[00:00:00] Speaker 00: Phase number 22-7022. [00:00:03] Speaker 00: Sharon Michaels, Appellant, versus NCO Financial Systems, Inc., et al. [00:00:08] Speaker 00: Ms. [00:00:08] Speaker 00: Dennis, for the Appellant. [00:00:10] Speaker 00: Mr. Olmert, for the Appellees, NCO and TSI. [00:00:13] Speaker 00: Ms. [00:00:13] Speaker 00: Burnett, for the Appellee, Rubenstein. [00:00:21] Speaker 04: Good morning, Ms. [00:00:22] Speaker 04: Dennis. [00:00:23] Speaker 04: Good morning, Your Honors. [00:00:25] Speaker 04: May I please support? [00:00:27] Speaker 04: I would like to reserve four minutes of my time for rebuttal. [00:00:30] Speaker 04: Your Honor, the district court's decision below, there are several reasons for reversal of the district court decision below, but they all boil down to the misapplication of the summary judgment standard. [00:00:48] Speaker 04: In this case, looking at the facts, it's clear that Ms. [00:00:52] Speaker 04: Michaels presented to the district court below sufficient evidence to withstand summary judgment. [00:00:58] Speaker 04: However, the evidence contradicting defendant's false narrative was deliberately ignored. [00:01:06] Speaker 04: Private facial proven claims were disregarded and critical disputed facts and uncontroverted facts were resolved in the light most damaging to Ms. [00:01:13] Speaker 04: Michaels or disappeared altogether. [00:01:17] Speaker 04: The district court's primary reason for granting summary judgment is that basically the court says that Ms. [00:01:25] Speaker 04: Michaels failed to support her defenses with proper citations to the record. [00:01:33] Speaker 04: This Ms. [00:01:35] Speaker 04: Michaels briefing below clearly shows that Ms. [00:01:37] Speaker 04: Michaels provided over 200 citations to record evidence in her briefing. [00:01:43] Speaker 04: Not only that, defendant's statements of fact also confirm the fact that Ms. [00:01:48] Speaker 04: Michaels did actually support her positions with citations too. [00:01:54] Speaker 03: Let me just focus on a couple of those that might be helpful. [00:01:56] Speaker 03: So for the FDCPA claim, which the district judge found was not timely, can you tell us what are the events [00:02:09] Speaker 03: that happened after June 27, 2015, in other words, the year before the filing of the complaint that give rise to an FDCPA violation? [00:02:22] Speaker 04: Well, there are many. [00:02:26] Speaker 04: For one, the parties actually engaged in mediation where Transworld [00:02:33] Speaker 04: uh, one of the defendants was still trying to collect the debt and during the mediation and that happened, I believe on October 20th, 2015. [00:02:40] Speaker 04: Um, defendants also up until dismissal, um, dismissal is initially tried to dismiss without prejudice. [00:02:49] Speaker 04: hoping to actually come back for a second opportunity to sue Ms. [00:02:52] Speaker 04: Michaels again. [00:02:53] Speaker 04: Whereas Ms. [00:02:54] Speaker 04: Michaels rejected that request to dismiss without prejudice. [00:02:59] Speaker 04: And instead, defendants came back again and then decided to dismiss with prejudice. [00:03:04] Speaker 01: So defendants were up. [00:03:06] Speaker 01: Are you suggesting that simply maintaining a debt collection proceeding is a continuing violation of the FDCPA? [00:03:15] Speaker 04: Well, I'm suggesting that [00:03:17] Speaker 04: Defendants completed several acts after the court asked whether or not. [00:03:24] Speaker 01: But those acts were all part of their debt collection proceedings. [00:03:28] Speaker 01: And a number of circuits have rejected the idea that simply maintaining a debt collection proceeding is a continuing violation of the FGCPA. [00:03:37] Speaker 04: Well, in this, in this circuit, the court has said that, um, involving a, a litigation and as opposed to, and I believe it was Jung, I believe it was the case of Jung where the court considered, uh, a ongoing litigation to be a continuing violation. [00:03:55] Speaker 04: Which case is that? [00:03:56] Speaker 04: Jung V was a, um, [00:04:18] Speaker 03: Mundy, Jung B. Mundy? [00:04:20] Speaker 03: Yes. [00:04:20] Speaker 03: Is that the case you're relying on? [00:04:22] Speaker 03: Yes, I am. [00:04:24] Speaker 04: Where the court said the actual, the actual tortious