clp10 04

Chapter 4
Debt Collection Harassment of Identity Theft Victim
Peter F. Barry is a licensed attorney admitted to practice in the State of Minnesota and the owner of The Barry Law Office, Ltd. His practice is dedicated exclusively to protecting consumers against illegal debt collection activity. He was recently named by his peers as a Super Lawyer for 2003 by Minnesota Law & Politics Magazine. In 1996, Barry graduated from William Mitchell College of Law in St. Paul, Minnesota where he competed nationally on the schools trial advocacy team and won top honors for his appellate work. Barry did extensive clinical work with several organizations including the Ramsey County Public Defenders Office, Legal Assistance to Minnesota Prisoners, and the St. Paul Tenants Union. He opened his law practice directly out of law school and has been enjoying his private plaintiff's practice ever since. Barry volunteers annually with Habitat for Humanity and the Minnesota State Bar Association's High School Mock Trial Program as a judge. He also devotes volunteer time to various William Mitchell clinical programs and maintains an ongoing pro-bono legal services commitment in the area of consumer rights. In 2003, Barry was named an adjunct Professor of Law at William Mitchell College of Law where he now teaches Consumer Rights Law. In addition to being admitted to practice in Minnesota and Wisconsin state and federal courts, Barry was also recently admitted in the Northern District of Texas and the 8th Circuit Court of Appeals. He was born in San Jose, California in 1964 and lives in St. Paul, Minnesota. Section 4.1 is a complaint in which the consumer alleges that the debt collector could not provide written verification1 of a thirteen year old debt allegedly taken out by an imposter in her name and social security number. The debt collector persistently misrepresented that the consumer was responsible for this debt and must fill out an affidavit to support her claim of identity theft and fraud. The complaint is based on the Fair Debt Collection Practices Act and the tort of invasion of privacy.2 Section 4.2 is a combined discovery request including interrogatories, admissions, and production of documents. Section 4.3 is the consumers request to inspect the debt collectors premises. Section 4.4 is a form for consumers to use to keep notes of collection contacts. Section 4.5 is the deposition of a consumer class representative in a FDCPA class action where the defense attorney seeks to question her adequacy as a class representative.
1 2
See Id. 5.7. See Id. 10.3.
4.1 Collecting and Failing to Verify Old Identity Theft Claim, Complaint
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA [CONSUMER], Plaintiff, v. CAPITAL ACQUISITIONS & MANAGEMENT COMPANY, D/B/A CAMCO, HENRY GOLD, JACK WEBB, MARIO DOE, AND ISAIAH COOPER, Defendants. COMPLAINT JURY TRIAL DEMANDED JURISDICTION 1. Jurisdiction of this Court arises under 28 U.S.C. 1331 and pursuant to 15 U.S.C. 1692k(d), and pursuant to 28 U.S.C. 1367 for pendent state law claims. 2. This action arises out of Defendants violations of the Fair Debt Collection Practices Act, 15 U.S.C. 1692 et seq. (FDCPA) and the invasions of Plaintiffs personal privacy by these Defendants in their efforts to collect a consumer debt. 3. Venue is proper in this District because the acts and transactions occurred here, Plaintiff resides here, and Defendants transact business here. PARTIES 4. Plaintiff [Consumer] is a natural person who resides in the City of Golden Valley, County of Hennepin, State of Minnesota, and is a consumer as that term is defined by 15 U.S.C. 1692a(3). 5. Defendant Capital Acquisitions & Management Company, d/b/a CAMCO, (hereinafter Defendant CAMCO) is a collection agency operating from an address of P.O. Box 5087, Rockford, Illinois 61125, and is a debt collector as that term is defined by 15 U.S.C. 1692a(6). 6. Defendant Henry Gold (hereinafter Defendant Gold) is a natural person employed by Defendant CAMCO as a collection agent and is a debt collector as that term is defined by 15 U.S.C. 1692a(6). 7. Defendant Jack Webb (hereinafter Defendant Webb) is a natural person employed by Defendant CAMCO as a collection agent and is a debt collector as that term is defined by 15 U.S.C. 1692a(6). 8. Defendant Mario Doe (hereinafter Defendant Doe) is a natural person employed by Defendant CAMCO as a collection agent and is a debt collector as that term is defined by 15 U.S.C. 1692a(6).
9. Defendant Isaiah Cooper (hereinafter Defendant Cooper) is a natural person employed by Defendant CAMCO as a collection agent and is a debt collector as that term is defined by 15 U.S.C. 1692a(6). FACTUAL ALLEGATIONS 10. In or around 1990, Plaintiff allegedly incurred a debt as that term is defined by 15 U.S.C. 1692a(5), namely, two Bank of America credit cards which were fraudulently obtained and used in her name by Plaintiffs ex-husband, and which were primarily for personal, family, or household purposes, in the approximate amount of $14,000. 11. Sometime thereafter, the alleged debts were consigned, placed or otherwise transferred to Defendants for collection from the Plaintiff. CONVERSATION WITH DEFENDANT HENRY GOLD 12. On or around July 25, 2003, Plaintiff received a telephone message from Defendant Gold with regard to this debt and on that day, Plaintiff returned the call to Defendant Gold at extension 4035. 13. Plaintiff told Defendant Gold that she had not received a letter from Defendant CAMCO per her request in a previous conversation. The letter had previously been promised to Plaintiff by Defendants to help establish the legal basis for this debt. 14. Defendant Gold responded by telling Plaintiff that he could not send a letter to Plaintiff, because by the time Plaintiff got the letter, their office would have forwarded out the account. Despite this statement, and the fact that First Class U.S. Mail generally takes no more that 3-4 days, as of April 1, 2004, 251 days laterDefendants office was still collecting on this account. Therefore, Defendant Golds statement on this occasion was a false and deceptive communication in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692e, 1692e(10), and 1692f. 15. Defendant Gold then told Plaintiff that the unpaid debt information would be sent to TransUnion and appear on her personal credit report as a public record and not a trade line, thus implying that Defendants would report false credit information and/or obtain a judgment against Plaintiff, despite the fact that this debt was far beyond the applicable statute of limitations. Therefore, this statement was a false and deceptive communication in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692e, 1692e(8),1692e(10), and 1692f. 16. Plaintiff again explained to Defendant Gold that these Bank of America accounts were not her debts, but rather that she believed that they belonged to her ex-husband who had fraudulently opened these accounts under Plaintiffs name, and without her knowledge or consent. 17. Defendant Gold told Plaintiff that she was still liable for these debts because they were under her social security number and because she never pressed charges against her ex-husband. In fact, Plaintiff has no liability for a credit card account which was fraudulently obtained in her name and without her knowledge. Moreover, Plaintiff is not required to press criminal charges against the person whom she suspects of the credit card fraud in order to avoid this civil liability since she is not the financial victimthe credit card company is. Therefore, Defendant Golds statement on this occasion was a false and deceptive communication in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692e, 1692e(10), and 1692f.
18. Plaintiff told Defendant Gold that she had never received any information regarding this debt until 2003 and she could not have filed a fraud claim on it, unless she had first known that it even existed. 19. Defendant Gold then told Plaintiff that he could only send her an Affidavit stating that the money was delinquent, was owed, and had to be paid, but could not send out further proof of the debt. Defendant Gold explained that the FTC had bailed out the creditors by passing a law which allowed creditors to submit defaulted account information to a national debt database, rather than making these creditors have to hold on to all the original paperwork from the credit card accounts. A search of the FTC website located at www.ftc.gov reveals no such national debt database and relevant statutes, and therefore this statement by Defendant Gold was a false and deceptive communication in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692e, 1692e(1), 1692e(2), 1692e(5), 1692e(9), 1692e(10), and 1692f. 20. Defendant Gold threatened Plaintiff that when the debts got forwarded out of the Defendants office, it was a lot of money, and that Plaintiff had assets, so it was up to her. When Plaintiff pressed Defendant Gold on what he meant by this statement, Defendant Gold told Plaintiff that he did not know what Defendant CAMCO was going to do but that they usually would not let a debt like this slide. This statement was a false and deceptive communication and a threat to take unspecified legal action against Plaintiffs assets on a stale debt, in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692e, 1692e(2), 1692e(4), 1692e(5), 1692e(10), and 1692f. 21. Defendant Gold then said that Plaintiff did not have enough proof that this was not her debt in eyes of a court, and then placed Plaintiff on hold to get his manager, Defendant Webb, on the phone. This statement was a false and deceptive communication and a threat to take legal action against Plaintiff on a stale debt in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692e, 1692e(2), 1692e(5), 1692e(10), and 1692f. CONVERSATION WITH DEFENDANT JACK WEBB 22. Defendant Webb initially told Plaintiff that if she had a hold harmless clause in her divorce decree, that Plaintiff could go after her ex-husband for the full amount after settling the debt shortin essence committing fraud against her ex-husband by misrepresenting the amount of the debt Plaintiff actually paid off. This statement by Defendant Webb was a false and deceptive communication in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692e, 1692e(2), 1692e(5), 1692e(10), and 1692f. 23. Defendant Webb stated that courts are very reluctant to do anything with spouses and credit card fraud because it was a he-said-she-said situation and that Plaintiff would have the burden of proof. 24. Defendant Webb then tried to convince Plaintiff to criminally charge her ex-husband for this fraudulent account because in his opinion the court would throw the charge out. 25. Defendant Webb told Plaintiff that the issue of consent to incur credit in your spouses name was a very fuzzy one, and that married people basically have co-responsibility for all of each others expenses, barring a prenuptial agreement. 26. Defendant Webb again suggested that Plaintiff overstate the amount she had paid to Defendant CAMCO in order to sue her ex-husband. This statement by Defendant Webb was a false and deceptive communication in violation of numerous and multiple provisions of the
FDCPA, including but not limited to 15 U.S.C. 1692e, 1692e(2), 1692e(5), 1692e(10), and 1692f. 27. Defendant Webb told Plaintiff that the time to report this debt as a fraud account to Bank of America had passed, despite the fact that Defendant Webb also told Plaintiff that she sounded very believable and that he did not doubt that she was telling the truth. 28. Defendant Webb told Plaintiff that if she did not pay this debt, that the account would go to the involuntary payment stage which consisted of verifying assets, bank accounts and employment. 29. Defendant Webb told Plaintiff that the federal validation process ended on the day the Defendants acquired this debt for collection, June 13, 2003. This statement by Defendant Webb was a false and deceptive communication in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692e, 1692e(2), 1692e(5), 1692e(6)(b), 1692e(9), 1692e(10), 1692f, and 1692g, et seq. 30. Defendant Webb told Plaintiff that Defendant CAMCO was a creditor which gave them all the full rights as the original creditors, but that the previous companies were collection agencies, and that Defendant CAMCO had a right to do things to locate her which regular collection agencies were not entitled to do. This statement by Defendant Webb was a false and deceptive communication in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692e, 1692e(2), 1692e(5), 1692e(6), 1692e(9), 1692e(10), and 1692f. 31. Defendant Webb told Plaintiff that Defendant CAMCO would sue her for the $14,000 debt, despite the fact that she had reported the account as fraudulent and that it was more than 14 years old. When Plaintiff challenged Defendant Webb about this statement and asked who would be suing her, Defendant Webb retreated by saying that he was not sure who might do what to Plaintiff. These statements on this occasion by Defendant Webb were false and deceptive communications in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692e, 1692e(2), 1692e(5), 1692e(10), and 1692f. CONVERSATION WITH DEFENDANT MARIO DOE 32. Sometime on or around April 2004, Plaintiff received a phone call from Defendants in an effort to collect this debt. 33. After speaking with one of Defendant CAMCOs floor supervisors for some time with regard to the debt, Plaintiff again explained that these Bank of America credit card accounts had been fraudulently opened by her ex-husband, without her permission or knowledge, approximately 14 years before. 34. The floor supervisor then placed Plaintiff on hold for a few moments, after which Defendant Doe, got on the telephone line and identified himself as from loss prevention. 35. Defendant Doe wanted to know whether or not Plaintiff ever pressed charges against her ex-husband and advised Plaintiff to file a police report against her ex-husband. 36. Defendant Doe then advised Plaintiff that these credit card accounts had now been classified as a willful and deliberate evasion of a debt, and that the original creditor, Bank of America, had rights only against the Plaintiff in this matter. These were false and deceptive statements because Plaintiff was not willfully evading any debt and the original creditor does not have any rights against the Plaintiff, especially given that this debt was more than 14 years old, was beyond the applicable statute of limitations, and had been fraudulently obtained in her name
without her knowledge. Therefore, these statements were made in violation of numerous and multiple provisions of the FDCPA including but not limited to 15 U.S.C. 1692d, 1692e, 1692e(2), 1692e(10), and 1692f. 37. Defendant Doe also told Plaintiff that the only person who could go after her exhusband for these debts was the Plaintiff, and that Plaintiff could simply pay the $500 demand and then later bring suit against her ex-husband for claiming the approximately $7,000 balance on these Bank of America accounts. The suggestion by Defendant Doe that the Plaintiff engage in pursuing a fraudulent lawsuit against her ex-husband, seeking reimbursement for amounts she had not paid, was a communication made in violation of numerous and multiple provisions of the FDCPA including but not limited to 15 U.S.C. 1692d, 1692e, 1692e(2), 1692e(10), and 1692f. 38. Defendant Doe told Plaintiff that Defendants had to take action against only her and could not sue her ex-husband. This communication was a threat to sue Plaintiff for these debts, far beyond the applicable statute of limitations, and therefore was a false and deceptive threat made in violation of numerous and multiple provisions of the FDCPA including but not limited to 15 U.S.C. 1692d, 1692e, 1692e(2), 1692e(5), 1692e(10), and 1692f. 39. Defendant Doe told the Plaintiff that because this [debt] is in your name, youre the person thats gonna be held responsible for it. So as far as Bank of Americas concerned its not a question of if youre gonna pay, its a question of how much are you gonna pay and when, and by what means. Its much cheaper for you this way. Because once it goes to the refusal to pay department they assign an investigator to it. That investigator is gonna make a decision on how much money he feels you can pay, based on your assets, how much money you spend, or tax records or whatever else he can get his hands on. Okay, if he says [Consumer] has the ability to pay $3,000, then theyre not gonna accept a penny less than that. 40. Defendant Doe again told Plaintiff that she should sue her ex-husband for creating these debts, and then asked Plaintiff what she was doing about the damage that was being done to her permanent record as a result of not paying these debts. This communication to Plaintiff that damage would be done to her permanent record for the non-payment of debts which were beyond the applicable statute of limitations was a false and deceptive threat to report false and disputed credit information, and a communication made in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692d, 1692e, 1692e(2), 1692e(5), 1692e(8), 1692e(10), and 1692f. 41. Defendant Doe then told Plaintiff after that day, Defendants would no longer honor the $500 settlement offer made by Defendants, and that if Plaintiff did not want to accept the offer, that the Defendants would then go ahead and turn you over to Loss Prevention and theyll deal with it. 42. Loss Prevention is defined as the stopping or reducing loss from shoplifting, employee theft, paperwork errors and poor safety procedures. Guarding and securing the assets of a company. See http://retailindustry.about.com/library/terms/l/bld_lp.htm. 43. The use of the phrase Loss Prevention combined with the threat that Plaintiff would be turned over to them, is an implied threat of criminal action against Plaintiff in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692d, 1692e, 1692e(2), 1692e(4), 1692e(5), 1692e(7), 1692e(10), and 1692f. 44. Defendant Doe then told Plaintiff that everything is in play and that the Defendants had done everything they were required to do under the laws of Minnesota, that they had done everything that they were required to do in Hennepin County, and that the only thing needed
