Florida Debtor
November 23, 2017, 03:12:25 AM *
Welcome, Guest. Please login or register.

Login with username, password and session length
News: Florida Debtor - Now even better!
 
  Home Help Search Login Register  
  Show Posts
Pages: [1] 2 3 ... 33
1  Flordia Debtor / Post a Question / Hudson & Keyes on: May 01, 2008, 12:24:49 PM
Just start reading the rules for civil procedure and the threads here and continue to watch the court filings.

That's all you can do at this point.  Once served you have 30 days and we will help you with your response.
2  Flordia Debtor / Post a Question / Hudson & Keyes on: May 01, 2008, 08:29:17 AM
With it being only 3 yrs, lay low if you can't make a settlement offer.

In Florida the SOL runs from the first 30 days late and you never became current-this means all late fees, over limit fees and past due amounts have been paid and are up to date.

If they do sue, they will probably win, if they have documentation, which is iffy, since its been through that many compannies in 3 yrs.

You do not want a judgement, so you will go to court and fight to the best of your ability or offer a payment plan to keep a judgement off your record.

Keep us posted.  Best thing to do is to start reading all FraudFighters post.
3  Flordia Debtor / Post a Question / Hudson & Keyes on: April 30, 2008, 09:23:15 PM
If you haven't dv them in the past do it now.  Make it simply

I dispute this debt in its entirety. Please provede me with validation of this alleged debt.

Telephones calls are inconvenient to my home, cell or work.  Please respond by USPS only.

Cordially,

Is the debt outside the statute of limitations which is either 4 or 5 yrs.  Depends on the type of alleged debt.

If this debt is only a couple of years old you may want to find a way to negotiate a settlement.  If its greater then 4-5 yrs will need details on the type of alleged debt it may be.

Credit Card, Loan etc.
4  Flordia Debtor / Post a Question / Class action-Fraud on: February 28, 2008, 10:25:16 AM
Fraud again this is probably for you.

While I can't pull up the whole case for some reason, basically my understanding of what the Judge wrote is:

If you are the OC-Assignee,  you can't add a collection fee.  You can only add the collection fee if you send it out to a seperate collection company, then you can if in the contract add a collection fee to the total owed.

AFNI is an assignee therefore an OC.  

The other issue was it was a violation of the  Wisconsin state credit card protection act.  I believe this is what they are appealling.

My question is AFNI is doing this routinely in all states from what I am gathering from reading others posting.  

Would it be possible or do you know a lawyer in Florida that would consider taking this as a class action suit.

Thanks
5  Flordia Debtor / Post a Question / legal reaging and FL SoL on: February 28, 2008, 07:31:37 AM
I was able to copy and paste this from DB site posted by E. Normis

MARVIN SEEGER, BRADLEY GAMROTH, ROBERT MCCLAIN, AND JOANNE BLAREK, Plaintiffs, v. AFNI, INC., Defendant.

Case No. 05-C-714

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WISCONSIN

2007 U.S. Dist. LEXIS 40304


June 1, 2007, Decided
June 1, 2007, Filed

PRIOR HISTORY: Seeger v. AFNI, Inc., 2006 U.S. Dist. LEXIS 55709 (E.D. Wis., Aug. 9, 2006)


CASE SUMMARY

PROCEDURAL POSTURE: Plaintiffs, cellular telephone consumers, filed suit against defendant debt collector, alleging that the collector violated the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.S. § 1692 et seq., and the Wisconsin Consumer Act (WCA), Wis. Stats. chs. 421-425, by attempting to collect a collection fee from the consumers. The consumers filed a motion for summary judgment. The collector also filed a motion for summary judgment.

OVERVIEW: The consumers entered into cellular telephone service contracts. The collector sent debt collection letters to the consumers regarding their alleged debts with respect to those contracts. The letters sought to collect a "collection fee" of 15% of the original balance. The court held that the definition of "services" under Wis. Stat. § 421.301(42) was sufficiently broad to include cellular phone services within the WCA's definition of "services." The contracts at issue did not constitute "consumer credit transactions" because the consumers' obligations were not payable in installments; thus, Wis. Stat. § 422.202(3)(b) did not apply, and the imposition of a collection fee did not violate the WCA under that statute. The collector's addition of a collection fee violated 15 U.S.C.S. § 1692f(1) of the FDCPA because the fee was not explicitly authorized by the contracts and was not permitted by Wisconsin law, as Wisconsin law did not permit the addition of a collection fee that was not related to compensation to an injured party for expenses incurred due to a breach of contract. The collector did not qualify for the bona fide error defense under 15 U.S.C.S. § 1692k(c).

OUTCOME: The court granted the collector's motion for summary judgment on the consumers' claims under Wis. Stat. § 422.202(3)(b) of the WCA and denied the consumers' motion for summary judgment on those claims. The court granted the consumers' motion for summary judgment as to the collection fee claim under 15 U.S.C.S. § 1692f(1) and Wis. Stat. § 427.104(1)(j) of the WCA and denied the collector's motion for summary judgment on that claim.


CORE TERMS: collection, consumer, consumer credit, phone, summary judgment, bona fide, installment, collector, collection agency, cell, customer, alarm, cellular phone, incur, reimbursement, administrator, wireless, cellular, extension of credit, incidental, defer, phone services, assignee, termination, monthly, agree to pay, state law, chs, accommodations, deposition

LexisNexis® Headnotes  Hide Headnotes

Civil Procedure > Summary Judgment > Standards > General Overview
HN1 A district court must grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed. R. Civ. P. 56(c).

Civil Procedure > Summary Judgment > Standards > Appropriateness
Civil Procedure > Summary Judgment > Standards > Genuine Disputes
HN2 The purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Summary judgment is not appropriate if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Movants
Civil Procedure > Summary Judgment > Burdens of Production & Proof > Nonmovants
HN3 A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. A party opposing a properly supported summary judgment motion may not rest upon the mere allegations or denials of the adverse party's pleading but rather must introduce affidavits or other evidence to set forth specific facts showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(e). To state it differently, a party will be successful in opposing summary judgment only when they present definite, competent evidence to rebut the motion.

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Scintilla Rule
Civil Procedure > Summary Judgment > Evidence
Civil Procedure > Summary Judgment > Standards > Appropriateness
Civil Procedure > Summary Judgment > Standards > Genuine Disputes
Civil Procedure > Summary Judgment > Standards > Materiality
HN4 To determine whether a genuine issue of material fact exists, a court must review the record, construing all facts in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor. "In the light most favorable" simply means that summary judgment is not appropriate if the court must make a choice of inferences. The evidence must create more than some metaphysical doubt as to the material facts. A mere scintilla of evidence in support of the nonmovant's position is insufficient. When parties in a case file cross motions for summary judgment, the court must extend the required favorable inferences to each when considering the other's motion.

