Leandra English Complaint Verbatim - Deputy Director of the CFPB aka "Rogue Agency" vs Donald "Lets-Gum-up-the-Works" Trump

REPUBLICAN MULVANEY MONKEY-WRENCH GAMBIT MOVES TO DC COURT 

Below is the text of the complaint and request for instanter restraining order (TRO) 

filed by one of the  dueling directors against the other [conversion from pdf]

Original in pdf may be viewed here  

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 

LEANDRA ENGLISH, Deputy Director and Acting Director, Consumer Financial Protection Bureau, 1700 G Street, NW, Washington, DC 20552, Plaintiff, v. DONALD JOHN TRUMP, in his official capacity as President of the United States of America, 1600 Pennsylvania, Avenue, NW, Washington, DC 20500, JOHN MICHAEL MULVANEY, in his capacity as the person claiming to be acting director of the Consumer Financial Protection Bureau, 725 17th Street, NW, Washington, DC 20503, Defendants. Case No. ___________  

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF EMERGENCY TEMPORARY RESTRAINING ORDER SOUGHT 

INTRODUCTION

The Dodd-Frank Act of 2010 created the Consumer Financial Protection Bureau as an independent federal agency, to be led by a single director. Effective at midnight on November 24, 2017, the Bureau’s first Director, Richard Cordray, resigned his post. At that point, plaintiff Leandra English, the Bureau’s Deputy Director, became the agency’s Acting Director by operation of law. The Dodd-Frank Act is clear on this point: It mandates that the Deputy Director “shall . . . serve as the acting Director in the absence or unavailability of the Director.” 12 U.S.C. § 5491(b)(5)(B). By statute, she serves in that capacity until such time as the President appoints and the Senate confirms a new Director. See 12 U.S.C. § 5491(b)(2).

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Disregarding this statutory language, President Trump issued a press release on the evening of November 24 indicating his desire to install defendant Mulvaney, the Director of the White House Office of Management and Budget, as the Bureau’s Acting Director. Under this scenario, Mr. Mulvaney would seek to serve indefinitely as the interim head of a statutorily “independent” agency while simultaneously occupying his current White House post.

The President apparently believes that he has authority to appoint Mr. Mulvaney under the Federal Vacancies Reform Act of 1988, 5 U.S.C. § 3345(a)(2). But the Vacancies Act, by its own terms, does not apply where another statute “expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity,” 5 U.S.C. § 3347(a)(1)(B)—which is exactly what the Dodd-Frank Act does.

The President’s interpretation of the FVRA runs contrary to Dodd-Frank’s later-enacted, more specific, and mandatory text. The President’s stance is also difficult to square with the relevant legislative history: An earlier version of the Dodd-Frank Act, which would have specifically allowed the President to use the Vacancies Act to temporarily fill the office, was eliminated and replaced with the current language designating the Deputy Director as the Acting Director. And the President’s attempt to appoint a still-serving White House staffer to displace the acting head of an independent agency is contrary to the overall statutory design and independence of the Bureau.

As the rightful Acting Director of the Bureau, Ms. English brings this action against President Trump and Mr. Mulvaney seeking a declaratory judgment and, on an emergency basis, a temporary restraining order to prevent the defendants from appointing, causing the appointment of, recognizing the appointment of, or acting on the appointment of an Acting Director of the Consumer Financial Protection Bureau via any mechanism other than that provided for by 12 U.S.C. § 5491(b)(5)(B).

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JURISDICTION AND VENUE

1. This Court has jurisdiction over the subject matter of this action for declaratory and injunctive relief under 28 U.S.C. §§ 1331, 1361, 1651, 2201, and 2202.

2. Venue is proper in this district under 28 U.S.C. § 1391(e).

PARTIES 

3. Plaintiff Leandra English is the Deputy Director and Acting Director of the Consumer Financial Protection Bureau.

4. Defendant Donald J. Trump is the President of the United States and is responsible for the purported designation of Defendant Mulvaney as Acting Director of the Consumer Financial Protection Bureau.

5. Defendant John Michael Mulvaney, also known as Mick Mulvaney, is the Director of the White House Office of Management and Budget and a person claiming to be designated as the Acting Director of the Consumer Financial Protection Bureau.

STATUTORY BACKGROUND 

6. In 2010, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376 (July 21, 2010), which created the Consumer Financial Protection Bureau (CFPB) and established it as “an independent bureau” located “in the Federal Reserve System.” 12 U.S.C. § 5491(a). A key response to the 2008 financial crisis, the CFPB is the first federal agency with the sole goal of protecting consumers of the U.S. financial services industry. Conscious of the regulatory failures that had fueled the 2008 crisis, Congress took pains to ensure that the new agency would be independent enough to resist capture by powerful financial interests and fulfill its critical responsibilities to American consumers. 7. The CFPB is designed to be led and managed by a single Director, “who shall serve as the head of the Bureau.” 12 U.S.C. § 5491(b)(1). The Director, who serves a five-year

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term, is to be “appointed by the President, by and with the advice and consent of the Senate.” 12 U.S.C. § 5491(b)(2). To ensure the Bureau’s independence, Congress specified that the Director would not serve at the pleasure of the President and could instead be removed only for cause. See 12 U.S.C. § 5491(c)(3) (“The President may remove the Director for inefficiency, neglect of duty, or malfeasance in office.”).

8. As an additional measure of independence, Congress ensured that the President could not circumvent the need for Senate confirmation by naming a temporary replacement for a Director who leaves before the expiration of his or her term. Instead, Congress provided that the Bureau’s Deputy Director, who is “appointed by the Director,” shall “serve as acting Director in the absence or unavailability of the Director.” 12 U.S.C. § 5491(b)(5).