now was to document Plaintiffs account to indicate that Defendants had expired every option, and that Defendants would then request assistance in resolving the account. Defendant Doe intended and Plaintiff interpreted these statements to suggest that the Defendants were either going to criminally prosecute Plaintiff, or civilly sue her, for these unpaid debts. Therefore, these statements made on this occasion by Defendant Doe were illegal threats of criminal and/or action civil action against Plaintiff in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692d, 1692e, 1692e(2), 1692e(4), 1692e(5), 1692e(7), 1692e(10), and 1692f. ADDITIONAL COLLECTION CALLS 45. In addition to the above detailed calls, Plaintiff and Plaintiffs family members have received numerous and multiple other harassing and threatening collection calls from Defendant CAMCO and its debt collectors within the past year, and which demanded payment for these alleged debts. 46. Plaintiff also received the following collection calls at her home from Defendant CAMCO and its collection agents: Date 02/21/2004 02/23/2004 02/24/2004 02/25/2004 03/05/2004 03/09/2004 03/11/2004 03/24/2004 04/01/2004 Time(s) 10:46 a.m., 12:26 p.m., 1:32 p.m., 1:58 p.m., 2:11 p.m., 2:31 p.m. 12:23 p.m. 2:40 p.m. 2:28 p.m., 7:10 p.m., 7:16 p.m. 1:43 p.m. 11:53 a.m., 6:45 p.m. 1:46 p.m.,7:58 p.m. 6:45 p.m. 12:35 p.m.
47. These collection calls, as well as the other collection calls described herein, were an invasion of Plaintiffs privacy and communications in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692b(1), 1692b(3), 1692c(a)(1), 1692c(b), 1692d, 1692e, 1692e(2), 1692e(5), 1692e(7), 1692e(10), and 1692f. CALLS FROM DEFENDANT ISAIAH COOPER TO PLAINTIFFS TENANTS 48. Plaintiff and her husband own rental housing in which unrelated tenants reside. 49. On at least two occasions, Plaintiffs tenants received phone calls from Defendant Cooper stating that he had repeatedly called Plaintiff, but that he kept getting a busy signal when he called the Plaintiffs number. 50. Defendant Cooper then asked the tenant to hand carry a message back to Plaintiff instructing [Consumer and her husband] to call Isaiah at extension 1877. 51. In fact, the Plaintiff has voice mail through her phone company which answers her telephone in the event that the telephone is in use and therefore no busy signal would ever be received at Plaintiffs residence.
52. Minnesota law recognizes that this collection tactic, namely, the enlistment of a third-party to contact a person with regard to the collection debt, is a violation of a consumers right to be free from abusive collection practices. See Minn. Stat. 332.37(15). 53. These third-party contacts were an invasion of Plaintiffs privacy, an undermining interference with Plaintiffs business relationships with her tenants, an attempt to embarrass Plaintiff, and communications in violation of numerous and multiple provisions of the FDCPA, including but not limited to 15 U.S.C. 1692b(1), 1692b(3), 1692c(a)(1), 1692c(b), 1692d, 1692e, 1692e(2), 1692e(5), 1692e(7), 1692e(10), and 1692f. SUMMARY 54. Plaintiff has suffered actual damages as a result of all of these Defendants illegal collection communications in the form of embarrassment, relationship stress, anger, anxiety, emotional distress, fear, humiliation, and frustration, amongst other negative emotions, as well as suffering from unjustified and abusive invasions of personal privacy at Plaintiffs home and with her tenants. 55. These invasions of privacy occurred even after Plaintiff had advised the Defendants that these debts were fraudulently obtained accounts, that Plaintiff would not pay these debts, and after Plaintiff and Plaintiffs husband had demanded that they stop calling her. FTC ACTION TAKEN AGAINST DEFENDANT CAMCO FOR SIMILAR ABUSES 56. The Federal Trade Commission, Defendant CAMCO, and related companies and individuals recently entered into a public settlement which required the companies and their principals to pay a $300,000 civil penalty for alleged widespread violations of the FDCPA. See attached as Exhibit 1 from http://www.ftc.gov/opa/2004/03/camco.htm. 57. The FTC alleged that Defendant CAMCO and the others threatened and harassed thousands of consumers to get them to pay old, unenforceable debts or debts they did not owe. 58. The public settlement agreement prohibits the companies alleged abusive debt collection practices in the future, requires disclosure to consumers of their rights in the companies collection notices and communications with consumers, and requires the payment of a $300,000 civil penalty. 59. Despite this agreement, Defendant CAMCO has continued to collect these debts from Plaintiff in violation of its public settlement with the Federal Trade Commission. TRIAL BY JURY 60. Plaintiff is entitled to and hereby respectfully demands a trial by jury. US Const. amend. 7. Fed. R. Civ. Pro. 38. CAUSES OF ACTION COUNT I. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT: 15 U.S.C. 1692 et seq. 61. Plaintiff incorporates by reference all of the above paragraphs of this Complaint as though fully stated herein.
62. The foregoing acts and omissions of each and every Defendant constitute numerous and multiple violations of the FDCPA including, but not limited to, each and every one of the above-cited provisions of the FDCPA, 15 U.S.C. 1692 et seq. 63. As a result of each and every Defendants violations of the FDCPA, Plaintiff is therefore entitled to actual damages pursuant to 15 U.S.C. 1692k(a)(1); statutory damages in an amount up to $1,000.00 pursuant to 15 U.S.C. 1692k(a)(2)(A); and, reasonable attorneys fees and costs pursuant to 15 U.S.C. 1692k(a)(3) from each and every Defendant herein. COUNT II. INVASION OF PRIVACY BY INTRUSION UPON SECLUSION AND REVELATION OF PRIVATE FACTS 64. Plaintiff incorporates by reference all of the paragraphs of this Complaint as though fully stated herein. 65. Defendants intentionally interfered, physically or otherwise, with the solitude, seclusion and or private concerns or affairs of the Plaintiff. 66. Defendants intentionally caused harm to Plaintiffs emotional well being by engaging in highly offensive conduct in the course of collecting this debt thereby invading and intruding upon Plaintiffs right to privacy and revealing private facts about her to her tenants, namely, that she was being contacted by a debt collector. 67. Plaintiff had a reasonable expectation of privacy in Plaintiffs solitude, seclusion, and or private concerns or affairs. 68. These intrusions and invasions by Defendants occurred in a way that would be highly offensive to a reasonable person in that position. 69. As a result of such invasions of privacy, Plaintiff is entitled to actual damages in an amount to be determined at trial from each and every Defendant. PRAYER FOR RELIEF WHEREFORE, Plaintiff prays that judgment be entered against each and every Defendant for: COUNT I. VIOLATIONS OF THE FAIR DEBT COLLECTION PRACTICES ACT: 15 U.S.C. 1692 et seq. for an award of actual damages pursuant to 15 U.S.C. 1692k(a)(1) against each and every Defendant; for an award of statutory damages of $1,000.00 pursuant to 15 U.S.C. 1692k(a)(2)(A) against each and every Defendant; for an award of costs of litigation and reasonable attorneys fees pursuant to 15 U.S.C. 1692k(a)(3) against each and every Defendant; COUNT II. INVASION OF PRIVACY BY INTRUSION UPON SECLUSION for an award of actual damages from each and every Defendant for the emotional distress suffered as a result of the FDCPA violations and invasions of privacy in an amount to be determined at trial; and for such other and further relief as may be just and proper.
Dated: August 31, 2004
Respectfully submitted,
______________________________ Attorney for Plaintiff
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4.2 Collecting and Failing to Verify Old Identity Theft Claim, Combined Discovery Request
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA [CONSUMER], Plaintiff, v. WOLPOFF & ABRAMSON, LLP AND MS. DUVAL, Defendants.
PLAINTIFFS INTERROGATORIES, REQUEST FOR ADMISSIONS, REQUEST FOR PRODUCTION OF DOCUMENTS, AND REQUEST FOR PRODUCTION OF STATEMENTS
TO: DEFENDANTS AND THEIR ATTORNEY OF RECORD MR. MICHAEL A. KLUTHO, ESQ., BASSFORD & REMELE, P.A., 3800 MULTIFOODS TOWER, 33 SOUTH SIXTH STREET, MINNEAPOLIS, MN 55402-3707: PLEASE TAKE NOTICE that pursuant to the Federal Rules of Civil Procedure, Plaintiff propounds the following interrogatories and discovery requests: INSTRUCTIONS Any references to Defendant, Defendants, Defendants or Defendant(s) shall be treated as referring to Defendant Wolpoff & Abramson, L.L.P. and its employees or agents, including Nakisha Stovall and Muluwork Girma, individually and collectively, as may be appropriate. As used in these interrogatories and requests, any references indicating the use of masculine or feminine and any references indicating the use of singular or plural, shall be used interchangeably. If any objection is made to any of the following interrogatories or discovery requests, the Defendant shall make any such objection and state the relevant legal basis for such objection. If any objection is made based upon a claim of privilege as to any response, Defendant shall state the legal basis for the privilege Defendant is invoking and provide a detailed privilege log to support the invocation of such privilege. Each and every interrogatory and discovery request herein is deemed continuing in nature pursuant to the Federal Rules of Civil Procedure, and Defendant(s) are obligated to seasonably amend and provide any updated information that renders the responses to one or more of these interrogatories and discovery requests, incomplete or inaccurate, and serve those amended responses upon the undersigned Plaintiffs counsel.
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As used in these interrogatories and discovery requests, the term document or documents means every writing or recorded material of every type and description, of any kind, that is in the possession, control or custody of Defendants, which Defendants have knowledge, whether originals, copies or facsimiles. Such writings or recordings include, but are not limited to, collection notes, electronic computer collection records, printouts of collection records, sample collection letters, Metro-data tapes, diskettes, computer hard drives, tape backups, Zip-type disks, magnetic media of any kind, correspondence, memoranda, stenographic notes, handwritten notes, contracts, documents, rough drafts, inter-office memoranda, memoranda for the files, letters, research materials, logs, diaries, forms, bank statements, tax returns, card files, books of account, journals, ledgers, invoices, diagrams, minutes, manuals, studies, publications, pamphlets, pictures, films, voice recordings, reports, surveys, minutes, statistical compilations, data processing cards, computer records, tapes, print-outs, agreements, communications, state and federal governmental hearings, reports, correspondence, telegrams, memoranda, summaries or records of telephone conversations, summaries or records of personal conversations or interviews, diaries, graphs, notebooks, note charts, charts, plans, drawings, sketches, maps, summaries or records of meetings or conferences, summaries or reports of investigations or negotiations, opinions or reports of consultants, photographs, video tape, motion picture film, digital photographs, brochures, advertisements, circular, press releases, drafts, any marginal comments appearing on any document, all other writings, books of all nature and kind whether handwritten, typed, printed, mimeographed, photocopied or otherwise reproduced, all tape recordings (whether for computer, audio, or visual replay) and all other written, printed, and recorded matter or tangible things upon which words, phrases, websites, listservs, emails, symbols or information of any kind are recorded, encrypted or otherwise stored. A request to identify a document is a request to state the following, as applicable: a. b. c. d. e. f. g. h. The date of the document; The type of document; The names and present addresses of the person or persons who prepared the document and of the signers and addressers of the document; The name of the employer or principal whom the signers, addressers and preparers were representing; The present location of the document; The name and current business and home addresses of the present custodian of the original document, and any copies of it; A summary of the contents of the document; If the original document was destroyed, the date and reason for or circumstances under which it was destroyed; and
Plaintiff requests that the documents be made available for this inspection at the offices of counsel for Plaintiff at 342 East County Road D, St. Paul, Minnesota 55117-1275, or at such office of the Defendants as may be the location of any of the documents requested, during normal business hours, with the least possible disruption to the ordinary course of Defendants duties and responsibilities. Plaintiff further requests that this inspection be permitted by Defendants immediately after Defendants response to this request has been filed, and that Plaintiffs attorneys be permitted to remove from Defendants custody such documents as they may desire to copy, on
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the understanding that Plaintiffs attorneys will be responsible for such documents so long as they are in their possession, that copying will be done at Plaintiffs expense, and that the documents will be promptly returned after copying has been completed. These interrogatories and discovery requests are intended to cover all documents in Defendants possession, or subject to their custody and control, regardless of location. If there are no such documents, please so state. If there are such documents, please list and mark appended documents responsive to each request. (Federal Rules of Civil Procedure, Rule 34(b)). Each interrogatory propounded herein should be answered upon your entire knowledge from all sources and all information in your possession or otherwise available to you, including information from your officers, employees, agents, representatives or consultants and information which is known by each of them. An incomplete or evasive answer is deemed a failure to answer. If any answer is qualified, state specifically the terms of each qualification and the reasons for it. If an interrogatory cannot be answered in full, state the part which can be answered and answer the same in full to the extent possible; state further and specifically the reason(s) why the remainder cannot be answered. If any interrogatory may be answered fully by a document, the document may be attached in lieu of an answer if the document is marked to refer to the Interrogatory to which it responds. For purpose of these requests, a statement is (a) a written statement signed or otherwise adopted or approved by the person making it, or (b) stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded. INTERROGATORIES Pursuant to Rule 33 of the Federal Rules of Civil Procedure, Plaintiff requests that Defendant(s) answer, under oath, the following interrogatories: 1. For each individual person, officer, employee, agent, or other entity answering or providing any information used to answer any Interrogatory, state the following: a. b. c. d. e. f. First, last, and middle legal name; All DBA, fake, or alias name(s) used by this person; Job title or capacity; Business address and telephone number; Home address and telephone number; Age;
2. Identify each document referred to or consulted by Defendants in the preparation of the Answers to these Interrogatories and discovery requests made within this entire document. 3. Identify all persons known to Defendants to have personal knowledge of any facts or issues involved in this lawsuit, state the following: a. b. c. d. First, last, and middle legal name; All DBAs, fake, or alias name(s) used by this person; Job title or capacity; Business address and telephone number;
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e. f.
Home address and telephone number; Age;
4. Identify and describe with particularity all training that Defendants provide or receive, in the area of debt collection activities related to the collection of any accounts, including but not limited to: a. b. c. The training content, timing, and duration; All documents and audio or visual materials used in such training; and Each person involved in providing such training.
