015 consent agreement against hundreds of thousands of people.
The problem is plaintiff’s attorneys are not willing to take Fair Debt Collection Practices Act cases to trial. They encourage the victims to settle for a pittance. I am posting one settlement of a class action against PRA below. The 74 class members received about $135 each. The attorneys requested $25,000 for themselves as fees.
Until the debt collector is required to pay significant punitive damages for its conduct, it will not comply with the law and the attorneys will continue to lie in court, inflicting even more emotional distress on the victims. The 2015 settlement had a punitive element of $8,000,000. That did not stop PRA from repeat offending. The 2023 settlement had a $12,000,000 fine. But PRA still refuses to come clean on our case and let a jury decide what it is worth based on the facts.
My suggestion, if you are receiving calls where the caller says “this is John Smith calling for Your Name” and then asks you to verify your identity by answering questions like your birthdate and address, tape record the calls. The newly activated “Regulation F” requires debt collectors to abide by a verbal cease and desist request if their communication is verbal. Record your calls because PRA lies about how many times they called a person. Take screen shots of calls coming to your phone. Call the numbers back and record the message that tells you whose phone you are calling.
Document, document, document.
You may be able to file a suit on your own behalf by using an existing suit as a template. Otherwise, you can go to the CFPB and contribute to the next action the government agency takes against PRA. If you have solid evidence that the defense attorneys lied on their documents, you may be able to win a motion for sanctions according to Rule 11. A better option is reporting the unethical conduct to the State Committee on Professional conduct AKA the Bar.
Don’t let these guys bully you. Get loud.
Punctuation matters. Period. End of story.
If this conduct by Goliath debt buyer Portfolio Recovery Associates, LLC and Trump appointed Judge Lee P. Rudofsky was not so evil, it would be humorous.
So, I’ll start with one of my dad’s favorite jokes.
He wrote words on a piece of paper exactly like this:
Sex Sex Sex
Worry Worry Worry
Then he told his audience to punctuate the words correctly.
You try.
Sex Sex Sex
Worry Worry Worry
Should I help you?
Sex. Sex. Sex
Worry Worry Worry
Speak the punctuation outloud.
Sex, period, Sex, period, sex, no period. Worry Worry Worry. lol
Seriously, the placement of a single period or comma can change the meaning of a sentence completely.
For example, there is a case Portfolio Recovery loves called Facebook, Inc. v Duguid. The U.S. Supreme Court decided that dialing systems like those used by Portfolio Recovery are not an “auto dialer” subjecting their obnoxious calls to the TCPA. The decision is 13 pages long, focused primarily on the placement of a comma in the Telephone Consumer Protection Act statute.
“When interpreting a statute, a qualifying phrase separated from antecedents by a comma is evidence that the qualifier is supposed to apply to all the antecedents instead of only to the immediately preceding one.” Facebook, Inc. v. Duguid, 209 L. Ed. 2d 272, 141 S. Ct. 1163 (2021)
If you don’t fear death by boredom, read this entire paragraph: “(a) This case turns on whether the clause ‘using a random or sequential number generator’ in § 227(a)(1)(A) modifies both of the two verbs that precede it (‘store’ and ‘produce’), as Facebook contends, or only the closest one (‘produce’), as maintained by Duguid. The most natural reading of the text and other aspects of § 227(a)(1)(A) confirm Facebook’s view. First, in an ordinary case, the ‘series-qualifier canon’ instructs that a modifier at the end of a series of nouns or verbs applies to the entire series. Here, that canon indicates that the modifying phrase ‘using a random or sequential number generator’ qualifies both antecedent verbs, ‘store’ and ‘produce.’ Second, the modifying phrase immediately follows a concise, integrated clause (‘store or produce telephone numbers to be called’), which uses the word ‘or’ to connect two verbs that share a common direct object (‘telephone numbers to be called’). Given this structure, it would be odd to apply the modifier to just one part of the cohesive clause. Third, the comma in § 227(a)(1)(A) separating the modifying phrase from the antecedents suggests that the qualifier applies to all of the antecedents, instead of just the nearest one. Pp. 1168 – 1170.” Ok, WAKE UP!
Judge Rudofsky created a “fact” in my litigation against Portfolio Recovery Associates by claiming that I admitted to owing a debt to PRA. He based that “fact” in major part on a sentence he claimed I wrote.
“I am a consumer in respect to any debt incurred by me on
a credit card issued by Capital One Bank (USA) in or about 2001.” – see footnote 463 on the consolidated order granting PRA’s motion for summary judgment.
The actual sentence I wrote: “I am a consumer in respect to any debt incurred by me on a credit card issued by Capital One Bank (USA) in or about 2001, as I used any credit card to purchase household items, food and other consumer items.”
