FDCPA and Suing the wrong person with the same last name: Smith v. Moss Law Firm, P.C. (USDC SD Tex. 2019)

INDIVIDUAL WHO IS DUNNED OR SUED BUT DOES NOT OWE THE DEBT CAN HAVE STANDING TO BRING  UNFAIR COLLECTION CLAIM UNDER FAIR DEBT COLLECTION STATUTES 

Motion to dismiss in FDCPA action brought by non-debtor against prominent Texas debt collection attorney Michael Moss's law firm denied. Defendant collection law firm argued that plaintiff did not have standing to sue under FDCPA and its Texas state law counterpart: the Texas Debt Collection Act. A federal district court judge in Dallas found otherwise.

CHRISTOPHER SMITH, Plaintiff,
v.
MOSS LAW FIRM, P.C., Defendant.

Civil Action No. 3:18-CV-2449-D.

United States District Court, N.D. Texas, Dallas Division.

January 15, 2019.

Christopher Smith, Plaintiff, represented by Ramona Veronica Ladwig, Hyde & Swigart, Anthony Patrick Chester, Hyde & Swigart & Seyed Abbas Kazerounian, Kazerouni Law Group APC.

Moss Law Firm PC, Defendant, represented by Rebecca Anne Moss, Moss Law Firm PC & Michael Allen Moss, Moss Law Firm PC.

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, Senior District Judge.  

In this action asserting claims for violations of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA"), and the Texas Debt Collection Practices Act, Tex. Fin. Code Ann. §§ 392.001-.404 (West 2006) ("TDCPA"), defendant moves to dismiss under Fed. R. Civ. P. 12(b)(6). 

The principal question presented is whether plaintiff lacks statutory standing^[1] to maintain this action because defendant's collection activities were not "directed" at him. Concluding that plaintiff has plausibly pleaded authorization to sue under the FDCPA and the TDCPA, the court denies the motion to dismiss.

I

This action by plaintiff Christopher Smith ("Smith") relates to a suit filed in Texas justice court in October 2017. At that time, defendant Moss Law Firm, P.C. ("Moss") filed suit on behalf of Barclays Bank Delaware ("Barclays") to collect a delinquent debt.^[2] Smith alleges, inter alia, that the debt in dispute does not belong to him, that the lawsuit was wrongfully initiated against him, and that he informed Moss of the error. Smith also asserts that, despite the information he provided Moss (including his social security number and date of birth), Moss nevertheless proceeded with the lawsuit. Smith avers that he retained an attorney "to defend the lawsuit to avoid liability for a judgment he could not afford being wrongfully entered in his name and causing possible damage of his credit." Compl. ¶ 24. Smith was nonsuited (the Texas term for voluntarily dismissed) from the justice-court suit approximately one month after it was filed. Smith then brought this action against Moss, alleging that Moss's conduct in connection with the justice-court lawsuit violated the FDCPA and the TDCPA and that these violations caused Smith to suffer "actual damages in the form of loss of money, time, and emotional distress." Compl. ¶ 35.

Moss moves to dismiss under Rule 12(b)(6), contending that Smith lacks statutory standing because the justice-court lawsuit was not directed at Smith, but was instead directed at his son, Christopher O. Smith II. Smith opposes the motion.

II

Under Rule 12(b)(6), the court evaluates the pleadings by "accept[ing] `all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff.'" In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)). To survive Moss's motion to dismiss, Smith must allege enough facts "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.; see also Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief above the speculative level[.]"). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `show[n]'—`that the pleader is entitled to relief.'" Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2)). Furthermore, under Rule 8(a)(2), a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Although "the pleading standard Rule 8 announces does not require `detailed factual allegations,'" it demands more than "labels and conclusions." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). And "a formulaic recitation of the elements of a cause of action will not do." Id. (quoting Twombly, 550 U.S. at 555).

The Fifth Circuit has emphasized that "whether or not a particular cause of action authorizes an injured plaintiff to sue is a merits question . . . not a jurisdictional question." Camsoft Data Sys., Inc. v. S. Elecs. Supply, Inc., 756 F.3d 327, 332 (5th Cir. 2014)(quoting Blanchard 1986, Ltd. v. Park Plantation, LLC, 553 F.3d 405, 409 (5th Cir. 2008)). Accordingly, if statutory standing is lacking, the claims should be dismissed under Rule 12(b)(6). See id.; Harold H. Huggins Realty, Inc. v. FNC, Inc., 634 F.3d 787, 795 n.2 (5th Cir. 2011) ("Unlike a dismissal for lack of constitutional standing, which should be granted under Rule 12(b)(1), a dismissal for lack of prudential or statutory standing is properly granted under Rule 12(b)(6)."). The inquiry that is important in determining whether Smith has statutory standing is, in effect, "whether [Smith] has a cause of action under the statute[s]." Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 (2014).