5. Identify and describe all manuals, instructions, restrictions or other documentation or instructions Defendants use regarding how to, and how not to, collect debts from persons. 6. Identify and describe Defendants disciplinary policy for violating state and federal debt collection laws, and for violating other state or federal laws in the course of collecting debts of any kind. 7. Identify and describe any documents that describe, record, or establish each of the Defendants methods and techniques used to collect on debt collection accounts. 8. Identify and describe fully any computer, manual, or other system(s) Defendant maintains or operates to record any and all mail, telephone, in-person, or other forms of communications, or attempted communications, with persons or other third parties in connection with the collection of accounts, and Defendants policies and procedures for operating such a system of records. 9. Identify whether Defendants record telephone calls with any persons from who they are collecting and what steps are taken to preserve these recordings. 10. Identify whether Defendants have recorded any telephone calls with the Plaintiff and whether or not these recordings have been preserved, and/or the disposition of these recordings. 11. Identify the original creditor of the alleged debt(s) that Defendants were trying to collect from Plaintiff. Please provide the full legal name, address, city, state and zip code, and phone number of the original creditor(s). 12. In the form of a chronology, identify and describe in detail and with particularity, the process and events by which, and the circumstances under which, the debt allegedly owed by Plaintiff was referred, placed or otherwise assigned to Defendants for collection, and identify all documents relevant to, related to, or reflecting such referral, placement or assignment. 13. Identify and describe each document known to Defendants, which are related to the collection account(s) of Plaintiff. 14. Identify and describe each communication, or attempted communication, between the Defendants with the Plaintiff, or any other person, which was made in connection with the collection of Plaintiffs account, by stating the following: a. b. c. The name of the individual initiating the communication or attempted communication; The date and time of the communication or attempted communication; The method of the communication or attempted communication (e.g. letter, phone call, in-person);
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d. e. f.
A detailed analysis of the substance of the communication or attempted communication, (do not simply refer to collection notes); Identify all witnesses to or participants in the communication or attempted communication;; and, Any actions taken by the Defendants as a result of the communication or attempted communication.
15. State the name, address, telephone number, title, place of employment and field of expertise of each person whom Defendants intend to call as an expert witness at a trial of this case. For each expert witness, state, identify and/or provide: a. b. c. d. e. The subject matter on which the expert is expected to testify; The substance of the facts and opinions to which the expert is expected to testify; A summary of the grounds for each opinion the expert is expected to testify; and All documents, treatises, books, studies, or other materials upon which the expert may rely for information or support of facts and opinions. A current curriculum vitae or rsum.
16. Identify by name, position, home address and telephone number, business address and telephone number, all witnesses the Defendants intend to call or may call to testify at trial, and provide a detailed summary of the expected testimony of each such person. 17. Identify and describe specifically all exhibits Defendants may introduce at the trial of this matter. Alternatively, you may respond by supplying copies of each such exhibit and marking them as responsive to this interrogatory. 18. Identify by company name, business address, and telephone number, all of Defendants suppliers of local and long distance telecommunications, wire communications, wireless or cellular communications, internet telephony or voice communications, or any other type of supplier of voice communications used by the Defendants, between the January 1, 2003 and December 31, 2003. 19. Identify and describe all processes, practices, procedures and methods used by Defendants to identify deceased accountholders. 20. Identify and describe all paper, electronic, or other resources used by Defendant to confirm whether or not accountholders are deceased. 21. Identify and describe all collection practices, procedures and methods used by Defendants to collect on the accounts of deceased accountholders. 22. Identify and describe all facts relied upon to support the defense alleged within Paragraph 16 of Defendant Wolpoff & Abramson, L.L.P.s Answer to the Complaint filed herein, namely, that to the extent Plaintiff was/is the personal representative of [Consumers father], contact with her was authorized by statute. 23. Identify and describe all facts relied upon to support the defense alleged within Paragraph 20 of Defendant Wolpoff & Abramson, L.L.P.s Answer to the Complaint filed herein, namely, [Defendants] liability is excused because any such violation was unintentional and because the Defendant Wolpoff & Abramson, LLP has adopted procedures to avoid such errors. REQUESTS FOR ADMISSION
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Pursuant to Rule 36 of the Federal Rules of Civil Procedure, Plaintiff demands that Defendant(s) either admit or deny the following Requests for Admission within (30) days of service hereof: 1. Admit that Plaintiff [Consumer] is a natural person who resides in the City of Golden Valley, County of Hennepin, State of Minnesota, and is a consumer as that term is defined by 15 U.S.C. 1692a(3). 2. Admit that Defendant Wolpoff & Abramson, LLP is a foreign limited liability partnership and collection agency operating from an address of 702 King Farm Boulevard, Rockville, Maryland 20850 from a telephone number of (301) 407-4500. 3. Admit that at all times relevant to this cause of action, Defendant Wolpoff & Abramson, LLP transacted business in the District of Minnesota and at other locations throughout the United States, operating as a collection agency and as a debt collector as that term is defined by 15 U.S.C. 1692a(6). 4. Admit that at all times relevant to this cause of action, Defendant Ms. Duval was a natural person employed by Defendant Wolpoff & Abramson, LLP as a collection agent and a debt collector as that term is defined by 15 U.S.C. 1692a(6). 5. Admit that Plaintiffs father, the late [Consumers father], allegedly incurred a debt which was primarily for personal, family or household purposes, and is therefore a debt as that term is defined by 15 U.S.C. 1692a(5), namely, a personal credit card with JCPenny incurred for his personal purposes. 6. Admit that sometime on or about August 12, 2000, [Consumers father], Plaintiffs father, passed away leaving behind this unsecured JCPenny debt. 7. Admit that sometime thereafter, this debt was consigned, placed, transferred, or otherwise obtained by Defendants for collection from Plaintiff. 8. Admit that on or about June 1, 2003, Defendant Wolpoff & Abramson, LLP and its collection agents first began contacting Plaintiff regarding payment of the alleged debt by calling her home telephone number. 9. Admit that these telephone calls would occur generally every other day, and come in two or more times on those days. 10. Admit that these collection calls from Defendant Wolpoff were sometimes made by an automated dialer machine. 11. Admit that these collection calls from Defendant Wolpoff were sometimes made by a live person employed by Defendant Wolpoff. 12. Admit that Plaintiff repeatedly advised Defendants of the fact that her father had died three years before. 13. Admit that Plaintiffs fathers estate had been probated. 14. Admit that this was an unsecured debt which Plaintiff did not owe to her fathers estate. 15. Admit that Defendants continued to call Plaintiff at her home in an attempt to collect this debt and thereby invaded her privacy. 16. Admit that on or about September 24, 2003, Defendant Wolpoff and/or its agents initiated a telephone call to Plaintiffs home at 7:02 p.m. from Defendant Wolpoffs telephone number (301) 407-4500. 17. Admit that on or about September 24, 2003, Defendant Wolpoff and/or its agents initiated a telephone call to Plaintiffs home at 3:05 p.m. from Defendant Wolpoffs telephone number (301) 407-4500.
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18. Admit that on or about September 26, 2003, at 4:52 p.m., Defendant Wolpoff and/or its agents initiated a telephone call to Plaintiffs home from its telephone number (301) 4074500. 19. Admit that on or about September 26, 2003, at 2:30 p.m., Defendant Wolpoff and/or its agents initiated a telephone call to Plaintiffs home from its telephone number (301) 4074500. 20. Admit that on or about September 30, 2003, at approximately 4:15 p.m., Plaintiff contacted Defendant Wolpoff. 21. Admit that during the conversation, Plaintiff told to Nakisha Stovall that her father had been dead for more than 3 years and inquired as to the type and amount of debt which Defendants were attempting to collect. 22. Admit that Nakisha Stovall indicated that before she could close out the late [Consumers father]s account, that she must know the name of the funeral home and city and state where it was located. 23. Admit that Nakisha Stovall failed at any time during this conversation to state that she was a debt collector, as required by 15 U.S.C. 1692e(11). 24. Admit that Defendant Wolpoffs, its agents, and its employees, course of conduct in attempting to collect this consumer debt by contacting Plaintiff amounted to an invasion of privacy by intrusion upon Plaintiffs seclusion. 25. Admit that Plaintiff did not consent to collection contacts by Defendant Wolpoff and/or its agents/employees. 26. Admit that Plaintiff had no prior personal, professional, or business relationship with Defendant Wolpoff, or its agents, or its employees. If the Defendant(s) respond to any of these requests for admission with anything other than an unqualified admission, then Plaintiff demands, pursuant to Rule 36 of the Federal Rules of Civil Procedure that the Defendant(s) answer the following interrogatory within (30) days of service thereof, for each such request for admission to which an qualified response was made: 1. If you have answered any of the foregoing Requests for Admission with anything other than qualified admissions, then as to each such response, provide the following: a. b. Identify each and every fact upon which you rely to support your response. Identify each and every document upon which you rely to support your response and attach copies of such documents. REQUEST FOR PRODUCTION OF DOCUMENTS Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Plaintiff requests that Defendant(s) produce within thirty (30) days, the documents described herein and permit Plaintiff and their attorneys to inspect and copy such documents as they may desire: 1. Any and all documents identified in Response to all sets of Plaintiffs Interrogatories, Plaintiffs Request for Admissions, and Plaintiffs Requests for Statements.
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2. Any and all documents summarizing, describing, instructing, detailing, or otherwise training any and all of Defendants employees in any and all of the following areas: a. b. c. d. e. f. g. h. Defendants collection policies; Defendants collection procedures; Defendants collection methods; Defendants collection techniques; Defendants collection tactics; Defendants collection rules; Defendants collection regulations; and Defendants compliance with local, state, or federal laws, codes, or regulations.
3. Any and all training, personnel, or other instruction manuals used by the collection personnel who are employed by or supervised by Defendant(s). 4. Any and all collection software manuals and/or instruction guides for each and every computer system, software package, software system, or other electronic or non-electronic device used in any manner by Defendant(s) in the collection process. 5. Any and all documents related in any way to other lawsuits, legal or equitable claims, regulatory complaints or reports, or any other proceedings that have been brought against any Defendant(s) from January 1, 1999, to the present. 6. Any and all personnel files, human resource department records, employment files, and other documents involving any Defendant, Nakashi Stovall, or Muluwork Girma, including but not limited to any disciplinary notices, reprimands, incident reports, and electronic recordings of collection communications that were the subject of private or other complaints by any person. 7. Copies of each Defendant Wolpoffs Minnesota collection agency license and the individual collectors licenses of each Defendant, if any, as issued by the Minnesota Department of Commerce. 8. Copies of any and all post office box registrations and postage meter permits held by Defendants, or other persons or entities, which are used in any manner by the Defendants for purposes of consumer debt collection. 9. Any and all documents in the possession or control of the Defendant(s), which Defendant(s) claim are in any way relevant to the subject matter of the instant lawsuit. 10. Any and all documents recording, documenting, or otherwise tracking the collection efforts related of the Defendant(s) in any way related to Plaintiffs alleged debt that is the subject of this lawsuit, from January 1, 1999, to the present, including but not limited to: a. b. c. Records of all inbound or outbound telephone calls, to or from Plaintiff or any other person or entity; Records of all inbound or outbound United States mail, to or from Plaintiff any other person or entity; Records of all other inbound or outbound communication of whatever kind, to or from Plaintiff any other person or entity.
11. Any and all printouts computer, mechanical or other reports printed, prepared, or otherwise created using any computer system, software package, software system, or other
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electronic or non-electronic device used in any manner in Defendants collection process, which include Plaintiffs name, address, telephone number(s), account number, or any other information which is personally identifiable to the Plaintiff. 12. A plain-English description or glossary for any and all lists, legends, codes, abbreviations, collector initials, or other non-obvious terms, words, or data contained in any of the documents produced above. REQUEST FOR PRODUCTION OF STATEMENTS Pursuant to Rule 26 and 34 of the Federal Rules of Civil Procedure, Plaintiff demands that copies of the following be made available within thirty (30) days: 1. All statements made by parties and non-parties, which are in the possession or control of any Defendant, Nakisha Stovall, or Muluwork Girma, concerning the above action or its subject matter which are discoverable pursuant to the Federal Rules of Civil Procedure.
Date:_______________
By:
_________________________ [Attorney for Plaintiff]
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4.3 Collecting and Failing to Verify Old Identity Theft Claim, Request to Inspect Premises
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA [CONSUMER], Plaintiff, v. RISK MANAGEMENT ALTERNATIVES, INC., BRIAN KAPLAN, AND DAVID SLATER, Defendants. PLAINTIFFS REQUEST FOR A RULE 34 INSPECTION OF DEFENDANT RISK MANAGEMENT ALTERNATIVES, INC.S SAN ANTONIO, TEXAS COLLECTION CENTER
TO: DEFENDANTS AND THEIR ATTORNEY, GEORGE SERDAR, ESQ., MESSERLI & KRAMER, P.A., 1800 - 5TH STREET TOWERS, 150 SOUTH 5TH STREET, MINNEAPOLIS, MN, 55402: PLEASE TAKE NOTICE that pursuant to the Federal Rules of Civil Procedure, Plaintiff propounds the following: INSTRUCTIONS Any references to Defendant, Defendants, Defendants or Defendant(s) shall be treated as referring to each and every Defendant named within this lawsuit, individually and collectively, as may be appropriate. As used in this request, any references indicating the use of masculine or feminine and any references indicating the use of singular or plural, shall be used interchangeably. If any objection is made to any of the following request, the Defendant shall make any such objection and state the relevant legal basis for such objection. If any objection is made based upon a claim of privilege as to any response, Defendant shall state the legal basis for the privilege Defendant is invoking and provide a detailed privilege log to support the invocation of such privilege. REQUEST FOR INSPECTION AT DEFENDANT RISK MANAGEMENT ALTERNATIVES, INC. Pursuant to Rule 34 of the Federal Rules of Civil Procedure, Plaintiff requests that Defendant provide access to its collection center located at an address of 1100 NW Loop 410,
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Suite 201, City of San Antonio, State of Texas on Thursday, May 22, 2003, at 3:00 p.m., to the locations or things described herein and permit Plaintiff and her attorneys to inspect: 1. The work areas and work stations, and/or former work areas and work stations of each of the Defendants named herein; 2. The collection management offices of the managers of the individual Defendants Brian Kaplan and David Slater; 3. The physical phone systems, computer systems, and other manual or electronic systems used to conduct collection activities within the premises occupied by the individual Defendants in their capacity as collectors with Defendant Risk Management Alternatives, Inc. or former facilities thereof; 4. The personal files of the individual Defendants Brian Kaplan and David Slater; 5. A seating chart defining each work area within the Defendants collection premises located at the above address and an organizational chart indicating the various reporting relationships between and amongst collection staff and management of Defendant Risk Management Alternatives, Inc.; 6. Any and all recording equipment or call tracking equipment used or formally used by Defendants in the course of their collection activities for Defendant Risk Management Alternatives, Inc.; 7. Equipment, processes, or other electronic or manual methods whereby management and supervisory personnel employed by Defendant Risk Management Alternatives, Inc. listen in, intercept, record, or otherwise monitor any and all collection calls made by individual collectors at the address listed above; 8. Any and all time records, time clocks, electronic time keeping devices, computer systems, or other electronic or manual systems used designed for an employee to track the working hours of individual debt collectors, including but not limited to Defendants Brian Kaplan and David Slater.
Date:_________________
By:
____________________________ [Attorney for Plaintiff]
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4.4 Collecting and Failing to Verify Old Identity Theft Claim, Clients Contact Log
COLLECTION COMMUNICATIONS LOG