I could have said “I am a consumer in respect to any debt incurred by me on a credit card issued by Capital One Bank (USA) in or about 2001, as I had not borrowed money for business prior to 2013 when PRA allegedly bought the alleged debt.” Still, Judge Rudofsky would still truncate the sentence without indicating the clause removed.
I explained this in a later document, my opposition to PRA’s supplemental motion for summary judgment. I accidentally attributed the misquotation to the defendant instead of the judge. It is so difficult to remember who said something when the judge is creating arguments for a favored litigant.
Yesterday, PRA filed an opposition to my motion for reconsideration or alternatively to compel production of the credit card agreement that was necessary to create an obligation to pay. PRA admitted there is no record of an agreement, written or oral.
Unbelievable as it may seem, PRA repeated Judge Rudofsky’s misquotation of the sentence. But, like a child who looks around furtively and then interjects another lie to try to cover-up for its previous lie, PRA added two characters around the period. “[.]” Here is PRA’s version of the sentence:
“I am a consumer in respect to any debt incurred by me on a credit card issued by Capital One Bank (USA) in or about 2001[.]”
OOOOhhh… Lawyers James Trefil of Troutman Pepper and David Mitchell of Rose Law Firm were trying to not lie. The straight parentheses mean something was changed. They changed the comma to a period. But a person filing documents is subject to Rule 11, that they reasonably believe what they write is accurate. The change PRA made by straight parentheses is not accurate.
For instance, if quoting case law that says “Facebook, inc. is right” the filer writes “[Duguid] is right”, the filer has made a statement he knows is false. Otherwise, lawyers would riddle their points and authorities with straight parentheses that change the meaning of the caselaw completely. Don’t like caselaw? Just change “shall” to “[may]”.
Clever, clever children.
If you had a period after the last “sex”, you might not need the worry, worry, worry, either.
Did Portfolio Recovery Associates Hold a Secret Deposition?
The behavior of the Goliath debt buyer becomes more bizarre and the conduct of PRA’s attorneys seemingly more unethical.
Twice now I have told them the names of independent contractors who were or intended to assist me in administrative and public relations functions during my legal proceedings against them. Both times, the contract employee ghosted me soon after.
Recently, one of the contractors, Robert Paisola, suddenly resumed talks with me.
I felt we were moving forward in a collaboration to turn the attention of the CFPB and legislature toward the notorious debt collector.
Then Robert forwarded an email to me that he had sent to the defendant and defendant’s attorney in my case the day before.
Robert claimed in writing to having been deposed on my case. I never deposed him and I never received a notice of deposition from PRA.
I listened to the recording of Robert Paisola and a few PRA representatives that happened yesterday, February 20, 2023. At about 37 minutes in, Robert Paisola said he had given testimony for the defendant in my case. I was not aware of any testimony or declaration given by Robert Paisola. (I keep typing his full name because he calls himself “Dr. Paisola” and I am uncomfortable using that title with him, as I have not seen any evidence that he holds a doctorate in anything.)
I am certain Robert Paisola has effective SEO skills. He came up at the top of my search for other victims of Portfolio Recovery’s abusive practices. He claimed that PRA gave him a settlement that is 10 times as much as the offer of judgment PRA gave me. I know that the only debt collector bigger than Portfolio Recovery says it won’t “deal” with Robert Paisola – which deserves respect. Debt collectors have the tenacity of Satan and live to fight. Instead of paying me $50,000, PRA decided to spend a million on legal fees because its collective mind thinks it can win against an old lady who has PTSD and an autoimmune disease.
I inquired of PRA and its attorneys about the alleged deposition testimony. PRA did not respond. [UPDATE: 2/28/2023, one week after my inquiry, PRA responded. “PRA has had no contact with Mr. Paisola regarding your case and has never deposed him, in Case No. 4:21-cv-00189 or otherwise, nor does it have any “testimony” from Mr. Paisola other than the recent email from him that you have already seen.” PRA did not explain why it failed to contradict Robert Paisola during the recorded call at approximately 37:00, and took a week to deny any other communications, deposition or testimony.]
This is all so strange.
Fwd: Followup to Conversations and Notice to Counsel (CFPB 1, 2, 3 ) Suicide Video 1, 2, 3
Inbox
| Robert Paisola | Feb 20, 2023, 6:20 PM (22 hours ago) |  | |
| to me, Robert | |||
———- Forwarded message ———
From: Robert Paisola <paisola7@gmail.com>
Date: Mon, Feb 20, 2023 at 4:17 PM
Subject: Followup to Conversations and Notice to Counsel (CFPB 1, 2, 3 ) Suicide Video 1, 2, 3
To: <james.trefil@troutman.com>, <pra_disputes@portfoliorecovery.com>, <dmitchell@roselawfirm.com>, <john.komisin@troutman.com>, <mjames@herbertsatterwhite.com>, <larry.pino@wcilaw.com>, <james.daniels@wcilaw.com>, Robert Paisola <Robert.Ceo@wcilive.com>, Robert Paisola <paisola7@gmail.com>
RE: CAPITAL ONE 4898- PURCHASED 3-19-2021
AMAZON 5016- PURCHASED 3-19-2021
CAPITAL ONE 0507 – PURCHASED 3-19-2021
CAPITAL ONE 1036- PURCHASED 3-19-2021
WAL MART 1018- PURCHASED 1-22-2020
WELLS FARGO- UNKNOWN DATA- SEE COMPLAINT
Counsel
This is a portion of a complaint that was filed with the CFPB against your client and the supporting legal data:
There are 6 Accounts that your client, Portfolio Recovery Associates, has that were resolved and are now back on my credit report.