9. This designation of the Deputy Director as the “acting Director” reflects Congress’s deliberate choice to depart from the default procedure for naming an acting official under the Federal Vacancies Reform Act of 1988 (FVRA). An early version of the Act that passed the House of Representatives in December 2009 did not provide for a Deputy Director, and instead explicitly stated that a temporary replacement for a Director would be chosen “in the manner provided by” the FVRA. See H.R. 4173, 111th Cong. § 4102(b)(6)(B)(1) (engrossed version, Dec. 11, 2009). The Senate bill introduced and passed months later contained the present statutory language. See S. 3217, 111th Cong. § 1011(b)(5)(B) (2010).

10. The Vacancies Act, by its own terms, does not control where, as with the Dodd Frank Act, “a statutory provision expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.” 5 U.S.C. § 3347(a)(1)(B).

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FACTUAL ALLEGATIONS

11. Richard Cordray was confirmed as the first Director of the CFPB by a 66-34 vote in the United States Senate on July 16, 2013, and took office on July 17, 2013.

12. Mr. Cordray resigned his position as Director of the CFPB, effective at midnight on November 24, 2017.

13. At approximately 2:30 p.m. on the afternoon of November 24, 2017, before leaving office, Director Cordray publicly announced that he had appointed Leandra English—up until then the Bureau’s Chief of Staff—as the Bureau’s Deputy Director, to ensure that she would become the Acting Director pursuant to 12 U.S.C. § 5491(b)(5) until the confirmation by the Senate of a new Director appointed by the President.

14. “In considering how to ensure an orderly succession for this independent agency,” Director Cordray explained in a statement, “I have also come to recognize that appointing the current chief of staff to the deputy director position would minimize operational disruption and provide for a smooth transition given her operational expertise.”

15. In addition to serving as the CFPB’s Chief of Staff, Ms. English has served in number of senior leadership roles at the CFPB, including Deputy Chief Operating Officer, Acting Chief of Staff, and Deputy Chief of Staff. In addition to her work at the CFPB, Ms. English has served as the Principal Deputy Chief of Staff at the Office of Personnel Management, the Chief of Staff and Senior Advisor to the Deputy Director for Management at the White House Office of Management and Budget, and as a member of the CFPB Implementation Team at the U.S. Department of the Treasury. Ms. English received her B.A. from New York University and her M.S. from the London School of Economics.

16. At approximately 8:50 p.m. on the evening of November 24, 2017, the White House press office issued the following statement: “Today, the President announced that he is

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designating Director of the Office of Management and Budget (OMB) Mick Mulvaney as Acting Director of the Consumer Financial Protection Bureau (CFPB).” The White House statement did not refer to Director Cordray’s earlier appointment of Ms. English as Deputy Director and was not accompanied by any legal reasoning concerning the President’s claimed authority to make the appointment.

17. Mr. Mulvaney has never previously served in any capacity in a consumer protection enforcement or financial or banking regulatory agency at the state, federal, or local level. Mr. Mulvaney has described the CFPB as a “sad, sick joke,” has co-sponsored legislation proposing to eliminate the agency, and has said at a hearing in the House of Representatives: “I don’t like the fact that CFPB exists, I’ll be perfectly honest with you.”

18. On Saturday, November 25, 2017, the Department of Justice Office of Legal Counsel released a memorandum providing legal arguments in support of Mr. Mulvaney’s appointment. The memorandum acknowledges that the statutory scheme of the CFPB provides that the Deputy Director shall become the Acting Director when there is a vacancy in the position of the Director. But the memorandum claims that the President may nevertheless choose to appoint someone from outside the agency to take the position of Acting Director via the Federal Vacancies Reform Act of 1998, 5 U.S.C. §§ 3345–3349d.

CLAIMS FOR RELIEF

19. Ms. English has a clear legal entitlement to the position of Acting Director of the CFPB. At the moment that Director Cordray’s resignation became effective, she was the Bureau’s Deputy Director, a position created by Congress via the Dodd-Frank Act. See 12 U.S.C. § 5491(b). The statutory provision creating the position states, in mandatory language, that the Deputy Director “shall . . . serve as acting Director in the absence or unavailability of the Director.” Id. § 5491(b)(5)(B). Under a plain reading of this language, the Deputy Director

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automatically becomes the Acting Director when the Director leaves office: a Director who is no longer serving in office is “absent” as well as “unavailable.” Thus, when a Director resigns, the Deputy Director serves as Acting Director. This legal arrangement was triggered by the resignation of Director Cordray on November 24, 2017, and his appointment of Ms. English as Deputy Director on that same date.

20. The President’s purported or intended appointment of defendant Mulvaney as Acting Director of the CFPB is unlawful. The President’s use of the Federal Vacancies Reform Act to appoint an Acting Director of the CFPB would be an obvious contravention of Congress’s statutory scheme. The President’s interpretation of the FVRA cannot be reconciled with Dodd Frank’s mandatory language. Where the two statutes conflict, Dodd-Frank controls as the later enacted, more specific statute.

21. The President’s purported or intended appointment is also unlawful as a violation of the foundational principles of agency independence that Congress codified by the Dodd-Frank Act. The President may not, consistent with the statutory requirement of independence, install a still-serving White House staffer as the acting head of an independent agency—particularly when doing so would displace an acting head who has a clear legal entitlement to the position.

22. There is a substantial and continuing controversy between Ms. English and the defendants, and a declaration of rights under the Declaratory Judgment Act is both necessary and appropriate to establish that Ms. English is the Acting Director of the CFPB and that neither defendant has any ability to make or receive an appointment for the position of Acting Director of the CFPB, or to otherwise act as an officer of the CFPB.

23. Ms. English will be and is irreparably harmed by the defendants’ actions and threatened actions, and is without an adequate remedy at law.