INSTRUCTIONS: 1. DOCUMENT immediately every communication you have with any debt collector, whether by letter, by phone or by message. Make detailed notes of any conversations you have with a debt collector during the conversation. Keep this log next to your phone. 2. SAVE every single voice mail, answering machine, collection letter, and paper message. Dont throw anything away, including the envelopes that the collection letters come in or anything included with the collection letter. What Did Collector Say? Amount Demanded? Payment Terms? Threats? Profanity? Harassment? Legal Action? Calls to Friends or Neighbors? Abuse? (Use as many lines or pages as needed)
Date of Call? (MM/DD/Y Y)
Time of Call? (00:00 AM)
How Many Minute s Did Call Last? (Appro x.)
Phone Call, Voice Mail, Letter, Paper Messag e?
Collector s Name?
Collection Agency Name and Telephone Number?
1 2 3 4 5 6 7 8 9 10
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4.5 Deposition of FDCPA Class Representative (PDF format)
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION [CONSUMER], a Minnesota ) resident, on behalf of ) herself and of others ) similarly situated, ) ) Plaintiff, ) ) V. ) Civil Action Number ) 3-01CV2658-D ETAN GENERAL, INC., a Texas ) corporation and CREDIT ) PROTECTION ASSOCIATION, L.P., ) a Texas domestic limited ) partnership, ) ) Defendants. ) ****************************************** ORAL DEPOSITION OF CONSUMER NOVEMBER 6, 2002 ****************************************** ORAL DEPOSITION OF CONSUMER, produced as a witness at the instance of the Defendants, and duly sworn, was taken in the above-styled and numbered cause on the 6th day of November, 2002, from 11:50 a.m. to 1:25 p.m., before Diana D. Thrash, CSR in and for the State of Texas, reported stenographically, at Mateer & Shaffer, 1300 Republic Center, 325 North St. Paul Street, Dallas, Texas 75201, pursuant to the Federal Rules of Civil Procedure and the provisions stated on the record.
JANIS ROGERS & ASSOCIATES
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR THE Mr. THE 342 St.
A P P E A R A N C E S PLAINTIFF: Peter F. Barry BARRY LAW OFFICE, LTD. County Road D East Paul, Minnesota 55117-1275
FOR THE DEFENDANTS: Mr. Keith Wier DAW & RAY, P.C. 5718 Westheimer Suite 1750 Houston, Texas 77057
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1 2 3 4 5 WITNESS [CONSUMER] EXAMINATION BY: Mr. Wier BY: Mr. Barry
INDEX PAGE
6, 85 82 EXHIBITS INDEX
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 EXHIBITS DESCRIPTION 1 Complaint - Class Action 2 December 20, 2000 Notice from Credit Protection Association, L.P. PAGE 18 25
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 objections. meaning?
P R O C E E D I N G S (Exhibits 1 and 2 marked) MR. WIER: Is that okay, Mr. Barry? MR. BARRY: MR. WIER: Civil Procedure. Pursuant to the rules Just the Federal Rules of Take it pursuant to the rules.
Just -- you need to go and make -- if
you make -- if you have an objection, you make it just objection, form, and then... MR. BARRY: MR. WIER: MR. BARRY: MR. WIER: do about signature? MR. BARRY: a right to read and sign. MR. WIER: Okay. Because of the time constraints, can we have an agreement we can use this -- for purposes of the -- responding to the class certification, if we don't have the signature page back, can we use an unsigned copy of the transcript is what I am saying? MR. BARRY: Yeah, we can, subject to -We'll read and sign. She has Sure. Right. Yeah. Not a problem. And then what do you want to Yeah. No speaking
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just with the provision that if we -- if she amends any of her answers, she'll do so within the time permitted under the rules and that we'll include that -- we'll file that with the Court if it affects -- obviously if it's substantive and affects her testimony related to your reply motion. MR. WIER: MR. BARRY: Okay. And then also, just as a
matter of making a record, off the record Mr. Wier and I have discussed he'll have until November 18th, 2002, to reply to our class certification memorandum. due November 8th. of time unconditional. Also I have indicated on the record -- or off the record to Mr. Wier that the plaintiff -- part of this meeting today for this deposition included a conference in which I advised Mr. Wier that we needed the information on the numerocity of class members in this case, as well as the net worth of the defendants named in the case, Etan General and CPA, and that if that information isn't provided to the plaintiff by November 18th -- on or before November 18th, that the plaintiff intends to bring a motion to compel the production of that information. It was We've extended it, 10-day extension
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. WIER: Q. please. A. Q. A. Q. [Consumer].
[CONSUMER], having been first duly sworn, testified as follows: EXAMINATION State your complete name for the record,
[Spelling question]? Correct. [Consumer], my name is Keith Wier. I'm a
lawyer here defending a couple of companies that you have sued in connection with a lawsuit here in -pending here in federal district court in Dallas, Texas. A. Q. Are you aware of that lawsuit? I am. You filed a lawsuit against two companies,
Etan General, Inc. and Credit Protection Association, L.P.; is that true? A. Q. That's correct. And I -- I represent both of those entities, Do you
and I'm here today to take your deposition. understand that? A. Q. A. I do.
Have you ever given a deposition before? I have not.
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Q. haven't?
Okay.
You seem a little unsure.
Is there
some question in your mind as to whether you have or MR. BARRY: Just let the record reflect I don't know if it
she's given -- she's given a sworn statement in a criminal case about 10 years ago. would be -MR. WIER: MR. BARRY: MR. WIER: MR. BARRY: MR. WIER: Q. Okay. -- technically a deposition, All right. Criminal case. Very well.
but she did give a sworn statement in a case.
Since you -- with that clarification from your So we both know what You see that there
lawyer, which I appreciate, it appears that you have not given a deposition before. we're doing here today, let me take a few minutes to explain what we're all about here. Do you see that? A. Q. I do. And you see she's got a little machine, and is a court reporter seated to my left and your right.
she's taking down -- do you understand she's taking down every spoken word in this room? A. I do.
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Q.
So you understand that all of your answers are
being taken down and all of my questions, and if your lawyer, Mr. Barry, chooses to speak, she'll take that down as well? A. Q. That's correct. Do you understand that you have been sworn and
given an oath to tell the truth to the questions that I've asked? A. Q. A. Q. I do. And you've agreed to do that? I do. You are doing a good job so far. A couple of
ground rules, if you want to answer yes or no to a question -- and I'm not trying to limit you to a yes or no, but if you choose to respond to a question with either a yes or a no, I'll ask that you use those words rather than "uh-huh" or "huh-uh" because that makes the record a little muddled. A. Q. Okay. And you're doing a good job with this too. Continue to Okay? Okay?
You're speaking out loudly and clearly. try to do that. A. Q. Okay.
And if you don't understand a question that I
ask today, I want a very clean record when we leave
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this room, so please ask me to repeat or rephrase the question, and I'll be glad to do that until you do understand it. A. Q. Okay? Thank you. And by the same token, if you give me an
answer today to a question and you haven't asked for clarification, I'm going to assume that you understood the question when I asked it. A. Q. A. Q. A. Q. Yes. Okay. I am. How long have you resided in Minnesota? Twenty-nine years. Okay. I need some background information for What Are you a resident of Minnesota? Is that fair?
you before we get into the heart of the matter. is your date of birth? A. Q. [Date]. And your Social Security number? MR. BARRY: answer it. otherwise. MR. WIER: All right. So are you instructing her not to give it?
I am going to object to that
on the grounds of relevance and instruct her not to We'll seek a protective order on the Social Security number if necessary, if we can't resolve it
Did I understand you
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to say that? MR. BARRY: MR. WIER: MR. BARRY: MR. WIER: Yes. Okay. And so that -- I guess the To develop -- identify her
question would be why do you need it? appropriately and develop background information to make sure that when we get that information that we have the right person. MR. BARRY: We would agree to provide it with the agreement that -- that it be -- if it's used, that it's redacted, it's blacked out from any court filing, any public filing, or if it needs to be revealed in court filing, that it's filed under seal. MR. WIER: MR. BARRY: filed under seal -MR. WIER: MR. BARRY: Security number. MR. WIER: MR. BARRY: concern with that. That's fine. Her -- we've got a particular That's fine. -- that contain the Social That's fine. The deposition pages are
Her husband was a victim of
identity theft recently, and so she has markers indicating that on her bureaus, and we don't want to --
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and obviously we're not agreeing to permit a credit report to be pulled or anything like that, but if it's merely for identification purposes and it's sealed, then -- in fact, I think there may be a rule. I think there is a rule now under -- there is a -- I believe there is a local rule in Minnesota now requiring it to be blacked out, redacted from any filed records, so as long as we can black it out. MR. WIER: MR. BARRY: Q. All right. Social Security number? MR. BARRY: A. Q. [SSN]. All right. And you mentioned -- or your Go ahead and answer. Okay. Okay. That's fine.
With that, would you give me your
lawyer mentioned earlier that you've given a sworn statement one time in a criminal proceeding; is that true? A. Q. A. Q. A. Q. That's correct. And that was about 10 years ago? Roughly. Was that in the State of Minnesota? It was. Have you always resided in the State of
Minnesota since your birth?
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A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. question. Q.
I have. Where were you born, city and state? Edina, Minnesota. Okay. I am. What's your spouse's name? Todd. Ted? Todd. Todd? T-o-d-d. All right. No. Okay. He lives -MR. BARRY: All right. Object as to form of the I'm And Assumes facts not in evidence. Let me go at it this way. Does Todd live with you in Edina? Are you married?
just trying to get some background information. Are you currently married to Todd? A. Q. else? A. No. I am. Okay.
you may have said this, and if you did, I apologize.
Have you ever been married to anyone
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Q. A. Q. A. Q. A. Q. A. Q. please. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A.
Do you have any children? No. Are you and Todd separated? No. Okay. We -- we don't live in Edina. Oh, I'm sorry. I asked a poor question.
Where do you live? St. Paul, Minnesota. Okay. Give me your physical address there,
[Address]. Okay. Okay. St. Paul, right? And Edina is a suburb -- I may be St. Paul.
saying that wrong -- of Minneapolis, isn't it? Correct. Okay. I am. By whom? Cooper Hamilton, Limited. What do they do? High-end sporting goods, clothing. What is your position with Cooper? I am a lead sales manager. Are you currently employed?
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Q. A. Q. A. Q. A. thing. Q. A. Q. that. A. Q. A. Q. A. Q. A. Q. A. Q.
Okay. Okay.
How long have you been with Cooper? Where did you work before that?
Roughly two months. Restoration Hardware. What did they do? Retail. Okay. Okay. Furniture, gift items, that type of How long were you with that company? Give me your education level -- strike Did you graduate from high school? I did. When and where? 1991, Apple Valley High School, Apple Valley, All right. Where is Apple Valley in relation
Two years. Let me ask it in more basic terms.
Minnesota. to the Minneapolis/St. Paul area? South of St. Paul. About how far? Thirty minutes. Okay. I did. When and where? All right. And did you go to college How many miles?
after graduating from high school?
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A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q.
College of St. Catherine, St. Paul, Minnesota. All right. Four years. Did you obtain a degree? I did. And what was your degree in? Psychology and social issues. Is that a bachelor of science degree? Bachelor of arts. Arts. No. Okay. I did. And about what year would that have been? Actually before I graduated college. All right. It would have to be the mid nineties -Okay. -- started working full time. All right. So you have been working full Did you begin working full time upon Do you have any college education How many years did you attend
college at College of St. Catherine?
beyond what you've just described for me?
graduating college?
time -- and I'm not -- just to ballpark it -- about seven or eight years, something like that?
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A. Q.
Roughly. Okay. And can you give me a ballpark estimate
about how many different jobs -- full-time jobs you've had since college? A. Q. A. Q. A. Three. Okay. You've told me about two already. What
was the third? Fairview Riverside Hospital, Adolescent Okay. What was your job -- what were your job Chemical Dependency. duties in that position? I -- to counsel adolescents with chemical I dependency issues, milieu management on the unit. worked on a locked unit. Q. A. half -Q. A. Q. A. Q. A. Q. Okay. -- two. Did you leave that employment voluntarily? I did. Why? I fell in love with sales. Okay. Who was your supervisor at the Okay. How long did you do that? Roughly a year, year and a I don't recall.
hospital, or the adolescent center, whatever you want
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to call it? A. resume. Q. Let me -MR. BARRY: knowledge. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. I don't know. All right. I did. Okay. And then your next position was with I don't remember his name. Do you believe that you left there No. Answer only from your If you can wait a minute, I can pull up my
on good terms?
which of the other companies that you -Restoration Hardware. Okay. What was your job -- what were your job
duties with that employment? Sales and management. And how long were you there? Two years. Who was your supervisor? Grant Dietrich. All right. I did. I've looked at your complaint, and we are Did you leave that employment
voluntarily?
going to get that in a minute, but I don't see that
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you're claiming any lost wages or loss of income with respect to your employment because of the facts and circumstances of this case. A. Q. I would. Okay. Likewise, I don't see that you're Is Would you agree with that?
claiming any medical expense that you claim that you've incurred because of having to deal with my client. that true? A. Q. anything? A. Q. that. I'm going to hand you -- or actually, you've got a copy in front of you of what I've marked as Exhibit 1. A. Q. filed. I do. And I'll represent to you that's a And I'm going to let you have a couple of When I say look over it, Do you see that? Never. Okay. Now, I understand that before -- strike That's correct. Okay. Have you ever been arrested for
file-stamped copy of the complaint that your lawyer has minutes just to look over it. document is. A. (Witness complies.)
I mean just to verify that that is indeed what that
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MR. BARRY:
I would just note for the Did you
record that we've got two of the Exhibit 1s. MR. WIER: MR. BARRY: stapled to the back. MR. WIER: MR. BARRY: MR. WIER: wanted me to do. MR. BARRY: Sure. Right. Okay. On your copy? Yeah.
I've got -- well,
we've got this copy here, and then we've got the one And I did that --
I thought that's what you No, that's fine. I
just didn't want to -- I didn't want to separate the two unless you had some reason to do it. MR. WIER: All right. Okay. So Exhibit Number 1 appears to be
the complaint that put the lawsuit on file down here in Texas, and the very last page is a copy of an alleged offending letter attached as Exhibit 1 to that complaint; is that true? A. Q. That's correct. Now, I understand -- and we'll get into the
allegations a little more in a minute, and I'll give you a chance to even read over that if you need to, but I understand that this lawsuit was actually filed first
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in the State of Minnesota; is that right? A. Q. That's correct. Okay. And then, from my information, the
lawsuit was ultimately dismissed and then refiled down here in Texas; is that true? A. Q. That's correct. Okay. Why was that done? MR. BARRY: to answer. MR. WIER: Well, I'm not asking her what I'm just asking her from And you specifically told her. I am going to object as to
attorney-client privilege and instruct the witness not
her general knowledge of why -- why that was done. representative, I'm entitled to know that. MR. BARRY: privilege. MR. WIER: Q. A. Q. A. All right. So are you going to follow your lawyer's I do. Okay. No.
I think as the class representative, or purported class Well, it -- any information
that she has on that point is attorney-client
advice and refuse to answer that question? Were you paid any settlement monies by
virtue of the first suit that was filed in Minnesota?
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Q. case? A. Q.
Okay. He was.
Was Mr. Barry your lawyer in that first
And was Mr. Tommy Lyons also representing you MR. BARRY: MR. WIER: I'm going to object as to Well, certainly you're not
in that case? privilege in that case as well. going to take the position that who her lawyers are in that case is privileged, are you? MR. BARRY: lawyers were in that case. MR. WIER: Q. right? A. Q. I was. Was there anybody else that was a client of All right. With regard to the Let me ask it this way. Well, I'm objecting as to relevance, and it's a matter of public record who her
first lawsuit that was filed, you were the client,
Mr. Barry in that case, or was it just you individually and perhaps as a class representative? A. Q. A. Me as a class representative. All right. No. Your husband wasn't a party to
that case, was he?
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Q. A. Q. A. Q. A. Q.
Was there anybody else that was a party, from No, not that I'm aware of. And who did you sue in the Minnesota case? Who did I sue? Yes. I don't know the answer to that. Okay. And I want to be careful -MR. BARRY: THE WITNESS: MR. BARRY: THE WITNESS: MR. BARRY: If -Can I say that? Yes. Okay. Answer his question.
the plaintiff's side, as far as you know?
A. Q.
Etan Industries. Okay. So is that a different -- is that a
different defendant than -- or a different party rather than you sued in this case? A. Q. No. MR. BARRY: Be sure to speak up, please. Your -- and I understand -- and I'm trying to
be careful to not have you reveal attorney-client privilege because I heard what your lawyer said, and I want to make sure I'm careful about this, but in that prior lawsuit, you retained counsel to help you, right? A. I did.
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Q. A. A. Q. A. Q.
Did you sign some kind of a fee agreement? My -MR. BARRY: Yes. All right. He did. And I don't want to at this point ask you who MR. BARRY: Same objection as to You already told me Mr. Barry It's just a yes or no.
represented you in that case, right?
else, but were there other lawyers involved? privilege. Q. A. Q. A. Q. A. Q. Did a -- did you have a lawyer that referred No. Okay. How long was the Minnesota case pending you to Mr. Barry in the first place?
before it was dismissed? I don't know the answer to that. And you didn't give a deposition, like you're I did not. Do you remember whether you answered any Did you do anything
doing here today, in connection with that case?
written questions -- we call them interrogatories -that you had to answer under oath? like that in that case? A. I did not.
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Q. A. Q.
Okay. Okay.
Have you ever been to Texas before? Just so the record is clear -- I got You've never worked in the
Just flown through.
your employment history, but I want to make sure that we have this nailed down. A. Q. A. Q. money -A. Q. Never. -- for debts. Okay. Other than the case in Never. Have you ever worked for a creditor? Never. Have you ever -- in any of your jobs that debt collection industry, have you?