The Accounts are under ROBERT PAISOLA, The Deposed of Hammett v PRA and CEO AND PRESIDENT of Western Capital
Because of your clients’ actions, a 2 Million Dollar Home is now at risk because of the data that your client has re-entered into my personal (9179) Credit Files. IT IS ESSENTIAL THAT THESE ITEMS BE REMOVED IMMEDIATELY TO REMEDY ANY FURTHER IRREPRABLE HARM.
Many calls and letters have been submitted to no avail.
These are three of the recent calls with your client that will explain the issues at hand.
2 https://on.soundcloud.com/RW7ex
PAISOLA V PORTFOLIO RECOVERY VIDEO 1 of 3
PART 1 of 3 “I JUST WANT TO DIE” ROBERT PAISOLA V. NATIONWIDE CREDIT” Case 4:21-CV-00189-LPR WORLDWIDE RELEASE- CLIENT SUICIDE
1.https://www.youtube.com/watch?v=ouXFQk1KOPg
2https://www.youtube.com/watch?v=ZjOUyzxBuZk
3.https://www.youtube.com/watch?v=ngu4ua00lxM
Please advise within 72 Hours
Thanks & Regards,
Robert Paisola
Chief Executive Officer Scan Now:
Western Capital Automated Credit Repair Site
Western Capital Investment Bank
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Bain Capital Management
6330 S. Sandhill Road 4-20002
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Toll Free 1-800-373-8913
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Attachments area
PART 1 of 3 “I JUST WANT TO DIE” ROBERT PAISOLA V. NATIONWIDE CREDIT” Case 4:21-CV-00189-LPRPreview YouTube video PART 2 of 3 “I JUST WANT TO DIE” ROBERT PAISOLA V. NATIONWIDE CREDIT” Case 4:21-CV-00189-LPRPART 2 of 3 “I JUST WANT TO DIE” ROBERT PAISOLA V. NATIONWIDE CREDIT” Case 4:21-CV-00189-LPRPreview YouTube video PART 3 of 3 “I JUST WANT TO DIE” ROBERT PAISOLA V. NATIONWIDE CREDIT” Case 4:21-CV-00189-LPRPART 3 of 3 “I JUST WANT TO DIE” ROBERT PAISOLA V. NATIONWIDE CREDIT” Case 4:21-CV-00189-LPR
| Laura Lynn Hammett <thenext55years@gmail.com> | 8:25 AM (8 hours ago) | | |
| to James, John, David, PRA_Disputes, mjames, larry.pino, james.daniels, robert.ceo, Robert | |||
Dear Counsel, PRA Disputes and Robert Paisola,
Robert Paisola is not currently employed by me. He consulted with me briefly, but ceased communicating with me before we signed a contract establishing his employment.
Robert Paisola recently reached out to me and I hoped to coordinate our parallel efforts to bring Portfolio Recovery Associate, LLC’s violations of the 2015 Consent Agreement, FDCPA and Regulation F to the attention of the CFPB.
In the correspondence he had with each of you that he forwarded to me yesterday evening, attached, he claims to have been “deposed” in my case, Hammett v. PRA in the Federal District Court of Eastern Arkansas. This is the first notification I have received that any deposition occurred. It is my understanding that our proceedings are stayed.
Robert Paisola made another claim at about 37 minutes into the recording of February 20, 2022. “There’s a case that I testified for on the defense…” referring to our case presided over by Judge Rudofsky.
Again, I am unaware of any “testimony” given by Robert Paisola. I am concerned that Robert Paisola apparently believes he was working for PRA. As I wrote in the past, I already suspected that PRA through its attorneys contacted two independent contractors who did work for me soon after learning the individual’s identities, because both quit performing their agreed upon duties without explanation soon after I disclosed their names to PRA. Then, when I had a bad case of COVID, PRA’s attorneys tried to convince me to give them a list of all my employees. I am busy for two weeks, but will then analyze whether contacting my employee and prospective employee is an interference with a business relationship and interference with a prospective business relationship. It seems likely.
Please provide me with copies of recordings and transcripts of any deposition and testimony involving Robert Paisola concerning USDC Case No. 4:21-cv-00189.