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PRAYER FOR RELIEF

The plaintiffs request that the Court: a. Declare that, under 12 U.S.C. § 5491(b)(5)(B), Plaintiff Leandra English is the Acting Director of the Consumer Financial Protection Bureau; b. Declare that the Federal Vacancies Reform does not control the appointment of a temporary Acting Director of the Consumer Financial Protection Bureau because the Dodd-Frank Act “expressly . . . designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity,” 5 U.S.C. § 3347(a)(1)(B); c. Declare that defendant Mulvaney is not the Acting Director of the Consumer Financial Protection Bureau; d. Order that defendant Trump shall refrain from appointing any individual to the position of Acting Director of the Consumer Financial Protection Bureau, recognizing any individual other than plaintiff as the holder of that office, or causing any person to recognize someone other than plaintiff as the holder of that office; e. Order that defendant Mulvaney shall refrain from accepting any appointment to the position of Acting Director of the Consumer Financial Protection Bureau, or asserting or exercising in any way the authority of that office; f. Award all other appropriate relief.

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Respectfully submitted, 

/s/ Deepak Gupta DEEPAK GUPTA (D.C. Bar No. 495451)

MATTHEW W.H. WESSLER (D.C. Bar No. 985241)

DANIEL TOWNSEND (pro hac vice application to be filed)

GUPTA WESSLER PLLC 1900 L Street, NW, Suite 312 Washington, DC 20036 Phone: (202) 888-1741 Fax: (202) 888-7792 deepak@guptawessler.com November 26, 2017 Attorneys for Plaintiff

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EMERGENCY MOTION — EXPEDITED ACTION REQUESTED IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 

LEANDRA ENGLISH, Plaintiff, v. DONALD J. TRUMP and JOHN M. MULVANEY, Defendants. Case No. 1:17-cv-02534 

PLAINTIFF’S MOTION FOR A TEMPORARY RESTRAINING ORDER 

Plaintiff Leandra English hereby requests, under Federal Rule of Civil Procedure 65(b) and Local Rule 65.1, that this Court issue a temporary restraining order preventing the defendants from appointing, causing the appointment of, or recognizing the appointment of an Acting Director of the Consumer Financial Protection Bureau via any mechanism other than that provided for by 12 U.S.C. § 5491(b)(5)(b). 

Plaintiff requests emergency relief due to the exigency of the circumstances and the irreparable nature of the injury the TRO would prevent. Plaintiff is the Acting Director of the CFPB and, as set forth in greater detail in an accompanying memorandum in support of this motion, she is required and empowered by the Dodd-Frank Act to “serve as [the CFPB’s] acting Director in the absence or unavailability of the Director.” 12 U.S.C. § 5491(b)(5)(b). 

The former Director of the CFPB, Richard Cordray, announced his resignation effective midnight on November 24, 2017, triggering this provision.1 But the President has announced that he seeks to bypass this statutory requirement by attempting 1 See Sylvan Lane, Cordray announces he’ll leave consumer bureau Friday, The Hill (Nov. 24, 2017), http://thehill.com/policy/finance/361742-cordray-announces-hell-leave-consumer-bureau-friday. 

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to use the Federal Vacancies Reform Act, 5 U.S.C. § 3345 et seq., to appoint an Acting Director from outside the CFPB. Such an action would violate the clear provisions of the Dodd-Frank Act. The DoddFrank Act was enacted after the FVRA, and its more-specific, later-in-time provision regarding the succession plan for the CFPB governs. The legislative history of the Act also indicates that Congress initially considered whether to use the FVRA’s mechanisms to provide for an Acting Director of the CFPB, but specifically rejected this path in favor of having the Deputy Director accede to the position. And finally, the President’s chosen appointee would threaten the CFPB’s statutorily guaranteed independence. Defendant John Mulvaney currently serves as Director of the Office of Management and Budget, an agency within the President’s Executive Office. 

If Mr. Mulvaney were to continue in his role as Director of OMB while serving as Acting Director of the CFPB, it would severely undermine Congress’s goal of insulating the CFPB Director from presidential influence or control by requiring that it be established as an “independent bureau.” 

In light of this impending illegal action, this Court should issue an emergency temporary restraining order to preserve the rights of the parties pending a resolution of this matter on the merits. As explained at greater length in the accompanying memorandum, the balance of hardships favors granting a temporary restraining order. 

Acting Director English is undertaking efforts to notify the Department of Justice of these proceedings simultaneously with the submission of the complaint and this motion, and the issuance of an temporary restraining order will not materially prejudice the defendants’ interests. 

A temporary restraining order is thus the best mechanism to preserve the interests involved until the defendants have had an opportunity to respond and the Court may consider the appropriateness of more lasting relief. For the foregoing reasons, Ms. English requests this Court issue, on an interim, ex parte basis, an order restraining the President from appointing, causing the appointment of, or 

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recognizing the appointment of an Acting Director of the Consumer Financial Protection Bureau via any mechanism other than that provided for by 12 U.S.C. § 5491(b)(5)(b), and restraining Mr. Mulvaney from asserting or exercising any authority as Acting Director of the CFPB. 

Respectfully submitted, 

/s/ Deepak Gupta DEEPAK GUPTA (D.C. Bar No. 495451) MATTHEW WESSLER (D.C. Bar No. 985241) RACHEL BLOOMEKATZ (pro hac vice application to be filed) JOSHUA MATZ (pro hac vice application to be filed) DANIEL TOWNSEND (pro hac vice application to be filed) GUPTA WESSLER PLLC 1900 L Street, NW, Suite 312 Washington, DC 20036 Phone: (202) 888-1741 Fax: (202) 888-7792 deepak@guptawessler.com November 26, 2017 Attorneys for Plaintiff 

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CERTIFICATE OF SERVICE 

I hereby certify that on November 26, 2017, I electronically filed this motion for a temporary restraining order through this Court’s CM/ECF system. I understand that notice of this filing will be sent to all parties by operation of the Court’s electronic filing system. 