III

A

The court first considers whether Smith was required to submit evidence to show that he has statutory standing. Moss contends that Smith has the burden to establish that he has statutory standing. The court agrees that Smith must allege an adequate basis to proceed with his case and must ultimately adduce evidence that he is entitled to relief. Moss also appears to contend, however, that it has made a factual attack on Smith's standing, thus requiring Smith to prove at this stage of the case—with evidence—that he has statutory standing to bring his claims.^[3] See D. Reply 3 n.2 ("[A] party may submit evidence outside the pleadings when making a factual attack on a party's prudential or statutory standing."); id. at 2 ("Plaintiff contends, without support other than his own belief, that the suit was filed against him[.]"). To the extent this is Moss's contention, the court disagrees that Moss has made (or is able to make) a factual attack that requires Smith to prove the existence of statutory standing by a preponderance of the evidence and to submit facts through some evidentiary method to sustain his burden of proof. See Gonzalez v. Gen. Motors, LLC, 2017 WL 9324466, at *4 (W.D. Tex. Nov. 7, 2017) (explaining that it would be improper to consider matters outside the pleadings in deciding a Rule 12(b)(6) motion attacking statutory standing); but see Myles v. Domino's Pizza, LLC, 2017 WL 238436, at *4, 8 (N.D. Miss. Jan. 19, 2017) (considering matters outside the pleadings in ruling on a Rule 12(b)(6) motion attacking statutory standing).

Indeed, to accept Moss's contention would be to confuse a Rule 12(b)(6) motion to dismiss with a Rule 12(b)(1) motion to dismiss. When moving to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, a defendant can make a facial or factual challenge. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). An attack is "factual" rather than "facial" if the defendant "submits affidavits, testimony, or other evidentiary materials." Id. For a plaintiff to defeat a factual attack, he must submit facts through some evidentiary method to prove the existence of subject-matter jurisdiction by a preponderance of the evidence. See id. In its reply, Moss contends that Smith "fails to meet his burden of proving statutory standing," D. Reply 3, suggesting that Moss is making a factual attack and that Smith is required to adduce evidence to meet his burden. But the court declines to impose the Rule 12(b)(1) factual challenge framework where Moss seeks dismissal for lack of statutory standing, which is properly evaluated under Rule 12(b)(6). See, e.g., Camsoft Data Sys., 756 F.3d at 332. And under Rule 12(b)(6), the court must limit its inquiry "to the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Gonzalez, 2017 WL 9324466, at *4. Thus Smith is not required to submit—nor would the court have considered—additional evidence in support of his statutory standing.

That said, "[d]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [his] claim." Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004)(citing Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000)). In this case, Moss has attached Barclay's justice-court petition to its motion to dismiss. "In so attaching, [Moss] merely assists [Smith] in establishing the basis of the suit, and the court in making the elementary determination of whether a claim has been stated." Collins, 224 F.3d at 499. The justice-court case is referred to in Smith's complaint and is central to Smith's claims, and the original petition aids the court in making a determination of whether Smith has a cause of action under the FDCPA or the TDCPA. The court's Rule 12(b)(6) inquiry thus includes the complaint in this case and the justice-court petition.

B

The court next considers whether Smith lacks statutory standing under the FDCPA or the TDCPA. Moss challenges Smith's statutory standing based on its contention that its collection activities were not directed at Smith.

1

Although a primary purpose of the FDCPA is "to promote consistent State action to protect consumers against debt collection abuses," the FDCPA does not limit recovery to debtors. See 15 U.S.C. § 1692(e). Indeed, 15 U.S.C. § 1692k, which defines civil liability for FDCPA violations, provides that "any debt collector who fails to comply with any provision of [the FDCPA] with respect to any person is liable to such person[.]" Id. § 1692k(a). District courts in this circuit and others have recognized that "under certain circumstances, third-party, non-debtors have standing to bring claims under the FDCPA." See Prophet v. Myers, 2009 WL 1437799, at *3 (S.D. Tex. May 21, 2009) (compiling cases).

Similarly, the TDCPA is intended to protect consumers, but does not limit recovery to consumers. Tex. Fin. Code Ann. § 392.403 creates a private right of action for TDCPA violations and provides: "A person may sue for: actual damages sustained as a result of a violation of this chapter." Tex. Fin. Code Ann. § 392.403(a)(2). According to the Fifth Circuit, "persons who have sustained actual damages from a [TDCPA] violation have standing to sue." McCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 473 (5th Cir. 2015) (citing Tex. Fin. Code Ann. § 392.403(a)(2)).

2

Moss does not assert that non-debtor plaintiffs can never state a claim under the FDCPA and the TDCPA. But it contends that courts allow non-debtor actions "only when conduct is abusive, directed at the non-debtor, and results in actual damages." D. Mot. 6. Moss maintains that it "did not direct any debt collection efforts at [Smith]," and it points to the account statement attached to the justice-court petition, which bears the name "Christopher O[.] Smith II," not "Christopher O. Smith." Id. at 6-7. Smith responds that Moss's collection activities were directed against him because, inter alia, the justice-court petition alleged that Smith owed the debt, and Moss proceeded with the lawsuit despite being told that Smith was the wrong party. Without suggesting a view on how the court would decide a motion for summary judgment or how a jury would evaluate the merits of Smith's claims, the court concludes that Smith's case should not be dismissed for lack of statutory standing, as Moss contends.

