People involved in debt and consumer law have heard a lot about “Spokeo” in the past few years, and they’re going to hear more. Spokeo is a wolf in sheep’s clothing, a Supreme Court decision purporting to limit the Judicial system’s ability to override the functions of the other branches of government, but actually itself a vast usurpation of that power. It has been used to gut consumer and debt law protections enacted by Congress, and it will increasingly be used to do so. I expect it to be extended to state courts and jurisdiction as well.
So, what is “Spokeo” and how does it usurp legislative power? We discuss these issues and suggest some possible approaches in the following article.
“Spokeo” is the way many refer to a case and the Supreme Court decision that decided it. The case was Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). Spokeo, Inc. was a business that compiled information on essentially everybody and made it available to people searching it. Some of the information was free, and some was only available upon payment (not a distinction relevant to the case). It disseminated information on creditworthiness and lifestyle and general biographical information, and its reporting on creditworthiness (allegedly) brought it within the reach of the Fair Credit Reporting Act (FCRA).[1]
In the case of Robins (the plaintiff in the suit), Spokeo reported that he was in his mid-fifties, employed, affluent and married – all of which Robins alleged was false. Robins claimed the information had hurt his attempt to obtain employment. Robins brought suit under the FCRA.[2]
The Supreme Court held (essentially) that he had not alleged a “concrete, actual injury.” Probably every single person reading this article intuitively knows how false this holding was, in reality.
The Court based its analysis on Article III of the Constitution, which limits judicial action to actual “cases and controversies.” They pointed out a fundamental concept of the law, which is that courts are only empowered to hear cases involving real people with real adversary interests – otherwise people would make up cases to test abstract limits of the laws as a sort of judicial review. To keep the Judicial branch in its own lane, courts have determined that, to satisfy Article III, a plaintiff must show (1) injury in fact, (2) causation, and (3) redressability (ability of a court order to “solve” the wrong that has been committed. With respect to the injury requirement, the injury must be (1) “concrete and particularized” and (2) “actual or imminent.” A “bare procedural violation” of a statute is not enough: there must be some harm already, or some harm must be imminent.[3]
Article III’s “Standing” Requirement and the Federal Court’s Attack on Statutory Consumer Rights
To satisfy Article III, a plaintiff must show (1) injury in fact, (2) causation, and (3) redressability. With respect to the injury requirement, which the Supreme Court discussed at length in its seminal opinion in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the injury must be (1) “concrete and particularized” and (2) “actual or imminent.” A “bare procedural violation” of a statute is not enough.
All of these requirements are designed to insure that a litigant is protecting his or her own specific rights and not some theoretical general or public right which would be akin to judicial review.
In Spokeo, the Supreme Court seemed to take the position that the “harm” or injury Robins alleged was a procedural violation – like he was some purist offended by Spokeo’s carelessness in keeping information. The harm, however, was crystal clear and not at all theoretical or akin to judicial review: Spokeo had wrong information about Robins. Having and disseminating false information about him WAS the wrong, and it was also the very “harm” that the FCRA was designed to prevent. The fact that the incorrect information was also damaging to him was irrelevant to the Article III analysis, though of course it would be relevant to the amount of damages he should have gotten.
The Court was not unaware of this; its decision was a blatant attack upon civil and consumer rights, many of which are quite difficult to quantify and are intangible. The Court is hostile to these rights, and Spokeo was a usurpation of the legislature’s Constitutional power to create them and give people the right to enforce them. Thus it is a lasting monument to the hypocrisy of the current Supreme Court. There will likely be many more over the coming years. The Spokeo decision has been used to attack civil and consumer rights from the instant it was written, most notably, perhaps, the Telephone Consumer Protection Act (TCPA), but what will be the harm to a debt litigant under the FDCPA of the debt collector failing to publish warnings in conspicuous print if the consumer sees the warning anyway? What’s the harm of making harassing phone calls late at night? The Supreme Court has put itself in the business of evaluating and quantifying those harms, while the FDCPA made them per se violations. The courts will use Spokeo to attack the FDCPA as well.