Civil Procedure > Summary Judgment > Burdens of Production & Proof > Absence of Essential Element of Claim
Civil Procedure > Summary Judgment > Standards > General Overview
HN5 The plain language of Fed. R. Civ. P. 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
Governments > Legislation > Interpretation
HN6 The purpose of the Wisconsin Consumer Act (WCA), Wis. Stat. chs. 421-425, is to protect customers against unfair, deceptive, false, misleading and unconscionable practices by merchants and to permit and encourage the development of fair and economically sound consumer practices in consumer transactions. Wis. Stat. § 421.202(2). To promote these purposes, the WCA is to be liberally construed and applied. § 421.202(2).

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN7 Wis. Stat. § 422.202 authorizes certain additional charges a merchant may bargain for and receive in a consumer credit transaction, in addition to the finance charge.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN8 See Wis. Stat. § 422.202(1).

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN9 Wis. Stat. § 422.202 lists a number of additional charges, other than finance charges, which are acceptable in connection with a consumer credit transaction. Collection fees are not included in this list of permissible charges.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN10 See Wis. Stat. § 422.202(3)(b).

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN11 Under Wis. Stat. § 422.202(3)(b), the addition of a collection fee is prohibited in connection with a consumer credit transaction, even if the collection fee is provided for in an underlying agreement.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN12 Under the Wisconsin Consumer Act, Wis. Stat. chs. 421-425, a "consumer credit transaction" is defined as: a consumer transaction between a merchant and a customer in which real or personal property, services or money is acquired on credit and the customer's obligation is payable in installments or for which credit a finance charge is or may be imposed, whether such transaction is pursuant to an open-end credit plan or is a transaction involving other than open-end credit. The term includes consumer credit sales, consumer loans, consumer leases and transactions pursuant to open-end credit plans. Wis. Stat. § 421.301(10). As such, in order for a transaction to constitute a "consumer credit transaction," there must be: (1) a consumer transaction; (2) between a merchant and a customer; (3) in which real or personal property, services or money; (4) is acquired on credit; and (5) the customer's obligation is payable in installments or for which credit a finance charge may be imposed.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN13 Under the Wisconsin Consumer Act, Wis. Stat. chs. 421-425, a "customer" is defined as a person other than an organization who seeks or acquires real or personal property, services, money or credit for personal, family or household purposes. Wis. Stat. § 421.301(17).

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN14 See Wis. Stat. § 421.301(42).

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Fair Debt Collection > Unfair Practices
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
Governments > Courts > Authority to Adjudicate
HN15 Whether a contract constitutes a credit transactions for the purposes of the Wisconsin Consumer Act (WCA), Wis. Stat. chs. 421-425, and the Fair Debt Collection Practices Act, 15 U.S.C.S. § 1692 et seq., is a question of law, and is therefore a question for the court, not a plaintiff. Moreover, whether each of the elements of a "consumer credit transaction" is present in a case, including the element of whether a contract is a contracts for "services" under the WCA, is a question of law.

Evidence > Judicial Admissions > General Overview
Evidence > Judicial Admissions > Legal Conclusions
HN16 Judicial admissions are only applicable to questions of fact, and not to questions of law.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
Evidence > Judicial Admissions > General Overview
Evidence > Judicial Admissions > Legal Conclusions
HN17 As the question of what constitutes "services" under the Wisconsin Consumer Act (WCA), Wis. Stat. chs. 421-425, is a question of law, a plaintiff's statements regarding his belief as to whether a service meets the legal definition of "services" under the WCA is not a judicial admission binding on that plaintiff.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN18 To be sure, cellular phone services are not explicitly listed under Wis. Stat. § 421.301(42) of the Wisconsin Consumer Act (WCA), Wis. Stat. chs. 421-425. However, the United States District Court for the Eastern District of Wisconsin concludes that the definition of "services" is sufficiently broad such that it is reasonable to include cellular phone services within the WCA's definition of "services." The types of services listed in Wis. Stat. § 421.301(42)(a)(2) are general and broad, and not necessarily related to each other (e.g. education, recreation, cemetery accommodations). Moreover, the phrase "and the like" is not especially limiting, and even less limiting in light of the divergent categories of services listed in § 421.301 (42)(a)(2). To be sure, it is not entirely clear what would constitute a service which is "like" the various types of services listed. But, cellular services are a type of services, and the broad definition of services which also includes the broadening phrase "and the like" would reasonably include cellular services.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN19 For purposes of the Wisconsin Consumer Act, Wis. Stat. chs. 421-425, "credit" is defined as the right granted by a creditor to a customer to defer payment of debt, to incur debt and defer its payment or to purchase goods, services or interests in land on a time price basis. Wis. Stat. § 421.301(14).

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN20 For purposes of the Wisconsin Consumer Act, Wis. Stat. chs. 421-425, whether an element of a "consumer credit transaction" is present in a case, including the element of whether a service was acquired on credit, is a question of law. Such being the case, a plaintiff's belief regarding the issue is irrelevant to a legal determination as to whether a service was an extension of credit.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN21 An individual who upon the signing of a contract has an unwavering obligation to eventually pay money to a service provider has incurred debt.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN22 Under Wis. Stat. § 426.104(1)(b), the administrator of the Wisconsin Consumer Act (WCA), Wis. Stat. chs. 421-425, within the limitations provided by law shall counsel persons and groups on their rights and duties under Wis. Stat. chs. 421 to 427 and 429. "Administrator" is defined under the WCA as the secretary of financial institutions. Wis. Stat. 426.103. As such, the Secretary of the Wisconsin Department of Financial Institutions is the administrator of the WCA for purposes of Wis. Stat. § 426.104(1)(b).

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN23 See Wis. Stat. § 426.104(4)(a).

Administrative Law > Agency Adjudication > General Overview
Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN24 See Wis. Stat. § 426.104(4)(ab)(1).

Administrative Law > Agency Adjudication > General Overview
Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN25 See Wis. Stat. § 426.104(4)(b).

Administrative Law > Agency Adjudication > General Overview
Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN26 Under Wis. Admin. Code DFI-Bkg 80.82, acts practices or procedures provided to the administrator pursuant to Wis. Stat. § 426.104(4)(b) shall be submitted as follows: (1) the submission shall be typed or mechanically reproduced. (2) The submission shall include an original and 3 copies submitted by personal delivery, registered mail or certified mail return receipt requested. (4) The submitted form shall be accompanied by a cover letter explaining the purpose for the form. An informal e-mail does not appear to satisfy these procedures.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
Contracts Law > Types of Contracts > Installment Contracts
HN27 For purposes of the Wisconsin Consumer Act, Wis. Stat. chs. 421-425, "payable in installments" is defined as payment that is required or is permitted by agreement to be made in: (a) two or more installments, excluding the down payment in a consumer credit sale, with respect to an obligation arising from a consumer credit transaction for which a finance charge is or may be imposed; (b) more than 4 installments, excluding the down payment in a consumer credit sale, in any other consumer credit transaction; or (c) two or more installments if any installment other than the down payment is more than twice the amount of any other installment, excluding the down payment. Wis. Stat. § 421.301(30).