At this stage of the case, the court accepts Smith's well-pleaded facts as true and evaluates "whether [Smith] has a cause of action under the statute[s]." Lexmark Int'l, Inc., 572 U.S. at 128. To state a claim under the FDCPA, Smith must plausibly plead that a debt collector has failed to comply with a provision of the FDCPA with respect to him. See 15 U.S.C. § 1692k(a). Smith alleges that Moss sought to collect a debt that Smith did not owe to Barclays; that Moss initiated a lawsuit against Smith to collect this alleged debt; that Smith informed Moss of the error; and that Moss nevertheless continued to pursue the lawsuit against Smith. Moss is correct that the account statement attached to the justice-court petition bears the name "Christopher O[.] Smith II." But that fact does not undermine Smith's allegations of collection activity directed at him—especially considering that the caption and party description within the justice-court petition bear the name "CHRISTOPHER O SMITH," without the "II" addition. Reading Smith's complaint and the justice-court petition under the proper standard, Smith has adequately pleaded that Moss's actions were directed toward him.

Turning to the TDCPA, the Fifth Circuit has rejected a requirement that debt collection efforts be "directed" or "targeted" at a particular individual for the individual to have standing to sue under the TDCPA. See McCaig, 788 F.3d at 474. Moss cites several district court cases, such as Prophet, 2009 WL 1437799, and Ledezma v. Wells Fargo Bank, N.A., 2014 WL 6674285 (S.D. Tex. Nov. 24, 2014), that impose a targeting requirement, but these cases predate McCaig and, more important, McCaig expressly rejects the targeting rule applied in Prophet. See McCaig, 788 F.3d at 474 & n.3. The Fifth Circuit explained that, "[i]n rejecting this rule, it is sufficient to observe that Section 392.403(a)(2) contains no targeting requirement and that the district courts that have adopted the rule did not base their standing analyses on the text of Section 392.403(a)(2)." Id. at 474. Thus, as instructed by the Fifth Circuit, this court's duty is to apply existing state law, which suggests that the rule is that "persons who have sustained actual damages from a [TDCPA] violation have standing to sue." Id. at 473 (citing Tex. Fin. Ann. Code § 392.403(a)(2)). Smith alleges that Moss violated Tex. Fin. Code Ann. § 392.304(a)(19), and that, as a result of Moss's actions, he has "suffered actual damages in the form of loss of money, time, and emotional distress." Compl. ¶ 35. These allegations are sufficient to plausibly plead Smith's authorization to sue pursuant to the TDCPA.

Accordingly, Smith has alleged a plausible basis to proceed under the FDCPA and the TDCPA; his claims do not fail at the motion to dismiss stage for want of collection activities directed at him.

* * *

For the reasons explained, the court denies Moss's motion to dismiss.

SO ORDERED.

[1] Although "statutory standing" is an imperfect label that can be misused because it is not truly a "standing" doctrine, the term is used by the parties throughout their briefing, and the court is satisfied that, in this case, it is being used to refer to the correct inquiry: whether the plaintiff has pleaded a plausible cause of action under the statutes. See Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 128 & n.4 (2014).

[2] The lawsuit was captioned Barclays Bank Delaware v. Christopher O Smith, Case No. JX1700978H, in the Justice Court, Precinct 1, Place 1, of Dallas County, Texas.

[3] The court recognizes that, in Superior MRI Services, Inc. v. Alliance Healthcare Services, Inc., 778 F.3d 502, 504 (5th Cir. 2015), the Fifth Circuit affirmed a district court decision in which a defendant "brought a factual attack on [plaintiff's] prudential standing." The court also recognizes that the terms "prudential standing" and "statutory standing" are sometimes used interchangeably, which may have prompted Moss to cite Superior MRI Services and posit that "[t]he Fifth Circuit has made it clear . . . that a party may submit evidence outside the pleadings when making a factual attack on a party's prudential or statutory standing." D. Reply 3 n.2. But Superior MRI Services did not involve statutory standing. In fact, the Fifth Circuit panel explicitly discussed the fact that the "type of prudential standing requirement" at issue in that case (third-party standing) was different from the type that was before the Supreme Court in Lexmark (statutory standing). See Superior MRI Servs., 778 F.3d at 506. Thus the court does not agree that Superior MRI Services should be applied to cases involving statutory standing.

Donald D. DeGrasse - Amex collection attorney (profile and critique of pleadings)

DEBT COLLECTION ATTORNEY - INDIVIDUAL PROFILE 

Donald D. DeGrasse 

Donald D. ‘Don’ Degrasse is a debt collection lawyer based in Houston, Texas. In addition to creditor-debtor litigation (which involves large numbers of American Express debt suits), Degrasse lists Commercial Litigation and Real Estate as practice areas. He is a prolific litigator in the trial courts covering a broad array of civil cases, but is not very active in the courts of appeals.

Mr. Degrasse’s law degree is from Indiana University School of Law, where he completed his studies with a JD degree in 1979. He obtained his Texas bar license in 1981.

Attorney DeGrasse's Texas Bar Card Number is 05641800. In addition to the courts of the State of Texas, he is admitted to practice in the US Tax Court and in the U.S. District Court (and Bankruptcy Court) for the Southern District of Texas. Information available from the State Bar of Texas web site indicates that Attorney DeGrasse has no public disciplinary history.

PARTNERS / COLLEAGUES IN SAME FIRM: Robert L. Rolnick (name partner); Kevin T. McGuire

TYPICAL DEGRASSE PETITION IN A DEBT SUIT 

CAUSES OF ACTION: BREACH OF WRITTEN CONTRACT AND ACCOUNT STATED 

What does a typical DeGrasse petition in a debt suit contains (--> Sample DeGrasse Petition)

As causes of action in original creditor suits DeGrasse pleads Breach of Written Contract and Account Stated, each in a separate paragraph (IV and V, respectively).