continuation of a lawsuit actually does not, the violation doesn't accrue until after the disposition of the case. [00:04:38] Speaker 04: Is that an FDCPA case? [00:04:40] Speaker 04: No, it's not. [00:04:40] Speaker 04: It's involving, but it's involving litigation. [00:04:43] Speaker 04: It's involving an attorney, I believe, [00:04:47] Speaker 04: I believe it was a malpractice situation where the court decided, it involved an ongoing litigation and the court decided that the continuing of the litigation actually constituted a continuing violation, tortious violation under D.C. [00:05:07] Speaker 04: law. [00:05:09] Speaker 01: I believe, I apologize, we'll have the [00:05:12] Speaker 01: That seems like a more general principle, though, than whether such litigation would be a continuing violation under the FTCPA itself. [00:05:21] Speaker 04: Well, if the court distinguishes between the FTCPA and a general continuing violation, then that [00:05:28] Speaker 04: You know, that's an argument. [00:05:29] Speaker 04: Well, several circuits have done so. [00:05:31] Speaker 04: Well, in this case, though, Ms. [00:05:34] Speaker 04: Michaels actually argues that the defendant's role in the actual litigation was actually concealed. [00:05:39] Speaker 04: She's also requesting polling under the concealment, equitable concealment doctrine as well, whereas she was not aware of any of the defendant's role in the actual litigation. [00:05:52] Speaker 03: So relying on a discovery rule for that. [00:05:55] Speaker 04: not necessarily discovery rule but more fraudulent concealment of activities by the defendants who [00:06:03] Speaker 04: who did not disclose their role in the actual collection litigation to Ms. [00:06:07] Speaker 04: Michaels while the litigation was going on. [00:06:09] Speaker 03: Right, so it's fraudulent concealment that tolls the limitations period is the theory. [00:06:14] Speaker 03: But for that to apply, there's a requirement of an affirmative misrepresentation by the defendants to prevent the discovery. [00:06:25] Speaker 03: And what is the affirmative misrepresentation alleged here that prevented Michaels from discovering the wrongdoing? [00:06:33] Speaker 03: Well, they filed the suit and the wrongdoing of defendants. [00:06:37] Speaker 03: Affirmative misrepresentation that put her off the trail that made it so that she wouldn't have any reason to think that there was wrongdoing. [00:06:46] Speaker 04: Well, they filed suit in the name of National Collegiate instead of their own name when they were actually prosecutors of the actual lawsuit in the collection action. [00:06:53] Speaker 04: So Ms. [00:06:54] Speaker 04: Michaels had no idea that they were the actual ones that were prosecuting the suit. [00:06:57] Speaker 04: And she was defending based on the fact that they had named National Collegiate and not Transworld and MRA as the actual prosecutors of the actual suit. [00:07:10] Speaker 04: National Collegiate had no involvement in the actual collection action at all. [00:07:13] Speaker 04: There was no communication from Transworld to National Collegiate, nor was there any communication between [00:07:21] Speaker 04: the law firm Rubenstein and National Collegiate. [00:07:25] Speaker 04: They were all, the National Collegiate had no idea, the actual credit, the alleged creditor had no idea about anything that was going on in the actual lawsuit. [00:07:34] Speaker 04: So Ms. [00:07:34] Speaker 04: Michaels had no idea that defendants were actually steering and prolonging the suit. [00:07:40] Speaker 04: Ms. [00:07:40] Speaker 04: Michaels relied on the actual pleading in the actual collection suit, which states that National Collegiate is suing you for this amount of money, not Transworld and MRA. [00:07:53] Speaker 04: But with respect to that hurt. [00:07:55] Speaker 04: And that is the reason why I'm sorry. [00:07:58] Speaker 05: Sorry. [00:07:59] Speaker 05: I'm not sure I follow that Matt national collegiate own law. [00:08:05] Speaker 04: Right. [00:08:06] Speaker 04: Well, I there that it is the case below was dismissed with prejudice because there is no national collegiate or defendants could not prove that national national collegiate owned the loan or that there was a valid loan to be sued upon. [00:08:22] Speaker 04: The agreement that they presented below is not an enforceable agreement. [00:08:27] Speaker 04: It's an agreement made a makeshift agreement, DIY agreement that was produced primarily for litigation. [00:08:33] Speaker 04: And it was provided to the trial court. [00:08:36] Speaker 04: I'm sorry, what, DLY? [00:08:39] Speaker 04: DIY, do-it-yourself agreement. [00:08:42] Speaker 04: They basically put several pages of the agreement together to make up a single agreement when it's actually not the actual agreement. [00:08:48] Speaker 04: And they've admitted to this in the actual [00:08:51] Speaker 04: in the statements of issues in dispute as well. [00:08:54] Speaker 04: So with respect to, there is no enforceable agreement in the record at all, with respect, so the court dismissed, oh, sorry, the court granted Ms. [00:09:02] Speaker 04: Michaels, sorry, denied defendants motion for summary judgment in the collection action because for one thing, they couldn't prove an agreement because that is what Ms. [00:09:11] Speaker 04: Michaels argued, well, National Collegiate could not prove an agreement, which is one of the defenses Ms. [00:09:18] Speaker 04: Michaels raised to the court in the collection action. [00:09:23] Speaker 03: And the district court held that you don't have evidence or allegations of a willful violation of the D.C. [00:09:30] Speaker 03: D.C.L. [00:09:33] Speaker 03: What's what's the single best piece of evidence that you have that the defendant's conduct was. [00:09:40] Speaker 04: Retain their agreement where they brought the where they agreed to bring. [00:09:44] Speaker 04: lawsuits in the names of absent creditors without disclosing that information to the actual debtors. [00:09:52] Speaker 04: Obviously, Ms. [00:09:53] Speaker 04: Michaels could have raised different defenses below had she known that it was Transworld that was bringing the lawsuit rather than National Collegiate. [00:10:01] Speaker 04: And defendants never disclose that to to to miss Michael's, but the fact that they actually have there's an assigned executed retainer agreement between the defendants where they actually agree to bring names and to and bring lawsuits in the name of absent creditors. [00:10:20] Speaker 04: is a find is a executed willful statement that we know what we are doing, which is what all DC report all DC law requires. [00:10:29] Speaker 04: We see a lot of basically is that the only the what constitutes willfulness is essentially [00:10:43] Speaker 04: Is it something that is inadvertent or not an accident? [00:10:49] Speaker 04: There's no evidence, no affidavits, or anything in the record. [00:10:52] Speaker 04: The district court actually relied on Baylor. [00:10:55] Speaker 04: And Baylor, via Rubenstein, there was an actual affidavit. [00:11:03] Speaker 04: Rubenstein filed an affidavit in the record, stating that his actions were not [00:11:11] Speaker 04: Willful it were inadvertent here. [00:11:13] Speaker 04: There's no affidavit. [00:11:14] Speaker 04: There's no evidence in the record. [00:11:15] Speaker 04: No affidavit in the record saying that the the defendant's conduct below was actually inadvertent or accident and it can't be because if they signed a retainer specifically saying we agreed to bring [00:11:29] Speaker 04: lawsuits in the name of predators who are not participating in the lawsuit. [00:11:36] Speaker 04: There's a signed retainer agreement in the records of them executing, that both of them executed, where they actually agreed to do that. [00:11:44] Speaker 04: So there's no way to deny that they actually, the conduct is actually willful. [00:11:51] Speaker 04: especially given the very low standard in the D.C., in D.C., under D.C. [00:11:56] Speaker 04: law, which states only that it needs to be not, you know, it needs to be either inadvertent or accident, which neither of them could do. [00:12:07] Speaker 05: So sorry, your theory is that NCO should have brought the suit in its own name? [00:12:16] Speaker 04: Well, they should, at the very least, no, NCO actually brought, Transworld should have been, Transworld prosecuted. [00:12:23] Speaker 05: NCO Transworld should have been the named plaintiff? [00:12:26] Speaker 04: No, Transworld actually prosecuted the suit. [00:12:30] Speaker 04: And Transworld, neither