Thursday, June 12, 2014

Tennessee Debt Buyer’s Must Have A License

IWhite v. Sherman Financial Group, LLC, No. 3:12-cv-404, 2013 WL 5936679, *1 (E.D. Tenn. Nov. 4, 2013), the U.S. District Court for the Eastern District of Tennessee recently denied the plaintiff’s partial motion for summary judgment and granted summary judgment in favor of the defendants on all but one the plaintiff’s Fair Debt Collection Practices Act (“FDCPA”) claims and, in the process, rendered a significant decision regarding the interplay between the FDCPA and filing state collection actions in Tennessee.

In White, the plaintiff alleged the defendants, Sherman Financial Group, LLC (“Sherman”), LVNV Funding, LLC (“LVNV”), Resurgent Capital Services, L.P. (“Resurgent”), Tobie Griffin (“Griffin”), and Buffaloe & Associates, PLC (“Buffaloe”), of violating a number of FDCPA provisions when Buffaloe filed a civil warrant and sworn affidavit on behalf of LVNV. The civil warrant sought to collect the principal amount due on the debt “plus pre and post judgment interest accruing at the statutory rate of 10% and court costs.” Griffin signed the sworn affidavit, which stated the principal amount due “plus any additional accrued interest.” The plaintiff denied the existence of the debt and the state collection suit was eventually dismissed. The plaintiff then brought the federal suit asserting that the defendants violated the FDCPA by filing the state collection action and, thus, allegedly making false, misleading representations, taking an action which could not legally be taken by failing to obtain a proper license, failing to make requisite disclosures in the civil warrant and sworn affidavit, and filing the suit in an improper venue. The specific FDCPA provisions the plaintiff alleged were violated were as follows: 1692e(2)(A), 1692e(2)(B), 1692e(8), 1692e(10), 1692e, 1692e(5), 1692f, 1692f(1), 1692e(11), 1692g(1)(3)-(5), and g(1)(3)-(5), and 1692i(a)(2). At the outset of the opinion, the Court granted summary judgment in favor of Sherman as to all of the plaintiff’s claims because the plaintiff did not discuss Sherman’s liability and only briefly even mentioned Sherman. The court then addressed the plaintiff’s claims against the remaining defendants.

First, the plaintiff claimed that the defendants filed the collection suit without possessing competent evidence to establish the debt was owed to LVNV and while knowing that they did not intend to ever prosecute the case or validate the evidence. The court found that the plaintiff provided no evidence of any intent not to pursue the action or of a pattern of practice of doing so. Furthermore, the court found that, despite taking issue with the affiant’s level of personal knowledge, the plaintiff provided no evidence to counter the information in the affidavit. The court also found that “the mere fact defendants dismissed their collection action against plaintiff is insufficient to create a genuine issue of material fact.” Plaintiff also argued that the defendants violated a number of FDCPA provisions because the amount sought in the civil warrant was the principal plus pre and post judgment interest and court costs, while the affidavit only stated “[the principal amount] plus any additional accrued interest.” The court found this argument “meritless” because “the affidavit clearly states the amount due, including the possibility of interest, and was used to validate the debt on which the civil warrant is seeking to collect.” Furthermore, the court stated that “[t]he failure to include the court cost amount would not be misleading, nor would it be an attempt to collect on an amount not authorized by law, given that court costs are authorized by statute.” Therefore, the court found the statements were not inconsistent with each other and would not deceive the least sophisticated consumer. The court granted summary judgment for the defendants as to the 1692e, 1692e(2)(A), 1692e(2)(B), 1692e(5), 1692e(8), 1692e(10), 1692f, and 1692f(1) claims.

Second, the plaintiff claimed LVNV’s failure to obtain a license to be a debt collector under Tennessee law was a violation of the FDCPA. LVNV claimed it was exempt from Tenn. Code Ann. § 62-20-105 licensing requirement because it hired the law firm to carry out its collection efforts. The court recognized that Smith v. LVNV Funding, LLC, 809 F. Supp. 2d 1045, 1049 (E.D. Tenn. 2012), held that the failure to obtain the necessary licensing could give rise to a FDCPA violation for threatening and or taking legal action which it was not authorized to do. However, in this case, the court held that LVNV was not required to obtain a collection service license from the Tennessee Collection Service Board (“TCSB”). The court fully relied on a “clarification statement” issued by the TCSB, which states as follows:

It is currently the opinion of the Tennessee Collection Service Board that entities who purchase judgments or other forms of indebtedness will be deemed a ‘collection service’ if they collect or attempt to collect the debt or judgment subsequent to their purchase of the debt or judgment. However, entities who purchase debt or judgments in the manner described above but who do not collect or attempt to collect the purchased debt or judgment, but rather assign collection activity relative to the purchased debt to a licensed collection agency or a licensed attorney or law firm shall not be deemed to be a ‘collection service.’