/s/ Deepak Gupta Deepak Gupta 

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Okay for debt collector to execute on debtor's FDCPA claim against it as a debtor asset, then dismiss it? - 9th Circuit says No (Arellano v Clark Cty. Collection Serv.)

COLLECTOR'S "BOLD GAMBIT" TO THWART FDCPA CLAIM 

THWARTED ON APPEAL 

Debt collectors cannot evade the restrictions of the [FDCPA] by forcing a debtor’s claims to be auctioned, acquiring the claims, and dismissing them. To allow otherwise would thwart enforcement of the FDCPA and undermine its purpose. Arellano v Clark County Collection Service, LLC, Borg Law Group, LLC, No.16-15467 (9th Cir. Nov. 17, 2017) (federal law preempts a private party’s use of state execution procedures to acquire and destroy a debtor’s FDCPA claims against it). 

ARELLANO V. CLARK CTY. COLLECTION SERV.

OPINION

THOMAS, Chief Judge:

Can a debt collector avoid liability under the Federal Fair Debt Collection Practices Act by obtaining the debtor’s lawsuit through a writ of execution? We conclude that such a procedure frustrates the Act’s purpose and is thus preempted.

I

Patricia Arellano was overdue on a small amount of medical debt—$371.89 to be precise. A private collection agency, Clark County Collection Services, sent her a letter about it. Included with the letter was a summons and state justice court complaint seeking collection of the debt. The complaint itself stated that Arellano could “[d]ispute the validity of this debt” within 30 days, but that failing to do so would result in a presumption of validity. However, separately, in small print, the summons indicated that to defend the lawsuit, Arellano must file a formal written response with the court within 20 days.

Arellano did not file a response, and the collection agency obtained a default judgment against her in justice court for $793.39. The debt had doubled in the intervening month because it now included costs, pre-judgment interest, and attorney fees.

Subsequently, Arellano filed suit against the collection agency and its law firm under the Fair Debt Collection Practices Act (“FDCPA” or “the Act”), 15 U.S.C. § 1692 et seq. She claimed that they had engaged in misleading practices under 15 U.S.C. § 1692e(1) by stating that the debtor could dispute the debt within 30 days of receipt, when the actual summons required the filing of an answer in court within 20 days. She further alleged that Clark County Collection Services’ name impermissibly implied affiliation with the Clark County government, violating 15 U.S.C. § 1692e(1).

The collection agency countered with a bold gambit.

Armed with its default judgment, it requested the justice court to issue a writ of execution against Arellano in the amount of $826.72, an increased amount reflecting additional costs. Like most states, Nevada allows courts to authorize a sheriff to levy on the property of a judgment debtor to satisfy a judgment. Butwinick v. Hepner, 291 P.3d 119, 121 (Nev. 2012). With some exceptions not relevant here, the property subject to a writ of execution in Nevada includes a “right to bring an action to recover a debt, money, or thing.” Gallegos v. Malco Enters. of Nev., 255 P.3d 1287, 1289 (Nev. 2011) (quoting Black’s Law Dictionary 1617, 275 (9th ed. 2009)). Thus, the collection agency’s strategy in seeking the writ was not to obtain personal property to satisfy the judgment, but to acquire the rights to Arelleno’s FDCPA lawsuit against the agency so it could have it dismissed.

The justice court granted the writ, which directed the Clark County Sheriff “to satisfy this judgment with interest and costs as provided by law, out of the personal property of the judgment debtor.” The writ described the targeted property as all “claims for relief, causes of action, things in action, and choses in action in any lawsuit pending in Nevada including, the rights of Patricia Arellano, in the civil action” pending against the collection agency and its lawyers.

Thereafter, pursuant to the writ of execution, the sheriff sold Arellano’s lawsuit in an auction sale on the Clark County courthouse steps. Clark County Collection Services bought the claims against itself for $250.

After buying Arellano’s lawsuit, the collection agency moved in federal district court to dismiss the lawsuit, arguing that Arellano “no longer possesse[d] any rights of action in this case, and no longer possesse[d] any standing to sue.”

The district court dismissed Arellano’s cause of action.

II

State law can be preempted in three circumstances pursuant to the Supremacy Clause, U.S. Const., Art. VI, cl. 2. English v. Gen. Elec. Co., 496 U.S. 723, 78 (1990). Only the third circumstance is relevant here: “state law is pre-empted to the extent that it actually conflicts with federal law.” Id. At 79. This conflict occurs when “the operation of state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’” In re Cybernetic Servs., Inc., 252 F.3d 1039, 1045–46 (9th Cir. 2001) (quoting Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 479 (1974)), or when it “interferes with the methods by which the federal statute was designed to reach [its] goal,” Int’l Paper Co. v. Ouellette, 497 U.S. 481, 494 (1987). In other words, state law is preempted when “under the circumstances of the particular case,” it stands as an obstacle to Congressional purpose “—whether that ‘obstacle’ goes by the name of ‘conflicting; contrary to; repugnance; difference; irreconcilability; inconsistency; violation; curtailment; interference,’ or the like.” Geier v. Am. Honda Motor Co., 529 U.S. 861, 873 (2000) (alterations omitted) (quoting Hinesv. Davidowitz, 312 U.S. 52, 67 (1941)).

Federalism requires that we assume federal law was not intended to supersede the states’ historic police powers “unless that was the clear and manifest purpose of Congress.” CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2188 (2014).