State Law Applicability of Spokeo
Even a casual reading of Spokeo will reveal that the Court pretended to be careful to limit its ruling to federal courts. There is no doubt the state courts will follow, however. Note the reasoning, applicable to every state, in the following paragraph of a New York State opinion. I include the links so you can more conveniently track down the cited cases:
“Under the common law, there is little doubt that a `court has no inherent power to right a wrong unless thereby the civil, property or personal rights of the plaintiff in the action or the petitioner in the proceeding are affected'” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991], quoting Schieffelin v Komfort, 212 NY 520, 530 [1914]). Related to this principle is “a general prohibition on one litigant raising the legal rights of another” (Society of Plastics, 77 NY2d at 773). Thus, if the issue of standing is raised, a party challenging governmental action must meet the threshold burden of establishing that it has suffered an “injury in fact” and that the injury it asserts “fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the [government] has acted” (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]).[2] The injury-in-fact requirement necessitates a showing that the party has “an actual legal stake in the matter being adjudicated” and has suffered a cognizable harm (see Society of Plastics, 77 NY2d at 772) that is not “tenuous,” “ephemeral,” or “conjectural” but is sufficiently concrete and particularized to warrant judicial intervention (Novello, 2 NY3d at 214; see Spokeo, Inc. v Robins, 578 US __, __, 136 S Ct 1540, 1548 [2016]).
MENTAL HYGIENE v. Daniels, 33 NY 3d 44, 50 – (NY App. 2019).
What to Do
People familiar with my writing and videos will perhaps recognize that some of the language in Mental Hygiene is familiar. We argue the issue of standing all the time at a more basic level: a debt collector must show that it owns the right to sue – the injury in fact requirement is a constitutional necessity that the plaintiff show it owns the debt in question. Provided you dispute the debt collector’s ownership, which I have said every defendant should do in every case.
If you are alleging a violation of the FDCPA or the FCRA, you must obviously take some care to allege actual harm closely connected to the right you claim was violated. If they are suing you for debt beyond the statute of limitations, their unfair collection practice has caused you emotional distress, the expense of hiring a lawyer or seeking help, the time reading, thinking about and responding to the suit, the price of paper in filing your answer or responsive motion, postage incurred in providing notice to the debt collector, gas in taking the suit to be filed, and whatever else you can think of.
The courts are extremely aggressive in TCPA litigation, where they have held that “a single emailed fax” was not a cognizable harm even though Congress said it was, and even though even a single emailed fax would require some time to read and elicit some emotional response. If ONE emailed fax isn’t enough despite the fact that Congress made it so, then what about two? Or twenty-two? Expect the courts to apply this type of analysis routinely, and state your damages in as lurid and concrete a fashion possible.
Many state consumer protection laws are subject to what is called “strict liability” and do not require any harm at all – even a mere “technical” violation creates liability. The Supreme Court is willing to recognize that a trespasser, by stepping one foot across the line, has caused cognizable damage even though it may not be seen, felt, or even exist at all – it’s a legal wrong (to a property interest most often held by the wealthy). Will it see deceptive sales language that did not deceive a consumer as a violation in the same way? I believe a careful litigant should consider alleging shock and outrage, perhaps a call to a lawyer or at least photocopying expense – something, anything – to show actual harm until some theoretical limitation has been placed on the courts’ “discretion” to reconsider and reevaluate damages determined by the legislature. Spokeo abandoned the principle of Judicial limitation.
[1] Among other things, the FCRA states that “[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any [individual] is liable to that [individual]” for, among other things, either “actual damages” or statutory damages of $100 to $1,000 per violation, costs of the action and attorney’s fees, and possibly punitive damages. § 1681n(a).
[2]Apparenty Robins did not dispute his “report” (and perhaps he couldn’t because of the nature of Spokeo) and sue under the provisions provided by that. Instead, he seems to have alleged a failure of Spokeo to use the required care to obtain information. This may have been a litigation decision based on the attempt to bring the claim as a class action, which requires “commonality” of legal issues among the class members. If so, it was the wrong decision for Robins’s individual chances, as it turned out.
[3] “Imminence” has created some interesting legal issues not important here. The courts have held that an enacted law may create imminent harm, but they have also held that where the executive has renounced enforcement of the law, the harm is not imminent.
Sued not Served
Sued not Served
What Should I Do if I Know a Debt Law Suit Has Been Filed but not Served?
Sometimes people find out they’re being sued before the plaintiff gets around to serving them. How does this happen? And what do you do if you find that out?
People can learn about a suit before being sued – it is public knowledge, after all, so it could happen
in a lot of different ways. Mostly though, it happens in one of two ways. Sometimes debt collectors bug you for money, and you go out of your way to check court files to see if you’re named in a suit, or you find out from a neighbor who gets curious when they see someone trying to serve you. I guess these ways are actually rare, but they can happen. The other way is more common.