DeGrasse's two theories are based on the same set of facts. Indeed, the section on "Account Stated" incorporates the allegations that precede it in full. It adds references to account statements sent by the original creditor, and alleges that there were never disputed by the defendant. DeGrasse seeks the same amount of damages on both theories. Unlike Anh Regent's pleading, DeGrasse's do not make any reference to acceleration of maturity of the revolving balance on the account, but characterize the pleaded-for amount of damages as "due and owing" on the account.

DISCOVERY WITHIN THE BODY OF THE PETITION

DeGrasse pleads discovery level 1. His petition template includes Requests for Disclosure and Request for Admission as numbered paragraphs, although the inclusion of the latter is not authorized by the rules of civil procedure, which specifically instruct litigants not to file discovery requests with the court. More on that topic below.

Although they contain discovery requests, DeGrasse's original petitions do not have a designated FACTS or FACTUAL BACKGROUND section separate and apart from the paragraphs devoted to the causes of actions; nor do they contain a CONCLUSION, or PRAYER section denominated as such. The untitled last paragraph lists the damages beings sought, including the amount of "the balance due, owing, and unpaid under the Agreement", court cost, post-judgment interest, and "any further relief to which the Plaintiff may show itself justly entitled." The prayer and list of damages does not include an express request for attorney's fees.

Requests for Admissions. DeGrasse's standard sets of "Requests for Admissions" comprise propositions sought to be admitted numbered with lower-case letters starting with a) through m) or w). There is more than one version of requests for admissions and they differ in length.

MOTIONS FOR SUMMARY JUDGMENT BY DEGRASSE 

In Amex debt suits DeGrasse acknowledges that American Express is a Utah bank, and that Utah law is relevant to the case. He nevertheless moves for summary judgment under Texas law on causes of action for breach of contract and account stated, and does not expressly ask for judicial notice and application of Utah law. When the issue comes up in litigation, DeGrasse argues that Amex is entitled to judgment regardless of whether Texas law or Utah law applies.

DEGRASSE MOVES FOR SUMMARY JUDGMENT ON DEEMED ADMISSIONS

DeGrasse is one of those debt collection attorneys who inserts request for admission into his pleading so as to take advantage of deemed admissions should the defendant fail to answer them. The practice of embedding discovery requests into pleadings is not proper under the rule of civil procedure (which state that discovery shall not be filed), but is not uncommon either. Some debt collection attorneys do it routinely while others do not. Those that do, typically get away with it.

The proper method of serving discovery at the same time as the citation and original petition is to prepare two documents separately, obtain a citation referencing both documents; file the pleading only with the court; but have both the petition and the discovery requests served on the defendant with the citation. Allen L. Adkins, who set a high standard in debt collection litigation and also authored CLE materials, followed that practice as a matter of law firm policy. Few other do. 

Injecting requests for admission into the initial pleading can confuse defendants because the deadline to answer the lawsuit differs from the deadline to answer discovery requests. Additionally, a defendant may be under the impression that the filing of a general denial will also deny the requested admissions, i.e. that it is enough to answer the lawsuit, only to be faced with a motion based on deemed admissions a few weeks later.

DeGrasse routinely files motions for summary judgment based, at least in part, on deemed admissions. Because he has the requests for admissions served as an integral component of the petition itself, he can rely on the return of service in the court's file not only as proof that the lawsuit papers were served on the defendant (for default judgment purposes) but as proof that requests for admissions were also served; and since the requests for admissions are part of the pleadings, their substance is also on file. The rules do not condone this stratagem, but it often works. Moreover, in a default scenario, no one is there to object in any event, and courts typically do not enforce pleading rules proactively.

RELATED TOPICS AND BLOG POSTS 

Deemed admissions: Trap for the unwary
Disputing the existence of deemed admissions
Motion to strike or withdraw deemed admissions after failure to answer requests for admissions (RFAs)

DEGRASSE NAME SPELLING VARIANTS

This prolific Texas litigator has a compound surname. It is rendered as one word in his address block with the G in Grasse sometimes capitalized within the character string. On his signature, however, the De and the Grasse sometimes appear as separate words, and both are capitalized. Differences in the appearance of the signature on different documents suggests that Attorney DeGrasse (or someone on his behalf) actually signs in person, rather than using a signature stamp or e-signing with an image of his signature. DeGrasse's cover letters do not contain the name of a secretary, paralegal, or other clerical staff.

ADDRESS OF DONALD D. DeGRASSE of DeGRASSE & ROLNICK 

Donald D. DeGrasse
DeGRASSE & ROLNICK
6363 Woodway, Suite 975
Houston, Texas 77057-1713
Tel.: (713) 840-9111
Fax: (713) 840-7263

Web address: www.degrasserolnick.com  

ZWICKER AND ASSOCIATES - Review of Debt Collection Firm

Profile of Debt Collection Firm 

ZWICKER & ASSOCIATES, P.C. 

This is a major national debt-collection lawfirm that represents leading financial institutions (among them American Express and Discover Bank) in mass debt litigation. It operates through attorneys licensed in the states in which debt litigation is performed.