The Court noted that the TCSB had reaffirmed the statement as recently as May 2012. Thus, because the only evidence on the record showed that the law firm conducted all collection activity related to the plaintiff’s account, then LVNV would not be a collection service according to the clarification statement and did not need a license. The court also recognized its own contrary finding in Lilly v. RAB Performance Recoveries, LLC, No. 2:12-CV-364, 2013 WL 38344008 (E.D. Tenn. Aug. 2013), this summer and stated simply that “the Court was not made aware of the existence or import of the Clarification Statement”. The court found LVNV was entitled to summary judgment on 1692e(5), 1692f, and 1692f(1) claims.

Third, the plaintiff argued that the civil warrant and affidavit were initial communications and that the defendants violated 1692e(11) and 1692g by failing to include the required disclosures. The court first granted summary judgment for the defendants on the plaintiff’s 1692g claim. The defendants submitted an affidavit testifying that the law firm had sent a letter prior to the filing of the civil warrant and affidavit. Despite having no copy of the letter, the court found that the affidavit testifying that the records indicated a letter was sent and that the same disclosures are included in all correspondence was sufficient to prove the civil warrant and affidavit were not the initial communications because the plaintiff offered no evidence to dispute that fact. Next, the court looked at the plaintiff’s 1692e(11) claims and found that both the civil warrant and the sworn affidavit are formal pleadings. The court even went on to analyze a contrary finding in Collins v. Portfolio Recovery Associates, LLC, No. 2:12-CV-138 (E.D. Tenn. June 7, 2013), and it picked apart its analysis there and found Collins is both non-binding and not persuasive. The court granted summary judgment in favor of defendants for the 1692e(11) and 1692g claims.

Fourth, the plaintiff claimed LVNV was responsible for the acts and omissions of the law firm it hired. The court found that the nature of the attorney-client relationship gives the client the power to control its agent. Thus, the court found simply that “LVNV may be held liable for any of [the law firm's] FDCPA violations, making summary judgment improper.”

Finally, the court ruled on the plaintiff’s Motion for Partial Summary Judgment. The plaintiff moved for summary judgment on the licensing, disclosure, and wrong venue claims. The court had already dealt with the licensing and disclosures issues, finding in favor of the defendants, and only had the venue issue to address. Section 1692i(a)(2) of the FDCPA requires a debt collector to bring an action in the judicial district where the consumer signed the contract or where the debtor resides. The plaintiff argued that the civil warrant was issued in Knox County, but listed the residence as Sevier County. The defendants acknowledged that the civil warrant may have been filed in the wrong county, but that they had a good faith belief as to the plaintiff’s address based on credit reports. The court made no determination as to whether the defendants could carry the burden of proving the bona fide defense at trial, but found that they had created a genuine issue of material fact. The court denied plaintiff’s motion in its entirety.

In conclusion, the only one of the plaintiff’s claims that survived was the 1692i(a)(2) claim.

Wednesday, June 11, 2014

Barnette Law Offices–Nashville DUI Attorneys

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At , we have been defending those accused of for years.  uses several basic legal and scientific examinations in defending against DUI charges.  The actions of the police are governed by numerous policies, procedure and laws. Mistakes, misunderstandings, or errors from the initial contact to the final booking may be helpful in .

An improper stop is one of the most common mistakes police officers make in a .  For example, tips or anonymous calls - in most – does not give an officer a proper basis to pull you over. The officer must observe an actual violation of the law before the stop is legal.

An officer does not have ample cause to pull you over if his stop is predicated upon a mistake of law.  An example is weaving in the lane or “slapping the mustard an mayonase” as some officers refer to weaving.- This observation alone in not a proper basis to stop a driver.  For many reasons a driver may drift or weave within the lane.