Transworld nor Rubenstein are the real party in interest, although they are the ones who actually prosecuted the suit. [00:12:38] Speaker 04: They brought the suit in the name of National Collegiate, just like they bring suits in the name of Capital One. [00:12:44] Speaker 05: Which would be, [00:12:46] Speaker 05: I mean, perfectly obvious if National Collegiate owned the loan. [00:12:51] Speaker 05: I know you dispute that, but NCO is a servicer, subservicer, right? [00:12:59] Speaker 05: They help people who own loans collect loans. [00:13:05] Speaker 04: That's in dispute. [00:13:07] Speaker 04: The defendants have not proven what their position is with NCO. [00:13:12] Speaker 04: However, they never disclosed any of this to Ms. [00:13:16] Speaker 04: Michaels. [00:13:17] Speaker 04: Neither of them, NCO and Rubenstein, are debt collectors. [00:13:26] Speaker 04: Neither of them [00:13:27] Speaker 04: and are the real party in interest in the collection suit. [00:13:31] Speaker 04: But both of them brought by the suit in the name of national collegiate when neither had an interest in the actual debt they were seeking to collect in the suit. [00:13:40] Speaker 04: And as I said, they never disposed that to Ms. [00:13:43] Speaker 04: Michaels. [00:13:43] Speaker 04: With respect to the DCL, there's a specific law that says that you cannot collect a debt in a name other than your true name. [00:13:55] Speaker 04: That's the DCL actually says that. [00:13:57] Speaker 04: So them bringing this lawsuit in the name of National Collegiate and not their own name when they are the sole prosecutors of the actual suit is a violation of the District of Columbia law. [00:14:07] Speaker 04: And they agreed to do that for several different creditors in the actual retainer agreements, in both the Dominion Retainer Agreement and also the Rubenstein Retainer Agreement, both of which are in the evidentiary record and both of which, [00:14:25] Speaker 04: admits to actually hiring and retaining and violation in unauthorized engaging in the unauthorized unauthorized practice of law by hiring attorneys to actually bring these losses. [00:14:39] Speaker 05: Suppose one entity owns a loan. [00:14:42] Speaker 05: I'm just asking your legal question here. [00:14:45] Speaker 05: Divorced from facts of case. [00:14:47] Speaker 05: One entity owns a loan. [00:14:50] Speaker 05: The second entity services that long. [00:14:54] Speaker 05: They're retained to provide administrative support to collect and such. [00:15:01] Speaker 05: And the third entity is hired as a law to prosecute a collection action. [00:15:09] Speaker 05: Who's the proper plaintiff? [00:15:11] Speaker 05: The named plaintiff. [00:15:13] Speaker 05: It's got to be the [00:15:14] Speaker 04: party is the party who has an interest in the lawsuit. [00:15:19] Speaker 04: J. H. Marshall says that debt collectors like defendants cannot bring lawsuits in the name of creditors and to litigate lawsuits and in the name of creditors. [00:15:32] Speaker 04: that without engaging in the unauthorized practice of law. [00:15:35] Speaker 04: Well, there's several precedent and also in banks, banks as far as a CPA violation says that the unauthorized practice of law banks be District District of Columbia says that the unauthorized practice of law is also a CPA violation, which also differentiates that from from Baylor Rubinstein as well. [00:15:51] Speaker 04: They're completely different facts. [00:15:53] Speaker 04: But the person who actually holds interest, I mean, the rules are clear with respect to who can bring losses. [00:16:01] Speaker 04: And that is the person who holds an interest in the actual dispute, who actually has a legal interest in the actual dispute. [00:16:08] Speaker 03: So that would be the creditor. [00:16:09] Speaker 03: That would be the creditor. [00:16:10] Speaker 03: And the creditor hires a servicer in a law firm, and Judge Katz is his example. [00:16:17] Speaker 03: And so it would have to be in the name of the person who owns the loan. [00:16:21] Speaker 03: and by the lawyers, and then you're saying, but to the extent that the service, the loan servicer is involved, either they're not the real party in interest and or they're not a lawyer and can't practice law. [00:16:33] Speaker 04: Well, defendants are soliciting or selling legal services, basically. [00:16:36] Speaker 04: They're soliciting claims from the predators in direct violation of J.H. [00:16:41] Speaker 04: Marshall, D.C. [00:16:42] Speaker 04: law, and saying, look, we'll litigate your claim for you. [00:16:45] Speaker 03: Or we'll arrange for someone who's barred to do it. [00:16:49] Speaker 04: Right, which is also a violation of J.H. [00:16:51] Speaker 04: Marshall as well. [00:16:52] Speaker 04: Yeah, so we'll hire attorneys, which is also an unauthorized practice of law under Rule 49, straight, you can't retain attorneys to actually do what you cannot do yourself. [00:17:02] Speaker 04: Um, but that's also a violation and violation of a, you know, uh, of the CPA because it's, it's, it's engaging in the unauthorized practice law as well. [00:17:11] Speaker 04: So with respect to both, sorry. [00:17:18] Speaker 03: Thank you, Ms. [00:17:18] Speaker 03: Dennis. [00:17:19] Speaker 03: We'll give you a minute. [00:17:20] Speaker 03: Thank you. [00:17:37] Speaker 06: My name is Michael Altman. [00:17:42] Speaker 06: I'm here on behalf of NCA Financial and Transworld Systems. [00:17:46] Speaker 06: Two minutes is going to be reserved for Lauren Burnett, counsel for Mitchell Rubinstein. [00:17:51] Speaker 06: There's a lot going on in this case, a lot of briefing, a lot of record, but I want to get to the main issue that has been flushed out for your otters in Appellant's primary argument, and that is this [00:18:06] Speaker 06: argument that she is making that somehow the defendants of this case were acting as de facto plaintiffs in the underlying collection lawsuit. [00:18:16] Speaker 06: That is simply not true. [00:18:20] Speaker 03: What about the related claim that they are engaged in the unauthorized practice of law under J.H. [00:18:25] Speaker 03: Marshall? [00:18:25] Speaker 03: If they're not the client, are they the lawyer? [00:18:27] Speaker 03: What are they? [00:18:28] Speaker 06: So Transworld Systems and prior to Transworld NCO was the subservicers, as Judge Gass just correctly pointed out, is the subservicer of National Collegiate Trust. [00:18:40] Speaker 06: National Collegiate Trust does not have any employees. [00:18:43] Speaker 06: They work through their subservicers. [00:18:45] Speaker 06: Bradley Luke testified extensively to this in his deposition. [00:18:49] Speaker 06: And we also, in the record, there are multiple revisions, I'm sorry, multiple amendments of the default prevention agreement [00:18:58] Speaker 06: by which the trust engaged NCO and later Transworld to be a subservicer. [00:19:05] Speaker 06: The retainer agreement that was referred to between NCO and Rubinstein explicitly states, [00:19:13] Speaker 06: that the creditor is the client, that NCO is the agent of the client and is engaging the law firm on behalf of and to represent the creditor. [00:19:27] Speaker 06: And the record evidence is clear that NCO and Transport were acting as a subservicer. [00:19:33] Speaker 06: The J. H. Marshall case deals with an antiquated practice, which does not exist anymore and has not existed for decades, where a debt collector would actually take an assignment of a debt, file suit in its own name, and go before the court in a pro-safe fashion. [00:19:53] Speaker 06: to collect the debt. [00:19:56] Speaker 06: And so that is what the court chastised in J. H. Marshall, which I think is maybe from the early 70s, very early 80s. [00:20:06] Speaker 06: And in banks likewise, you had a non-lawyer practicing law court. [00:20:12] Speaker 06: NCO and Transworld Systems engaged Mitchell Rubenstein, a real law, to [00:20:21] Speaker 06: to act as counsel for national collegiate. [00:20:24] Speaker 06: NCO and Trans World Systems, unlike GH Marshall, never stood before a court, made any filings before a court, either on their own behalf or as national collegiate pseudo and trust. [00:20:41] Speaker 06: The owner of the loan in the underlying collection lawsuit was national collegiate trust, [00:20:46] Speaker 06: The record evidence makes clear that there was an assignment from Chase Bank to National Collegiate Trust, and Mitchell Rubinstein and Associates was their lawyer. [00:20:57] Speaker 06: It's not very complicated, though plaintiff has attempted to make