Although we read even express preemption provisions narrowly, a state cannot avoid compliance with a federal regime “merely by relying upon a connection to an area of traditional state  regulation.” Wos v. E.M.A., 568 U.S. 627, 1400 (2013).1

A

“[T]he purpose of Congress is the ultimate touchstone in every pre-emption case.” Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008) (citing Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). “The FDCPA was enacted as a broad remedial statute designed to ‘eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.’” Gonzales v. Arrow Fin. Servs., LLC,660 F.3d 1055, 1060 (9th Cir. 2011) (quoting 15 U.S.C. § 1692(e)). The Act’s purpose is “to protect vulnerable and unsophisticated debtors from abuse, harassment, and deceptive debt collection practices.” Guerrero v. RJM Acquisitions, LLC, 499 F.3d 926, 938 (9th Cir. 2007) (citing S. Rep. 95–389, at 2, 4 (1977), as reprinted in 1977 U.S.C.C.A.N. 1695, 1696, 1699). And the “FDCPA protects all consumers, the gullible as well as the shrewd . . . the ignorant, the unthinking and the credulous.” Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1171 (9^th Cir. 2006) (quoting Clomon v. Jackson, 988 F.2d 1314, 1318–19 (2d Cir. 1993)).

In order to achieve these goals, the Act regulates communication between debt collectors and debtors, 15 U.S.C. §§ 1692b, c, g, and creates a federal cause of action for debtors under 15 U.S.C. § 1692k. Debt collectors may be subject to civil liability for engaging in harassment or abuse, 15 U.S.C. § 1692d, making false or misleading representations of various sorts, 15 U.S.C. §§ 1692e, j, or engaging in unfair practices while attempting to collect debt, 15 U.S.C. § 1692f.

The FDCPA also includes an express preemption and savings clause:

This subchapter does not annul, alter, or

affect, or exempt any person subject to the

provisions of this subchapter from complying

with the laws of any State with respect to debt

collection practices, except to the extent that

those laws are inconsistent with any provision

of this subchapter, and then only to the extent

of the inconsistency. For purposes of this

section, a State law is not inconsistent with

this subchapter if the protection such law

affords any consumer is greater than the

protection provided by this subchapter.

15 U.S.C. § 1692n.

To enforce the FDCPA, Congress chose “a private attorney general approach.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citing Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir. 1995)); see also Graziano v. Harrison, 950 F.2d 107, 113 (3d Cir. 1991) (noting that it was “Congress’s intent that the Act should be enforced by debtors acting as private attorneys general.”). “Prevailing plaintiffs . . . are entitled to actual damages, statutory damages, and attorney’s fees and costs.” Gonzales, 660 F.3d at 1061 (citing 15 U.S.C. § 1692k(a)).

B

The collection agency argues that because the FDCPA does not speak directly to the execution of claims, there can be no federal preemption. This argument denies the existence of conflict preemption. “And conflict preemption . . . turns on the identification of ‘actual conflict,’ and not on an express statement of pre-emptive intent.” Geier, 529 U.S. at 884. Indeed, “the Court has never before required a specific, formal agency statement identifying conflict in order to conclude that such a conflict in fact exists.” Id.

Where the Act “itself does not speak directly to the issue, the Court must be guided by the goals and policies of the Act in determining whether it in fact pre-empts an action based on the law of an affected State.” Int’l Paper Co., 479 U.S. at 493. Just as in International Paper Co., the federal law in question directly regulates the substantive law at issue (debt collection practices) and specifically empowers debtors to bring suit against debt collectors. 15 U.S.C. § 1692i; see Int’l Paper Co., 479 U.S. at 495 (holding that Vermont nuisance law was preempted to the extent that it conflicted with water pollution standards set forth in the Clean Water Act). And while the Act itself need not “speak directly to the issue,” Int’l Paper Co., 479 U.S. at 493, the FDCPA does expressly preempt state laws “to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency,” 15 U.S.C. § 1692n.

In addition to evading liability and preventing Arellano from pursuing her potential federal claims, the collection agency has literally used the execution mechanism to collect

debt from Arellano, and argues that she “has received the benefit of [the $250] reduction in her judgment.” But a debt collector cannot be allowed to use state law strategically to execute on a debtor’s FDCPA claims against it under the guise of legitimate debt collection. Though the FDCPA does preserve debt collectors’ rights to collect what they are owed, the Act does not “authorize the bringing of legal actions by debt collectors.” See 15 U.S.C. § 1692i(b). Debt collectors cannot evade the restrictions of the Act by forcing a debtor’s claims to be auctioned, acquiring the claims, and dismissing them. To allow otherwise would thwart enforcement of

the FDCPA and undermine its purpose. See 15 U.S.C. §§ 1692k, l.

C

Resolving this case does not require any additional or supplemental rule beyond the text of the Act. A state remedy of execution cannot be used for the purpose of avoiding the impact of federal law. Therefore, we reverse the district court, and remand for proceedings consistent with this opinion, holding that federal law preempts a private party’s use of state execution procedures to acquire and destroy a debtor’s FDCPA claims against it. We need not, and do not, reach any other issue urged by the parties.

REVERSED AND REMANDED.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA ARELLANO,
Plaintiff-Appellant,
v.
CLARK COUNTY COLLECTION
SERVICE, LLC; BORG LAW GROUP,
LLC,
Defendants-Appellees.
No. 16-15467
D.C. No.
2:15-cv-01424-
JAD-NJK
OPINION
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted June 5, 2017
Pasadena, California
Filed November 17, 2017
Before: Sidney R. Thomas, Chief Judge, Stephen
Reinhardt, Circuit Judge, and Edward R. Korman,*
District Judge.
Opinion by Chief Judge Thomas
* The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
ARELLANO V. CLARK CTY. 2 COLLECTION SERV.
SUMMARY**
Fair Debt Collection Practices Act
The panel reversed the district court’s dismissal of an
action brought against a debt collector under the Fair Debt
Collection Practices Act.
The panel held that a debt collector cannot avoid liability
under the FDCPA by obtaining the debtor’s lawsuit through
a state court writ of execution. The panel concluded that such
a procedure frustrates the Act’s purpose and is thus conflictpreempted.
The panel remanded the case for further
proceedings.
COUNSEL
Deepak Gupta (argued), Richard J. Rubin, and Neil K.
Sawhney, Gupta Wessler PLLC, Washington, D.C.; Keren E.
Gesund, Gesund & Pailet LLC, Las Vegas, Nevada; for
Plaintiff-Appellant.
Patrick J. Reilly (argued), Holland & Hart LLP, Las Vegas,
Nevada, for Defendants-Appellees.
** This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ARELLANO V. CLARK CTY. COLLECTION SERV. 3