Furthermore, an officers may not stop you on a “hunch”.  However, rarely will an officer admit this, but devoid of any other evidence the act speaks for itself. This is why it is imperative to examine the officers video in a timely fashion.

There are also many reasons why the actual arrest may be unlawful.  Field Sobriety Tests are standardized roadside agility tests that are subjectively “scored” by an officer to make an arrest. These subjectively scored tests do have specific rules and guidelines for observations as prescribed by NHSTA. If they are not followed then any and all conclusions by the officer would be improper.

Moreover, rain, snow, and extreme cold or heat can effect observations of driving and performance on FST’s. Failure to consider these factor can affect credibility of the officer.  There are numerous medical and physical conditions that can affect a person’s roadside behavior and performance. These issues should be considered and factored into an officers arrest decision.  Often they are not and in reality, these tests are designed to fail.  If you are asked to perform Field Sobriety Tests, we at advise you to respectfully advise the officer that you do not wish to have them administered.  You are very likely going to be arrested anyway and while flawed, field sobriety tests may be used against you.

Once the officer has completed his reason for the initial stop; he should terminate the contact and allow you to leave unless there are clearly articulated reasons to extend the detention.  Such reasons could be the allegation that the officer “smelled” alcohol eminating from the accused or that the accused had red, watery eyes.  , advises anyone never to speak to an officer as to whether they’ve been drinking.  The common statement of “I’ve had one or two” often leads to a conviction.

In some cases that we see, the officers video simple doesn’t support arrest narrative.  Most law enforcement agencies in middle Tennessee use videos.  When the videos are available, they may not support the arrest or may show facts different from what is in the police report.

Blood draws – whether whole blood or plasma – require specific reasons under . If these are not followed, the test may be inadmissible under the exclusionary rule.  In addition, there are statutory requirements that enumerate specific procedures that must be followed in performing a blood test (and breath tests as is the case in ).  Blood samples are typical not tested by an employee of the TBI. Multiple samples are loaded in a machine; it runs overnight and prints out multiple reports in the morning. This is open to many human and machine mistakes.

The same applies to breath tests to which are used to determine an accused’s blood alcohol concentration.  The operator of the machine must be certified and many officers are not.  The intoxillizer machine must be certified and periodically calibrated at least every 90 days.  Sometimes this does not occur and alarmingly, sometime the mouth piece for test subjects are not changed.

There are specific procedures that must be followed before a proper test can be administered.  Although does not require a reading of your Miranda rights in order to make a DUI arrest, if the officer continues to question you after your arrest, many statements may be excludable if you are not read or do not understand your Miranda rights.

If a witness was responsible for your initial stop or other key element, they will also have to appear at key sections of the case.  If the officer gives different stories, in his report from later testimony, it brings his credibility into question (although a will couch inconsistent statements as a mistake rather than trying to make the officer out to be a liar).

The have expert witnesses who often can analyze reports, breath tests, blood tests (retrograde extrapolation) and video tapes to help determine if the arrest was proper and the facts are correctly presented.  It is a medical fact that during the early stage of drinking, you will show an artificial “peak” while absorbing the alcohol. This means that during the early stages of absorbing alcohol-before it is fully absorbed into your system, you will present an inaccurately high blood alcohol concentration.

If you are charged with a DUI in middle Tennessee, please contact the skilled at as soon as possible.a

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Nashville DUI Lawyer

DUI cases are complex inasmuch as there is a blend of both legal and scientific issues involved.  Many make mistakes and these mistakes can harm their clients.  of Barnette Law Offices has included some of the mistakes below.

Some DUI Lawyers look at the police report, breath test sample or blood test results, and assume that the cannot be won. Breath tests, blood samples and field sobriety tests all have flaws that can be presented by an experienced .  Never assume defeat in any driving under the influence case - these cases can be won.

For starters, breath test results can be challenged for many reasons.  These machines flawed for they do not test deep lung air and are affected by any mouth alcohol.  Moreover, they must calibrated.  Some people have health conditions such as acid reflux, diabetes or are simply belching at the time of the test.  These reasons alone can cause inaccurate readings.

An experienced will always examine the traffic stop.  This is a fundamental part of both .  The police must have some legal justification for the traffic stop.  Some simply miss this point and fail to raise issues that could potentially lead to the ultimate dismissal of their client’s case by virtue of suppression.  Sometimes the mere act of filing a suppression motion makes the prosecution re-evaluate their position.  Bad traffic stops can lead to DUI cases either being dismissed or reduced to a lesser charge. 