Thank you,
Laura Hammett
Looking for Plaintiffs Against Portfolio Recovery Associates, LLC to Inform the CFPB
My most recent settlement proposal to Portfolio Recovery Associates, LLC is posted below.
I would like to discuss any unethical litigation practices PRA’s team of attorneys used against you in response to your complaint of violations of the Federal Debt Collection Practices Act, AKA FDCPA, and Regulation F.
The Debt Buyers excuse for lying in court seems to be that litigation where the debt collector is defendant is not subject to the same rules of honest conduct and fair dealing as in litigation where Portfolio Recovery Associates, LLC is suing you.
Leave a comment or email your opinion to me. Thank you.
February 15, 2023
Dear Counsel,
I am bringing my settlement offer back to $1,000,000.
First, there was a recent award of damages based on abusive litigation practices similar to yours and your client’s. https://www.youtube.com/watch?v=hfboMCsDcno
Second, I have researched Hashimoto’s Disease. I have a wonderful team of health care professionals, and as with law, I am allowed to take an active roll in my healthcare.
I have not retested a thyroid panel for several months, but I am confident my numbers are returning toward an acceptable range.
My digestion is improving. My energy level is improving. My ability to concentrate is improving. My mood is improving. My new mantra is “work, don’t worry.” It is easier to do my legal work now that I can sit up for extended periods and my immune and autoimmune systems are not so out of whack.
After the stay is lifted and any appeal that may be required, I will move the court to allow me to introduce expert testimony about Hashimoto’s and the impact of stressful litigation on it. PRA already agreed that it changed my alleged balance to zero only after I filed a lawsuit. It is clear that the gaslighting was not going to stop otherwise. PRA even realleged a debt and invented completely unsubstantiated gambling losses for me during litigation.
I have not gone to the CFPB yet because they say a person can only file one complaint. I believe that when the CFPB investigates, they will agree with my contention and uncover evidence that PRA lied about not calling me in the months leading up to November 14, 2020. They will see that, as they suspected, PRA did not follow the 2015 consent order. And they will agree that PRA’s conduct within litigation as a defendant is also in violation of the FDCPA and regulation F.
Sincerely,
Laura Hammett
Can Our Government Restrict Who Talks About Law?
The Institute for Justice is doing important work protecting the freedoms enumerated in the United States Constitution and paralleled by the states. The following article is reposted by permission. It covers both the right to give advice about the law and touches on some bad practices of debt buyers like Portfolio Recovery Associates, LLC.
You can read about other cases fought by the Institute for Justice here. If you love our freedoms and have expendable income, I hope you will consider donating to these good attorneys. We should reward the few who still have integrity.
Right to Provide Legal Advice
When wealthy Americans face legal troubles, they have a lot of sources of advice. Legions of lawyers, business consultants, accountants and others stand ready to provide their expertise for a price. But for many Americans who may lack the means to employ those experts, their only option is to turn their friends, family, or other community members, like their pastors.
That has certainly been the experience of Reverend John Udo-Okon, a Bronx-based pastor whose congregants turn to him for advice when they have trouble. Sometimes their troubles are spiritual. Sometimes marital. And sometimes legal—like many New Yorkers, Rev. John’s parishioners sometimes get sued, and they don’t know what to do.
A lot of those lawsuits are about consumer debt. Indeed, a lot of lawsuits in New York are about consumer debt: Roughly a quarter of all lawsuits filed in New York are suits to collect on a debt. In a given year, some 300,000 residents of New York City alone will be hit with a debt lawsuit. And many of these suits are, to say the least, questionable—brought by third parties that buy up old debts on the secondary market and file suits to collect, even if the defendant doesn’t owe the amount claimed or, sometimes, anything at all.
But despite the fact that many of these lawsuits lack merit, they are overwhelmingly successful, usually because the defendant doesn’t show up in court. As much as 90% of the time, the defendant in a consumer-debt lawsuit in New York fails to respond. And when a defendant does show up in one of these cases, the collectors often give up rather than try to prove the debt exists.
It seems like an area where a little bit of helpful advice could go a long way.
That is what led Reverend John to team up with Upsolve—a nonprofit co-founded and currently chaired by Rohan Pavuluri, that is dedicated to helping Americans access their civil legal rights for free. Upsolve began by offering a free app to walk people through Chapter 7 bankruptcy—an award-winning innovation that has now helped relieve hundreds of millions of dollars in debt.
But bankruptcy was only a start. Upsolve’s next project, the American Justice Movement, was designed to train volunteers like Reverend John to give the basic legal advice people need to defend themselves against the sorts of debt-collection suits that plague so many New Yorkers.
The truth is that responding to these lawsuits is not that complicated. New York has even created a form that allows people respond to a debt lawsuit by checking a handful of boxes. But even that form is complicated for people who have never navigated the legal system (one of the boxes asks whether someone wants to invoke the doctrine of “laches”), and the American Justice Movement is designed to bridge that gap by walking people through the form and answering their simple questions (like “what the heck is ‘laches’?”).