CFPB takes action against Citibank over faults in Student Loan Servicing (press release re-post)

FOR IMMEDIATE RELEASE: November 21, 2017

CONTACT: Office of Communications Tel: (202) 435-7170

CONSUMER FINANCIAL PROTECTION BUREAU TAKES ACTION AGAINST CITIBANK FOR STUDENT LOAN SERVICING FAILURES THAT HARMED BORROWERS

Company Deceived Borrowers About Tax Benefits, Incorrectly Charged Late Fees and Interest, Sent Misleading Monthly Bills and Incomplete Notices

Washington, D.C. – The Consumer Financial Protection Bureau (CFPB) today took action against Citibank, N.A. for student loan servicing failures that harmed borrowers. Citibank misled borrowers into believing that they were not eligible for a valuable tax deduction on interest paid on certain student loans. The company also incorrectly charged late fees and added interest to the student loan balances of borrowers who were still in school and eligible to defer their loan payments. Citibank also misled consumers about how much they had to pay in their monthly bills and failed to disclose required information after denying borrowers’ requests to release loan cosigners. The Bureau is ordering Citibank to end these illegal servicing practices, and to pay $3.75 million in redress to consumers and a $2.75 million civil money penalty. 

“Citibank’s servicing failures made it more costly and confusing for borrowers trying to pay back their student loans,” said CFPB Director Richard Cordray. “We are ordering Citibank to fix its servicing problems and provide redress to borrowers who were harmed.” 

Citibank, based in Sioux Falls, South Dakota, is one of the world’s largest banks with over $1.4 trillion in assets. Citibank provides a variety of products to consumers, including credit cards, mortgages, personal loans, and lines of credit. For years, Citibank made private student loans to consumers and also serviced these loans.

As a loan servicer, Citibank manages and collects payments, and provides customer service for borrowers. They are also responsible for providing borrowers with accurate periodic account statements and supplying year-end tax information. The servicer also keeps track of the borrower’s in-school enrollment status and is responsible for granting and maintaining deferments when appropriate.  

For the student loan accounts that Citibank was servicing, the Bureau found that Citibank misrepresented important information on borrowers’ eligibility for a valuable tax deduction, failed to refund interest and late fees it erroneously charged, overstated monthly minimum payment amounts in monthly bills, and sent faulty notices after denying borrowers’ requests to release a loan cosigner. Specifically, the Bureau found that Citibank: 

• Misled borrowers about their tax-deduction benefits: Federal law allows some borrowers to deduct up to $2,500 in student loan interest paid on “qualified education loans” annually. On its website and periodic account statements, Citibank made statements that suggested borrowers had not paid qualified interest, or that the borrowers were not eligible for the qualified interest tax deduction. Consequently, borrowers did not seek this tax benefit, even though they may have been able to benefit from it. 
• Incorrectly charged late fees and interest on loan balances to students still in school: Current students are eligible for in-school deferments, which postpone repayment until six months after they are no longer enrolled in school. Citibank erroneously canceled in-school deferments for certain borrowers based on inaccurate information about their enrollment status. In doing so, Citibank charged late fees when the borrowers did not make payments, even though payments should not have been due. Citibank also erroneously added interest to the loan principal, and failed to refund late fees and erroneously charged interest after discovering that in-school deferments had been terminated in error. 
• Overstated the minimum monthly payment due on account statements:Citibank serviced some loans for “mixed-status borrowers,” who had multiple student loans with Citibank, some of which were in repayment status, while other loans were in deferment status. While loans were in deferment, no payment was required, though borrowers had the option to make payments on those loans. For mixed-status borrowers with student loans in or approaching repayment, Citibank overstated the minimum amount due on the mixed-status account statements. 
• Failed to disclose required information after refusing to release a cosigner: Many consumers applied for student loans from Citibank with a cosigner to help guarantee the loan. Some of these borrowers later requested that these cosigners be released for some or all of their student loans with Citibank. When Citibank received an application from a student loan borrower to release a cosigner and place the loan in the borrower’s name only, Citibank would make a determination based on information in the borrower’s credit report and score. When Citibank denied a cosigner release application, it failed to provide the borrower with all of the information required under the Fair Credit Reporting Act. 

Enforcement Action

Under the Dodd-Frank Wall Street Reform and Consumer Protection Act, the Bureau has the authority to take action against institutions violating consumer financial laws, including engaging in unfair, deceptive, or abusive acts or practices. The CFPB’s order requires Citibank to:

• Refund $3.75 million to harmed consumers: The Bureau’s order requires Citibank to pay $3.75 million in restitution to harmed consumers who were charged erroneous interest or late fees, paid an overstated minimum monthly payment, or received inadequate notices as a result of Citibank’s faulty servicing.
• Make changes to their servicing practices: The Bureau’s order requires Citibank to provide accurate information regarding student loan interest paid, implement a policy to reverse erroneously assessed interest or late fees, and to provide borrowers who were denied a cosigner release with their credit scores, the phone number of the credit reporting agency that generated the credit report, and disclosure language confirming that the credit reporting agency did not make the decline decision.
• Pay a $2.75 million fine: The Bureau’s order requires Citibank to pay a $2.75 million penalty to the CFPB’s Civil Penalty Fund.

A copy of the Bureau’s consent order is available at:http://files.consumerfinance.gov/f/documents/cfpb_citibank-n.a._consent-order_112017.pdf

The CFPB previously addressed many of these issues in a related 2015 enforcement action against Discover for servicing practices related to the loans it acquired from Citibank beginning in late 2010. Today’s enforcement action applies to the private student loans that Citibank retained, and continued to service, after that period.