There are lawyers who want to represent people in these cases, and they may send you a letter telling you you’re being sued. It may be news to you that anybody is even after you, much less actually suing you. So you check the court files and find out it’s true.
What do you do?
There have been times people brought these cases to me, back when I was practicing, and wanted to take action. In that situation they had a lawyer and a counterclaim (usually), and where that’s the case, it could make sense to waive – or let go – your right to service and just enter on the case. We were sure we’d win, and we had a counterclaim, so why wait?
If you’re pro se these days, the situation is very different. You can’t be sure you’ll win however much you think the facts are on your side, because you can’t count on the courts to see it your way. No matter how clear you think it is, you just can’t count on winning. And you’re less likely to have a counterclaim because the courts have narrowed the definition of counterclaim and debt collectors have gotten a little more careful.
So for those reasons I think it makes sense to watch the court docket (without identifying yourself to the court) to see if they ever claim to have served you. Or until they actually do serve you.
You have no obligation to make it easier for them to serve you, and if they can’t get you served they will eventually have to drop the case – or get it dropped (for “failure to prosecute”). I think it makes good sense to give them that chance. But watch to make sure they don’t claim you were served. Likewise, if they “serve by publication” (which is putting an ad in a small local paper) you’ll probably need to answer, but it’s rare, and they have to get permission to do it. Still, you should watch for it.
If they don’t serve you, you might get lucky and have them drop the case. Or you will get served and have to defend.
Obviously, if that happens, we can help.
Your Right to a Jury Trial in Debt Litigation
Your Right to a Jury Trial in Debt Litigation
Under the Seventh amendment you have a right to a jury trial for cases involving “damages.”
Damages is a little bit of a term of art in this sense, but it basically means “money” for claims that were traditionally brought in courts of “law” (as opposed to courts of “equity”). As it happens, breach of contract, which is what most credit card cases are, is a legal claim subject to the 7th amendment. On the other hand, claims brought under, for example, the claim of “account stated,” are equitable claims that don’t give you a right to a jury trial by themselves.
That means that if the debt collector is suing for breach of contract or “open” or “closed” account, you have a right to a jury trial under the constitution. If they are suing you EXCLUSIVELY for account stated, on the other hand, you don’t.
When you have a right to a jury trial for one claim, you have a right to jury trial for all claims, so if they bring breach of contract AND account stated, you’ll have a right to jury trial for both. Most debt defendants, therefore, do have a right to trial by jury. Should you demand a trial by jury? I usually think so.
Trials by jury force the judge to take the law of evidence more seriously. In fact they take jury trials more seriously in a lot of ways. That benefits the debt defendant because our case is usually that the debt collector does not have any evidence that complies with the rules of evidence, and we need the court to take that seriously.
I also suggest demanding a jury trial because they are far more difficult for the debt collectors.
Understand what I’m saying, though. It isn’t that debt collectors don’t know how to do jury trials or even that they aren’t good at them – individual talent varies, of course. I’m only saying that debt cases tried to a judge can take twenty minutes. Picking a jury can take hours. And all the rules have to be carefully followed, and there are special rules and procedures, too. So demanding a jury might require 20 times as much attorney time. And time is money. Especially attorney time at $250/hour.
Debt plaintiffs don’t like cases that take a lot of time. It increases their costs, and they know you don’t have much money, so they worry about getting it back. Debt collector lawyers also worry about cases taking a long time because their performance affects their annual pay, and long debt cases hurt them.
In my opinion, those are strong reasons to seek a jury trial, and I might add that there will be times when a jury is also more sympathetic to the defendant than a judge would be. Judges haven’t faced debt trouble in a very long time, in general, by the time they’ve become judges. Most jurors, on the other hand, will have money worries. But I wouldn’t rely on this too much. Some judges are sympathetic, and some take their work seriously whether they’re sympathetic or not. And some juries can be pretty harsh.
But our goals in jury trials don’t depend on the jury that much. We want the judge to exclude evidence that shouldn’t be seen, and they take that more seriously when there’s a jury. Then it’s clear the debt collector didn’t make its case.
So why might you NOT want a jury? The only reason I’ve ever heard from debt defendants is that they’re scared of them. And I hear that a lot, but it’s not a good reason. Almost everybody I know who has ever had a jury trial has said it wasn’t scary. Not when you’re doing it. They are a little scary to think about and get ready for – pretrial jitters are normal, but once the trial starts, you’ll be too busy to be nervous. That’s as true of jury trials as it is of judge-tried cases.
