Tuesday, September 05, 2006
CREDITWRENCH can't help you with FDCPA violations
As pointed out in my earlier posts, CREDITWRENCH CEO Billie Bauer will make many false statements in order to enroll a "student". One of those statements is:
"Creditwrench teaches people how to deal with debt collectors that abuse
them, violate the FDCPA.... "
Yesterday, CREDITWRENCH CEO Billie Bauer himself proved he lacks adequate knowledge of the FDCPA to even recognize when a debt collector violates the act.
When asked to support his statements about how a creditor enforces an attorney fee provision in a contract, he includes in his response:
"Make your customer responsible for paying all of the cost of collection......The attorney would then be paid a percentage of the debt (as determined by the court) in addition to recovery of 100% of the balance of the debt...The attorney then keeps that amount as a court awarded attorney’s fee."
Since the above was in response to my query as to how a creditor recovers their attorney fee from the debtor, and since he has continually failed to offer any other explanation, CREDITWRENCH CEO Billie Bauer's response indicates it is added to the debt and recovered in court.
Though it is common practice for debt collectors, including attorney debt collectors, to add a percentage fee to a debt as a "reasonable cost" such a practice violates the FDCPA.
In Stolicker v. Muller, Muller, Richmond, Harms, Myers, and Sgroi, P.C., a recent Federal Court ruling, Muller had a 25% contingency fee arrangement for collections on behalf of its client credit card company. The credit card agreement stated that the borrower would pay all collection costs and "reasonable" attorneys fees upon default. The law firm filed an affidavit in its collection action asserting that its 25% contingency fee was a "sum certain" owed by the borrower. The Court ruled that the filing of the affidavit violated the Fair Debt Collection Practices Act (FDCPA) because "reasonable" attorneys fees must be determined by the court. The 25% contingency fee was a fee owed by the credit card company to its attorneys, but not necessarily the fee owed by the borrower to the lender. The court stated:
Claiming that a "reasonable attorney fee" is a "sum certain," as Muller did in this case, is a false representation. Although the Muller law firm fails to appreciate the falsity of its statement, it is clear to the Court that a "reasonable attorney fee" cannot be a "sum certain." A reasonable attorney fee requires a judicial evaluation of the evidence regarding the fee. See e.g. Zeeland Farm Services, Inc., 219 Mich. App. at 195-96, 555 N.W.2d at 736. A sum certain, is just that, a liquidated amount that requires nothing further. Cases discussing whether a reasonable attorney fee is a sum certain in the context of the federal rules of civil procedure are instructive and establish that a "reasonable attorney fee" is not a "sum certain." See Flynn v. Mastro Masonry Contractors, 237 F. Supp.2d 66, 70 (D. D.C. 2002) ("The amount of attorney's fees, however, is not considered a sum certain as the 'reasonableness of the fees requested by the [plaintiff] is a "judgment call" which only the [c]ourt can make.'") (quoting Combs, 105 F.R.D. at 475); Chemtall, Inc., 992 F. Supp. at 1412 ("a plaintiff 'cannot satisfy the certainty amount simply by requesting a specific amount. He must also establish that the amount is reasonable under the circumstances.' Furthermore, items like 'reasonable attorney's fees' are simply not a 'sum certain.'") (citation omitted) (quoting 10 FEDERAL PRAC. & PROC. CIVIL 2d § 2688 at 415; § 2684 at 418)); 10 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 55.20[1][b] (specifying that an unliquidated claim for attorney fees is not a "sum certain." ) (citing Davis v. Nat’l Mortgage Corp., 320 F.2d 90, 91-92 (2d Cir. 1963)). Harms' statement in his affidavit is false because a "reasonable attorney fee" cannot be a "sum certain." Therefore, as a matter of law, the Muller law firm's false affidavit violated 1692e.
"Creditwrench teaches people how to deal with debt collectors that abuse
them, violate the FDCPA.... "
Yesterday, CREDITWRENCH CEO Billie Bauer himself proved he lacks adequate knowledge of the FDCPA to even recognize when a debt collector violates the act.
When asked to support his statements about how a creditor enforces an attorney fee provision in a contract, he includes in his response:
"Make your customer responsible for paying all of the cost of collection......The attorney would then be paid a percentage of the debt (as determined by the court) in addition to recovery of 100% of the balance of the debt...The attorney then keeps that amount as a court awarded attorney’s fee."
Since the above was in response to my query as to how a creditor recovers their attorney fee from the debtor, and since he has continually failed to offer any other explanation, CREDITWRENCH CEO Billie Bauer's response indicates it is added to the debt and recovered in court.
Though it is common practice for debt collectors, including attorney debt collectors, to add a percentage fee to a debt as a "reasonable cost" such a practice violates the FDCPA.
In Stolicker v. Muller, Muller, Richmond, Harms, Myers, and Sgroi, P.C., a recent Federal Court ruling, Muller had a 25% contingency fee arrangement for collections on behalf of its client credit card company. The credit card agreement stated that the borrower would pay all collection costs and "reasonable" attorneys fees upon default. The law firm filed an affidavit in its collection action asserting that its 25% contingency fee was a "sum certain" owed by the borrower. The Court ruled that the filing of the affidavit violated the Fair Debt Collection Practices Act (FDCPA) because "reasonable" attorneys fees must be determined by the court. The 25% contingency fee was a fee owed by the credit card company to its attorneys, but not necessarily the fee owed by the borrower to the lender. The court stated:
Claiming that a "reasonable attorney fee" is a "sum certain," as Muller did in this case, is a false representation. Although the Muller law firm fails to appreciate the falsity of its statement, it is clear to the Court that a "reasonable attorney fee" cannot be a "sum certain." A reasonable attorney fee requires a judicial evaluation of the evidence regarding the fee. See e.g. Zeeland Farm Services, Inc., 219 Mich. App. at 195-96, 555 N.W.2d at 736. A sum certain, is just that, a liquidated amount that requires nothing further. Cases discussing whether a reasonable attorney fee is a sum certain in the context of the federal rules of civil procedure are instructive and establish that a "reasonable attorney fee" is not a "sum certain." See Flynn v. Mastro Masonry Contractors, 237 F. Supp.2d 66, 70 (D. D.C. 2002) ("The amount of attorney's fees, however, is not considered a sum certain as the 'reasonableness of the fees requested by the [plaintiff] is a "judgment call" which only the [c]ourt can make.'") (quoting Combs, 105 F.R.D. at 475); Chemtall, Inc., 992 F. Supp. at 1412 ("a plaintiff 'cannot satisfy the certainty amount simply by requesting a specific amount. He must also establish that the amount is reasonable under the circumstances.' Furthermore, items like 'reasonable attorney's fees' are simply not a 'sum certain.'") (citation omitted) (quoting 10 FEDERAL PRAC. & PROC. CIVIL 2d § 2688 at 415; § 2684 at 418)); 10 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 55.20[1][b] (specifying that an unliquidated claim for attorney fees is not a "sum certain." ) (citing Davis v. Nat’l Mortgage Corp., 320 F.2d 90, 91-92 (2d Cir. 1963)). Harms' statement in his affidavit is false because a "reasonable attorney fee" cannot be a "sum certain." Therefore, as a matter of law, the Muller law firm's false affidavit violated 1692e.
It is abundantly clear from CREDITWRENCH CEO Billie Bauer's response that he isn't capable of recognizing a FDCPA violation.
He is quite capable of making false and misleading statements, which is what you will get plenty of if you become a "student".