you've had ever worked at trying to get people to pay
Minnesota that we've been talking about, have you ever filed any other lawsuits before? A. Q. A. Q. A. Q. Never. Have you ever personally been sued? No. Okay. I have. Did you read it before it was filed? MR. BARRY: Just so we're clear on the With regard to Exhibit Number 1, have
you ever had a chance to read through that?
record, when you point to Exhibit 1, are you talking
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about -MR. WIER: MR. BARRY: exhibit -MR. WIER: point. Q. That's -- and that's a fair Let's go ahead and clear that up for the Exhibit 1 -- when I refer to Exhibit 1, I'm I'm sorry. I'm sorry. -- what I think would be your
record, and then we can move on. going to use these little exhibit stickers, and that's the complaint -A. Q. that? MR. BARRY: MR. WIER: MR. BARRY: Q. Do you want to just give us That's fine. Okay. those exhibit copies and we'll work with those? Okay. -- that has the letter attached as the last Do you see
page of that exhibit -- to that exhibit.
Now, I'm going to hand you what I've had
marked as Exhibit Number 2, and just so the record's clear, Exhibit Number 2 is actually a duplicate copy of the last page of Exhibit 1. A. Q. That's correct. Okay. All right. Exhibit Number 2 appears to Is that true?
be a copy of a letter addressed to [(formerly)]; is
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that true? A. Q. A. Q. A. Q. A. Q. birth? A. Q. A. Q. A. Q. It was. Okay. And [Consumer] is your married name? That's correct. Have you gone by any other names during your I have not. Okay. Other than this letter marked as That's correct. It's dated 12/20 of 2000; is that -That is true. Did I read that correctly. I do. Have you been known during your lifetime as I have. Was that -- was [formerly] your given name at Do you remember
receiving this letter?
[Consumer (formerly)]?
lifetime other than [Consumer (formerly)] or [Consumer]?
Exhibit Number 2 to your deposition, have you ever received any other written correspondence that you can recall from Credit Protection Association, L.P.? A. Q. Not that I can remember. Okay. You've also sued in this lawsuit here
in Texas a company by the name of Etan General, Inc.
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To your knowledge, have you ever received any correspondence whatsoever from Etan General, Inc.? A. Q. Not that I recall. Okay. And then you mentioned a company that Do
you sued in the Minnesota case, Etan Industries. from that entity ever? A. Q. Not that I recall. Okay. Now, Exhibit Number 2 is a letter
you recall ever receiving any written correspondence
directed to you, dated 12/20, 2000, asking you to pay some late fees because of a Blockbuster Video rental; is that true? A. Q. A. Q. A. Q. no? A. Q. A. Uh-huh. No. So when you received this letter, All right. That is what it says. All right. When you got this letter, did you
do anything in response? Not that I recall. Did you ever go down to Blockbuster and I don't believe the charges are owed. Okay. So the answer to my question would be
attempt to pay the charges?
you didn't believe the charges were owed; is that true? That's correct.
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Q.
All right.
And by the plain language of the
letter, it gives you until January the 8th of 2001 to send them a check or money order in the amount of $15.72; is that true? A. Q. That's true. Did you ever go down to your local Blockbuster
on Robert Street in St. Paul before January the 8th of 2001 and attempt to talk to somebody about the fact that you disputed these charges? MR. BARRY: answered. A. Q. Objection, asked and Go ahead and answer. Not that I recall. Okay. Did you ever write a letter to either I dispute these
Blockbuster or Credit Protection Association and say, hey, you've got this all wrong. A. Q. A. Q. I don't believe so. Okay. Yes. Okay. Do you know whether your lawyer, Did you hire an attorney to assist you charges or something to that effect?
with this case before January the 8th of 2001?
whichever lawyer that might be, sent any kind of correspondence to Credit Protection Association or Blockbuster regarding this matter? MR. BARRY: Answer only as to your
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knowledge and not as to any private conversations we may have had. A. Q. I don't know the answer to that. Okay. What I'm really asking is: Do you know
whether your lawyer sent a letter on your behalf attempting to respond to Exhibit Number 2? A. Q. I don't know the answer to that. Okay. Since this first came up in December --
on December 20th of 2000, have you ever gone and checked your personal credit history? A. Q. A. Q. A. Q. I have. How many times? I don't recall how many times. How did you go about checking it? I sent away for credit reports. Did you ask that one of the big three credit MR. BARRY: relevance. A. Q. All three. MR. BARRY: Okay. Continuing objection. And when we say all three, we're MR. BARRY: A. Equifax. Equifax. I'm going to object as to
bureaus provide you with that report? Go ahead and answer.
talking about TransUnion, Experian and --
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Q. A. Q. three? A. Q. A. Q. A. Q.
-- Equifax; is that true? That's correct. Okay. I did. Do you still have those in your possession? I believe so. Did the credit report reflect any entry at all I don't recall. As we sit here today, do you have any And did you get a report from all
with regard to the debt alluded to on Exhibit Number 2?
knowledge that anyone, with either Credit Protection Association, Etan General or Blockbuster, ever reported the debt listed on Exhibit 2 as a bad debt? A. Q. answered. Q. A. Q. Well, let me ask it this way. It is. All right. I think you've already -- we've Is protecting your credit important to you? I don't recall. Okay. You just haven't ever checked on that? MR. BARRY: Objection, asked and
heard some talk this morning that either you or your husband or both have been the target of alleged identity theft; is that true?
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A. Q. A. Q.
That's correct. You understand that there are people out there That's correct. And despite that knowledge, you haven't gone
that inappropriately use your credit from time to time?
back and checked your credit history to see whether this debt, Exhibit Number 2, is showing up on your credit report? MR. BARRY: answered. A. Q. his question. I don't recall. MR. BARRY: Okay. Blockbuster about this? MR. BARRY: answered. Q. A. Q. A. Q. You can answer. No. Okay. Not that I recall. And let me ask it this way, and then maybe I Have you ever talked to anybody Same objection. Asked and Also object as to relevance. Have you ever talked to anybody at Objection, asked and Go ahead and answer That is the third time.
can -- we can move on.
about this debt and whether or not you dispute the charges or whether they are justified, other than your
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lawyers? A. Q. Not that I recall. Okay. The lawsuit complaint that's in front
of you as Exhibit Number 1, have you ever read through that before today? A. Q. A. Q. A. Q. time ago? A. Q. Some time ago. Okay. You didn't read it in the last couple MR. BARRY: MR. WIER: a document? MR. BARRY: MR. WIER: questions? do we? THE REPORTER: It's all certified. I Absolutely. Do I need to certify all these Objection, calls for To ask her whether she's read I have. Did you read it before it was filed? I don't know. Okay. When is the first time you recall
reading it with any specificity? I don't know a date. Okay. Would it have been recently or some
of days to get ready for your deposition? attorney-client privileged information.
I don't think we need to do that anymore,
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mean, the whole transcript is certified. MR. WIER: Q. All right. Have you -- have you Well, this may draw an objection, but I ask it
in every deposition I ever take. deposition today? A. Q. A. Q. A. Q. today? A. Q. A. Q. No. Okay. No. Do you know what that is? MR. BARRY: conclusion. Q. I have.
reviewed any documents to help prepare you for your
And what documents would those be? I looked at this, Exhibit 1 and Exhibit 2. Okay. Okay. Did you look at anything else? Did you review any testimony from other Not that I recall.
cases or anything like that before you got in here
Have you ever read the Federal Fair
Debt Collection Practices Act?
Objection, calls for a legal Do you
You can answer just as a lay person.
know what the Federal Fair Debt Collection Practices is -- Act is? A. Certain rules that regulate collections.
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Q.
Okay.
Have you read any court cases or
attorney general opinions or any FTC commentary regarding the Federal Fair Debt Collection Practices Act? A. Q. No. Do you recall ever making any suggestions or
proposed revisions to this complaint, Exhibit Number 1, before it was filed? A. Not that I recall. MR. BARRY: of the question. Q. I have not yet sent written discovery, but I Are there any other have the right to do that and probably will at some point and ask for documents. documents in your possession or that you've given over to your attorney that you believe are pertinent to this case other than Exhibit 1 and Exhibit 2? A. Q. Not that I know of. Okay. So what I'm really getting at is you Object as to privilege, form
don't have a big file folder at home that has a bunch of documents in it that you have labeled as belonging to this case or anything like that? A. Q. No. Okay. This is the first time you've filed a
lawsuit against a collection agency; is that true?
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A. Q.
That's correct. You understand my client, CPA -- well, we call
them CPA -- Credit Protection Association, is a debt collection agency; is that true? MR. BARRY: the question. Q. Objection as to the form of What is Can you restate it?
Well, let me just ask it this way.
your understanding as to what Credit Protection Association does? A. Q. I didn't have any idea what Credit Protection Okay. Do you know whether the -- the Federal
Fair Debt Collection Practices Act, and it's known in legal parlance as the FDCPA, whether that regulates third-party debt collectors or not? MR. BARRY: conclusion. A. Q. I don't know. Okay. Do you know whether that same Act -Objection, calls for legal Answer if you know.
and I'm going to refer to it as the FDCPA because we'll get out of here a lot quicker than me restating the full name. Do you understand when I use the term Okay? FDCPA, that stands for Federal Fair Debt Collection Practices Act. A. (Witness nods.)
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Q. A. Q.
You have to answer out loud. I do. Okay. Do you know whether that particular
Act, the FDCPA, regulates the activities of creditors such as Blockbuster? MR. BARRY: conclusion. Q. A. Q. Do you know? I don't know. Okay. Do you recall -- I may have asked this, Objection, calls for legal
and if I do, I apologize because I genuinely don't remember whether I've asked it. Have you -- have you signed a fee agreement with any lawyer setting out the terms of the representation of your lawyers in this case? A. Q. My lawyers have agreed to front my fees. Okay. Do you remember signing a written MR. BARRY: privilege. her lawyers. Q. A. Q. Okay. I do. Okay. Do you remember -- did you read the Do you remember doing that? Object as to attorney-client
contract to that effect? Stipulate she signed a fee agreement with
document before you signed it?
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A. Q. A. Q. A. Q.
Of course. Do you remember how many pages it was? I don't recall. I'm just trying to get at was it a lengthy I don't recall. Do you recall whether the document set out any MR. BARRY: I am going to object as to All right.
document or short document or do you recall?
duties and responsibilities you might have? attorney-client privilege. MR. WIER: Q. A. Q. question based on -I am. -- advice of your lawyer. Okay. Now, you understand that, by Are you going to refuse to answer that
virtue of this lawsuit petition, that you are suing individually on behalf of yourself and also on behalf of a purported class. A. Q. Do you understand that? That's correct. Has your lawyer told you that there are
certain duties and responsibilities that go along with serving as a class representative? MR. BARRY: I'm going to object as to attorney-client privilege and instruct her not to
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answer. MR. WIER: Q. That's fine. Let me try to ask the question another way.
Do you -- do you understand that you have certain duties and responsibilities in serving as a class representative? A. Q. A. Q. A. Q. I do. And what -- what do you understand to be those To represent the class' interest. Okay. Okay. And how do you go about doing that? Does your -- does your attorney keep By following through with my attorney.
duties and responsibilities?
you advised of how the case is proceeding through phone calls and correspondence? A. Q. those? A. Q. A. Q. A. I do. Do you have a file where you keep those? I do. Do you take any notes when Mr. Barry calls you I do. He does. Okay. When you get letters from Mr. Barry or
any of the other lawyers in the case, do you read
on the phone?
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Q.
Other than reading the mail and talking to
Mr. Barry, what else have you done to serve as a class representative? MR. BARRY: And I just would make an objection as to attorney-client privilege and just instruct the witness to answer only as to those things which have not been private conversations between you and your attorneys on this case. A. Q. A. Q. I don't have an answer. Okay. Have you done anything else other than
read the mail and talk to Mr. Barry on the phone? I haven't. Okay. Now, the lawsuit petition references
that Exhibit Number 1 attached to the complaint, which is the last page of the complaint, violates a Minnesota law. that? A. Q. My attorney made me aware of that. Okay. MR. BARRY: I would just -- just for the Were you aware that the lawsuit petition says
record -- I would just state for the record that [Consumer] has met with her counsels on several occasions as well. calls and letters. MR. WIER: All right. It hasn't been limited to phone
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MR. BARRY: MR. WIER:
You can inquire on that point Fair enough.
Are you aware that, despite the reference that
Minnesota law has been violated, that you haven't sued for -- on that basis? A. Q. Could you repeat the question, please? Well, actually, you can just go to it. Go to
Paragraph 24 of the complaint, which is Page 1, 2, 3 -4 of the complaint, Paragraph 24. A. (Witness complies.) MR. BARRY: MR. WIER: MR. BARRY: I am going to object to the All right. Answer if you know. It appears to call for a legal conclusion.
And right now the question -- let me just The question is, you know, do you see in
Exhibit 24 that the allegation's made that Exhibit 1 attached to that complaint violates Minnesota Statute, Section 332.33? MR. BARRY: Object as to form of the
I don't know what Minnesota statute. All right. I have. Have you ever read that statute?
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Q. A. Q. petition? A. Q.
You have? (Indicating.) I'm sorry. Have you ever read the statute
itself, not the reference to it in this lawsuit I have not. Okay. So you don't have any idea what that MR. BARRY: knowledge. A. Q. Not to my knowledge. Okay. And all I'm trying to get at right now, Answer only as to your
says, that statute?
Paragraph 24 of this complaint references that the letter attached thereto as Exhibit 1 violates Minnesota Statute, Section 332.33. A. Q. Is that what that says? That is what it says. And then reading on in the paragraph, it also
says that because of that a defendant has attempted to collect a consumer debt in violation of Minnesota law. Do you see that? A. Q. I do. Do you know why the lawsuit does not make an MR. BARRY: conclusion. Objection, calls for a legal
allegation that my client violated Minnesota law?
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Q.
And if you don't know, that's fine.
I just
want to know if you know why you are not making that allegation. MR. BARRY: Q. A. Q. You can answer. I don't know. Okay. And you have been hired -- I'm sorry. Same objection. Same basis.
You've filed this lawsuit on behalf of yourself and other people that are residents of Minnesota, true? A. Q. That's correct. And you want to serve as the class
representative and protect their interests in this case; is that true? A. Q. That's correct. And based on that, do you think it's wise to
file a lawsuit and not pursue every conceivable legal theory that these purported class members might have? MR. BARRY: conclusion. Q. A. Q. You can answer. I don't know. I mean, if somebody were suing on your behalf Objection, calls for legal Objection, argumentative.
for a class, wouldn't you want all the relief you were entitled to? MR. BARRY: I am going to just object to
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the form of the question.
It -- as though there is I mean, I don't want There is not
some implication that there is?
the witness to be misled into thinking that there is a private cause of action under 332.33. so... MR. WIER: question. MR. BARRY: Q. Well, it's argumentative. If someone were serving as a class I'm just asking the general
representative on your behalf, wouldn't you want that class representative to pursue every legal avenue possible? MR. BARRY: conclusion. Q. A. Q. Q. A. Q. You can answer. That would depend upon -What would it depend on? MR. BARRY: Same objection. Same basis. What would it depend on? I don't have an answer. Okay. Are you aware that my client made an Objection, calls for legal
offer of judgment in this case to you offering to settle this case? A. Q. I am aware. Okay. And are you aware that we offered the
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sum of $3,000? A. Q. I am aware. Are you aware that under the FDCPA, which is
the only statutory claim you've made in this case, your maximum recovery is $1,000? A. Q. That's correct. And you understand that if you go through with
your plans to serve as a class representative and the Court ultimately decides to do that, your maximum recovery is a thousand dollars? A. Q. A. Q. A. Q. A. here. Q. All right. But you do acknowledge that the deal my client's proposed under the offer of judgment is better than anything you are ever going to get in this lawsuit if you go through and serve as a class representative. Would you agree with that? That's correct. And you understand my client's offered you That's correct. So do you think it's in your best interest Is it in my best interest? Yes, ma'am. It's not my interest we're concerned about
$2,000 more than that to settle this case?
individually to refuse that offer?
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MR. BARRY: not in evidence. You can answer.
Objection, calls for facts
Could you repeat the question, please? In other words, if you are going to get $1,000
by serving as class rep in this case, and you can get $3,000 right now, 3,000's a better deal, isn't it? A. Q. It is. Okay. Now, based on what you said earlier,
under your fee agreement with your lawyer, they've agreed to up front -- I think you said fees; is that right? MR. BARRY: MR. WIER: I believe that misstates the Okay. I think she said costs.
Well, let me just restate it, or let me ask it Are you getting billed on a monthly or
quarterly basis from Mr. Barry for anything in this I'm not. You're not? I'm not. Okay. So to your knowledge, you've never I'm sorry. I didn't hear you.
received an invoice asking you to pay for anything, postage, copy expense, anything of any sort?
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A. Q.
No. It's your understanding from your fee
agreement that Mr. Barry is -- and his firm and the other lawyers have agreed to up front all of that; is that true? A. Q. That's correct. Okay. When you first got the letter marked as And I'm talking
Exhibit Number 2 to your petition, was there anything that concerned you about the letter? about before you went to a lawyer. Just from your own personal recollection, was there anything about this letter that offended you other than the fact that Blockbuster was attempting to charge you for fees that you thought you didn't owe? A. Q. A. Q. That offended me? Yes, ma'am. No. And the reason I say -- use the word offended,