Zwicker correspondence reflects that this lawfirm has attorneys licensed in the following states: Arizona, California, Connecticut, Florida, Georgia, Idaho, Illinois, Kentucky, Maryland, Massachusetts, Michigan, New Jersey, New Hampshire, New York, Ohio, Oregon, Tennessee, Texas, Virginia, Washington, West Virginia, and District of Columbia (not a state).

Zwicker’s mailing address: Zwicker’s debt litigation in Texas is handled from a single office in Round Rock, Texas 78681.

TEXAS LAWYERS ASSOCIATED WITH ZWICKER & ASSOCIATES

As of June 2013, the following Texas-licensed attorneys are associated with Zwicker & Associates:  
Troy D. Bolen, Joseph M. O’Bell, Audrie L. Lawton, Laura L. Bedford. O’Bell replaced Christopher D. Osborn, who left the firm early in 2012. According to her SBOT profile, Megan D. Naglreiter still works for Zwicker, too, but her name is not listed on Zwicker's current address block. 

Other attorney who handled Texas litigation for ZWICKER in the past: Kendall Lauren Bryant, now with the Ryan Law Firm LLP in Austin. 

How many lawyer are affiliated with Zwicker?

It is unclear how many lawyers work for Zwicker in Texas. The firm’s court-filed papers list four, but the firm-size information on the state bar’s website, which is submitted by each attorney separately, is inconsistent on that matter. 
  

O’Bell’s profile reports the firm size for ZWICKER & ASSOCIATES as 25-40. The profile of one of his colleagues (Troy Bolen) quotes the number as 2-5. The discrepancy may reflect inclusion and exclusion of appearance attorneys, respectively. Appearance attorneys are local lawyers who go to court for law firms with multi-city operations (such as ZWICKER & ASSOCIATES) in various parts of the state for hearings and trials, but do not themselves sign pleadings or motions. The use of local counsel for court appearances makes mass litigation conducted simultaneously in many parts of the state more economical and logistically feasible because it reduces the need for attorney travel. It can also be beneficial in other respects. Although local counsel who work as contractors may be of varying caliber, they are usually familiar with their local courts, including the judges and their staff, and how things are done in different courthouses around the state. A lawyer from out-to-town is often at a competitive disadvantage and more prone to make errors or commit a faux pas.

TYPICAL PLEADINGS FILED BY ZWICKER ATTORNEYS 

Like others in the business of debt collection, Zwicker attorneys file pleadings generated with a document production system that inserts a few case-specific details (name of defendant, a few digits of the account number, and the amount for which judgment is sought) into a template. As a result, the petitions filed in multiple cases handled by this attorney have the same look, make the same allegations (except for the amount of the debt), and are based on the same legal theory: breach of contract. 

The standard petition filed by attorneys associated with ZWICKER AND ASSOCIATES is titled “PLAINTIFF’S ORIGINAL PETITION” and does not include discovery requests either within the petition itself or as a separate attachment. Some other debt plaintiffs makes such requests within the petition, and use a document title that makes reference to discovery, e.g. Plaintiff’s Original Petition and First Request for Admissions and Production of Documents. Others serve discovery request with the petition, but as separate documents. In that case, the citation should include a mention of the additional documents, otherwise there may not be official proof of service.  

As of June 2013, the standard petition does not include a request for attorney’s fees.  In the past, Zwicker attorneys requested such fees in their petitions, typically $400-$500 dollars per case.

EXAMPLE OF PETITION FILED BY ZWICKER LAW FIRM IN JANUARY 2014

EXAMPLE OF MOTION FOR DEFAULT JUDGMENT FILED BY ZWICKER ATTORNEYS IN TEXAS 

EXAMPLE OF MOTION TO RETAIN CASE ON THE DOCKET (AFTER DWOP NOTICE) 

Sample motion to retain to prevent DWOP - filed by Zwicker in Amex Debt suit 

Nathanial D. Kitz - Review of RSIEH Debt Collection Attorney

Nathanial D. Kitz – Individual profile of debt collection attorney

Texas-licensed attorney Nathanial D Kitz is associated with the debt collection law firm RAUSCH, STURM, ISRAEL, ENERSON & HORNIK, LLC, whose offices are located in Addison, Texas ("RAUSCH"). Kitz appears as attorney in charge in lawsuits filed on behalf of credit card issuers such as CAPITAL ONE BANK USA N.A. and  CITIBANK (SOUTH DAKOTA) N.A., now CITIBANK, N.A..

Attorney Kitz's Texas bar card number is 24080988

ADDRESS AND LAW FIRM AFFILIATION OF DEBT COLLECTION ATTORNEY NATHANIAL (not Nathaniel) KITZ

Nathanial D. Kitz

RAUSCH, STURM, ISRAEL, ENERSON & HORNIK, LLC  ("RSIEH") 

15851 N. Dallas Parkway, Suite 245

Addison TX 75001

Fax: (877) 492-5185

NAMES OF COLLEAGUES AT RSIEH 

The firm address block on pleadings and motions signed and filed by Attorney Kitz lists the names of numerous other Texas attorneys associated with the same firm.  As of 2013, the roster included the following in addition to Nathanial D. Kitz:

Seung W. Chae

Shaun G. Brown

Michael R. Castro

Timothy A. Gasaway

Fallon Hamilton

Jeffrey S. Kramer

Steve Javandoost

Jamila B. Lloyd

Yvonne Mikulik

The mailing address for all of these debt collection attorneys is the same office in Addison, Texas, which is a suburb of Dallas. But the firm's attorneys file lawsuit in many counties around the state.