this a very complicated issue. [00:21:03] Speaker 06: But at the end of the day, the heart of the argument that plaintiff is presenting to the court is simply untrue. [00:21:14] Speaker 06: There was no masquerading. [00:21:16] Speaker 06: by the defendants as the real party at interest. [00:21:21] Speaker 06: The real party at interest was Nashville. [00:21:24] Speaker 03: In terms of the merits of the underlying litigation that Michaels is challenging in the Superior Court, why was the claim against Michaels timely? [00:21:33] Speaker 03: Timely? [00:21:35] Speaker 03: Why was it not time barred by statute of limitations? [00:21:39] Speaker 06: because, Your Honor, there were payments made into 2012, which was presented both with record evidence of payments as well as a supporting affidavit in the lower court. [00:21:51] Speaker 06: Therefore, it was timely. [00:21:53] Speaker 06: I believe there were questions posed to Ms. [00:21:57] Speaker 06: Michaels in her deposition to identify exactly when all of her payments were made. [00:22:03] Speaker 06: There was discovery issued to her to identify when all payments were made, and there were [00:22:09] Speaker 06: that the response was non-responsive. [00:22:11] Speaker 06: So the only record evidence is that there were payments made into 2012. [00:22:18] Speaker 06: But I also advise the court that any claims relating to that are time barred because the lawsuit was filed over a year prior to the instigation of this lawsuit. [00:22:33] Speaker 05: Sorry, which FDCPA claims are timely? [00:22:38] Speaker 05: Maybe I misheard you. [00:22:39] Speaker 06: I'm sorry. [00:22:40] Speaker 06: None of plaintiffs' claims under the FTCPA are timely because there were no discrete acts by any of the defendants within one year prior to the file. [00:22:51] Speaker 05: So let me ask you just about one discrete act, which was the letter that Dominion sent, the collection letter that Dominion sent late June 2015. [00:23:05] Speaker 05: That's in the limitations period. [00:23:08] Speaker 05: They're not before us. [00:23:12] Speaker 05: But I'm wondering if there, why isn't there at least a plausible basis for attributing Dominion, that act by Dominion, at least to TSI, which retained Dominion as a contract. [00:23:37] Speaker 05: It's on behalf of the client which owns the loan, but TSI retains the ability to control Dominion and few pleadings and things of that nature. [00:23:49] Speaker 05: So it looks a little bit like Dominion is working, is the agent of TSI as well as the agent of the party that owns the [00:24:00] Speaker 06: Here are the Fair Debt Collection Practices applies to acts of a debt collector. [00:24:06] Speaker 06: And Dominion, you're correct that Dominion here is the debt collector that issued that letter. [00:24:12] Speaker 06: Dominion is an independent contractor. [00:24:16] Speaker 06: The retainer agreement makes that clear that they are an independent contractor. [00:24:20] Speaker 06: They are responsible for following all applicable laws, including the Fair Debt Collection Practices Act. [00:24:27] Speaker 06: If the plaintiff believed that Transworld was somehow responsible for that, there is not a per se liability that would attach to a predator. [00:24:40] Speaker 06: A predator typically is not subject to the Fair Debt Collection Practices Act. [00:24:49] Speaker 05: There's a clause in the retainer agreement that says TDM reserves the right to review any written communication you [00:24:57] Speaker 05: law firm deemed appropriate to send a debtor. [00:25:03] Speaker 06: They may reserve the right your honor, but that does not give them [00:25:09] Speaker 06: control over dominion. [00:25:11] Speaker 06: The plaintiff will have to show more by way of actual control over dominion. [00:25:17] Speaker 06: They simply have not presented any evidence whatsoever. [00:25:20] Speaker 06: That trans world exerted that type of control over dominion. [00:25:25] Speaker 05: Control to show an agency relationship. [00:25:29] Speaker 05: Establish vicarious liability. [00:25:31] Speaker 05: Which you don't think. [00:25:33] Speaker 05: And that wouldn't, why wouldn't that arise by operation of the retention [00:25:38] Speaker 06: I think the plaintiff would have to show that there was something beyond