The problem? The sort of advice contemplated by Upsolve’s new project, where trained community advocates provide one-on-one advice, is a crime. If Reverend John (or anyone like him) gives someone advice about how to respond to a lawsuit, it could land him in jail for up to four years for engaging in the “unauthorized practice of law.”
That is why Reverend John and Upsolve have teamed up with the Institute for Justice to challenge New York’s prohibition on legal advice from people who are not lawyers under the First Amendment. After all, it cannot be a crime simply to give someone advice—if it were, the nation’s jails would be filled with bartenders, barbers, and meddling aunts. The reason the nation’s aunts walk free is that the First Amendment protects everyone’s right to provide each other with useful advice—including on important topics like their legal rights.
And, indeed, for much of American history, advice like Reverend John’s would have been perfectly legal. At the time of the American Founding, courts restricted who could appear before a judge in court, but no one pretended to have the right to regulate who talked about the law outside of court.
Those restrictions are not just anticompetitive. They are unconstitutional. Restrictions on who is allowed to talk about the law run afoul of the First Amendment, which protects all Americans right to speak—about history, about medicine, and about the law. Vindicating that important principle will give all Americans—not just those who are lucky enough to have licensed attorneys on-call—the ability to access useful information about their legal rights.
I Could Not Say It Better Myself: So I reposted By Permission of the Post Modern Justice Media Project
- Alex Baker
- Dec 16, 2020
- 10 min read
Top Ten Most Corrupt Laws in the United States
10. The Federal Reserve Act
Allowing a central bank to print un-backed paper money in any amount is counterfeiting, by definition. And counterfeiting is a form of theft, because it allows those with the printing press to transfer real wealth away from those who earned it, and into the hands of themselves and their close friends. For a more detailed explanation, please see The Origin of Money and How It Was Stolen From You.
The Fed should be abolished. Money and banking should be returned to the private sector. Among many other cruelties, the Fed can finance Title IV D funding of the kidnapping and extortion racket known as Child Welfare and Dependency Courts. Truly, the Federal Reserve could be #1 on the list, but we’ve pushed it down to # 10 because most everybody already knows about it.
9. Unpublished Appeal Court Opinions
Any time a Court of Appeal rules on a case, its opinion becomes the law. Such “Case law” may be cited in a new case to show how that case is like the earlier one, and why the Court should rule the same way now. Except, nowadays, the vast majority of Appellate Opinions are issued as “unpublished”, meaning we are not allowed to cite the case. Think about it. If the Opinion is valid, then why would we not want it published? And if the Opinion is not valid, why should we allow it to happen in the first place?
All Appeal Court Opinions must be published. If the result is “conflicting” laws, good. It will shine a spotlight on the problems, and hasten needed reform.
8. Contempt of Court is Non-Appealable
Contempt of Court is a finding by a judge that a person “willfully” violated a court order. Some court orders are valid, and should be obeyed. And a court needs a mechanism to enforce them. But there are severe problems with the present system.
It is common for Family Court judges to illegally order parties not to talk about their case on social media, or even to their own children. Restraining orders can issue that say the same thing. Violate that, and you can go to jail. Like Judge Bruce Mills sent Joe Sweeney to jail for posting facts about his divorce from Keri Evilsizor.
On the other hand, judges will turn right around and allow some people to get away with violating court orders, for example raiding a trust fund. Like Judge Gregory Weingart let Clair Marlo get away with taking $225,000 cash from a disputed property in the now-infamous Baker v. Baker case.
Contempt is found when it shouldn’t be, and not found when it should be. Either way there is nothing that can be done, because Contempt orders are non-appealable. Yes, you can file a Writ, but those are almost always denied, and the Appeal Court doesn’t even have to give you a reason why. Writs just come back saying “denied”.
7. “Temporary” Child Custody Orders
The right to family unity is a fundamental constitutional right. Constitutional rights cannot be taken away without due process. Under any sane legal system, a parent has a right to frequent contact with their child unless and until that parent is convicted of committing a crime against that child. Not accused. Convicted.
It is extremely common in Family Court for the judge to award ‘temporary” sole custody to one parent, and either no visitation, or only monitored visitation to the other parent, all upon allegations only. Getting to a “final” custody order often takes years of expensive litigation, and is never final anyway, as custody is always modifiable. The fight is never over. None of this is constitutional, and none of it makes any sense for a society that values family, which ours no longer does.
No judge has any right to make any order besides 50-50 joint custody until there is a trial finding that a parent did something really bad.
6. Domestic Violence Restraining Orders for Non-Threatening Speech
California’s Domestic Violence Prevention Act (“DVPA”), defines “abuse” to include “disturbing the peace”, which case law interprets to mean “any conduct that destroys the mental or emotional calm” of the other person. This has resulted in cases where a 3 -year restraining order issued solely on the basis of man forwarding the wife’s text messages to her parents, or another man winning a copyright infringement case against his ex-wife and discussing it on a blog, or another man posting pictures of visiting his children on Facebook after the Judge ordered him “not to discuss the divorce with the children”.