Kitz's signature is not legible. He typically circles his name on the list of attorneys to identify himself as the signer, and as responsible for the pleading. (--> Rule 13 of the TRCP).

TYPICAL PLEADINGS FILED BY ATTORNEY KITZ

Kitz and his colleagues at the RAUSCH law firm file pleading generated with document production software that inserts case-specific data, such defendant's name and the amount sued for, into electronic templates. As a result, the initial pleadings in hundreds of cases look alike. The same is true of motions.  

The typical initial pleading filed by RAUSCH attorneys is titled "Plaintiff's Original Petition & First Discovery Requests". (In Texas state courts, the initial document is called the Original Petition. In federal court, and in many other states, the document filed to commence a civil action is called Complaint.) Not all debt collection attorneys attach discovery requests to their pleadings. RAUSCH attorneys do, which explains that additional language in the title of its pleadings.

ANATOMY OF A TYPICAL RAUSCH PETITION

TITLE AND LENGTH. A typical petition filed by attorneys with the RAUSCH law firm consists of three single-spaced pages divided into 19 numbered paragraphs and sections designated with letters A through K. Because it is more detailed and single-spaced, it looks busier than the pleadings filed by other law firms in similar cases. It also contains more details and citations to legal cases, albeit from different states.

CAUSE OF ACTION. Although it is longer than comparable petition, the sole theory of recovery invoked by a typical RAUSCH petition is Breach of Contract.

FACTS: WHAT'S INCLUDED AND WHAT NOT.  In contrast to the initial pleadings filed by debt collection attorneys operating independently or working for other lawfirms, RAUSCH petitions contain a section of Facts that contains the variable information for the particular case. It identifies the issuing bank and the account upon which the suit is based with the last four digits of the credit card/account number. It also provides the charge-off date and states the total balance due "plus interest". No details are given regarding additional interest, the rate of such interest, or the starting date for accrual, which could be the charge-off date of the date the suit was filed. One can only speculate.  

The prayer at the end of the petition asks for "actual damages" in the amount matching the amount alleged as  the total due on the account in the fact section, and requests "pre-judgment" and "post-judgment interest" without any further details and without specifying whether either form of interest is based on contract or statute. (--> statutory interest, judgment interest).

RAUSCH petitions differ from more basic pleadings filed by other attorneys for credit card companies (or debt buyers) in that they contain several less common, if not unique, paragraphs.

A paragraph on Damages characterizes the debt claim as liquidated (--> liquidated damages) and reiterates the amount alleged as "due" in the fact section, but at the same time qualifies the assertion of the amount of damages with the phrase "at least" preceding the amount and "plus interest" following it.  This very short paragraph on damages does not state an interest rate either.

As of 2013, RAUSCH petitions do not seek attorney's fees. Therefore, there is no paragraph on such fees.

A paragraph titled "Miscellany" identifies Plaintiff's attorneys as debt collectors, and advises the defendant that the undersigned attorney is attempting to collect a debt. This paragraph was presumably inserted into the pleading template as a safeguard against and preempt claims of that the law firm and its attorneys failed to comply with notice and disclosure requirements of the FDCPA.

The final paragraph preceding the prayer references "Plaintiff's First Discovery Request", which is attached as a separate document. This is the correct procedure for serving discovery requests contemporaneously with the citation and original petition. Some attorneys routinely flout the rule that prohibits the court-filing of discovery requests by including them within the body of their petitions. Incorporating discovery requests into the petition itself necessarily results in them being filed with the pleading.

STANDARD SET OF DISCOVERY REQUESTS PROPOUNDED BY RAUSCH ATTORNEYS 

The RAUSCH law firms' standard set of discovery requests in debt collection suits is served together with the citation and original petition (whose title expressly refers to the discovery requests). It consists of all four types of paper discovery: Requests for Disclosure; Requests for Production; Requests for Admission; and Plaintiff's First Set of Interrogatories. The latter (with are also called ROGs in the legal community) includes a pre-printed form for verification under oath with a blank jurat for the notary public. (See Sample verification of ROGS and jurat).

ANATOMY OF A TYPICAL PMSJ FILED BY ATTORNEY NATHANIAL KITZ

[not available at this time]

RAUSCH MSJ analyzed

ANATOMY OF TYPICAL RAUSCH PMSJ

The RAUSCH debt collection lawfirm's standard motion for summary judgment (PMSJ) consists of five unpaginated pages subdivided into four sections enumerated with Roman numerals:

I SUMMARY OF THE ARGUMENT

II EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

III ARGUMENT AND AUTHORITIES

IV CONCLUSION AND PRAYER

The structure is common and unremarkable. So is the title: Plaintiff's Motion for Summary Judgment. 

(--> Sample RAUSCH PMSJ).