the agreement, where in practice, there was actual control exercised over that letter. [00:25:50] Speaker 06: I would also like to add, too, that the complaint does not even allege vicarious liability. [00:25:56] Speaker 06: These are knee-jerk allegations without any support. [00:26:02] Speaker 06: There's no vicarious liability alleged against Transworld, nor is there any supporting documents. [00:26:10] Speaker 03: Just again, on the timeliness of the underlying suit against Michaels in the Superior Court, why is the last payment, the date triggering the statute of limitations, do you have any case support for that? [00:26:25] Speaker 03: Statutory support. [00:26:27] Speaker 03: That her payment was the date from which the limitations [00:26:33] Speaker 06: Um, I don't have it in front of your honor in front of me, your honor, but typically a statute of limitations is renewed by an expression that one owes debt. [00:26:46] Speaker 06: Um, and that is, that is, um, typically accomplished by a payment. [00:26:53] Speaker 06: There's an acknowledgement of the debt. [00:26:56] Speaker 06: Um, but again, it's, it's our primary, it's our position too, that that claim is time barred as there was no [00:27:03] Speaker 06: demand for payment made within one year of the prior prior to the filing of the suit. [00:27:07] Speaker 03: And I have one question that's sort of the inverse of what of the agency questions that Judge Cassidy was asking, which is we have an affidavit asserting personal knowledge regarding Michael's loan and the chain of assignments. [00:27:20] Speaker 03: It seems that the [00:27:22] Speaker 03: Declarant was familiar with NCO and TSI's record keeping, but not necessarily AP Morgan's practices. [00:27:34] Speaker 03: How can we credit that personal knowledge in that declaration? [00:27:38] Speaker 06: Well, again, this would go to the extent that the link the transcript of Bradley Luke's deposition where he testified as to the trading of personal knowledge with first marble head who was the servicer of the trust. [00:27:55] Speaker 06: Again, these are assignment documents for which they are custodians of record. [00:28:00] Speaker 06: And so the personal knowledge of the documents is related to understanding the chain of assignment. [00:28:09] Speaker 06: But NCO and Transworld were not only the servicers, but also the custodian of record for which there was requisite trading so that they understood that chain of title. [00:28:20] Speaker 06: But this was a custodian of record presenting documents. [00:28:25] Speaker 03: All right. [00:28:26] Speaker 03: And I gather we're going to hear briefly from Ms. [00:28:28] Speaker 03: Burnett. [00:28:29] Speaker 03: Thank you, Mr. Allman. [00:28:50] Speaker 02: Sorry about that. [00:28:52] Speaker 02: Good morning. [00:28:53] Speaker 02: May it please the court, my name is Lauren Burnett. [00:28:56] Speaker 02: I represent Mitchell Rubenstein and Associates. [00:28:58] Speaker 02: And I'm thrilled that you asked questions about the statute of limitations underlying with regard to the collection suit, because that brings me to an important point that Judge Hogan didn't touch on, but that we certainly preserve for your honors to hear. [00:29:13] Speaker 02: Before I get to that though, if I can add a little bit to what Mr. Altmont said about the statute of limitations on the underlying loan. [00:29:20] Speaker 02: The name of the case escapes me. [00:29:21] Speaker 02: I think it may be Woods. [00:29:24] Speaker 02: But the type of loan was such that once the loan was accelerated, then all of the remaining payments became due. [00:29:33] Speaker 02: And essentially, each payment carries with it its own statute of limitations. [00:29:37] Speaker 02: So you have to choose whether to continue to allow this loan to remain delinquent [00:29:42] Speaker 02: And you kind of chip away at how many payments are remaining, or you can choose to accelerate the whole thing and seek the entire outstanding balance. [00:29:50] Speaker 02: And that's what made the underlying collection lawsuit timely. [00:29:54] Speaker 02: This is important because I'm an attorney, and I'm up here talking about it. [00:29:58] Speaker 02: Mitchell Rubenstein is an attorney. [00:30:00] Speaker 02: He and his associates looked at this