Earlier this year the Bureau issued a consumer advisory warning student loan borrowers to watch out for similar servicing errors driven by faulty information about whether a borrower was enrolled in school. This advisory highlighted complaints from consumers about surprise late fees and other charges driven by inaccurate college enrollment information.  

The Bureau’s consumer advisory is available at: https://www.consumerfinance.gov/about-us/blog/consumer-advisory-bad-information-about-your-college-enrollment-status-can-cost-you/

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The Consumer Financial Protection Bureau is a 21st century agency that helps consumer finance markets work by making rules more effective, by consistently and fairly enforcing those rules, and by empowering consumers to take more control over their economic lives. For more information, visit consumerfinance.gov.

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Cousins v. Portfolio Recovery Associates: Debt Buyer nixes FDCPA violation claim with deemed admissions that contradict the debtor's essential allegations regarding the violation

Once more, a debt collector makes good use of classic gotcha tool in litigation - requests for admissions to the other party that kill the other parties' case if inadvertently not answered in timely fashion, then points to deemed admission in summary judgment motion to preclude consideration of any evidence on the real facts. Magistrate Judge recommends judgment for Portfolio Recovery in fair debt collection violations case against it based on deemed admissions, but the ruling may be contested and reviewed by the district court. More interestingly (given the pervasiveness of the use of deemed admissions by debt collectors, albeit here in a case in which PRA is the defendant, rather than the plaintiff), the Magistrate's report and recommendation approvingly cites a case for the proposition that conduct that is unlawful under the FDCPA is also unlawful under TDCA. That did not help the debtor here, but it can be highly relevant in a case where the 1-year statute of limitations for FDCPA claim has passed, but not for a claim under the TDCA, which is longer. Such a claim may then still be viable under the Texas fair debt collection act.  

BRADLEY COUSINS,
v.
PORTFOLIO RECOVERY ASSOCIATES, LLC and WESTERN SURETY COMPANY.

No. 1:16-CV-852-LY.

United States District Court, W.D. Texas, Austin Division.

November 3, 2017.

Bradley Cousins, Plaintiff, represented by Michael Jacob Wood, Community Lawyers Group, Ltd.

Bradley Cousins, Plaintiff, represented by Robert Alan Zimmer, Jr., Zimmer & Associates, Tyler Hickle, Law Office of Tyler Hickle, PLLC & Celetha Chatman, Community Lawyers Group Ltd.

Portfolio Recovery Associates, LLC, Defendant, represented by Eugene Xerxes Martin, IV, Malone Akerly Martin PLLC & Robbie Malone, Malone Akerly Martin PLLC.

Western Surety Company, Defendant, represented by Eugene Xerxes Martin, IV, Malone Akerly Martin PLLC & Robbie Malone, Malone Akerly Martin PLLC.

REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

ANDREW W. AUSTIN, Magistrate Judge.

TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

Before this Court are Plaintiff's Motion for Summary Judgment (Dkt. No. 14), Defendants' Response (Dkt. No. 17), and Plaintiff's Supplemental Authority (Dkt. No. 30); and Defendants' Motion for Summary Judgment (Dkt. No. 33) and Plaintiff's Opposition to Defendants' Motion for Summary Judgment (Dkt. No. 41). The District Court referred the above motions to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. §636(b)(1)(A), FED. R. CIV. P. 72, and Rule 1(c) of Appendix C of the Local Rules.

I. GENERAL BACKGROUND

Plaintiff Bradley Cousins brings this suit against Defendants Portfolio Recovery Associates, LLC and Western Surety Company (collectively "PRA") under the Fair Debt Collection Practices Act and the Texas Debt Collection Act. Cousins alleges that PRA failed to communicate to a consumer reporting agency that a debt was disputed when it reported the debt. See 15 U.S.C. §1692e(8); TEX. FIN. CODE § 392.202(a).

Cousins allegedly incurred a credit card debt, but due to financial difficulties was unable to make his payments. Sometime later, this debt was sold to PRA. Cousins obtained a copy of his credit report, which stated that he owed PRA $12,086.00. Believing this to be incorrect, Cousins—with the assistance of the attorneys at the Community Lawyers Group—allegedly sent a letter on April 21, 2016 to PRA disputing the debt. This letter reads:

I am writing to you regarding the account referenced above. I refuse to pay this debt. My monthly expenses exceed my monthly income; as such there is no reason for you to continue contacting me, and the amount you are reporting is not accurate either. If my circumstances should change I will be in touch.

Dkt. No. 1-1 at 4. Cousins claims that this letter disputed the debt. However, when he once again checked his credit report from the Experian consumer reporting agency (CRA) in June 2016, he found that it still contained a line item from PRA for this debt that was not marked as disputed. This, Cousins alleges, violated the FDCPA and TDCA. Both Cousins and PRA have moved for summary judgment.

II. LEGAL STANDARD

Summary judgment shall be rendered when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Washburn v. Harvey, 504 F.3d 505, 508 (5th Cir. 2007). A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When ruling on a motion for summary judgment, the court is required to view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Washburn, 504 F.3d at 508. Further, a court "may not make credibility determinations or weigh the evidence" in ruling on a motion for summary judgment. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000); Anderson, 477 U.S. at 254-55.

Once the moving party has made an initial showing that there is no evidence to support the nonmoving party's case, the party opposing the motion must come forward with competent summary judgment evidence of the existence of a genuine fact issue. Matsushita, 475 U.S. at 586. Mere conclusory allegations are not competent summary judgment evidence, and thus are insufficient to defeat a motion for summary judgment. Turner v. Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007). 