Non-threatening speech is not violence. These Family Law DVRO are being used as strategic weapons in property and custody disputes. It’s wrong. It’s hurtful, most of all to the children, who are used as both a weapon and a shield. It must stop.
5. “Dispensing with” Notice
Notice is a fundamental part of Due Process. California’s Probate and Family Codes contain rules saying that on a hearing for Temporary Guardianship of a Child, Notice requirement may be done away with for “good cause”. What constitutes “good cause” ? It is simply a checkbox on a standard form, and no explanation is required.
In one case, a judge awarded temporary guardianship of a child at an unnoticed, ex parte hearing. That same day they took the child away from the legally married, biological parents, who had no idea the hearing had taken place. This happened 5 days after DCFS cleared the father of the one (1) vague allegation that he had “inappropriately touched” the child 4 years prior.
Another case involved an estranged husband leaving his wife and son in Canada, and somehow getting a judge in Los Angeles to grant an ex parte custody award based on a provably false allegation that his estranged wife had “kidnapped” the child. In fact, the family had been living in Canada for 3 years. In contradiction to the Hague Convention, the man somehow got U.S. officials to cross the border and seize the child, and mother has never seen him since.
No judge should be allowed to conduct any kind of court proceeding regarding parental rights unless all parties are present.
4. Automatic Hearsay Exception for Child Welfare Reports
California Welfare and Institutions Code § 355 makes Hearsay evidence by “peace officers”, “social workers”, “health care practitioners”, and “teachers” automatically admissible as evidence, as long as it is found in a “social study” or a “report”. Not only is it admissible, but the law literally says that it shall be sufficient evidence for a finding of “jurisdiction” over the children, i.e. to seize and permanently hold the children in the foster care system. This is a very profitable situation, as County agencies receive federal money under Title IV D for each child taken.
Let’s look at the Hearsay Rule and why it is important. Hearsay is an out of court statement offered for its truth. So any time a witness is testifying, and says something like, “…Joe told me Bob hit him…” that is hearsay. The witness has no knowledge of Bob hitting Joe, the Court needs Joe to testify. Wait, it gets worse.
All written declarations and reports are out-of-court statements, thus hearsay by definition. Typical social worker reports contain triple hearsay. One group of social workers writes the report, which is full of out-of-court statements relaying the out-of-court statements of other social workers and peace officers, who assert that the child made certain out-of-court statements that somebody did something wrong. That’s triple hearsay. And yet, it is not possible to cross examine any of these accusers. The Judge, who is acting as jury, will simply accept anything in a report as the truth, and “the law” backs up the judge. If that doesn’t constitute a show trial, I don’t know what does.
The Sixth Amendment Confrontation Clause promises that defendants have a right to cross examine accusers. This is one of the most important protections of all, and this “Accusatory Hearsay Exception” law just does away with it. Seriously.
3. All Non-Jury Court Systems
We inherited our jury trial court system from England, and it worked quite well for a long time. Any kind of case, criminal or civil, consists of a Plaintiff alleging a series of facts about the conduct of the Defendant, which if proven, add up to a violation some a particular law. The parties can dispute the facts, of course. He said, she said. Sometimes, the parties can dispute the law. In essence, the Defendant says to the Plaintiff, “So what? Even if all the facts you allege are true, it doesn’t violate any law.”
According to the system of Anglo-American jurisprudence, the judge is the trier of the law, while the jury is the trier of the facts. When it comes to factual disputes, judges were NEVER supposed to decide cases. The role of the judge is to ensure a fair process, but not to decide the case. It is the jury who decides the winner and loser in a court case. The right to a jury trial in a criminal case is enshrined in the 6th Amendment, while the right to a jury trial in a civil case is found in the 7th Amendment. The fundamental right to petition the government is found in the 1st Amendment.
Over a hundred years ago, they started coming up with ideas like Family Court, Probate Court, and Child Welfare Court systems. In clear violation of the Constitution, they simply decided these would be Judge trials instead of jury trials. Gone are not only the juries, but in criminal matters – like Custody and Child Welfare cases – missing also are a whole set of procedural safeguards such as the right to an attorney, right to confront your accuser, right to see the evidence against you, right remain silent, etc.
2. The Litigation Privilege (aka the Perjury Privilege)
The Litigation Privilege holds that you cannot sue a person based on what they said in a court proceeding. Not even if it is defamatory. Not even if it cost you a fortune and you can prove it. Not even if it was a false statement, under oath about a material issue. Statements made in court are said to be “absolutely privileged”. We might as well call the Litigation Privilege what it really is – the perjury privilege.