BASIS OF RAUSCH MOTIONS FOR SUMMARY JUDGMENT

The Argument and Authorities section recites the well-know evidentiary standard for summary judgment (traditional summary judgment, rather no-evidence summary judgment), and identifies the sole basis on which summary judgment is sought: Breach of Contract

            

Although RAUSCH typically relies on a contract that has a choice of law clause specifying that the law of another state, it only cites to Texas and federal cases. RAUSCH attorneys are not known for filing motions for judicial notice of foreign law and therefore routinely waive the choice-of-law issue.

            

DAMAGES SOUGHT BY SUMMARY JUDGMENT

            

As may be expected, the dollar amount of damages for which RAUSCH seeks summary judgment matches the amount stated in its original petition as the balance "due". There may, however, be a minor discrepancy between pleadings and motion. What has been seen at least some RAUSCH cases is that the petition includes a request for prejudgment interest, but the motion for summary judgment seeks post-judgment interest only. Except to the extent interest accrued before the judgment is included in the "outstanding balance" amount, the MSJ does not claim pre-judgment as a separate item of damages. While the proposed judgment attached to the motion has a line-item for prejudgment interest, the amount is shown as $0.00. Of course, this scenario may not be present in all cases, and a caveat is warranted in that regard. After all, the fact that the template for the judgment contains a data field for the amount of prejudgment interest suggests that the value may not always be zero. 

            

CATCH-ALL REQUEST FOR UNSPECIFIED ADDITIONAL RELIEF

            

Like the pleading template, RAUSCH's PMSJ template includes a request for "all further relief to which Plaintiff may be entitled." This is clearly inappropriate in the context of summary judgment, because the summary judgment motion itself must state the basis, and must be accompanied by conclusive evidence to show the movant's entitlement to relief. If the nature of the additional relief is not even specified, it cannot be known what kind of evidence would be needed to meet the summary judgment standard on that nebulous component of a plaintiff's claim. It is well-settled that a trial court commits reversible error if it grants more relief than expressly sought in the motion and supported by competent evidence.  

            

THE SUMMARY JUDGMENT EVIDENCE

To support a motion for summary judgment, RAUSCH attorneys typically file a Business Records Affidavit with attachments. The characteristics vary depending on the identity of the creditor, and therefore need to be analyzed separately. 

REGENT & ASSOCIATES Lawfirm review [heading for extinction in 2015]

Regents & Associates - Review of Houston Debt Collection Boutique Firm

REGENT & ASSOCIATES LAWFIRM REPRESENTS AN ARRAY OF CREDITORS, BOTH BANKS AND DEBT BUYERS

Anh Regent has his own law firm and operates out of Houston [or rather did so until recently (see April 2015 update below]. He also owned a collections firm that had its privileges to do business forfeited for failure to pay state tax. 

UPDATE: Anh Regent has lost most of his clients, who they are now his creditors in his bankruptcy case, filed in March 2015 in Houston (Southern District of Texas / Bankruptcy Court). He also owes his process server (big time - six-figure amount), venders, banks (Chase), the IRS, and numerous other creditors. He let go most or all of his staff because he could not pay them any more, and defaulted on his office lease. He also owes for unpaid salary. He is basically history in the debt collection world. His clients are now trying to collect from him and he also has a dozen-or-so lawsuits pending in which he is the named defendant himself or represented the defendant (most of them for FDCPA actions).  He is also being accused of have taken his client's money (advanced for costs of filing lawsuits) and having diverted it to unknown purposes. 

The original post continues below. Because of the lease termination, the listed address is no longer accurate. 

   

WHICH PLAINTIFFS DOES REGENT SUE FOR?

Regent & Associates handles debt collection suits for numerous banks and assignees. Among them: American Express; Bank of America (FIA); Discover Bank; LVNV Funding LLC; Portfolio Recovery Associates; Equable Ascent Financial, LLC; Hilco Receivables.

TYPICAL PLEADINGS

Mr. Regent is one of those debt collection attorneys who sues on various theories of recovery, sometimes even quantum meruit, and even mixes them up within a single paragraph. Uniquely, among his peers, he typically pleads for a judgment on a slash/slash-whatever-works theory titled “SUIT ON OPEN & STATED ACCOUNT/DEBT/BREACH OF CONTRACT" in a single paragraph. (--> Sample debt suit petition filed by Regent & Associates).

Regent also represents creditors in appellate litigation on occasion. One significant case is Tully v. Citibank(South Dakota), N.A.. In that case, it was the debtor who appealed after he ended up with a judgment in the trial court, so the appeal itself wasn’t Regent’s choice. Regent handled the defense of the summary judgment on appeal himself, however, and lost.

KEY APPELLATE CASE INVOLVED DEBT SUIT BY REGENT 

In Tully, Regent had pleaded three theories of recovery and had been successful in persuading the trial court to grant his motion for summary judgment. No one theory was specifically singled out in the judgment.  But the court of appeals reversed, holding that a credit card debt suit could not be litigated as a sworn account, that quantum meruit – an equitable theory -- was precluded in the presence of the contract, and that there was a fact issue as to the amount owed. Therefore, summary judgment on the contract claim was error also.

In Tully v. Citibank the court of appeals expressly held that the bank could not recover under its quantum meruit theory because the summary judgment evidence conclusively established that a contract existed. Though not discussed in the opinion, the contract was actually a requirement of federal law (--> TILA). The Truth in Lending Act just uses slightly different terminology: Disclosure of credit terms to the consumer (hence "TILA Disclosures", sometimes also called “TIL Disclosures”).
  