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
Contracts Law > Secured Transactions > Installment Contracts > General Overview
HN28 For purposes of the Wisconsin Consumer Act, Wis. Stat. chs. 421-425, the issues of whether a contract is an extension of credit and whether a contract is payable in installments are separate issues, and require a separate analysis. As such, the finding that a contract is an extension of credit does not necessarily lead to the conclusion that the contract is also payable in installments.

Banking Law > Consumer Protection > Fair Debt Collection > Unfair Practices
HN29 Claims against debt collectors under the Fair Debt Collection Practices Act, 15 U.S.C.S. § 1692 et seq., are to be viewed through the eyes of the "unsophisticated consumer." The key consideration is that the unsophisticated consumer is to be protected against confusion whatever form it takes.

Banking Law > Consumer Protection > Fair Debt Collection > Unfair Practices
HN30 Under the Fair Debt Collection Practices Act, 15 U.S.C.S. § 1692 et seq., a debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. 15 U.S.C.S. § 1692f(1). This includes the collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. § 1692f(1).

Banking Law > Consumer Protection > Fair Debt Collection > Unfair Practices
HN31 There is no violation of 15 U.S.C.S. § 1692f(1) for including a collection fee if a debtor has contractually agreed to pay collection fees. When a debtor has contractually agreed to pay attorneys' fees and collection costs, a debt collector may, without a court's permission, state those fees and costs and include that amount in the dunning letter. Doing so does not violate the Fair Debt Collection Practices Act, 15 U.S.C.S. § 1692 et seq.

Civil Procedure > Equity > Maxims > Assignees Principle
HN32 The assignee of a plaintiff's debt does have the right to recover any amount that would have been recoverable by the assignor. Under the common law of assignment, the assignee steps into the shoes of the assignor, assuming his rights as well as his duties.

Civil Procedure > Remedies > Damages > General Overview
HN33 An entity cannot be reimbursed for fees which it did not pay.

Banking Law > Consumer Protection > Fair Debt Collection > Unfair Practices
HN34 In order to establish a violation of 15 U.S.C.S. § 1692f(1), a plaintiff has to show that the money demanded from him was "incidental" to a claimed debt and that the claimed obligation to pay it arose neither by agreement nor by operation of law, in which event it would be permitted by law to be the subject of a collection action.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN35 See Wis. Stat. § 421.103(3).

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
Commercial Law (UCC) > General Overview
HN36 As seen by the language of Wis. Stat. § 421.103(1) and (3), the common law and UCC supplement the Wisconsin Consumer Act (WCA), Wis. Stat. chs. 421-425, if there are no particular WCA provisions that supercede them.

Civil Procedure > Trials > Jury Trials > Jury Instructions > General Overview
Contracts Law > General Overview
HN37 Wisconsin jury instructions do provide some authority as to what Wisconsin law permits under contract law. The Wisconsin Supreme Court has held that while jury instructions are not precedential, they are of persuasive authority.

Commercial Law (UCC) > Sales (Article 2) > Remedies > Buyer's Remedies > Damages > Incidental & Consequential Damages
Contracts Law > Remedies > Compensatory Damages > Consequential Damages
Contracts Law > Sales of Goods > Damages & Remedies > Buyer's Damages & Remedies > Incidental Damages
HN38 Wis. Jury Instructions Civ. 3710 and Wis. Jury Instructions Civ. 3720 only provide for reasonable compensation for losses and expenses incurred due to the breach of contract.

Commercial Law (UCC) > Sales (Article 2) > Remedies > Buyer's Remedies > Damages > Incidental & Consequential Damages
Contracts Law > Sales of Goods > Damages & Remedies > Buyer's Damages & Remedies > Incidental Damages
Contracts Law > Types of Contracts > General Overview
HN39 Wis. Jury Instructions Civ. 3720 references the sale of goods or merchandise, and the comments section to this jury instruction references Wis. Stat. §§ 402.710 and 402.715, which correspond to Article 2 of the UCC. It is questionable whether a jury instruction based on the UCC and which explicitly references damages relating to the sale of goods and merchandise would apply to a contract for services.

Banking Law > Consumer Protection > Fair Debt Collection > Liability
HN40 See 15 U.S.C.S. § 1692k(c).

Banking Law > Consumer Protection > Fair Debt Collection > Liability
HN41 In order for a debt collector to qualify for the bona fide error defense under 15 U.S.C.S. § 1692k(c), (1) the debt collector must show that the presumed violation under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.S. § 1692 et seq., was not intentional; (2) the debt collector must show that the presumed FDCPA violation resulted from a bona fide error, and (3) the debt collector must show that it maintained procedures reasonably adapted to avoid any such error. Although the first prong of the bona fide error defense is a subjective test, the second and third prongs are necessarily objective tests. In order to meet the first prong of intent, a debt collector need only show that its FDCPA violation was unintentional, not that its actions were unintentional. As to the second prong, whether the error was bona fide, the debt collector must show that the error was an error made in good faith; a genuine mistake, as opposed to a contrived mistake. The final prong, the procedures component, involves a two-step inquiry: first, whether the debt collector "maintained"--i.e., actually employed or implemented--procedures to avoid errors; and, second, whether the procedures were reasonably adapted to avoid the specific error at issue.

Banking Law > Consumer Protection > Fair Debt Collection > Liability
HN42 15 U.S.C.S. § 1692k(c) does not require debt collectors to take every conceivable precaution to avoid errors; rather, it only requires reasonable precaution.

Banking Law > Consumer Protection > Fair Debt Collection > Liability
HN43 For purposes of 15 U.S.C.S. § 1692k(c), a violation of law may be bona fide if the legal position taken is reasonable in light of the applicable law.

Banking Law > Consumer Protection > Fair Debt Collection > Liability
HN44 The United States Court of Appeals for the Seventh Circuit has held that the bona fide error defense under 15 U.S.C.S. § 1692k(c) does not apply when a debt collector's actions are in plain contravention of existing case law.

Banking Law > Consumer Protection > Fair Debt Collection > Liability
HN45 The bona fide error defense under 15 U.S.C.S. § 1692k(c) is not available where the language of a statute is unambiguous and a creditor's disregard of that language is undisputed.