You have a right to a trial by jury, but how and when you ask for it can make a difference. In some jurisdictions you just put it at the end of your Answer. In some jurisdictions you have to enter it as a separate request, separately. Which of these you’ll need to do is probably in your court’s local rules, but you might ask a court clerk about that. If you can’t get an answer from an authority, I’d suggest putting it both on your Answer and making a separate request which you submit at the same time as your Answer.
If you didn’t ask for a jury trial, is it too late?
The law favors jury trials, but individual judges often don’t, since they know as well as I do that jury trials take more time and attention. For that reason, if you haven’t already asked for a jury trial, I suggest you do it ASAP. The number of days could matter, since a court’s discretion to deny a request for jury is probably tied to how long the case has been going on. You should do a little research before filing your jury demand, though, because if you don’t do it right off the bat, you’ll need to file a motion that tells the judge why you should get one. That isn’t complicated, but you’ll want to know what the rules are that apply to it.
What is Arbitration and Should you Seek or Oppose It?
Compel Arbitration or Oppose it?
Arbitration. Should you compel arbitration? Or oppose it? I’ve recently had a comment on Youtube asking me to discuss arbitration, and it has also come up in several recent teleconferences as members contemplated seeking arbitration. Others have wanted to know whether to oppose a motion to compel arbitration.
Let’s start with a definition: Arbitration is the submission of your case to a private entity known as an arbitrator. After some process and a hearing (most likely), the arbitrator will decide what happens in your case and issue what amounts to a judgment.
For debt cases, it’s always a single arbitrator or a company that will provide a single arbitrator that’s appointed, but for other cases it could be other things, like a panel, perhaps. In any event, there will be an arbitrator and some special rules that will NOT be your state’s rules of civil procedure and also might not be your state’s rules of evidence. But there will be rules that control the process.
Arbitration is popular because it makes it faster, easier and cheaper for people to engage in litigation. The discovery process will be limited, and the appeals process almost eliminated. That’s why rich companies and debt collectors always love it. Almost all of these things are completely and profoundly BAD for debt defendants. That’s why I’ve always suggested debt defendants should avoid arbitration.
But there is another side to the question, and there are some who argue in favor of allowing or even forcing arbitration in debt cases. What’s their argument?
I think the argument in favor of arbitration boils down to the fee, which apparently has to be paid up front by the debt collector And that can amount to two or three thousand dollars, or even a little more. The idea here is that debt collectors won’t want to put that much money down on the barrelhead just to chase a bad debt and that court is, for them, much cheaper.
There is some sense in this argument.
Debt collectors never worry about winning a case, but they do know you don’t have much money. That means that they’re sure they’ll win, but worry that they won’t collect, which is the most important thing to them. The more you make them spend, the more worried about that they’ll be. Maybe they’ll drop the case if you demand arbitration.
We often make the argument that by pursuing discovery, filing and defending motions, and preparing for trial you are driving up the costs of litigation and may make the whole thing too expensive for debt collectors to want to do. Again, not because they worry about losing, but just the amount of money they’re having to spend when their business model is designed around easy, cheap judgments. However, conducting discovery and filing and defending motions and the rest do in fact improve your chances of winning, and we think that, when it comes to a debt collector, you should win your case. These things are the way to do it, and the chance the company will drop the case is basically the icing on that cake.
In arbitration, it’s the whole cake. You should remember that.
One big question that may be more theoretical than real is, who ultimately pays the arbitrator?
I say it may be theoretical since I just said the debt collector isn’t sure you’ll have any money at all, but this won’t stop them from seeking as big a judgment as possible. And if they get a judgment, they WILL try to collect it. All. So be advised that the judgment size could matter.
Okay, but who pays the arbitrator?
I think some states may have rules that matter, and I know that California, for example, does have rules regarding employment and consumer-brought claims. In the absence of any state based rule, you
would look to the arbitration provision giving you the right to arbitration – i.e., the contract. That will often say who pays the arbitrator, and it can specify any of a number of things, from company pays all to loser pays all, to dividing it up. The contract isn’t often going to put all the burden on the company because, after all, the company wrote the contract.
If it says company pays all, though, the company can’t shift that payment to you if you lose. If it’s loser pays all, though, it obviously will. But if there isn’t a direction in the contract, that would usually mean you start by splitting the cost, but that the arbitrator can award the cost to the winner, i.e., add it to the judgment.