in this lawsuit, you understand you've sued my -- both of my clients claiming that they have violated federal law in some respects. A. Q. I do. And you understand that you're claiming that Do you understand that?
they've engaged in false, misleading or deceptive practices in one manner or another?
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A. Q.
That's correct. What I want to know now is -- I don't want to
know what your lawyers have talked to you about as the case progressed, but what -- you know, at the very moment in time when you got this letter. A. Q. Uh-huh. When you got that letter at that point in So we're clear that's the point in time we're talking about?
time, on or about -- it may have been a few days after 12/20 of 2000, is it true that your main concern was that you were being allegedly charged $15.72 and you didn't think you owed that; is that true? A. Q. answered. MR. WIER: the last question. Q. Was that your main concern when you received MR. BARRY: A. Q. MR. WIER: Same objection. Objection, nonresponsive. this letter? It's not my only concern. I'm going to give you a chance to tell me the Well, that's the way I phrased That's not my only concern. Okay. Was that your main concern? MR. BARRY: Objection, asked and
other concern in a minute but -- well, let me just
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ask -- let me just ask it this way and that way we don't have to ask the question 10 times. When you received this letter, I think we've already established you didn't think you owed the charges, true? A. Q. True. What -- what other things concerned you about
this letter at that point in time before you consulted with an attorney? A. Q. A. Q. Its format. Okay. And what specifically about its format
was troubling to you? It looks -- it's -- the way the wording is, Okay. So -- so if I understand you right, the you are being notified, you have a notice. fact that it's got notice in big letters near the top of the letter, that's concerning to you? A. Q. A. Q. Uh-huh. You have to answer out loud. Yes. Sorry. And then you have some concern because the
first four words of the letter after your address say you are hereby notified? A. Q. Correct. Okay. Was it concerning to you that those
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four letters -- those four words rather are in all caps or is it just the words themselves? A. Q. A. Q. A. Q. A. Q. I think it's the wording themselves. Okay. What is it about the wording itself
that was troubling to you? It seems like an official document -Okay. -- almost -Go ahead. Okay. MR. BARRY: I would also like the record I'm sorry. Almost governmental.
to reflect that she -- she, with her hand, indicated the scroll work around the... MR. WIER: that. MR. BARRY: Q. A. Q. notices before? In terms of car titles. Okay. When you got this letter, did you take Okay. Well, have you ever received any governmental Right. I'm going to get to
this letter and compare it to those other notices that you've gotten to try to determine whether or not this was a governmental notice? A. Not that I recall.
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Q.
I mean, you acknowledge that there is nothing
in this letter with regard to the name or any of the words on there that make any indication that Credit Protection is affiliated with some state government or the U.S.A. or anything of that sort, do you? A. Q. A. Q. A. Q. A. Q. It just says a nationwide collection company. Okay. Doesn't that just mean they collect -Nationwide. -- debt nationwide? Potentially. Okay. You -- are you familiar with the
insurance company, Nationwide Insurance Company? I'm not. You are not telling me, are you, that just
because the word nationwide is in that letter, that that gives you the impression it's from the government? A. Q. A. Q. No. Then I think you said you had a problem with That's correct. Okay. Now, since getting that letter and
the scrolling around the letter?
having those concerns, have you ever gone back and looked at the Act to see whether or not those things are violative? MR. BARRY: Object to the form of the
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question. question. FDCPA?
Also object on the grounds that it's a legal When you say Act, are you referring to the MR. WIER: MR. BARRY: FDCPA. I'm sorry.
Go ahead and answer.
A. Q.
Have I looked -- please repeat the question. Yeah. Based on your prior testimony that
these were concerning to you, did you do anything at that point to determine whether or not -- and I'm asking you a different question by the way. Did you do anything at that point to determine whether or not this letter came from a governmental agency? A. Q. I did not. Okay. And I think you already said that you And I may Did you ever contact Credit Asked and answered.
didn't -- you never contacted Blockbuster. have asked this.
Protection either upon your receipt of this notice? MR. BARRY: A. Q. I did not. Okay. Wouldn't that have made some common MR. BARRY: argumentative. Q. You can answer. Objection. That's
sense to do that?
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A. Q.
I didn't. All right. Anything else about this letter
that's concerning to you other than what you've told me previously? A. Q. It's signed by the president. Okay. That's something you've learned from MR. BARRY: attorney-client privilege. Q. Well, let me ask it this way. When you got this letter on December 20th, 2000, you'd never had any dealings with Credit Protection Association, true? A. Q. A. Q. That's true. You'd never had any communication with them To the best of my knowledge. And you didn't have any knowledge of whether Objection, calls for
your lawyer, right?
whatsoever, right?
R. J. Simpson was the president of the company or whether R. J. Simpson even existed, right? A. Q. That's correct. And you are not going to tell the ladies and
gentlemen of this jury, are you, that because the letter is signed by somebody named R. J. Simpson, that that, at that moment in time when you received the letter, was of any concern to you at all?
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MR. BARRY: form of the question. Q.
I'm going to object to the
There are no members of the
jury, ladies or gentlemen or otherwise, in this room. Well, and maybe I should have told you this in You understand I have the right to read the beginning. of trial? A. Q. That's correct. Okay. So what I'm trying to ask you is when
your testimony to the jury if I so choose at the time
we go to trial and I ask you all these same questions and I ask you what you were complaining about or what was concerning to you at the time that you received this letter, you are not going to tell this jury that you were concerned that R. J. Simpson signed it as president as of 12/20 of 2000, are you? MR. BARRY: You can answer. I don't have an answer. Okay. You didn't even know who R. J. Simpson Objection, misstates her
was at the time, did you? Not at that time. And it's your understanding that R. J. Simpson That's correct.
is not the president of CPA, right?
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Q. A. Q.
That's something that you learned about after That's correct. Is it fair to say that with regard to the
contacting your counsel, true?
day-to-day handling of this lawsuit, that you're just leaving that in the hands of your lawyers? MR. BARRY: Q. A. Q. You can answer. It is. Are you familiar with the term overshadowing MR. BARRY: conclusion. A. I don't know. THE REPORTER: THE WITNESS: Q. A. Q. A. Q. I'm sorry? I don't know. Objection, calls for legal Objection, argumentative.
as it applies to the FDCPA? Answer if you know.
Do you have any idea, as we sit here today, Other members who have received notices Okay. And have you -And have you done anything
who the other class members might be? similar to mine --- in the State of Minnesota. All right.
personally to try to figure out who those people might
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A. Q.
No. Do you have any understanding, based on your
review of any documents you've seen in this case, as to what types of people would be qualified to be included in this class? A. Q. To the best of my knowledge, it's people that Okay. If you decide to bring a class action, have received notices similar to mine. do you understand that it's possible that you'll receive more money than any other member of the class? MR. BARRY: conclusion. Q. A. Q. question. Q. All right. And if you are serving to represent the interest of the class as a whole, do you think it's fair that you would receive more money than any other person that would be a member of this class? MR. BARRY: in evidence. Are you advising her of that? I am going to object as to -it's argumentative and it calls for facts that are not Do you understand that? I under -- I understand. All right. MR. BARRY: Object to the form of the Objection. Calls for legal
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MR. WIER:
I'm just -- I'm just -- let me
just try to ask the question again. Depending on the numbers of folks who may comprise this class and the other factors that a Court would have to analyze in deciding damages for a potential class, it's -- do you understand that it's possible that you could receive more money than any other member of the class? MR. BARRY: form of the question. MR. WIER: MR. BARRY: That's my point. I'm going to object to the It mischaracterizes her earlier All right. -- that she would only Even if you are limited to a
She testified that she understood --
receive a thousand dollars in statutory damages. thousand dollars, you understand that it may be possible that that's more money than anybody else in the class will get? A. Q. I understand. And do you think that's fair? MR. BARRY: ahead and answer. THE WITNESS: MR. BARRY: It is my time. Did you say go ahead? Yeah. Go ahead and answer. Object, argumentative. Go
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Q. true?
Well, but you've already told me that your Is that
lawyer is pretty much doing everything, right? MR. BARRY: A. Q. A. Q. Yes -You can answer. -- but I came down here. Okay.
Objection, argumentative.
Some of these folks that make up the
class would probably be better off filing their own lawsuits, wouldn't they? MR. BARRY: conclusion. A. Q. Objection, calls for legal Lack of personal knowledge.
I don't know the answer to that. Well, if you assume with me that -- that you
get a thousand dollars and everybody from the class doesn't, in that scenario, any other member who -- any other person who could be a member of this class could file their own lawsuit and get a thousand dollars on their own, true? MR. BARRY: personal knowledge. A. Q. I don't know the answer. Let me just ask the question this way. If Same objection. Lack of
that -- if that could occur, it makes common sense, and you would agree, that a person -- if a person could get
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a thousand dollars by pursuing a case on their own and they get significantly less by being a member of the class, they are better off financially by pursuing their own claim. A. Q. Would you agree with that? Answer if you know. MR. BARRY:
I don't -- I would agree with that. Do you have an understanding of the definition
of the proposed class or the exact parameters of who would make up the class, as we sit here today? A. Q. I don't know. Okay. Just people who have received notices similar to mine. Other than that, you don't really have MR. BARRY: conclusion. A. Q. A. Q. of? A. Q. Not that I'm aware of. Okay. And I may have touched on this with No. Okay. Do you know what the benefits are of a Objection, calls for legal any knowledge as to who would make up the class?
class action? That -- yes, that it doesn't flood the court Okay. Any other benefits that you are aware system with individual cases.
regard to the offer of judgment that was made to you,
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but do you understand that because you've rejected that, should a class be certified, that you lose control over negotiating the settlement of this case? A. That's correct. MR. BARRY: made. I am going to just object as
to form of the question as to the presumptions it's We don't concede an offer of judgment was served MR. WIER: MR. BARRY: Q. I'm sorry. What did you say? in this case. I said we don't concede that
a valid offer of judgment was made in this case. I want to make sure before we leave here today, because this is my opportunity to ask you questions, is there anything else that was upsetting or confusing or troubling to you about this letter, other than what we've already talked about? MR. BARRY: MR. WIER: A. Q. Okay. Exhibit 2. Exhibit 2. I'm sorry.
Not that I'm aware of. And after receiving this notice and
going to your attorney, were your concerns alleviated about whether or not this was a legal document or not? MR. BARRY: the witness not to answer. I'm going to object as to Instruct that invading the attorney-client privilege.
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Q. A.
Are you going to follow your lawyer's advice? I am. MR. BARRY: Although there is another way Another way to answer it or Another way to ask that Read the question back,
to answer that question. MR. WIER: another way to ask? MR. BARRY: MR. WIER: please. (Requested portion read by reporter) Q. Did you at some point in time, after receiving this notice, have your concerns addressed that we've been describing with respect to Exhibit Number 2? A. Q. A. Q. A. Q. I have. Okay. And those concerns were addressed question to get the answer you want.
before you filed this lawsuit, right? That's correct. Okay. But you decided to go ahead and file
the lawsuit anyway; is that right? That's correct. Okay. Do you have -- did you have any
concern, when receiving Exhibit Number 2, about the statement in the letter that states that we shall recommend to your creditor that CPA be given full
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authority to take all appropriate action necessary to collect this account? A. Q. Absolutely. Okay. Is that something -- I don't want to
know what you talked about, but is that something you addressed with your lawyer? MR. BARRY: attorney-client privilege. MR. WIER: Mr. Barry, with all due respect, I mean, you know, I know you've done this a lot, but -- I mean, I think this is only going to delay the proceedings. I think -- I've researched this, maybe you have too, but attorney-client privilege is very clear that if I ask what you talked about, that I'm not entitled to inquire into that. But some of this evidence goes -- that I'm trying to -- to get, obtain, I'm trying very carefully not to invade attorney-client privilege, and I think it goes to the heart of the matter of not only her ability to represent the class as a whole but to the potential damages in this case. MR. BARRY: Well, the -- and she'll She testify as to the harm and the potential damages. just won't testify as to any conversations that she had -- contemporaneous conversations she had with her I'm going to object as to
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attorneys.
So I only seek to protect her from having
to violate the attorney-client privilege, which is my duty and obligation to protect that and assert that on her behalf. So I think -- and not -- I don't want to make a speaking objection on the record, but I think some of your questions could get answered but maybe just the way you are phrasing them is I'm picking up on the -- the -- what you and your attorney talked about and so I'm making the objection because I don't want her to breach that. could. MR. WIER: All right. Well, I will try to do that, but I think, just to be clear on the record, certainly you and I can agree that if I ask her what did you talk about with your lawyer, that's attorney-client privilege and I can't ask that. But if I can ask information and obtain her mindset but not ask where she gained that knowledge or whether or not she confirmed it with you, I think that's a proper line of inquiry. MR. BARRY: MR. WIER: I would agree. All right. I think that's a proper line of inquiry. So maybe you could rephrase the I think you probably question and get the answer.
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MR. BARRY:
So just so the record's
clear, if he asks you a question related to any of the documents or anything else, you're not to discuss anything that you and I have talked about in private. All right? THE WITNESS: Okay. Do you have any independent knowledge of the
relationship between Etan General and Credit Protection Association? A. Q. Please repeat the question. The two parties that you've sued in the Texas
case, Etan General, Inc. and Credit Protection Association, L.P., do you have any independent knowledge of how those two companies are related? A. Q. I do not. Do you know whether Etan General is a debt MR. BARRY: Object as to form and object Answer if you
collection agency? as to it calls for a legal opinion. I don't know. I'm sorry? I don't know. Okay. Before retaining Mr. Barry, did you
make -- let me rephrase the question.
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Have you done any independent research on Mr. Barry and his firm's ability to serve as class counsel in this case? A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. know? A. Q. A. Q. A. Q. A. Q. I don't know. Have you ever met Mr. Bragg? I have not. Have you ever spoken to him on the phone? I have not. Have you ever received a letter from him? I have not. What about with respect to Mr. Gardner, have I have not. Okay. Have you ever met Stephen Gardner? I have not. Do you know who Stephen Gardner is? I do. Who is he? Attorney -- as I recall, he's the attorney out Okay. What else do you recall about him?
of this area. Nothing. Who is Rand Bragg? Attorney out of Chicago area. What's his involvement with this case, if you
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you ever talked to him over the phone? A. Q. A. Q. I have not. Have you ever received any correspondence from No. So would it be fair to say, with respect to
Mr. Gardner?
this lawsuit, that all your communication from your lawyers has come through Mr. Barry and his office? A. Q. That's correct. Now, you mentioned in talking about Exhibit
Number 2 that you have a belief that R. J. Simpson was not the president of Credit Protection Association back in December of 2000; is that true? A. Q. To the best of my knowledge. Okay. And I don't want to violate Do
attorney-client privilege, so I want to ask you: you -- do you have any information to support that
belief in any manner other than what your lawyers have told you? A. Q. Not other than. Okay. No. Let me ask you just in a general sense.
I mean, you acknowledge that, in general, this is a letter asking you to pay a late fee to Blockbuster, right? A. That's correct.
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Q. A. Q. A. Q. A. Q. A. Q. A. Q. Netflex? A. Q.
And you understand Blockbuster rents videos That's correct. Are you a past patron of Blockbuster? I am. Do you still use Blockbuster? I don't. Do you use any of Blockbuster's competitors? Yes. Who? Netflix. Okay. Flix. Flix and some of these other companies, they And you understand that Blockbuster and
and DVDs and that kind of thing; is that true?
rent videotapes and DVDs that you can rent from the store and watch at home in your VCR or DVD player, true? A. Q. A. Q. true? A. That's correct. That's correct. And they charge you a fee for that? That's correct. And by renting the videotape or the DVD, you
agree to bring it back in a certain amount of time,
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Q.
And you understand part of the reason for
doing that is -- or part of the reason that Blockbuster or any of these similar companies rent you a video or a DVD for a set amount of time is they want -- they want it returned so they can rent it to others, true? A. Q. That's correct. Have you -- I know that you -- based on your
prior testimony, that you don't believe that you owed the charges on this particular occasion to Blockbuster. Have you ever incurred late fees with Blockbuster that you thought were legitimate? A. Q. I don't recall. Okay. Do you have a problem with the concept
of Blockbuster as a company being able to charge a late A. Q. No. You said in this case you didn't believe that How did you -- and I
you -- that you owed those fees.
guess you felt pretty strongly about that because you went down and immediately hired a lawyer, right? MR. BARRY: testimony. Q. A. Well, within days of receiving Exhibit That's correct. Number 2, you went and hired a lawyer, right? Objection. Misstates her
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Q. A. Q.
Okay.
So I take it this is something you felt
pretty strongly about; is that right? That's correct. Did you do any independent checking or speak