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN46 See Wis. Stat. § 427.104(1)(j).

Antitrust & Trade Law > Consumer Protection > Deceptive Acts & Practices > State Regulation
Banking Law > Consumer Protection > Unfair & Deceptive Credit Practices
HN47 Under the Wisconsin Consumer Act, Wis. Stat. chs. 421-425, a creditor has the duty to avoid mistakes of law.

Available Briefs and Other Documents Related to this Case:

U.S. District Court Motion(s)
U.S. District Court Pleading(s)

COUNSEL:  [*1]  For Marvin Seeger, Bradley Gamroth, Joanna Blarek, Thomas Leone, Robert McClain, Plaintiffs: John D Blythin, Robert K O'Reilly, LEAD ATTORNEYS, Corey Mather, Ademi & O'Reilly LLP, Cudahy, WI.

For Afni Inc, Defendant: David J Hanus, Kristofor L Hanson, LEAD ATTORNEYS, David M Schultz, Hinshaw & Culbertson LLP, Milwaukee, WI.

JUDGES: William E. Callahan, Jr., United States Magistrate Judge.

OPINION BY: William E. Callahan, Jr.

OPINION


DECISION AND ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT

I. PROCEDURAL BACKGROUND

On July 7, 2005, the plaintiffs, Marvin Seeger ("Seeger") and Bradley Gamroth ("Gamroth"), filed a single count complaint against the defendant, AFNI, Inc. ("AFNI"), alleging that AFNI's attempt to collect a collection fee from the plaintiffs violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et. seq. Specifically, the plaintiffs alleged that AFNI's attempt to collect collection fees violated 15 U.S.C. § 1692f, that AFNI's representation that collection fees were owed violated 15 U.S.C. §§ 1692e, 1692e(2)(A), and 1692e(5), [*2]  and that AFNI failed to state the true amount of the debt owed, in violation of 15 U.S.C. § 1692g(a)(1).

On November 29, 2005, the plaintiffs filed an amended complaint adding Robert McClain ("McClain") and Joanne Blarek ("Blarek") as plaintiffs. The amended complaint also alleged, in addition to the FDCPA violations, violations of the Wisconsin Consumer Act ("WCA"), Wis. Stats. chs. 421-425. Specifically, the plaintiffs alleged that the addition of collection fees violated Wis. Stat. § 422.202, and that AFNI's attempt to collect collection fees violated Wis. Stat. § 427.104(1)(j).

On May 2, 2006, the plaintiffs filed a motion for class certification. The class was defined as
(a) all natural persons in the State of Wisconsin (b) who were sent a collection letter by AFNI claiming a collection fee (c) for Cingular telephone service obtained for personal, family or household purposes, (d) on or after a date one year prior to the filing of this action, (e) that was not returned by the postal service.


This class was certified on August 9, 2006.

Currently pending before the court is the defendant's [*3]  motion for summary judgment, and the plaintiffs' motion for summary judgment, both of which are fully briefed and are ready for resolution. For the reasons which follow, the plaintiffs' motion for summary judgment will be granted in part and denied in part, and AFNI's motion for summary judgment will be granted in part and denied in part.

II. FACTUAL BACKGROUND

In accordance with the provisions of Civil Local Rule 56.2(a) (E.D. Wis.), the defendant's motion for summary judgment was accompanied by a set of proposed findings of fact. Likewise, the plaintiffs' motion for summary judgment was accompanied by a set of proposed findings of fact. In addition, the plaintiffs' response to the defendant's motion for summary judgment contained responses to the defendant's proposed findings of fact as well as some additional proposed findings of fact. Likewise, the defendant's response to the plaintiffs' motion for summary judgment contained responses to the plaintiffs' proposed findings of fact as well as some additional proposed findings of fact. A review of the parties' respective proposed findings and the responses thereto reveal that the following are material and (except where noted)  [*4]  undisputed facts in this case.

Each of the plaintiffs entered into wireless agreements with Cingular Wireless, Ameritech Mobile Communications, and/or Worldcom. (Defendant's Proposed Findings of Fact ("DPFOF") P 1.)

Seeger's Cingular contract was for 800 "anytime" minutes per month. Seeger, Blarek, McClain, and Gamroth had monthly plans, were billed for a set number of minutes per month, regardless of whether they used those minutes, and were charged per minute if they exceeded their allotment of minutes. (Plaintiffs' Proposed Additional Findings of Fact ("PPAFOF") PP 36-40.)

Between September 2004 and June 2005, AFNI sent debt collection letters to Seeger, Gamroth, and McClain regarding alleged debts, and which referred to Cingular as the original creditor. 1 (Plaintiffs' Proposed Findings of Fact ("PPFOF") P 1.) These letters sought to collect a "Collection Fee" of 15% of the amount of the "original balance." (PPFOF P 3.) McClain and Blarek received another form letter from AFNI, and this letter included a collection fee in the balance. (PPFOF P 4-5.) AFNI intended to include the collection fee in the collection letters. (PPFOF P 26.)

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

1 The parties dispute whether Blarek received one of these letters.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

 [*5]  AFNI had purchased the plaintiffs' and class members' accounts from Cingular. (PPFOF P 17.) AFNI received the account information from Cingular on a CD-ROM and uploaded it into AFNI's collection system. (PPFOF P 18.) Nothing in the account data sent from Cingular to AFNI specified that AFNI should charge, or was permitted to charge, any specific amount as a collection fee. (PPFOF P 19.)

Pursuant to a subpoena, Cingular Wireless, LLC provided "standard form service agreements utilized by Cingular or its predecessor corporations in the State of Wisconsin since January 1, 1992, to the extent that Cingular has owned consumer accounts created by those standard form service agreements." (PPFOF P 6; Blythin Decl. Ex. F and G.)

Some of the Cingular contracts provided by Cingular Wireless contained the language:
You agree to pay to CINGULAR the fees of any collection agency, which may be based on a percentage at a maximum of 33% of the debt, and all costs and expenses, including reasonable attorneys' fees and court costs, incurred by CINGULAR in exercising any of its rights and remedies when enforcing any provisions of this Agreement.
(PPFOF P 7; Blythin Decl. Ex. G at C00010.)

 [*6]  The remaining Cingular contracts provided by Cingular Wireless contained the language:
You agree to reimburse us the fees of any collection agency, which may be based on a percentage at a maximum of 33% of the debt, and all costs and expenses, including reasonable attorneys' fees, we incur in such collection efforts.
(PPFOF P 8; Blythin Decl. Ex. G at C00025.)

McClain's Cingular contract contained the language found in PPFOF P 8.