The supposed rationale for the Litigation Privilege is that we want to encourage witnesses to come forward and testify in court cases. If every witness was worried about being sued for what they said, then many would be intimidated and afraid to come to court. The Litigation Privilege is said to “preserve the integrity of the court system”.
Do you believe that the Litigation Privilege preserves the integrity of the court system? I think the opposite. Witnesses who are telling the truth do not need to fear being sued, because, well, they are telling the truth. Just like people who tell the truth on their blogs don’t need to worry about being sued. It is liars who would be afraid to come to court and tell lies. Don’t we want liars to be afraid to lie? Why do we invite liars to testify, and how could anyone buy in to the notion that this preserves the integrity of the system? Is it any wonder that every Civil and Family Law case devolves into a cesspool of dishonesty?
1. Judicial Immunity
Judicial Immunity means you can’t sue a judge for damages. Not even if they lied. Not even if they broke the law. Not even if they injured you on purpose with actual, premeditated malice. The leading Supreme Court case on Judicial Immunity is called Stump v. Sparkman, and a review will help illustrate just what the system allows judges to get away with.
In 1971, a woman came to Judge Stump’s courtroom and Petitioned for an Order to sterilize her 15 year old daughter. The woman claimed her daughter was “somewhat retarded”. Judge Stump did not order any evidentiary hearing, and did not appoint any lawyer to represent the teenager. Rather, Judge Stump simply signed the Order. The girl was told she needed an appendectomy, and did not discover she was sterilized until years later when she got married and could not have children.
The case reached the Supreme Court in 1978. By a 5-3 decision, the High Court found that Judge Stump was immune from suit, because issuing Orders of this kind was a judicial function. Stump v. Sparkman is a landmark case that sets out the test to determine whether a judge’s action is “in the complete absence of all jurisdiction”, or merely “in excess of jurisdiction”.
The explanation for Judicial Immunity is much the same as the Litigation Privilege. Supposedly, a judge cannot do his job if he is worried that any decision he makes might be second-guessed, and subject him to liability. To this I say:
BULLSHIT.
Any professional should be subject to liability if they screw up their job badly enough. If an engineer designs a structure that falls apart when the wind blows, shouldn’t they be responsible? If a contractor’s brand new plumbing leaks and causes significant damage, shouldn’t he have to pay for it? Should we not be able to sue a surgeon if she makes a bad mistake and injures you?
Is it possible for a professional to do their job properly with the thought hanging over their head that they might be sued if they hurt you? The answer is: Yes. They had damn well better do the job right or they are going to get sued. That’s the only remedy we have, short of taking the law into our own hands. Do we want vigilante justice?
If you had no recourse against somebody who injures you, what kind of legal system even exists? And the previous examples related to accidental injuries. What about intentional injuries? Judicial Immunity protects judges even when it can be proven that they injured a person on purpose. Seriously, there is case law that says this.
No one, not even a judge, should be above the law. We want judges to be afraid of making illegal, injurious decisions. Yes, that’s exactly what we want. Be afraid, the same way every professional is afraid they might hurt someone. Like most professionals, Judges should have liability insurance to cover them for negligence, but be held personally liable for fraud or other intentional torts. Why wouldn’t we want judges to go to jail and pay steep restitution if it is proven they harmed somebody on purpose?
As it stands, we are not the least bit surprised that Judicial Immunity has resulted in a system that runs on bribery and corruption. From the judge’s perspective, corruption is all upside, with no downside. Judges are completely above the law. And since the decisions that judges make ARE the law, we might as well face up to this sad and disturbing conclusion:
As long as there is Judicial Immunity, there is no law.
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Portfolio Recovery Associates Threatened Little Old Lady who had COVID and Auto-immune Disease
Portfolio Recovery Associates, LLC, a Goliath debt buyer, files about 3,000 lawsuits per week against alleged debtors.
PRA knows the lists of debts it purchases from original creditors are riddled with errors, but presses forward before verifying the debt.
Government agencies such as the CFPB and State Attorney Generals have come to settlements with PRA over the conduct. Much of the restitution PRA made was to old people and people of color who lost in court when PRA sued them.
PRA is relentless when it is plaintiff in a case. There was one interesting, rare person who fought back named “Susan Young”. (04CV-20-197, Benton County Arkansas Circuit Court) PRA dismissed that case eventually. The reason it caught my attention is that there is a corrupt judge named Susan Weaver who was “Susan Young” briefly, due to a short-lived marriage. Maybe just a coincidence, but unconfirmed rumor has it that Judge Weaver had debt issues and she went to college in Fayetteville, in Benton County neck of the woods. This is just interesting speculation.
What I do know is that when I sued PRA for violating the FDCPA and causing intentional infliction of emotional distress against me, PRA brought out the big guns to defend itself.
They hired Rose Law Firm of Hillary Clinton fame. They hired a second big national firm called Troutman-Pepper. They filed motions that were hundreds of pages long and full of lies.