with your spouse or anything of that sort to determine whether the charges were actually due and owing? MR. BARRY: answered. A. Q. Just spoke with my husband. Okay. And you verified with your husband that Objection, asked and
he didn't -- he didn't rent a video and he didn't owe any late charges? A. Q. A. Q. A. Q. That's correct. Okay. How were you so certain that you didn't
owe the charges? Because I return them on time. Now, during this time period, you were a That's correct. Okay. So basically, if I understand your
customer of Blockbuster?
testimony correctly, you were just certain, based on your own knowledge and own memory at that time, that you didn't owe any fees because you had returned the videos promptly; is that true? A. As I recall.
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Q. mistake. do that? A. Q.
Okay.
Why didn't you just pick up the phone Why didn't you
or go down to Blockbuster and say, hey, this is a Can you check your records? I don't know. Okay. Do you have a sense of what kind of
damages the FDCPA gives to the various class members should you prevail in this case? MR. BARRY: conclusion. Q. Objection, calls for legal Lack of personal knowledge.
Do you have any independent understanding of
what the class members can get as damages if you are successful in this case? A. Q. I don't recall what it is. Okay. After reviewing Exhibit Number 2 and
doing the investigation that you told me about a few minutes ago, what did you understand that CPA had the right to do in the future if you didn't pay this bill? MR. BARRY: conclusion. Q. A. Q. A. You can answer. As it would appear, CPA -- as it appears in Well, and that's probably a poor --- authority to take appropriate action with Objection. Calls for a legal
this wording, CPA is given --
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your creditors. Q. Okay. And I guess what I'm asking -- I probably phrased that in a poor manner, but after you doing some checking and considering this letter, did you understand that CPA had the ability, if the debt were legitimate, to ask you to pay it? A. Q. As far as I was aware. Okay. Now, in your complaint, you make the
allegation that this -- this particular letter, this -and you call it a notice letter in your complaint, is confusing because it might deceive someone by its form that it represents legal process. you are making in this case? A. Q. That's correct. All right. What is it about the form in Is that a complaint
general that -- that you think is confusing and could -- could make one be confused that that's legal process? A. The bordering, the wording that they have given full authority to take appropriate action necessary, notice, you are hereby notified. Q. you? A. things. It could be -- it could be any number of Okay. What -- what does legal process mean to
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Q. A. Q.
Does that -- does that mean -- to you, does Not necessarily. Okay. Well, you make -- you make the
legal process mean that you are about to be sued?
allegation in the lawsuit, so I am trying to understand what -- if you're going to make the claim that this letter confuses one and -- that maybe legal process is going to be involved, what kind of things were you thinking about? A. And certainly feel free to refer to the complaint if you need to. That -- well, that even though I may be a more educated person, that a less educated person than I am would be fooled by this notice. Q. A. Q. A. Q. A. Q. A. Q. Okay. But because of your education, you weren't fooled, were you? I questioned it. Okay. But you -- you read that letter. You
can read, right? Absolutely. You graduated from college, right? I did. Did you make good grades in college? I did. What -- what was your grade point when you
graduated?
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A. Q. A. Q. does it? A. Q.
3.8 in my major course work. So you probably graduated with honors, didn't Roughly, yes. Okay. And you read that notice carefully, and
nowhere in there does it say you're going to be sued, No, it doesn't. And nowhere in there does it even threaten MR. BARRY: the question. Q. Okay. Objection as to the form of
that they are going to send you to a lawyer? The complaint doesn't purport to say What I am trying to find out, because
that there was a threat of suit. of your education level, what -- when you say that it's confusing and could lead one to think it's legal process, what is it about that letter that could lead anybody to that conclusion? MR. BARRY: answered. Q. A. Q. A. Other than the form of the letter and the And its border, like I've brought up before. Okay. It's -words notice and you are hereby notified. Objection, asked and
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Q.
So you think because the collection letter has MR. BARRY: Objection, argumentative.
a border, that that's violative of the Act? Q. A. Q. You can answer. No, it's just its -- its general format, its Do you know whether -- whether or not the Act
look, its feel. prohibits a debt collector from putting the word notice in their letter? MR. BARRY: conclusion. Q. A. Q. notified? MR. BARRY: A. Q. I don't know. And do you know whether the FDCPA prohibits a Same objection. Same basis. I'm just asking if you know or you don't know. I don't know. Do you know whether the FDCPA prohibits a debt Objection, calls for legal
collector from using the phrase you are hereby
debt collector from saying that it can recommend to its creditor client that it be given full authority to take all appropriate action necessary to collect this account? MR. BARRY: Q. Do you know? Same objection. Same basis.
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A. Q. A. Q.
I don't know. You do acknowledge that that last sentence I Correct. Do you have an understanding under the Act -Do you believe that the FDCPA prohibits a
read says all appropriate action, right?
strike that. debt collector from doing anything to try to collect a debt? A. Q. Repeat the question. Do you believe that the FDCPA prohibits a debt
collector, such as Credit Protection, from doing anything to try to collect a legitimate debt? MR. BARRY: conclusion. A. Yeah. I don't know. MR. WIER: me look over my notes. Q. Do you have any evidence to suggest that CPA did not have its client's full authority to take all appropriate action necessary to collect this account when they sent you this letter on 12/20 of 2000? MR. BARRY: knowledge. A. I don't know. Objection, lack of personal I think we're about done. Let Objection, calls for legal
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Q.
As you read that letter, Exhibit Number 2, it
doesn't say that that document is from any court, does A. Q. It does not. Doesn't say that that document is from any
government official or agency of either the United States or any state, does it? A. Q. It does not. Do you believe a consumer, when receiving a
notice such as Exhibit Number 2, has the duty to read A. Q. I do. Assume with me that R. J. Simpson was not the
president of CPA or Credit Protection Association at the time that you received that letter on or after 12/20 of 2000. A. How does that hurt you at all? It's my understanding that this individual is
an alias and that that alias is not licensed in the State of Minnesota. Q. But from a -- from a damage standpoint -assume all that's true and you received this letter. Articulate for me how that hurt you in any manner. MR. BARRY: conclusion. A. I don't know. Objection, calls for legal Answer if you know.
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Q.
You are not making the allegations in this
case that, with respect to your dealings with Credit Protection, that they abused, harassed or harangued you either over the telephone or in writing, are you -well, strike that. Let me reask that question. Since you said you had no telephone communication with my client, Credit Protection Association, or for that matter Etan, you're not making a claim in this lawsuit that you've been harassed or abused over the telephone or in person by anyone associated with my clients, are you? A. Q. That's correct. Okay. In other words, you're not making the
allegation that you got cursed at or spoke to rudely or anything like that? A. Q. That's correct. Okay. With regard to any of the other members
of the class, you just don't know one way or the other whether that may have happened with regard to them, true? A. Q. True. I'm trying not to be repetitive, so with
regard to Exhibit Number 2, have we talked about each and every thing that you believe was inappropriate about that letter, or is there something that we've
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left out? A. That there is no president of Etan, that it's There would not be Did you mean Credit in a limited partnership situation. a president. Q. A. Q. your -A. Q. A. Q. FDCPA? MR. BARRY: conclusion. A. Q. I don't know. Okay. And with regard to any damages you may Objection, calls for legal My understanding is that there would not be a Okay. But that's because it's a partnership president in a limited partnership. and not a corporation? That's correct. Do you know whether or not that violates the Okay. Now you said Etan. Protection? Credit Protection. Okay. So based on your knowledge of
corporate -- the corporate world and organizations,
have suffered, I think we've already established you are not making any claim of lost wages or lost earning capacity, true? A. That's true.
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Q.
Okay.
And you told me earlier you're not In other words,
making any claim for medical damages.
you're not claiming that this was so upsetting to you when you received this letter that you had to go seek out the services of a doctor, a psychiatrist a psychologist, a rabbi, a priest, anybody of that sort, right? A. Q. That's true. The only damages that you seek in this case
are what's statutorily allowed under the Act and you want to recover your attorneys' fees, true? A. Q. A. Q. That's correct. And then the class, whatever the class members That's correct. Have you -- other than this correspondence,
can get, that's based on the statute, right?
have you ever received correspondence from someone asking you -- strike that. Other than Exhibit Number 2, have you ever received any correspondence from a creditor or a debt collection agency saying that you were delinquent on a bill and asking you to pay it? A. Q. I have. Okay. How many times do you think that's
happened in your adult life?
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A. Q. A. Q. A. Q.
I don't know. Okay. No. Has your husband? No. Have you ever sought the services of Consumer Have you ever filed for bankruptcy?
Credit Counseling Services or any non-profit organization like that? A. Q. No. Okay. Do you -- at the current time, do
you -- if I were to go -- if I had a legally permissible purpose and your approval and I went and pulled your credit report, would you have good credit or bad credit or somewhere in between? MR. BARRY: I am going to object as to form of the question because we're not going to give you that authorization, and you don't have a legally permissible purpose. With that caveat, go ahead and answer. A. Q. A. Q. Medium. Okay. In the middle. Now, when you received notices from other debt
collectors or creditors asking you to pay a bill, did you sue them?
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A. Q. A. Q.
No. Did you go talk to a lawyer about that when Not that I recall. Okay. And that would be with regard to any You don't remember a time that you got
you received those notices?
other notice.
one of these notices, either before or after Exhibit Number 2, and went down to a lawyer and said I don't think this was right and I want to file a lawsuit? A. Q. Not that I recall. Have you taken any -- any written or oral
statements from anybody in this case that you believe would be a fact witness? A. Q. No. Have you met with anyone who would be
considered to be an expert witness in this case, other than perhaps your lawyer, and I don't want to go into that? A. Q. A. Q. No. Do you know whether an expert witness would -I don't know. Do you know what an expert witness is? MR. BARRY: conclusion. Objection. Calls for legal
should be utilized by you in this case or not?
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A. Q.
No. All right. Have you looked at any studies,
reports, data compilations or other technical literature on the debt collection or credit industry since your involvement with this case? A. Q. No. Even though -- I may have asked this, and if I Even though you're not paying any
did, I apologize.
legal fees in this case, do you get periodic statements of what's being done, an itemization from Mr. Barry or other lawyers about what they're doing in this case? MR. BARRY: I'm going to just object as to attorney-client privilege and stipulate that we communicate with the client on a regular basis. Q. All right. I'm not asking about Oh, objection, asked and correspondence. answered then. Q. -- the kinds of work -- even though -- let me Do you receive any invoices from Mr. Barry which, even if they say at the bottom total amount due zero, an invoice that itemizes what he's done in the previous month or the previous quarter or anything like that? start over. I'm asking about invoices that show --
MR. BARRY:
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A. Q. A. Q. A. Q. A. time.
Not that I'm aware of. What about with any of the other lawyers? No. Okay. Yes. All right. Is there anything that you think Have you understood the questions I've
asked you here today?
you need to change or clarify? Not at this point. MR. WIER: MR. BARRY: BY MR. BARRY: Q. Do you believe, [Consumer], that you've associated with competent legal counsel in pursuing this case, [Consumer] v. Etan General, Incorporated, et al? A. Q. A. Q. I do. And have -- has our office kept you advised on You have. And have we provided you with copies of the Okay. I thank you for your I'll pass the witness. Just a few brief questions. EXAMINATION
a regular basis about the information in this case?
various documents which have been served by the parties in this case?
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A. Q. A. Q. A. Q. answered? A. Q. A. Q.
You have. And have you had an opportunity to review I have. And you've had an opportunity to ask That's correct. And have your questions been satisfactorily They have. And have you relied on me, Pete Barry, as to I have. And have you relied on the -- Mr. Barry as to MR. WIER: Objection, leading. I'm sorry. I didn't hear
those documents with your attorneys?
questions; is that correct?
the law and the -- the law in this case?
what claims would be made in this case -THE REPORTER: the end of that. MR. WIER: question I did not hear. Q. A. Q. Who have you relied on to guide you, from a My firm. And who would that firm be? legal standpoint, in this case? Objection, leading. I heard -- the end of your THE REPORTER:
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A. Q. A. Q.
Pete Barry. And have you relied on Pete Barry to determine I have. And prior to filing this lawsuit, did you have
which claims would be filed on your behalf?
an opportunity to review the claims and allegations in it with your attorney? A. Q. lawsuit? A. Q. filing? A. I did. MR. BARRY: oh, I -- strike that. Q. A. Q. A. Q. You testified earlier that you haven't met That's correct. And you also testified that you hadn't met That's correct. Have you authorized me and entrusted me to Mr. Gardner; is that correct? I have nothing further -I did. And did you get any questions you had I have. And did you authorize the filing of the
answered -- about the lawsuit answered prior to its
Mr. Bragg; is that correct?
associate with other competent legal counsel in this
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case? A. further. RE-EXAMINATION BY MR. WIER: Q. Just a couple questions in follow up to what He just asked you whether you had had questions as you went along and whether those questions were satisfactorily answered, and you said yes. remember that -- just testifying to that? A. Q. I did. What do you recall, as we sit here today, MR. BARRY: attorney-client privilege. MR. WIER: MR. BARRY: Absolutely not. Q. You've opened the door. I have not opened the door. I'm going to object as to Do you Mr. Barry just asked you. I have. MR. BARRY: Okay. I have nothing
asking him about?
I asked whether or not she had her As we sit here today, do you I don't want
questions satisfactorily answered. Let me ask this. have any recall of any specific topics?
to know what, but any specific questions that you would have asked Mr. Barry about with regard to this lawsuit
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and how it was progressing? MR. BARRY: I am going to object as to attorney-client privilege and instruct the witness not to answer any questions or give any information about private conversations that she had with her attorneys. MR. WIER: a yes or no question. whether she recalls. And you understand I'm asking I'm not asking her about any And the reason I'm asking this is
communication whatsoever with you, just yes or no because I can -- I may -- I want to reserve the right to go in and ask the Court that I be allowed to inquire into these subjects, and we can save ourselves a lot of time and effort if you'll allow her to answer the question yes or no to begin with. MR. BARRY: question. A. Q. Rephrase the question, please. As we sit here today, do you have any specific Go ahead and answer his
recall of what kinds of questions you had with Mr. Barry as -- about the lawsuit? A. Q. A. I do. Okay. And based on your lawyer's advice,
you're not going to talk about that now; is that true? That's correct. MR. WIER: Okay. I'll pass the witness.
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I don't know that I have to do this, but reserve -there were a number of issues or questions I asked that weren't answered today, based on attorney-client privilege, and I reserve the right to seek a Court ruling on those issues and bring the witness back, depending on whether the Judge agrees with me or not. Q. Based on that, let me ask you this. You understand that if the Judge does agree with me that I get -- that I am entitled to ask you these questions that your lawyer refused to allow you to answer again, that you may be required to travel back to Texas and answer those questions? A. Q. A. That's correct. And are you prepared to do that? I am. MR. WIER: All right. MR. BARRY: MR. WIER: cut you off there. (Proceedings concluded at 1:25 p.m.) I have nothing further. I'm sorry. I didn't mean to Okay. Pass the witness.
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CHANGES_AND_SIGNATURE _______ ___ _________ CHANGE REASON -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
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I, [CONSUMER], have read the foregoing deposition and hereby affix my signature that same is true and correct, except as noted above. -------------------------------[CONSUMER] THE STATE OF TEXAS COUNTY OF -----------) )
Before me, ---------------------------------, personally appeared [CONSUMER], known to me (or proved to me under oath or through ---------------) (description of identity card or other document) to be the person whose name is subscribed to the foregoing instrument and acknowledged to me that they executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this ------of -----------------, ---------. -----------------------------NOTARY PUBLIC IN AND FOR THE STATE OF -----------------
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STATE OF TEXAS COUNTY OF DALLAS
* *
This is to certify that I, Diana D. Thrash, Certified Shorthand Reporter in and for the State of Texas, certify that the foregoing deposition of [CONSUMER] was reported stenographically by me at the time and place indicated, said witness having been placed under oath by me, and that the deposition is a true record of the testimony given by the witness. I further certify that I am neither counsel for nor related to any party in this cause and am not financially interested in its outcome. Certified to by me this 7th day of November, 2002. ------------------------------DIANA D. THRASH, Texas CSR 2781 Expiration Date: 12/31/03 JANIS ROGERS & ASSOCIATES 1545 West Mockingbird Lane Suite 1032 Dallas, Texas 75235 Tel. No. 214/631-2655 Taxable cost of original charged to Defendants Etan General, Inc., a Texas corporation and Credit Protection Association, L.P., a Texas domestic limited partnership Atty: Mr. Keith Wier - Daw & Ray, P.C. $---------------
23 24 25
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Chapter 4