Several of the AT&T Wireless contracts provided by Cingular Wireless contained the language "You agree to pay all costs including reasonable attorneys fees, collection fees, and court costs we incur in enforcing this Agreement through any appeal." (PPFOF P 10; Blythin Decl. Ex. G at C00202.)

Gamroth's Ameritech Wireless contract provided that "If we refer your account to an attorney or agency for collection, you agree to pay our actual collection costs, including court costs and reasonable attorneys' fees, unless prohibited by law. (PPFOF P 11; Blythin Decl. Ex. K.)

McClain's Cingular contract stated that:
If we terminate your service for nonpayment or other default before the end of the Service Commitment, or if you terminate [*7]  your service for any reason other than (a) in accordance with the 15-day cancellation policy, or (b) pursuant to a change in terms, conditions or rates as set forth below, you agree to pay us, in addition to all other amounts owed, an Early Termination Fee in Florida, Georgia, South Carolina, North Carolina, Kentucky, Tennessee, Mississippi, Louisiana, Alabama, New York, applicable Parts of Indiana and applicable Parts of New Jersey in the amount of $ 240 per phone divided by the total number of months in your service commitment, then multiplied by the remaining months or parts of months in such Service Commitment, and in all other areas in the amount of $ 150 per phone.
(PPFOF P 14; Blythin Decl. Ex. J.)

One of Gamroth's contracts with Cingular's predecessor, Ameritech Wireless, stated that:
Important: If you do not remain on an eligible Ameritech Mobile Service Project for the duration of your Minimum Term, you will be responsible for a $ 150 early cancellation fee per mobile number, in addition to all other outstanding charges on your account, and any early cancellation fees that may apply.
(PPFOF P 15; Blythin Decl. Ex. K.)

Blarek and Seeger stated in [*8]  their respective depositions that they had no reason to believe that their contracts with Cingular were any different from McClain's or Gamroth's. (PPFOF P 16; Def's Resp. to PPFOF P 16; Blarek Dep. at 20-21, Seeger Dep. at 19.)

The Cingular contracts provided by Cingular state that:
f you terminate your service for any reason other than a change of terms, conditions, or rates as set forth below, or if CINGULAR terminates your service for nonpayment or other default before the end of the Service Commitment, you hereby agree to pay CINGULAR, as liquidated damages and not as a penalty, in addition to all other amounts owed, the termination charge of $ 150 per wireless phone on the account ("Termination Fee")
(PPFOF P 29; Blythin Decl. Ex. G at C00009.)

The AT&T contracts provided by Cingular state that:
If you terminate service more than 30 days after your activation date, but before the end of your fixed term, or we terminate following your default, you will be in material breach of this agreement. You agree our damages will be difficult or impossible to determine and agree to pay us, as a reasonable estimate of our damages and in addition to all other [*9]  amounts owing, a cancellation fee for each number.
(PPFOF P 30; Blythin Decl. Ex. G at C00256.)

Seeger, McClain, and Blarek's cellular phone accounts were used primarily for personal, family, or household purposes. (PPFOF P 31, 33, 34.) The parties dispute whether Gamroth's cellular phone account was used for business or personal, family, or household purposes. (PPFOF P 32; Def.'s Response to PPFOF P 32; DPFOF P 12.)

AFNI does not examine each and every Cingular form customer service agreement to determine whether the agreement purports to allow AFNI to collect a collection fee. (PPFOF P 21.)

AFNI's debt collection letters are reviewed by an outside attorney as part of the American Collectors Association ("ACA") letter approval group. (PPFOF P 22.) The ACA letter approval group examines letters for compliance with the FDCPA. (PPFOF P 23.)

For state law compliance, AFNI relies on a document identified as "ACA's Guide to State Collection Laws and Practices, December 1998," which is a collection guidelines document created by the ACA. 2 (PPFOF P 24.)

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

2 The parties dispute the procedures that AFNI employs to comply with state law. The plaintiffs contend that AFNI relies solely on the "ACA's Guide to State Collection Laws and Practices." AFNI contends that it has a compliance staff that reviews the "ACA's Guide to State Collection Laws and Practices" as well as other bulletins and information from the Debt Buyers Association. AFNI also contends that Jim Hess, Director of Business Development for AFNI, has reviewed excerpts of the Wisconsin Consumer Act. (Def.'s Resp. to PPFOF P 24; DPFOF P 13; DPFOF P 16.)

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

 [*10]  ANFI did not contact the Wisconsin Department of Financial Institutions before deciding to impose a collection fee. (PPFOF P 27.) On September 21, 2005, AFNI wrote to the Wisconsin Department of Financial Institutions with the following inquiry:
I have an inquiry regarding the addition of the collection of fees by a cellular telephone company. In 1999 a contract was signed which provided for the creditor to add fees related to the collection of a consumer account. However, I do not see that this is specifically provided for under Wisconsin law. Could you please advise me as to any opinions by your office regarding this matter? Furthermore, if no opinions are available, could you please let me know what type of a transaction this would be considered, open-ended credit, etc, so that I could further my investigation. Any assistance that you can provide would be appreciated. Thank you.

Anna
(DPFOF P 5; Anderson Aff. Ex. 1.)

On September 22, 2005, Kathleen Hanna, Compliance Officer with the Department of Financial Institutions - Office of Consumer Affairs, responded:
Dear Anna:

Cell phone contracts are not an extension of credit, as you pay for the service [*11]  as you use it. To our knowledge, there is no regulation to prohibit collection of fees being contracted for in a non-credit transaction.

You may want to visit the FCC Web site for more information on cell phone fees [http://www.fcc.gov/].
(DPFOF P 6; Anderson Aff., Ex. 1.)

AFNI did not contact an attorney with expertise in the Wisconsin Consumer Act before deciding to impose a collection fee. (PPFOF P 28.)

III. SUMMARY JUDGMENT STANDARD

HN1A district court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c).

HN2The purpose of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Matsush*ta Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)) (quoting advisory committee's note to 1963 amendment of Fed. R. Civ. P. 56(e)). "Summary Judgment [*12]  is not appropriate 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Payne v. Pauley, 337 F.3d 767, 770 (7th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)).

HN3"[A] party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). A party opposing a properly supported summary judgment motion "may not rest upon the mere allegations or denials of the adverse party's pleading" but rather must introduce affidavits or other evidence to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e); see also Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001). To state it differently, "'[a] party will be successful in opposing [*13]  summary judgment only when they present definite, competent evidence to rebut the motion.'" EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000) (quoting Smith v. Severn, 129 F.3d 419, 427 (7th Cir. 1997)).