The judge on the case, Lee P. Rudofsky, appears to have a big-business bias. The Harvard trained judge was Solicitor General in Arkansas after working as counsel to Wal-Mart. He acts like Portfolio Recovery is not known to file false affidavits. He looked at the simple math errors made on the one statement produced by PRA and did not discount the statement. He saw that PRA claimed the alleged debt carried an interest rate of 29.4% on one document and an interest rate of 0.00% on another document, but did not accept the debt PRA bought for pennies on the dollar was invalid.
It looks to me like I have an uphill battle to fight. It looks that way to PRA, also. The fancy lawyers are getting real arrogant and bossy. Like they “own the court.”
While I was sick with COVID, PRA attorneys kept sending me demands to give them a list of people who I consider “employees”. Here is the latest letter with my response in red.
Ms. Hammett,
PRA has no interest in your “confidential” information and, outside of Dr. Adhia and PRA counsel, has disclosed it to no one. PRA posted my confidential information on PACER and I documented the contemptuous acts. Dr. Adhia’s report specifically excluded a “Confidential” designation and Dr. Adhia said he does not consider the exam as confidential. He said that he told me the exam was not confidential and that I proceeded. He failed to mention that I first corrected him as to the confidentiality.
You, however, have from the inception of this case tried to leverage threats to disclose PRA’s confidential and proprietary information – by “getting loud” PRA has access to all my blog posts and there is not a single confidential disclosure.– to extract an exorbitant settlement from PRA. PRA violated the Consent Order concerning me before the Consent Order expired. PRA already paid $8M in fines for the same behavior and it did not slow PRA down. I offered to settle for far less than that. I did as much work as the CFPB, without any compensation for my time and taking all the risk. As a public action, I anticipate the CFPB will collect quite a bit more than $8M. If PRA agreed to the settlement of our private right of action, the government would collect the appropriate percentage of my settlement as tax. Indeed, you have expressly stated your intent to publicly share as much of PRA’s confidential information as possible. I have not said anything of the sort. Put that in the bin with the other PRA lies, such as PRA’s invention of “online (therefore illegal) poker losses” and that PRA did not call my cell phone repeatedly in September and October 2020.
In your recent barrage of filings, you indicated that you have provided PRA’s confidential materials to other individuals No, I quite specifically said I had not provided confidential materials to Mr. Paisola yet.and that by errantly self-labelling these individuals as your “employees” that you can do so in contravention of the Protective Order with impunity. PRA does not have a monopoly on hiring employees. Note that PRA refused to disclose the names of any employees in response to discovery requests. Perhaps coincidentally, but likely as wrongdoing by PRA, I told PRA two of my employees’ names and within days, each of those employees ghosted me.
It is highly unlikely you have any actual “employees,” which is a term of art with a very specific meaning. PRA is pompous and self-absorbed. Note that PRA hired two law firms and has a legal department with hundreds of employees helping to try to crush a 60-year-old non-attorney and expects her to do every bit of the work without help. After being given documentation that the older woman has COVID and an auto-immune disease, PRA sent a barrage of demands to the woman telling her she must create employee records and disclose them to PRA, while she has COVID. Merely calling someone an “employee” does not make it so. Your latest attempt to sidestep Judge Rudofsky’s protective order is improper.
To be clear, my client does not wish to file a motion. There have been far too many of those in this case already. We agree on one point; this should have been a simple case. It did not warrant a thousand page motion for summary judgment or a protective order that requires a motion to unseal “Confidential” documents that already exist in the exact form (with different data) elsewhere on the internet.
Rather, my client’s sole objective is to ascertain who is in possession of its confidential materials, properly or otherwise, and to ensure that PRA’s confidential materials remain protected. PRA is inventing things to worry about. PRA has not seen any posting of its confidential information by me or anyone remotely related to me, because there has been no inappropriate disclosures. PRA on the other hand has violated the protective order and the signed confidentiality agreement from the settlement conference.
At present, you are refusing to identify the individual(s) to whom you have disclosed PRA documents designated as confidential under the protective order. We ask once more that you do so. I am not aware of any mechanism for you to make that demand. I copy and pasted your demand, changing the name of the requesting party, and you ignored that demand completely. All of this will be shared with proper authorities and the public at the appropriate time.
Should you once again refuse, PRA reserves all rights in this regard (attached).
I wrote a motion under Rule 11 against PRA in my head when I could not sit up to write it on the computer. I will add this latest threat if I decide to put the Rule 11 Motion in writing now that I am able to sit up. Frankly, I think the reports to the CFPB and the IRS are more important. There will be no confidential information included, but I will point out that you convinced the Court to keep evidence of PRA’s wrongdoing confidential.
Regards,
Jim (The debt buyer company attorney who filed for bankruptcy himself to get out from under his insurmountable debt.)
Laura Hammett
A Higher Law 