While field sobriety tests are non-scientific and subjective, the location of the tests should be fair to the accused.  Heavy traffic, loose impediments, extreme weather, poor lighting or police lights, and unleveled surfaces can call into the question the reliability of these coordination tests.  It is always important to put these tests into content for the jury so that they can see why someone’s performance may have been unsatisfactory.  These tests are designed to fail and any obstacles can make them even more difficult to perform.  When done right, it is not difficult to show a jury these tests are fundamentally unfair. 

When the arresting officer was trained in field sobriety testing, he originally learned how to administer the tests through an instructor and his training manual.  This manual lays out guidelines that the police must follow when they administer these field sobriety tests.  Many know little about these tests or the rules that the police officer is supposed to follow per the NHSTA guidelines. 

This manual should be studied at length by your lawyer.  In fact, they should own a copy.  This way they will know exactly what questions to ask when the DUI officer takes the stand.  If the tests were not properly given, then their results can be called into question.  The tests are only as good as the officer’s instructions and training.  A successful challenge to these tests will weaken the prosecution’s case. 

It typically is not a good decision to have the DUI accused testify at trial.  They are not experienced witnesses and their testimony usually adds little to the defense.  The primary objective of the defense attorney is show the jury that the prosecution’s case is not strong enough to convict beyond a reasonable doubt.  When the defendant testifies, the trial focus is then placed on the credibility of the defendant verses the arresting officer’s investigation.  The jury is then forced to choose sides.  The defendant will seldom win this battle.

The state wants it to be a battle of credibility.  The prosecutor will jump up and down accusing the defendant of lying.  This shifts the focus away from the actual flaws and defenses of the actual DUI case.  If the cop lies, the jury will see it on their own.  It doesn’t have to be pointed out by the defendant or his attorney.  Reasonable doubt can be created without showing that the arresting officer is a liar.  It is a better practice to explain to the jury that the field sobriety tests are subjective in nature and the officer made a mistake of judgment.  Most jurors do not want to believe that the cop lied.  However, they will accept a mistake has been made.

 

Tuesday, June 10, 2014

Nashville DUI Lawyer

are unique in the sense that  it is one of the few misdemeanors that are heavily prosecuted.  Typically, DUI charges arise from poor judgment, but nonetheless they are considered serious crimes.  However, police officers in make mistakes while doing their job in .  Mistakes can arise with respect to the reason you were stopped, administration of field sobriety tests, chemical tests to determine your blood alcohol concentration, etc.  At and his team works hard to ensure all the circumstances surrounding your DUI arrest are examined in order to achieve the best outcome for your situation.

The penalties for even a first offense are harsh. A carries the following punishment:

  • Mandatory Minimum of 48 hours in jail (If BAC greater than .20, mandatory 7 days in jail)
  • Maximum $1,500 Fine
  • Loss of drivers license for one year
  • Community Service
  • Ignition Interlock Mandatory with BAC greater than .08

With said and while strives to have every DUI case dismissed or reduced to reckless driving or reckless endangerment, there are several options available to allow you to drive while your license is suspended. Restricted licenses permit you to travel to and from work, school, and certain other functions. In most cases, installation of the ignition interlock device would permit you to drive anywhere at anytime, however requires you to blow into the machine prior to starting your vehicle each time. In 2013, was amended yet again to require anyone whose blood alcohol concentration is over .08 to have ignition interlock installed in their vehicles in order to obtain a restricted drivers’ license from the Department of Safety.  can help you obtain such a license if you are convicted or plea to a .

Perhaps the most common misconception about a Jason Barnette examines each DUI case on its own facts.  Each district attorney will weigh certain factors when determining their offer.  Each judicial district in is different in terms of procedure and if they will even offer reductions.  Our job at as experienced is to analyze your case, identify the best defense and present the factor which weighs most heavily in your favor.

Do not be na├»ve and attempt to handle a DUI charge in middle Tennessee without an skilled .  Often there are issues which arise with cases that non-attorneys would never recognize. The law regarding are complex. Obtaining a proper analysis is important in any legal matter and it is imperative in a scenario where you could face jail time. There are many aspects of a DUI arrest in Tennessee which require careful analysis both from a factual standpoint and legal standpoint. Our offers free consultations for all and surrounding counties.