The rule in your case is going to depend on your own specific circumstances.
The net of all this would suggest that you will have some advantage if the contract makes the company pay, but there’s risk if the loser pays. And of course it matters a lot who pays up front, which is often the debt collector.
So… should you compel arbitration?
In a debt buyer/collector case (i.e., not the original creditor) I’d still lean strongly against. You should win this case under most state laws because of the rules of evidence, and you cannot depend on the arbitrator to enforce those rules rigorously. If it’s an original creditor, it’s a much closer question. You’ll have to consider all the things we’ve discussed here and make a judgment call.
Filing a motion to compel arbitration might trigger some settlement negotiation, but I wouldn’t think you could get the company to give you a very steep discount, but there I’m just guessing based on what I know about lawyers and not experience in these type cases.
I remain very hesitant about suggesting arbitration, but there may be value in considering it if you’re
dealing with an original creditor.
Small Claims Court Report
Hey there! This content is available for FREE, when you become a member.
Light One Candle – Oct. 2021
Evergreen
In honor of this being the first newsletter, our first “evergreen” feature is an “oldie but goodie.” It’s why you have such a good chance of winning if you’re sued by a debt buyer. It’s nothing magical and doesn’t rely on weird gimmicks you’ve seen on Youtube or any bizarre rules someone made up to sell you something. It’s just the plain old rules of evidence and the way the debt collectors acquire the debts they’re suing you for.
Link
I hope you can forgive the sound quality of some of the older videos. I don’t replace them because so many people have watched them over the years that they help other people find us, but the quality isn’t the best. On the other hand, the message is clear: you have an excellent chance to win a lawsuit filed against you by a debt collector because of the way they operate. They don’t buy all the information the original creditor has, and they most particularly don’t get an affidavit filed by someone from the original creditor testifying to the accuracy of the record-keeping.
For more on this topic, I recommend the Three Weaknesses Every Debt Collector Has Report. It’s free to all members.
What’s Up
There’s a lot going on this month here at YLLU. We’re going to be recreating many pages to make them easier to read and more up to date, and also to make them connect more easily and obviously. Click here for a link to our Link Tree that’s tied to the litigation time-line. This should tell you what resources we have related to whatever particular issues you’re addressing, and it will eventually make finding everything much easier.
A new trick the debt collectors seem to have come up with now that Covid is going on is the filing of motions for summary judgment very quickly after filing suit. They’re doing this to keep from letting you conduct discovery and also to prevent you from exercising your right to a trial. Click here for information on that – it’s something we will be working on more as time goes by.
Remember that debt litigation is a series of steps. Some are hard and some are easy, but they’re all more manageable if you take them one at a time and never stop working your case until it is dismissed. Remember that there’s always an endpoint. You should keep working on your case even if the debt collector doesn’t seem to be. You have things you need to do.
New Tricks of Debt Collectors
New Trick for Debt Collectors: File Motion for Summary Judgment before you Complete Discovery
Discovery for Debt Collectors
When debt collectors file suit, they usually start with everything they think they’ll need. It generally is only the very most basic information about your case – no more than two or three old statements and a balance claiming you owe a certain amount of money. If you don’t defend, or don’t know how to defend, these things will be enough to get a judgment. They have no proof you ever owned the account or signed up for it, made any payments or failed to make any payments, or much of anything else. They don’t expect to need any of that because most people default (fail to answer) or fail to defend themselves intelligently. If they’re thinking ahead, they might use discovery a a way to find out about your job and resources or to trick you into admitting you owe them money. But most often debt collectors are not interested in conducting discovery.
Discovery for Debt Defendants
Debt defendants start in a completely different place than the collectors do, obviously. If you’re being sued by a debt collector, you need to know what exactly they have and how to attack it. You need to know whether they are defined by the law as “debt collectors,” what they have regarding you and how they got it, and what they’ve done or failed to do in attempting to collect the debt. You need, in other words, to find out ALL about the debt collector’s case, your defense, and whether you have counterclaims.
They don’t want you to do that.
New Trick for Debt Collectors
Debt Collectors have a new tactic.
It isn’t strictly new – they’ve been known to do it before, and it’s common enough in other kinds of litigation, but it’s happening much more often now in the “Covid era.” Or should I say, the “post-covid era?”