But that has not stopped Regent from invoking quantum meruit in debt litigation after the adverse outcome in Tully, at least occasionally.

LAW FIRM ADDRESS IN HOUSTON:

Anh H. Regent

            REGENT & ASSOCIATES

            2650 Fountain View Dr., Ste 233

            Houston, Texas 77057

            Fax: (713) 490-7075 

JENKINS, WAGNON & YOUNG, P.C. - Creditors' Law Firm (reviewed)

DEBT COLLECTORS WHO-IS-WHO 

JENKINS, WAGNON & YOUNG, P.C - LAW FIRM PROFILE 

JENKINS, WAGNON & YOUNG, P.C. is debt collection firm operating out of Lubbock, Texas with a state-wide practice. This law firm also represents debt buyers who sue as assignees of banks, not merely banks that originated accounts. Among its clients, all with vast litigation dockets, are Cach, LLC; Equable Ascent Financial, LLC; and Midland Funding, LLC. Many of the assigned accounts are from Chase Bank USA, N.A., more commonly known as "CHASE". 

Attorneys listed on letterhead of Jenkins, Wagnon & Young law firm (2013):

Jody D. Jenkins (who is licensed in New Mexico in addition to Texas)

Dan G. Young (who is also licensed in Oklahoma)

J. Mark Wagnon (who is also a CPA and does mostly transactional work, such as negotiating and drafting contracts)
Brian Benitez (and freshly-minted lawyer who joined JWYLAW recently)
Ian Van Reenen (who also has an MBA)

Two of the attorneys practicing with the lawfirm are also licensed in other states: Jody D. Jenkins in New Mexico, and Dan G. Young in Oklahoma. Jenkins and Young are the attorneys whose names appear on the firm's address block on pleadings filed in debt suits filed in Texas courts. Although the first name implies otherwise, Jody Jenkins is a guy. His middle name is Dewayne.

You can view photos of Attorneys Jenkins, Young, and Wagner on the firm's website.

Both Jody D. Jenkins and Dan G. Young were previously associated with McCLESKEY, HARRIGER, BRAZILL & GRAF, L.L.P.  The same is true of Wagner.

Mailing address: P.O. Box 420 Lubbock, Texas 79408-0420
Street address: 1623 10th Street, Lubbock, Texas 79401
Fax: (806) 771-8755

TYPICAL MOTION FOR SUMMARY JUDGMENT FILED IN CREDIT CARD DEBT SUITS

Traditional motions for summary judgment filed by Jody Jenkins seek judgment on two alternative theories - breach of contract and account stated; they do not state the amount of damages, even though they contain a factual background section. The damages are instead set forth in a summary judgment affidavit that does double duty as a business records affidavit.

SUMMARY JUDGMENT AFFIANTS AND AFFIDAVITS

In suits by debt buyers/assignees the witness testifying by affidavit is typically a representative of the assignee or the assignee's servicer (e.g. "Legal Specialist" for Midland Credit Management), rather than a custodian of record from the original creditor. 

  

The debt buyer's employees who perform affidavit duty will often have dubious credentials as sponsoring witnesses for business records that were not created by their employer, but by the bank that issued the card. e.g. Chase, Citibank, Bank of America, or HSBC (--> business records affidavit and third-party records). 

  

Sometimes, there is even confusion as to who the issuing bank was, particularly when the account originated with Washington Mutual Bank (“WaMu”) or Providian National Bank (“PNB”). PNB was absorbed into WaMu, but WaMu subsequently failed and the FDIC liquidated its assets. Affiants are low-level employees whose affidavits often not even reflect awareness that WaMu is a failed bank. The correct cardmember agreement is often not included among the summary judgment or trial exhibits.

ATTORNEY FEES

Jenkins and Young routinely plead for attorneys fees. Therefore, their summary judgment motions contain an additional affidavit by the attorney that signed the pleadings. The fee affidavit is marked EXHIBIT B. 
  
Exhibit A is the summary judgment affidavit with all attachments (typically copies account statements, cardmember agreement, and bill of sale and/or other from assignment proof, such as a second affidavit signed by the representative of a bank attesting to the sale and disclaiming any interest in the account at issue).

  

The typical amount of fees attested as reasonable by Jenkins attorneys for work at the trial-court level is $1,500 (hourly rate of $200 x 7.5 hours) (--> Sample attorney fee affidavit of Jody D. Jenkins;  Sample attorney fee affidavit of Dan G.Young).

Attorney Jody Jenkins also requests contingent fees in the amount of $5,000 for the first level of appeal, and $3,500 if a petition for review is filed in the Texas Supreme Court. Not surprisingly, the proposed judgments contain matching dollar figures for the three categories of attorneys' fees. This firm has appellate litigation capability and experience, including appeals from debt collection suits. 

FEE AMOUNT COMPARED TO OTHER DEBT COLLECTION LAW FIRMS

Other attorneys testify that $400-$500 a case is a reasonable amount of fees in routine credit card debt collection cases of similar nature (sometimes involving the same original creditors), or do not seek fees at all. 


LAWFIRM - CORPORATE ENTITY REGISTRATION INFORMATION 

EDITORIAL NOTE: This profile page on the lawfirm of JENKINS, WAGNON, & YOUNG was last revised or updated:  January 23, 2014.