HN4To determine whether a genuine issue of material fact exists, the court must review the record, construing all facts in the light most favorable to the nonmoving party and drawing all reasonable inferences in that party's favor. Heft v. Moore, 351 F.3d 278, 282 (7th Cir. 2003) (quoting Anderson, 477 U.S. at 255). "'In the light most favorable' simply means that summary judgment is not appropriate if the court must make 'a choice of inferences.'" Draghi v. County of Cook, 184 F.3d 689, 691 (7th Cir. 1999) (quoting Smith, 129 F.3d at 425). "The evidence must create more than 'some metaphysical doubt as to the material facts.'" Albiero v. City of Kankakee, 246 F.3d 927, 932 (7th Cir. 2001) (quoting Johnson v. Univ. of Wisconsin-Eau Claire, 70 F.3d 469, 477 (7th Cir. 1995)). A mere scintilla of evidence in support of the nonmovant's position [*14]  is insufficient. Id. (citing Anderson, 477 U.S. at 252). Because the parties in this case have filed cross motions for summary judgment, the court must extend the required favorable inferences to each when considering the other's motion. See McCarthy v. Kemper Life Ins. Co., 924 F.2d 683, 687 (7th Cir. 1991).

Thus, HN5"the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322.

IV. DISCUSSION

As stated above, both parties have filed motions for summary judgment. In support of their motion, the plaintiffs argue that AFNI, by assessing a 15% collection fee, violated the FDCPA and WCA. Specifically, the plaintiffs contend that the cell phone contracts at issue are "consumer credit transactions," and that collection fees on these types of transactions are prohibited by the WCA. Moreover, the plaintiffs argue that AFNI violated the FDCPA and WCA by [*15]  charging a collection fee which was not authorized by any customer service agreements or permitted by law. Lastly, the plaintiffs contend that AFNI is not entitled to the bona fide error defense.

In response, and in support of its motion for summary judgment, AFNI argues that the cell phone contracts at issue are not "consumer credit transactions," and thus collection fees are not prohibited by the WCA. Further, AFNI contends that the collection fee was in fact authorized by customer service agreements, and that such fees are otherwise permitted by Wisconsin state law. Finally, AFNI argues that, even if it did violate the FDCPA or WCA, the violation was the result of a bona fide error.

A. WCA Violation for Charging a Collection Fee Arising Out of a Consumer Credit Transaction

The plaintiffs argue that AFNI's charging of a collection fee is prohibited as a matter of law in Wisconsin under the WCA. Specifically, the plaintiffs contend that the cellular service contracts at issue are consumer credit transactions, and that the WCA prohibits the addition of a collection fee to debts arising out of a consumer credit transaction.

HN6The purpose of the WCA is "[t]o protect customers [*16]  against unfair, deceptive, false, misleading and unconscionable practices by merchants" and to "permit and encourage the development of fair and economically sound consumer practices in consumer transactions." Wis. Stat. § 421.202(2). To promote these purposes, the Act is to "be liberally construed and applied" Id. See also Wis. Stat. 425.301 ("The remedies provided by this subchapter shall be liberally administered to the end that the customer as the aggrieved party shall be put in at least as good a position as if the creditor had fully complied with chs. 421 to 427.").

HN7Wis. Stat. § 422.202 authorizes certain additional charges a merchant may bargain for and receive in a consumer credit transaction, in addition to the finance charge:
422.202. Additional charges.

HN8(1) In addition to the finance charge permitted by this subchapter, a merchant may bargain for and receive any of the following additional charges in connection with a consumer credit transaction:


HN9Section 422.202 goes on to list a number of additional charges which are acceptable in connection with a consumer credit transaction.  [*17]  Collection fees are not included in this list of permissible charges.

Section 422.202 further states, in relevant part:
HN10Except as otherwise provided in chs. 421 to 427, assessing an additional charge which is not authorized by this section and which is not included by the creditor as part of the finance charge, or which is authorized by this section but assessed in a manner inconsistent with this section, is a violation subject to § 425.304.
Wis. Stat. § 422.202(3)(b).

AFNI does not dispute that HN11the addition of a collection fee is prohibited in connection with a consumer credit transaction, even if the collection fee was provided for in an underlying agreement. However, AFNI contends that the plaintiffs' cellular service contracts are not consumer credit transactions for purposes of the WCA, and thus the WCA is inapplicable. (Def.'s Resp. Br. at 11.)

HN12Under the WCA, a "consumer credit transaction" is defined as:
a consumer transaction between a merchant and a customer in which real or personal property, services or money is acquired on credit and the customer's obligation is payable in installments or for which credit a finance [*18]  charge is or may be imposed, whether such transaction is pursuant to an open-end credit plan or is a transaction involving other than open-end credit. The term includes consumer credit sales, consumer loans, consumer leases and transactions pursuant to open-end credit plans.
Wis. Stat. § 421.301(10).

As such, in order for a transaction to constitute a "consumer credit transaction," there must be: (1) a consumer transaction; (2) between a merchant and a customer; (3) in which real or personal property, services or money; (4) is acquired on credit; and (5) the customer's obligation is payable in installments or for which credit a finance charge may be imposed. The WCA provides definitions for the relevant terms in dispute. Specifically, the parties dispute whether all of the plaintiffs are "customers," whether the plaintiffs purchased "real or personal property, services or money," whether these were acquired on "credit," and whether the plaintiffs' obligation was "payable in installments" or subject to a "finance charge." Each of these definitions will be discussed in turn.

a. Definition of Customer

HN13A "customer" is defined as "a person [*19]  other than an organization . . . who seeks or acquires real or personal property, services, money or credit for personal, family or household purposes." Wis. Stat. § 421.301(17).

AFNI argues that plaintiff Gamroth is not a "customer" for purposes of the definition of "consumer credit transaction" because he acquired his cell phone for primarily business purposes. AFNI points to Gamroth's deposition testimony in support of its argument:
Q. Mr. Gamroth, I just want to make clear for the record. Earlier you testified that the accounts referred to in Exhibit 13 and 14 were primarily for business purposes, correct?

A. I used - when I used the phones, that's what I used them for.
(Gamroth Dep. at 17-18, 46-47.)

However, this court has already ruled on this issue in its order granting class certification. Order of Aug. 9, 2006, at 6-7 (Dkt. No. 41.) In the order, this court concluded that:
The defendants assert that plaintiff Gamroth is not an adequate member of the class because he admittedly used the phone for "primarily business purposes," and hence Gamroth himself is not a member of the class, as defined by the plaintiffs. However,  [*20]  Gamroth's cell phone account was in Gamroth's name (as opposed to a business name), Gamroth paid for his phone with a personal credit card, and Gamroth's wife used the phone for seemingly regular household purposes. Gamroth's use of the phone to conduct telephone conversations with potential employers does not nullify his standing as a consumer within the meaning of the WCA and FDCPA.
Id.