The courts are back up and running, in a way, but nobody is excited to have in-person trials. So the debt collectors have found a safer way to get what they way – one that uses all their favorite ways to take advantage: stonewall discovery and file a motion for summary judgment before you can get what you need to defend. Let the courts take the shortcut if they will – and they often do.
I’m talking about motions for summary judgment, but with a twist. The new plan is to file the motion early – before you have a chance to conduct or complete discovery. With a little luck they’ll scare you into giving up, but even if you don’t you have a tough job in courts which all too often are not equipped to listen to complicated legal arguments about complex issues.
What they’re doing is serving the lawsuit, waiting just a bit, and then filing the motion for summary judgment. If you’ve dragged your feet on starting discovery – or even on pushing it towards a motion to compel – you’re presented an extremely difficult challenge: how to get discovery you need to defend yourself is a small amount of time.
And how to bring a motion to compel and respond to a motion for summary judgment at the same time. That’s hard to do under the best of circumstances, but now you won’t even have enough time to do it all unless you can counter the tactic.
How to Defend Yourself from this Trick
Start Quickly! Don’t waste time.
The single most important thing you can do to protect yourself from this trick is, as always, to start serving discovery on the other side immediately. You may be able to avoid this trap altogether if you can jump right onto it. A few days could make the difference.
But what if it’s too late to start discovery “immediately?”
If it’s too late to start immediately, start NOW.
That isn’t a word game. If you haven’t started discovery and they file a motion for summary judgment, you must figure out and start discovery now. You’re going to have to show the court what you need in order to defend the motion for summary judgment and why you need it. And you will also need to show that you’ve taken steps to get it.
Motion to Stay
After you serve discovery on the other side, you will probably need to ask the court to hold (that’s “stay” in legalese) the motion for summary judgment while you conduct the discovery you need. You aren’t asking the court to delay its decision: you’re asking it to put the entire motion on hold until you’ve had a fair amount of time to do what you need. The complication is that, since they’ll be claiming all the facts are uncontested, you have to show how your discovery would help establish factual issues that would prevent the court from reaching a judgment. In legalese, you have to show the court how answers to your discovery might show the existence of “genuine issues of material fact.”
And to do that you must painstakingly link the possible answers to what you’re asking for in discovery to the claims they make.
Find the Rule and Follow It
The rule on summary judgments does contemplate that this could happen, and there is a rule that tells you what to do if you need more time to conduct discovery. In the federal courts, you have to make an affidavit that says certain specific things. In state courts, the rules can vary and may not require an affidavit – but they will require some statement of what you’ve done, what you’re looking for, and why it matters. You have to find the rule for your jurisdiction and follow it carefully.
It’s much easier to describe than to do, believe me, and of course the debt collectors know that. It isn’t easy at all for you to figure out how it works, file your motions, make the arguments you need to make and persuade the court to do something that all too many judges don’t want to do: take your case seriously.
The debt collectors rely on you, or the court, to get careless – and you know that often happens. The debt collectors do it to people representing themselves, and the judges sometimes turn a blind eye to real issues of fairness.Defending yourself from this trick frankly can be overwhelming.
Our New Workbooks Can Help
We have a new product that can help you with this issue if you’re facing it. It’s a workbook that addresses the necessary topics one by one in the order and way you will need to do it. It will show you how to analyze the motion for summary judgment, compare it to your discovery requests, and show how the answers might affect the outcome of the motion for summary judgment. It shows you how to do your motion to compel – and how to do the motion to stay the summary judgment.
Under the best of circumstances, it still won’t be easy, but the workbook should help you get a grip on the issues and process and give you the chance you need.
The workbook comes free with our 20-20 memberships, and that’s the only way you can get it for now because it’s still a work in progress and because I want to emphasize that the membership all but a very few people should be getting is the 20-20.
What if You’re Not in this Situation?
The product we’re discussing is intended for a specific situation, where you have discovery outstanding and they file a motion for summary judgment. But if you’re not in the situation I discuss here, our materials can help you avoid it by streamlining your discovery process. In fact we can help you from the beginning to the end of your case
If you’re being sued for debt you have enough problems. Dealing with slick collector tactics shouldn’t be one – but it is.
We can help. Our 20-20 memberships should help you all the way. If you are already a member other than 20-20, contact me for information on a discount code that will enable you to convert your membership. You should have the 20-20 – it’s our best deal by far for most people.
To Get the 20-20 Membership and Our Workbooks
Click here for general information on the 20-20.