Unsubstantiated assertions, improbable inferences, and unsupported speculation are not competent summary judgment evidence. Id. The party opposing summary judgment is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his claim. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir. 2006). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case and on which it will bear the burden of proof at trial, summary judgment must be granted. Celotex, 477 U.S. at 322-23.

III. ANALYSIS

The FDCPA was enacted:

to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses.

15 U.S.C § 1692(e). Section 1692e generally prohibits "false, deceptive, or misleading representation[s] or means in connection with the collection of any debt." 15 U.S.C. §1692e. The section provides a non-exhaustive list of examples of such conduct, including "[c]ommunicating or threatening to communicate to any person credit information which is known or which should be known to be false, including the failure to communicate that a disputed debt is disputed." 15 U.S.C. §1692e(8). Congress "clearly intended the FDCPA to have a broad remedial scope" and "[t]he FDCPA should therefore be construed liberally in favor of the consumer." Daugherty v. Convergent Outsourcing, Inc., 836 F.3d 507, 511 (5th Cir. 2016) (quoting Serna v. Law Office of Joseph Onwuteaka, P.C., 732 F.3d 440, 445 n.11 (5th Cir. 2013)). Further, "[t]he conduct prohibited under the TDCA is coextensive with that prohibited under the FDCPA, at least insofar as [t]he same actions that are unlawful under the FDCPA are also unlawful under the TDCA." Gomez v. Niemann & Heyer, LLP, 2016 WL 3562148, at *6 (W.D. Tex. June 24, 2016) (internal quotations omitted).^[1]

Cousins brings this motion for summary judgment contending that there are no genuine issues of material fact on his FDCPA and TDCA claims. PRA disputes this, arguing that Cousins has, at the very least, failed to establish that he disputed the debt.^[2] To establish a claim under either the FDCPA or TDCA, Cousins must show that: (1) he has been the object of collection activity arising from a consumer debt; (2) PRA is a debt collector as defined by the FDCPA; and (3) PRA has engaged in an act or omission prohibited by the FDCPA. Hunsinger v. Sko Brenner Am., Inc., 2014 WL 1462443, at *3 (N.D. Tex. Apr. 15, 2014).

PRA asserts that it issued Requests for Admissions to Cousins on December 22, 2016. Dkt. No. 17-2 at 1; Dkt. No. 33-3 at 3. However, Cousins failed to respond to these requests until June 30, 2017, more than six months after service and three months after Cousins filed his motion for summary judgment. Dkt. No. 33-3 at 3. PRA therefore argues that all admissions should be deemed admitted under Federal Rule of Civil Procedure 36. Cousins does not dispute this allegation, but merely asserts that "the evidence in the deemed admissions do not entitle PRA to summary judgment because actual damages are not required to prevail in an FDCPA lawsuit." Dkt. No. 41 at 1-2.

Rule 36 states that "[a] matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney." FED. R. CIV. P. 36(a)(3). Moreover, "[a] matter admitted . . . is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended." FED. R. CIV. P. 36(b). The Fifth Circuit has held that a court may only allow the amendment or withdrawal of admissions on motion by the party. See In re Carney, 258 F.3d 415, 420 (5th Cir. 2001) (citing American Auto. Ass'n v. AAA Legal Clinic, 930 F.2d 1117, 1120 (5th Cir. 1991)). Cousins has not filed such a motion. Nor do his responses to PRA's motion for summary judgment evidence an intent to do so. Therefore, the admissions are deemed admitted. Id.

Here, this means Cousins has admitted that "at no time between March 2013 and April 21, 2016 did [he] notify Defendant that this debt was inaccurate" or that "this debt was disputed." Dkt. No. 33-3 at 10. As the sole basis for PRA's alleged knowledge that Cousins disputed the debt arose from the letter allegedly sent on April 21, 2016 (Dkt. No. 1 at 3), Cousins is unable to establish that PRA knew or should have known of the dispute. As deemed admissions "cannot be overcome at the summary judgment stage by contradictory affidavit testimony or other evidence in the summary judgment record," Cousins cannot prove that PRA has engaged in an act or omission prohibited by the FDCPA. In re Carney, 258 F.3d at 420. Similarly, because TEX. FIN. CODE § 392.301(a)(3) requires the same elements as a violation of the FDCPA, summary judgment should be granted for PRA on both of Cousins' claims.

IV. RECOMMENDATIONS

In accordance with the foregoing discussion, the Court RECOMMENDS that the District Court DENY Plaintiff's Motion for Summary Judgment (Dkt. No. 14) and GRANT Defendants' Motion for Summary Judgment (Dkt. No. 33).

V. WARNINGS

The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).

A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

To the extent that a party has not been served by the Clerk with this Report & Recommendation electronically pursuant to the CM/ECF procedures of this District, the Clerk is directed to mail such party a copy of this Report and Recommendation by certified mail, return receipt requested.

[1] TEX. FIN. CODE § 392.202(a) reads in relevant part: "The third-party debt collector shall make a written record of the dispute. If the third-party debt collector does not report information related to the dispute to a credit bureau, the third-party debt collector shall cease collection until an investigation of the dispute . . . determines the accurate amount of the debt, if any."

[2] PRA additionally presents several evidentiary arguments. PRA first argues that the dispute letter and credit report were not authenticated. Id. at 2-4. Additionally, PRA contends that the deposition testimony was improperly included. Id. at 5. Though the objections are likely meritorious, the Court need not reach this issue as the motion for summary judgment should be denied, even considering this evidence. See Palomo v. Portfolio Recovery Assocs., LLC, No. A-16-CV-628-SS, Dkt. No. 26 (W.D. Tex. Apr. 4, 2017) ("Notwithstanding . . . the specific objections (primarily technical) of the defendant to the motion and supporting documents, the Court finds . . . that the alleged letter relied on by the plaintiff Palomo in this case and its further consequences establishes a factual issue that should be determined by the fact finder.").