Although this court concluded that Gamroth was a "consumer" within the meaning of the WCA, the analysis as to whether Gamroth is a "customer" is identical. AFNI argues, as before, that Gamroth admitted using the phone primarily for business purposes. The evidence to the contrary, namely Gamroth's cell phone account in his personal name, his payment with his personal credit card, and his wife's use of the phone for household purposes, is also identical. As such, this court's prior conclusion that Gamroth was a "consumer" also leads to the conclusion that Gamroth was a "customer" under the WCA.

b. Acquisition of Services

The parties also dispute whether the cellular phone contracts are contracts for "services" as defined by the WCA, and as used in the definition of "consumer [*21]  credit transaction."

Under the WCA:
HN14(a) "Services" includes:

1. Work, labor and other personal services;

2. Privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, hospital accommodations, funerals, cemetery accommodations, and the like; and

3. Insurance provided in connection with a consumer credit transaction.

(b) "Services" does not include any services of common carriers if the tariffs, rates, charges, costs or expenses of such common carriers are required by law to be filed with or approved by the federal government or any official, department, division, commission or agency of the United States.
Wis. Stat. § 421.301(42).

AFNI argues that the cellular phone contracts are not contracts for "services" as defined under the WCA because cell phone services are not included in the list of items constituting services in § 421.301 (42). As further support, AFNI cites the deposition testimony of the plaintiffs, in which they admit that their contracts with Cingular did not meet the definition of "services" as described in § 421.301(42). For [*22]  example, plaintiff McClain testified that:
Q. So would you agree with me then that your contract with Cingular did not - was not a contract for any work, labor or personal services?

A. Not that I recall.

Q. It was not, correct.

A. Not that I recall.

Q. Would you agree that you did not contract with Cingular for any privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, hospital accommodations, funerals, cemetery accommodations, or the like?

A. Not that I recall.
(McClain Dep. at 24.)

The other plaintiffs testified in a similar manner, admitting that they did not contract with Cingular for "work, labor or personal services," or "privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, hospital accommodations, funerals, cemetery accommodations, or the like." (Blarek Dep. at 21-23; Seeger Dep. at. 22-24; Gamroth Dep. at 28.) AFNI argues that these admissions constitute judicial admissions to which the plaintiffs should be held. (Def.'s Reply Br. at 13.)

Although the plaintiffs stated in [*23]  their deposition testimony that their contracts with Cingular were not contracts for services as defined in the WCA, the plaintiffs' beliefs regarding this issue are irrelevant because this is an issue of law rather than a question of fact. As this court has previously held in an earlier motion in this case, "HN15[w]hether the plaintiffs' contracts constitute credit transactions for the purposes of WCA and FDCPA is a question of law, and is therefore a question for the court, not the plaintiffs." Order of Aug. 9, 2006, at 6-7 (Dkt. No. 41) (citing Fletcher v. Eagle River Mem'l Hosp., Inc., 456 N.W.2d 788, 795, 156 Wis. 2d 165, 179 (Wis. 1990)). Moreover, whether each of the elements of a "consumer credit transaction" is present in this case, including the element of whether the cellular phone contracts were contracts for "services" under the WCA, is a question of law. See Palacios v. ABC TV & Stereo Rental, Inc., 123 Wis. 2d 79, 83, 365 N.W.2d 882, 885 (Wis. Ct. App. 1985) (holding that "[w]hat sec. 421.301(9), Stats., means by 'consumer credit sale,' i.e., what elements it comprises, is a question of law; what the parties did presents questions of [*24]  fact; and whether the elements of a 'consumer credit sale' are present in the instant case is a question of law.").

Furthermore, HN16judicial admissions are only applicable to questions of fact, and not to questions of law. See McCaskill v. SCI Mgmt. Corp., 298 F.3d 677, 682 (7th Cir. 2002) ("The statement at oral argument in this case was similarly a statement of legal opinion, not a stipulation of fact. As such, it is not a judicial admission binding on the appellee, and certainly is not binding on this court."). HN17As the question of what constitutes "services" is a question of law, the plaintiffs' statements regarding their beliefs as to whether cellular phone service meets the legal definition of "services" under the WCA is not a judicial admission binding on the plaintiffs. 3

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

3 AFNI also argues that because the plaintiffs did not object during the depositions that the questions asked of the plaintiffs called for legal conclusions, the plaintiffs waived this argument. (Def.'s Br. in Opp. at 15.) This argument is unavailing. The plaintiffs are not arguing that this testimony should be excluded, and AFNI is free to cite these depositions. However, the court is free to give the deposition testimony its appropriate consideration.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

 [*25]  In response to AFNI's other argument, namely that cellular phone services are not included in the list in § 421.301(42), the plaintiffs argue that the definition of "services" is extremely broad and that the list is not exclusive. In support of this contention, the plaintiffs note that § 421.301(42)(a) merely states that "'Services' includes," and that § 421.301(42)(a)(2) includes the phrase "and the like." According to the plaintiffs, these terms indicate that the list is not exclusive or fully descriptive. As further support for this broad reading of the statute, the plaintiffs note that other definitions found in § 421.301 contain the term "means" rather than "includes," and that if the legislature meant to create an exclusive list it would have used the term "means." See, e.g., Wis. Stat. § 421.301(28) ("'Organization' means . . ."); Wis. Stat. § 421.301(32) ("'Person related to' with respect to a natural person means . . ."). Moreover, the plaintiffs argue that the agreements in question contain titles such as "Wireless Service Agreement," indicating that these agreements are for services. (Pl.'s Br. in Opp. at 16;  [*26]  Blythin Decl. Ex. J.)

HN18To be sure, cellular phone services are not explicitly listed under § 421.301(42). However, I conclude that the definition of "services" is sufficiently broad such that it is reasonable to include cellular phone services within the WCA's definition of "services." The types of services listed in § 421.301(42)(a)(2) are general and broad, and not necessarily related to each other (e.g. education, recreation, cemetery accommodations). Moreover, the phrase "and the like" is not especially limiting, and even less limiting in light of the divergent categories of services listed in § 421.301 (42)(a)(2). To be sure, it is not entirely clear what would constitute a service which is "like" the various types of services listed. But, the parties do not dispute that cellular services are a type of services, and the broad definition of services which also includes the broadening phrase "and the like" would reasonably include cellular services.

c. Acquired on Credit

The parties dispute whether the plaintiffs' cell phone contracts involved the extension of "credit" for purposes of the WCA.

HN19"Credit" is defined as "the right granted by a creditor to a customer [*27]  to defer payment of debt, to incur debt and defer its payment or to purchase goods, services or interests in land on a time price basis." Wis. Stat. § 421.301(14).