If you want the short summary of the program, though, it’s just this: with the 20-20 you get everything we offer (excluding physical products) – all the reports, packages and teleconferences we have, for free with the membership for a year. The 20-20+ will include some bonuses and includes everything the 20-20 includes for 18 months. The idea is to get you through your lawsuit without a second charge.
To get the membership, you click on the top menu “about Memberships” and select your membership option.
Protected: Affidavit Paragraph
Protected: Paragraph on Lack of Standing and Bill of Sale
Protected: Help with Legal Research
Spokeo, Activist Courts, and Consumer and Debt Law
People involved in debt and consumer law have heard a lot about “Spokeo” in the past few years, and they’re going to hear more. Spokeo is a wolf in sheep’s clothing, a Supreme Court decision purporting to limit the Judicial system’s ability to override the functions of the other branches of government, but actually itself a vast usurpation of that power. It has been used to gut consumer and debt law protections enacted by Congress, and it will increasingly be used to do so. I expect it to be extended to state courts and jurisdiction as well.
So, what is “Spokeo” and how does it usurp legislative power? We discuss these issues and suggest some possible approaches in the following article.
“Spokeo” is the way many refer to a case and the Supreme Court decision that decided it. The case was Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016). Spokeo, Inc. was a business that compiled information on essentially everybody and made it available to people searching it. Some of the information was free, and some was only available upon payment (not a distinction relevant to the case). It disseminated information on creditworthiness and lifestyle and general biographical information, and its reporting on creditworthiness (allegedly) brought it within the reach of the Fair Credit Reporting Act (FCRA).[1]
In the case of Robins (the plaintiff in the suit), Spokeo reported that he was in his mid-fifties, employed, affluent and married – all of which Robins alleged was false. Robins claimed the information had hurt his attempt to obtain employment. Robins brought suit under the FCRA.[2]
The Supreme Court held (essentially) that he had not alleged a “concrete, actual injury.” Probably every single person reading this article intuitively knows how false this holding was, in reality.
The Court based its analysis on Article III of the Constitution, which limits judicial action to actual “cases and controversies.” They pointed out a fundamental concept of the law, which is that courts are only empowered to hear cases involving real people with real adversary interests – otherwise people would make up cases to test abstract limits of the laws as a sort of judicial review. To keep the Judicial branch in its own lane, courts have determined that, to satisfy Article III, a plaintiff must show (1) injury in fact, (2) causation, and (3) redressability (ability of a court order to “solve” the wrong that has been committed. With respect to the injury requirement, the injury must be (1) “concrete and particularized” and (2) “actual or imminent.” A “bare procedural violation” of a statute is not enough: there must be some harm already, or some harm must be imminent.[3]
Article III’s “Standing” Requirement and the Federal Court’s Attack on Statutory Consumer Rights
To satisfy Article III, a plaintiff must show (1) injury in fact, (2) causation, and (3) redressability. With respect to the injury requirement, which the Supreme Court discussed at length in its seminal opinion in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the injury must be (1) “concrete and particularized” and (2) “actual or imminent.” A “bare procedural violation” of a statute is not enough.
All of these requirements are designed to insure that a litigant is protecting his or her own specific rights and not some theoretical general or public right which would be akin to judicial review.
In Spokeo, the Supreme Court seemed to take the position that the “harm” or injury Robins alleged was a procedural violation – like he was some purist offended by Spokeo’s carelessness in keeping information. The harm, however, was crystal clear and not at all theoretical or akin to judicial review: Spokeo had wrong information about Robins. Having and disseminating false information about him WAS the wrong, and it was also the very “harm” that the FCRA was designed to prevent. The fact that the incorrect information was also damaging to him was irrelevant to the Article III analysis, though of course it would be relevant to the amount of damages he should have gotten.
The Court was not unaware of this; its decision was a blatant attack upon civil and consumer rights, many of which are quite difficult to quantify and are intangible. The Court is hostile to these rights, and Spokeo was a usurpation of the legislature’s Constitutional power to create them and give people the right to enforce them. Thus it is a lasting monument to the hypocrisy of the current Supreme Court. There will likely be many more over the coming years. The Spokeo decision has been used to attack civil and consumer rights from the instant it was written, most notably, perhaps, the Telephone Consumer Protection Act (TCPA), but what will be the harm to a debt litigant under the FDCPA of the debt collector failing to publish warnings in conspicuous print if the consumer sees the warning anyway? What’s the harm of making harassing phone calls late at night? The Supreme Court has put itself in the business of evaluating and quantifying those harms, while the FDCPA made them per se violations. The courts will use Spokeo to attack the FDCPA as well.