Debt Collection Harassment of Identity Theft Victim

See Id. 5.7. See Id. 10.3.

Dated: August 31, 2004

______________________________ Attorney for Plaintiff

Home address and telephone number; Age;

_________________________ [Attorney for Plaintiff]

____________________________ [Attorney for Plaintiff]

COLLECTION COMMUNICATIONS LOG

Date of Call? (MM/DD/Y Y)

Time of Call? (00:00 AM)

How Many Minute s Did Call Last? (Appro x.)

Phone Call, Voice Mail, Letter, Paper Messag e?

Collection Agency Name and Telephone Number?

4.5 Deposition of FDCPA Class Representative (PDF format)

JANIS ROGERS & ASSOCIATES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR THE Mr. THE 342 St.

JANIS ROGERS & ASSOCIATES

1 2 3 4 5 WITNESS [CONSUMER] EXAMINATION BY: Mr. Wier BY: Mr. Barry

JANIS ROGERS & ASSOCIATES

Just -- you need to go and make -- if

JANIS ROGERS & ASSOCIATES

JANIS ROGERS & ASSOCIATES

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. WIER: Q. please. A. Q. A. Q. [Consumer].

[Spelling question]? Correct. [Consumer], my name is Keith Wier. I'm a

Have you ever given a deposition before? I have not.

JANIS ROGERS & ASSOCIATES

You seem a little unsure.

but she did give a sworn statement in a case.

JANIS ROGERS & ASSOCIATES

So you understand that all of your answers are

You're speaking out loudly and clearly. try to do that. A. Q. Okay.

And if you don't understand a question that I

ask today, I want a very clean record when we leave

JANIS ROGERS & ASSOCIATES

I am going to object to that

Did I understand you

JANIS ROGERS & ASSOCIATES

Her husband was a victim of

JANIS ROGERS & ASSOCIATES

With that, would you give me your

Minnesota since your birth?

JANIS ROGERS & ASSOCIATES

you may have said this, and if you did, I apologize.

Have you ever been married to anyone

JANIS ROGERS & ASSOCIATES

JANIS ROGERS & ASSOCIATES

Two years. Let me ask it in more basic terms.

after graduating from high school?

JANIS ROGERS & ASSOCIATES

college at College of St. Catherine?

beyond what you've just described for me?

JANIS ROGERS & ASSOCIATES

Roughly. Okay. And can you give me a ballpark estimate

hospital, or the adolescent center, whatever you want

JANIS ROGERS & ASSOCIATES

going to get that in a minute, but I don't see that

JANIS ROGERS & ASSOCIATES

I mean just to verify that that is indeed what that

JANIS ROGERS & ASSOCIATES

I would just note for the Did you

I've got -- well,

I thought that's what you No, that's fine. I