As with the definition of "services," AFNI argues that the plaintiffs admitted in their deposition testimony that they did not acquire their cell phone services on credit. (Def. 's Br. at 7-11.) However, as stated above, HN20whether an element of a "consumer credit transaction" is present in this case, including the element of whether the cellular phone services were acquired on credit, is a question of law. Such being the case, the plaintiffs' beliefs regarding this issue are irrelevant to a legal determination as to whether the cellular phone services at issue are an extension of credit.

AFNI argues that the cell phone contracts at issue did not confer a right to defer payment of debts owed, incur bills and defer payment, or purchase service on a time price basis. Rather, according to AFNI, the plaintiffs either pre-paid for their service or paid as they used. (Def.'s Br. in Opp. at 13.)

The plaintiffs, on the other hand, contend that the cell phone service plans allowed the plaintiffs to incur [*28]  debt and defer its payment because the service plans allowed the plaintiffs to go over their monthly allotment of minutes and pay later, and because the plaintiffs would incur an early termination fee if they cancelled service before the end of the contract. As such, according to the plaintiffs, the contracts are for services acquired on credit. (Pl.'s Br. in Opp. at 16-17.) In support, the plaintiffs cite Murray v. New Cingular Wireless Servs., a case involving Cingular and the Fair Credit Reporting Act ("FCRA"). 432 F.Supp.2d 788 (N.D. Ill. 2006).

In Murray, the court held that:
consumers who sign up for a wireless phone plan are extended credit because they pay for service at the end of the month rather than buying the minutes in advance. The FCRA defines credit as 'the right . . . to purchase property or services and defer payment therefore,' section 1691a(d), and this offer falls squarely within that definition. At a minimum, a consumer must sign up for a plan that is $ 29.99, but this credit can extend into hundreds or thousands of dollars depending on the consumer's actual use and the plan selected . . . Virtually 100% of the wireless phone service [*29]  purchased by the consumer would be on credit.
Id. at 791.

At issue in Murray was whether Cingular's advertisement, which offered a free phone when the individual activates a new line of service on a qualified calling plan, constituted a "firm offer of credit" for purposes of the FCRA, 15 U.S.C. § 1681a(l)(1). Id. In determining that a cell phone contract is an extension of credit, the court distinguished these contracts from residential leases, which the Seventh Circuit had held did not constitute credit transactions because the tenant pays rent on the first of each month for the right to occupy the premises for the coming month. Id.; citing Laramore v. Ritchie Realty Mgmt. Co., 397 F.3d 544, 547 (7th Cir. 2005). In contrast, according to the court, "wireless customers pay for services after the actual use of the services. By definition, such a payment sche
6  Flordia Debtor / Post a Question / FYI---This board on: February 28, 2008, 06:51:29 AM
Fraud,

He sent all new members to my email address, if I approve them they have access, problem is I can't access the admin panel to screen them or delete them if necessary.  

I haven't given anyone permission.

Can you access the admin board?  If so I will give everyone access but it will be left up to you to delete them if its spammers?  Most are.
7  Flordia Debtor / Post a Question / CACH LLC suit on: February 28, 2008, 06:48:08 AM
Grossman, thanks for the offer, wish I could give you permission to help, but I am locked out of the admin board.  I am sure its a computer glitch, but I am not computer saavy.

All new members are sent to my home computer address, if I hit on them to approve them then they can access this site, the problem is I can't screen them.  I haven't approved anyone, thought the owner was but after a few months of no new members and others requesting permission to access and I can't give it to them, I see this site going down.

I really hate to lose this site but I don't know what else will happen, since the owner hasn't responded to me in 5 months.  I am sure he pays for this site.  I am thinking if he doesn't pay the next payment whenever its due, the site will be gone.
8  Flordia Debtor / Post a Question / legal reaging and FL SoL on: February 28, 2008, 06:37:40 AM
Its under the FDIC 5000 rule and as I read it, no you don't have to bring it current, the OC has to bring it current on the CR's and there books.
9  Flordia Debtor / Post a Question / legal reaging and FL SoL on: February 25, 2008, 07:00:18 PM
Fraud, this question is for you if you are still coming here.

  If an account is legally reaged  but its never brought current does the SoL changed.

Seeger v AFNI- is about a class action suit against AFNI for adding a collection fee to the amount owed.  The Judge ruled that a cell phone is a credit transaction and that the OC whomever it is can't charge a collection fee.  The state credit card protection acts does not allow for this fee either therefore they are in violation of the FCRA , FDCPA and WCA.

Does florida have a law that allow for collections fees to be attached to the account.  

This case was in Wisconsin and the Judge wrote a 44 page opinion its on IC.  AFNI has appealed this decision.

I am looking for specifically for anything I can use to make AFNI see my point, they should delete thier TL otherwise they will be risking another similiar suit in Florida.  

Can you guide me.
10  Flordia Debtor / Post a Question / FYI---This board on: February 21, 2008, 12:12:59 AM
I am unable to access the admin board to let new members in.  While I can grant access I can't seem to do anything else.

The owner of this site is not answering my emails or pm's.  If there is any info you may need from this site.  I suggest you copy it.  I don't know how long this site will remain.
11  Flordia Debtor / Post a Question / Capital One vs SOL protected debtor on: January 13, 2008, 09:14:49 PM
find out who listed it with the cra's and send them the info and say remove it or your will sue.  Let the CRA's know that you will sue or your kid will-depends on age.

get the 1300 back that way.
12  Flordia Debtor / Post a Question / Notice of Deposition for a Judgement on: December 18, 2007, 10:15:23 AM
For the time being I would go to www.infinitecredit.com for help.  

Most of us have other pressing needs and can't give you help as fast as you may need it.

Good luck
13  Flordia Debtor / Post a Question / UPDATE ON CRAP ONE!!!!!! on: December 18, 2007, 10:13:36 AM
CONGRATULATIONS TO BOTH OF YOU.

Sorry, I haven't been around for a while have other pressing matters to attend to.

I am very very happy for the both of you.
14  Flordia Debtor / Post a Question / Capital One vs SOL protected debtor on: December 06, 2007, 11:58:21 PM
Any answer?
15  Flordia Debtor / Post a Question / new member here from jacksonville on: December 06, 2007, 11:56:57 PM
You need to be more specific in your question.

post your answer to get more help.

This is an OC and not JDB.

Since this site is not as active as others at times, I would also go to www.infinitecredit.com and www.debtorboards.com for help.

Remember you will have to verify all answers anyone gives you.
Pages: [1] 2 3 ... 33
Powered by MySQL Powered by PHP Powered by SMF 1.1.11 | SMF © 2006-2009, Simple Machines LLC Valid XHTML 1.0! Valid CSS!