account and decided under statutes of limitations governing this type of lawsuit whether or not it was timely. [00:30:08] Speaker 02: The only person in this lawsuit who has been claiming that there was something faulty with the underlying lawsuit, whether it was untimely, whether it never should have been filed in the first place, whether there was probable cause, whether this was an appropriate assignment, is Sharon Michaels, who by her own admission is not an attorney. [00:30:27] Speaker 02: In this lawsuit, she is a consumer. [00:30:29] Speaker 02: And under the FDCPA, we treat consumers as though they are all the hypothetical least sophisticated consumer, which other circuit courts of appeals have determined would fall around the sixth grade reading and comprehension level. [00:30:43] Speaker 02: So we're really talking about a very low bar for very high protection. [00:30:48] Speaker 02: of consumers. [00:30:49] Speaker 02: This is an important aspect of the FDCPA. [00:30:52] Speaker 02: But when we're talking about a licensed attorney's exercise of the profession of law for which he holds a license issued by the District of Columbia that gives him the permission to come before Your Honors and [00:31:04] Speaker 02: law, then I think, and I would argue to the court that Judge Hogan also could have granted summary judgment in Mitchell Rubenstein's favor, because we had no expert testimony to talk about what the standard of care governing his conduct was, what he did wrong, how he deviated from that standard of care, [00:31:22] Speaker 02: and what he should have done. [00:31:24] Speaker 02: And I submit to Your Honors that without that, there are aspects of the FDCPA that are applicable to attorneys in the practice of law, for sure, that would not require expert testimony, just like a malpractice claim. [00:31:36] Speaker 02: This is not one of those. [00:31:38] Speaker 02: If Your Honors have any questions, I'm happy to answer. [00:31:41] Speaker 03: Nope. [00:31:41] Speaker 03: Thank you, Ms. [00:31:42] Speaker 03: Burnett. [00:31:43] Speaker 03: Thank you. [00:31:43] Speaker 03: And I think that I offered Ms. [00:31:45] Speaker 03: Dennis a minute for rebuttal, if you'd like it. [00:31:49] Speaker 03: You needn't take it if you don't want to. [00:31:58] Speaker 04: Thank you, Your Honor. [00:31:59] Speaker 04: First, I want to state that PSI has already admitted that the loan was accelerated before they actually received the loan. [00:32:09] Speaker 04: And it was in, as of March 1st, I believe, in their payment history, the loan was already in default. [00:32:15] Speaker 04: So as far as the payments that were made, the loan was already in default, and that statute of limitations had already been granted. [00:32:22] Speaker 04: So there was no late acceleration. [00:32:25] Speaker 04: referred to by Rubenstein, by my colleague from Mitchell Rubenstein and Associates. [00:32:31] Speaker 04: Also, there is no updated or anything in the record proving TSI's subservicer status. [00:32:41] Speaker 04: MRA admits that TSI was his client. [00:32:45] Speaker 04: He had no dealings whatsoever with a national collegiate. [00:32:50] Speaker 04: Transworld in its own, also with respect to J. H. Marshall. [00:32:55] Speaker 04: J. H. Marshall states that advised creditors says the unauthorized practice of law for creditors when they to advise for a debt collector to advise creditors when to bring suit solicit or receive assignments of claims or debts for collection. [00:33:11] Speaker 04: which contemplates or authorize the enforcement of collection by suit brought in the name of either party by the attorney at law. [00:33:18] Speaker 04: So either the creditor or the debt collector. [00:33:21] Speaker 04: It doesn't matter which name it is, it's in, it's still the unauthorized practice of law. [00:33:24] Speaker 04: H. Marshall is not the only, we are not the only jurisdiction that actually holds this. [00:33:29] Speaker 04: Ms. [00:33:29] Speaker 04: Michael cites several in her briefing with respect to that. [00:33:33] Speaker 03: All right. [00:33:33] Speaker 04: Thank you, Ms. [00:33:34] Speaker 04: Dennis. [00:33:35] Speaker 03: Thank you. [00:33:35] Speaker 03: The case is submitted. [00:33:36] Speaker 03: Thank you. [00:33:37] Speaker 03: Thank you all.