State Law Applicability of Spokeo
Even a casual reading of Spokeo will reveal that the Court pretended to be careful to limit its ruling to federal courts. There is no doubt the state courts will follow, however. Note the reasoning, applicable to every state, in the following paragraph of a New York State opinion. I include the links so you can more conveniently track down the cited cases:
“Under the common law, there is little doubt that a `court has no inherent power to right a wrong unless thereby the civil, property or personal rights of the plaintiff in the action or the petitioner in the proceeding are affected'” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991], quoting Schieffelin v Komfort, 212 NY 520, 530 [1914]). Related to this principle is “a general prohibition on one litigant raising the legal rights of another” (Society of Plastics, 77 NY2d at 773). Thus, if the issue of standing is raised, a party challenging governmental action must meet the threshold burden of establishing that it has suffered an “injury in fact” and that the injury it asserts “fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the [government] has acted” (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]).[2] The injury-in-fact requirement necessitates a showing that the party has “an actual legal stake in the matter being adjudicated” and has suffered a cognizable harm (see Society of Plastics, 77 NY2d at 772) that is not “tenuous,” “ephemeral,” or “conjectural” but is sufficiently concrete and particularized to warrant judicial intervention (Novello, 2 NY3d at 214; see Spokeo, Inc. v Robins, 578 US __, __, 136 S Ct 1540, 1548 [2016]).
MENTAL HYGIENE v. Daniels, 33 NY 3d 44, 50 – (NY App. 2019).
What to Do
People familiar with my writing and videos will perhaps recognize that some of the language in Mental Hygiene is familiar. We argue the issue of standing all the time at a more basic level: a debt collector must show that it owns the right to sue – the injury in fact requirement is a constitutional necessity that the plaintiff show it owns the debt in question. Provided you dispute the debt collector’s ownership, which I have said every defendant should do in every case.
If you are alleging a violation of the FDCPA or the FCRA, you must obviously take some care to allege actual harm closely connected to the right you claim was violated. If they are suing you for debt beyond the statute of limitations, their unfair collection practice has caused you emotional distress, the expense of hiring a lawyer or seeking help, the time reading, thinking about and responding to the suit, the price of paper in filing your answer or responsive motion, postage incurred in providing notice to the debt collector, gas in taking the suit to be filed, and whatever else you can think of.
The courts are extremely aggressive in TCPA litigation, where they have held that “a single emailed fax” was not a cognizable harm even though Congress said it was, and even though even a single emailed fax would require some time to read and elicit some emotional response. If ONE emailed fax isn’t enough despite the fact that Congress made it so, then what about two? Or twenty-two? Expect the courts to apply this type of analysis routinely, and state your damages in as lurid and concrete a fashion possible.
Many state consumer protection laws are subject to what is called “strict liability” and do not require any harm at all – even a mere “technical” violation creates liability. The Supreme Court is willing to recognize that a trespasser, by stepping one foot across the line, has caused cognizable damage even though it may not be seen, felt, or even exist at all – it’s a legal wrong (to a property interest most often held by the wealthy). Will it see deceptive sales language that did not deceive a consumer as a violation in the same way? I believe a careful litigant should consider alleging shock and outrage, perhaps a call to a lawyer or at least photocopying expense – something, anything – to show actual harm until some theoretical limitation has been placed on the courts’ “discretion” to reconsider and reevaluate damages determined by the legislature. Spokeo abandoned the principle of Judicial limitation.
[1] Among other things, the FCRA states that “[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any [individual] is liable to that [individual]” for, among other things, either “actual damages” or statutory damages of $100 to $1,000 per violation, costs of the action and attorney’s fees, and possibly punitive damages. § 1681n(a).
[2]Apparenty Robins did not dispute his “report” (and perhaps he couldn’t because of the nature of Spokeo) and sue under the provisions provided by that. Instead, he seems to have alleged a failure of Spokeo to use the required care to obtain information. This may have been a litigation decision based on the attempt to bring the claim as a class action, which requires “commonality” of legal issues among the class members. If so, it was the wrong decision for Robins’s individual chances, as it turned out.
[3] “Imminence” has created some interesting legal issues not important here. The courts have held that an enacted law may create imminent harm, but they have also held that where the executive has renounced enforcement of the law, the harm is not imminent.